Pendlebury
workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Fair Work Australia had no jursidiction to hear after-hours behaviour dispute

Fair Work Australia has held that it has no jurisdiction to hear a dispute over disciplinary action taken against three coal-mining workers for alleged after-hours

Fair Work Australia

behaviour.

One of the Thiess employees who worked at its Wilpinjong Coal Mine, in the Hunter Valley in NSW, was given a final warning, and the other two employees received written warnings after a bottle was allegedly thrown from the car in which they were travelling home from work in April 2012.

The CFMEU (mining & energy division) made an application to Fair Work Australia under the dispute resolution procedure in the Wilpinjong Coal Mine Enterprise Agreement 2012, maintaining the allegations against the three employees were unproven, without factual foundation, and had not been properly investigated by the employer.

Conciliation failed, and the CFMEU asked the tribunal to arbitrate the dispute. However, Senior Deputy President Hamberger said that while the dispute was “in the course of employment” and came within the ambit of the dispute resolution procedure, that procedure provided that only matters relating to:

  1. the NES, or
  2. pertaining to the 2012 Agreement,

could be referred for arbitration.

SDP Hamberger held that the dispute was about whether the Company’s policies and procedures had been complied with and/or applied in a fair manner, and the relevant clause in the agreement, “does not incorporate the policies and procedures into the agreement…Thus a dispute about a failure to comply with those policies and procedures is not a dispute pertaining to the agreement,” he said.

CFMEU v Thiess [2012] FWA 6985 (21 August 2012) 

Brooke Pendlebury
Friday, August 24, 2012
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