Dispute procedure lets us in: AIRC

Cases

Dispute procedure lets us in: AIRC

The AIRC has rejected Goodman Fielder's claim that complaints against its disciplinary actions should not go through the company's agreed dispute settlement process.

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The AIRC has rejected Goodman Fielder's claim that complaints against its disciplinary actions should not go through the company's agreed dispute settlement process.

After the company issued warnings to three of its employees their union invoked a dispute settlement clause in the company's agreement and took the matter to the AIRC for conciliation.

Goodman Fielder argued that a dispute over disciplinary matters did not fall within the terms of the agreement and so was not a matter for the AIRC's jurisdiction. 

The commission, however, found it was not confined to 'allowable matters' by the relevant clause and as such was empowered to arbitrate. The bench noted that if the parties wished to confine dispute settlement procedures to this degree then they could do so by specifically providing for such a limitation.

Background

Goodman Fielder appealed under s45 of the Workplace Relations Act 1996 against a decision of Commissioner Foggo.

The commissioner heard that in November, 2001 the company issued warnings to three employees. In April, 2002, their union invoked the disputes settlement clause (clause 9) of the Goodman Fielder Consumer Foods Limited, Metals Union Agreement, 2001.

Clause 9 of Goodman Fielder's agreement stated that if in-house conciliation was exhausted, either party could refer the dispute to the AIRC for conciliation and the decision would be final.

Where the dispute was not an allowable award matter or a matter otherwise not dealt with by the agreement, the ability for the AIRC to arbitrate the matter could be limited. In such a case the parties, without prejudice to their position, could agree to abide by a non-binding recommendation of the AIRC.

Findings – first instance

Commissioner Foggo found that under this clause the commission had jurisdiction to arbitrate over the company's disciplinary actions. She said: 'I have no doubt, given the wording of the counselling and warning procedures of the company, and the wording of the certified agreement, that the spirit and intent of the union and the company, was to have the dispute settlement procedure in clause 9 of the agreement, apply to disciplinary matters.'

Regarding the contention that disciplinary procedures were not an allowable matter pursuant to s89A of the Act and the parties had not provided jurisdiction for the commission to deal with non-allowable matters. 

Commissioner Foggo concluded that it was open, under the provisions of the agreement, for one party or both to refer a dispute over a non-allowable matter to the AIRC.

It said the dispute settling procedure in clause 9 specifically provided that: 'This procedure may be used when an employee is dissatisfied with the counselling and warning procedure.'

Full bench

The AIRC full bench also considered whether the scope of clause 9 was confined by s89A of the Act as this would confine arbitration to allowable matters. 

The commission said that it did not see the disputes procedure as being confined to these matters. It said: 'Had the parties wished to limit the powers of the commission to preclude the arbitration of non-allowable matters, they could have done so in specific terms.'

Section 89A limits the scope of industrial disputes to allowable award matters for the purposes of:

(a) dealing with an industrial dispute by arbitration;

(b) preventing or settling an industrial dispute by making an award or order;

(c) maintaining the settlement of an industrial dispute by varying an award or order.

The AIRC full bench found that it had not been asked to do any of those things, rather, it had been empowered by the parties to arbitrate. It was not dealing with a dispute in one of the ways set out in s89A and was not confined to arbitrate only in respect of allowable matters.

The commission concluded that the dispute over the warnings was a dispute over the application of the agreement and that the disputes procedure in clause 9 was not confined by s89A to limit arbitration to allowable matters. 

Consequently, it upheld Commissioner Foggo's decision and declined to grant leave to appeal.

See: Goodman Fielder Consumer Foods Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia , AIRC (Watson and Acton SDPP and Tolley C), AG813799 PR921688, (August 22, 2002).

 
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