ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – resolution of dispute in accordance with the dispute resolution procedure of the EnergyAustralia Yallourn Enterprise Agreement 2013 ‘the agreement’ – dispute concerning warning issued to Mr Aitken pursuant to clause 29 (discipline procedure) of the agreement – meaning of status quo in clause 28 (dispute resolution process) – CFMEU submitted the status quo is the ‘circumstances existing prior to the change’ that is, the circumstances where Mr Aitkin had not received the warning – CFMEU submitted the practical effect of the subclause can only be that the operation of the warning be suspended pending the earlier of the resolution of the dispute – respondent submitted the application of the status quo can only pause the implementation of change that has been announced but has not yet taken effect (i.e. is ‘proposed’) – submitted the warning itself is the subject of the dispute and there is no basis to reverse the issuance of the warning while the dispute remains on foot – respondent submitted in the alternative, if the application of the status quo means that the warning is treated as not having been issued while the dispute remains on foot, the limitation on the ‘effective for’ period in clause 29 of the agreement could not be said to commence running until the warning is confirmed – Commission agreed with the respondent’s alternative submission – Commission satisfied there was no uncertainty or ambiguity in the meaning of the status quo in respect to the dispute – satisfied that during the operation of the disputes resolution process pursuant to clause 28 of the agreement the respondent cannot rely upon the first written warning issued to Mr Aitken – agreement provides for two types of disputes – Category 1 matters ‘go to the application or interpretation of this agreement or with matters arising under the national employment standards’ – Category 2 matters are ‘all other matters pertaining to the employment relationship…’ – CFMEU submitted the dispute is about the issuing of the warning pursuant to clause 29 of the agreement – respondent submitted the mere fact that they sought to follow the disciplinary procedure in clause 29 is not sufficient to bring the dispute within Category 1 – respondent submitted that if merely touching upon the subject matter of a clause is sufficient to bring a dispute within Category 1 then very few disputes would be in Category 2 and this could not have been the intention of the parties – Commission found that given the warning issued specifically refers to clause 29, it is difficult to see how a dispute over the issuing of a ‘first written warning’ to Mr Aitken is not a matter which goes to the application or interpretation of the Agreement – Commission found the dispute is not peripheral to, or merely touching on a matter in clause 29 – CFMEU directed to advise within seven days of the decision if they wish for the matter to proceed to arbitration. Construction, Forestry, Mining and Energy Union v Energy Australia Yallourn P/L
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