Flexible or not: Employer representation in dispute resolution procedures

FWC decides on representation rights vs. enterprise agreement's language

Flexible or not: Employer representation in dispute resolution procedures

The Fair Work Commission (FWC) recently dealt with a dispute over representation rights during a hearing. The case involved casual pilots and their employer, centering on pay-related issues and the interpretation of their enterprise agreement's dispute resolution procedure.

The FWC had to determine whether the employer could be represented in the hearing, given the specific wording of the dispute resolution clause. The decision hinged on the interpretation of the agreement's language and how it interacted with the Fair Work Act 2009. 

This case highlights the importance of carefully drafting dispute resolution procedures in enterprise agreements and understanding their implications for both workers and employers.

Background of the dispute

The workers in this case were casual pilots employed by the employer. They, along with their union, the Australian Federation of Air Pilots (AFAP), raised a dispute regarding two pay-related issues. 

The employer objected to the FWC dealing with the applications, claiming it lacked jurisdiction because the workers and their union hadn't followed the dispute resolution procedure outlined in the relevant agreement.

When the matter was scheduled for a hearing, the employer requested permission to be represented. The workers objected to this, basing their argument on both section 596(2) of the Fair Work Act and the wording of the dispute resolution procedure in their agreement.

Dispute Resolution Procedure

The crux of the issue lay in the interpretation of the dispute resolution procedure found in the relevant enterprise agreement, specifically clause 22.1.4, which stated:

"A person(s) initiating a dispute may appoint and be accompanied and represented at any stage by another person, organisation or association, including a Union representative or Company association in relation to the dispute..."

The FWC had to determine whether this clause allowed only the initiating party to be represented or if it extended to both parties in a dispute.

Clause’s ‘strict interpretation’

The workers, represented by their union, argued for a strict interpretation of the clause. They contended that the language clearly indicated only the party initiating a dispute could be represented. 

They emphasised that the Fair Work Act does not mandate employer representation in dispute resolution procedures, suggesting that parties can choose to limit representation rights in their agreements.

On the other hand, the employer sought a broader interpretation. While acknowledging there was no express term permitting representation for the non-initiating party, they argued that this didn't restrict the FWC's powers to allow representation. 

The employer pointed to previous cases where the FWC had permitted respondent representation even when not explicitly provided for in agreements.

FWC's decision on employer’s representation 

After careful consideration, the FWC sided with the workers' interpretation. 

The Commission found that the language in the parties’ agreement was clear and unambiguous, stating:

"I find that the meaning and effect of the unambiguous words in [the relevant clause] is that only a party who initiates a dispute may appoint a representative. Those are the only circumstances in which representation may be allowed under the terms of the disputes resolution procedure."

This interpretation was based on the principle that all words in an enterprise agreement must be given meaning and effect. 

The FWC reasoned that if any party could be represented, the specific wording of the said would be superfluous.

FWC's powers and discretion 

The decision also addressed how the dispute resolution procedure interacted with the Fair Work Act, particularly section 596(2) regarding representation. The FWC concluded:

"I find that where the parties impose limitations or grant themselves rights in a dispute resolution procedure, then the FWC is bound to observe those limitations and rights, even where to do so would be contrary to how the FWC would normally operate under the provisions of the Act."

This finding emphasises that when parties include specific provisions in their dispute resolution procedures, these can override the FWC's normal discretionary powers under the Act. As the FWC stated:

"Clearly, there would be some limitations on this but in circumstances such as granting automatic rights to appeal or to be represented, or imposing limits on representation, the expressed will of the parties should prevail when the FWC is exercising its private arbitration role."

The decision underscores the critical importance of careful and precise language when drafting enterprise agreements, particularly dispute resolution clauses. It highlights that parties can potentially limit or expand representation rights through the specific wording of their agreements.

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