In a decision published yesterday (CFMMEU v Falcon Mining)[1], a Full Bench of the FWC (Hatcher VP, Catanzariti VP and Easton DP) expressly disagreed with a decision made by another Full Bench (Gostencnik DP, Colman DP Saunders DP) in Simplot v AMWU.[2]
In yesterday’s decision, the Full Bench said they had reached the “firm conclusion” that the Simplot decision was “not correct.” The Full Bench went on to observe that the fact there are conflicting decisions is “obviously unfortunate” and that “appropriate legislative change to clarify the position would be desirable”.
The vexing question is whether the FWC can still arbitrate a dispute under an enterprise agreement if the agreement is replaced or terminated before the FWC has determined the matter.
The answers given by the FWC have varied over time.
In Falcon Mining, the Full Bench observed that:
“Simply put, the Commission is seized of jurisdiction to arbitrate in respect of a dispute arising under a dispute resolution term described in s 738(b) once an application is made in accordance with s 739(6) and the requisite agreement under s 739(4) exists, and it is thereafter entitled to exercise that jurisdiction to completion.”
That passage evokes an earlier decision of a single member of the Commission (now retired), Deputy President Sams, in 2018 in which he wrote “[t]o my mind, once the Commission is seized of jurisdiction, unless there is a specific statutory bar or the replacement Agreement expressly provides for its extinguishment, the Commission’s jurisdiction remains on foot, and is exercisable.”[3]
However, in Simplot, a Full Bench of the FWC disagreed with Deputy President Sams’ conclusion and held “[t]he Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate.”
In light of the differing authorities, those employers and employees bound by enterprise agreements are left in something of a quandary. Perhaps the matter will be resolved at the government’s employment summit later this year. Alternatively, it may be a matter for which judicial guidance is needed.
[1] [2022] FWCFB 93.
[2] [2020] FWCFB 5054 (22 September 2020).
[3] APESMA v TransGrid [2018] FWC 6335, [98] (20 November 2018).