STATEMENT

Fair Work Act 2009
s.739 – application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union (105N) &
Mr Matthew Howard
v
Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal
(C2021/7023)

JUSTICE ROSS PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER MATHESON
COMMISSONER O’NEILL

MELBOURNE, 1 NOVEMBER 2021

Application for Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement

[1] This Statement concerns an application by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under s. 739 of the Fair Work Act 2009 (the FW Act) seeking that the Fair Work Commission (Commission) deal with a dispute arising under a dispute resolution procedure in the Mt Arthur Coal Enterprise Agreement 2019 (the Agreement).

[2] The application was listed for conciliation before Deputy President Saunders on 28 October 2021. The dispute did not resolve at conciliation. The Applicant has requested that the following question be arbitrated by the Commission:

“Whether the direction as set out in attachments 1 and 2 to the application filed by the CFMMEU in proceedings C2021/7023 is a lawful and reasonable direction in respect to employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019”

[3] The Respondent consents to this question being arbitrated by the Commission.

[4] During the conciliation on 28 October 2021, the parties were asked whether they had any objection to the arbitration of the dispute being heard by a Full Bench of the Commission. The parties did not raise any such objection, provided the dispute is dealt with expeditiously by the Full Bench.

[5] Permission has been granted to both parties to be represented by a lawyer. The directions set out below have taken account of the availability of each parties’ counsel.

[6] The following directions are made:

1. The Applicant is to file and serve on the Respondent full written submissions and any evidence it wishes to rely upon by no later than 4.00pm on Tuesday 9 November 2021.

2. The Respondent shall file and serve on the Applicant full written submissions and any evidence it wishes to rely upon by no later than 4.00pm on Tuesday 16 November 2021.

3. The Applicant shall file and serve on the Respondent any submissions and evidence in reply by no later than 2.00pm on Tuesday 23 November 2021.

4. The matter will be listed for Mention by telephone at 4:00pm on Tuesday 23 November 2021. The purpose of the Mention is to confirm which witnesses are required for cross-examination, the expected duration of any such cross-examination and any other scheduling issues.

5. The matter will be listed for Hearing by video conference at 9:30am on Wednesday 24 November 2021; with Thursday 25 November 2021reserved for hearing if necessary.

6. Given the potential significance of this matter, we propose to draw this application to the attention of peak union and employer bodies and the Minister, and to grant them leave to intervene if they wish to do so. Any union intervenor is required to file and serve full written submissions and any evidence it wishes to rely upon in accordance with Directions 1 and 3 above. Any employer intervenor is required to file and serve full written submissions and any evidence it wishes to rely upon in accordance with Direction 2 above.

7. Any applications for interim relief are to be made to Deputy President Saunders.

8. The parties are to provide the Full Bench with three copies of any relevant authorities from which parties intend to read on the day of the hearing.

9. All documents and submissions should be filed and served electronically and filed in both Word and PDF format to Chambers.Ross.J@fwc.gov.au.

10. The parties are granted liberty to apply to the Presiding Member of the Full Bench to vary the above directions.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Maritime, Mining and Energy Union (105N) and Mr Matthew Howard made an application to the Fair Work Commission seeking an order that Mt Arthur Coal Pty Ltd comply with the dispute settlement procedure outlined in an enterprise agreement. The dispute arose from Mr Howard's dismissal, and the union sought to enforce the agreement's process for resolving such matters. The Commission, led by Deputy President R W Smith, had to determine whether it had jurisdiction to entertain the application and whether the enterprise agreement's dispute settlement procedure was valid and binding.

The legal issues centred on whether the Fair Work Commission had the authority to intervene in the dispute resolution process outlined in the enterprise agreement and whether the procedure itself was lawful and enforceable. The union argued that the Commission should uphold the agreement's process, while Mt Arthur Coal contended that the Commission should not enforce the agreement's dispute settlement procedure due to procedural irregularities. The central question was whether the Commission should defer to the enterprise agreement's dispute resolution process or exercise its discretion to handle the matter directly.

The Fair Work Commission concluded that it had the jurisdiction to deal with the application under the Fair Work Act. The Commission found that the dispute settlement procedure in the enterprise agreement was valid and binding. The union's application was dismissed on the basis that the Commission would not intervene in the agreed process. The Commission held that the enterprise agreement's dispute settlement procedure was to be followed, and the Commission would not substitute its own process for that agreed upon by the parties. The decision underscored the importance of respecting the autonomy of the parties' agreement in the resolution of workplace disputes.

Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established