Enterprise Agreement Dispute Resolution

Senior/national officials listen to staff (and/or their representative) and try to resolve the dispute. It is either resolved or referred to an independent body. This mix of authorities on the issue of the FWC`s competence to rule on disputes and the resulting uncertainty in this regard was regrettable and needed clarification. This uncertainty was illustrated by the fact that only one month before Barclay DP`s decision, Commissioner Cambridge had examined the same subject in depth in the case of Australian Workers Union v Costa Exchange Pty Ltd T/A Costa (Berry Category) [2020] FWC 2418 and had concluded the opposite, given that he was required to: follow Stephenson`s reasoning. Commissioner Cambridge`s decision was not mentioned by Barclay DP in its decision. This is a problem, because in order to be able to assert a right under the company agreement, for example. B a right to wages, the worker must generally be employed on that date, in accordance with the terms of this company agreement. The same applies to the right to a dispute under the company agreement, for example. B a dispute relating to an employer`s request for a medical assessment. Vice President Lawler also noted that another finding would conclude that a plaintiff`s «vested right» to resolve its dispute, intended to survive the operation of a business agreement, would be destroyed.

The nature of the right has not been examined in detail by his honour – in particular, it has not been explained how the so-called right to a finding of a dispute in which, even in the context of the non-operational agreement, the finding would not be applicable, could have a considerable advantage in influencing the construction of the law applicable to company agreements. The YES appealed McKinnon C`s decision and argued that the FWC was acting under the FW Act on a margin of appreciation to deal with a dispute that would be submitted to it under the agreement, whether or not the procedures of that clause were followed. This assertion was based on the arguments put forward by McKinnon C: after the entry into force of the 2018 Agreement, Simplot presented to Vice-President Barclay that the Commission was no longer competent to rule on the dispute submitted to it under the 2014 Agreement. In such cases, parties wishing to assert rights under the non-effective agreement should take legal action for breach of the agreement if they are able to do so. A good dispute resolution procedure, focused on an effective solution in the workplace, can help avoid the cost of external settlement of a claim. for example, through arbitration before the Fair Work Commission or litigation before the Federal Court of Australia. In this article, we will use a term in a company agreement as an example. Management listens to the employee`s concerns and resolves the dispute or refers the matter to management.

The dispute arose in the context of mc Labour Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Labour Hire Industry Enterprise Agreement 2016-2018 (agreement). . . .

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