ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – ss.595, 739 Fair Work Act 2009 – alleged dispute about casual conversion under the Unilever Australia Trading Limited – Tatura Site – Enterprise Agreement 2015 – Commission conducted a conciliation conference but the matter could not be resolved – question posed for arbitration by the AMWU was whether sub-clause 29.3 of the Agreement was ‘precatory in that it does not operate to allow the employment of permanent part time employees on terms contrary to the rest of the Agreement?’ – Unilever raised a number of objections to the matter proceeding to arbitration – Unilever contended that the question as formulated by the AMWU was beyond the jurisdiction of the Commission, that there was no actual dispute that needed to be resolved using the dispute resolution processes of the Agreement – further contended that the AMWU was seeking that the Commission give an opinion as to the interpretation of the Agreement rather than resolve an industrial dispute – jurisdiction of the Commission to deal with this application – jurisdiction arises through a term of the enterprise agreement which meets the statutory requirements of s.186(6) of FW Act – there are times when the Commission should decline to exercise its jurisdiction under the dispute resolution term of an enterprise agreement when the applicant has failed to comply with a procedural step for attempting to resolve the dispute at the workplace or enterprise level – not the case in the present matter – Commission has jurisdiction to deal with the matter in dispute under clause 9 of the Agreement and ss.595 and 739 of the FW Act – separation of powers challenge – Unilever submitted that the question posed by the AMWU and the relief it sought amounted to asking the Commission to exercise a judicial power – Kentz considered – necessary for the Commission to form conclusions as to the legal rights and liabilities of the parties to the Agreement and to give a decision expressing a conclusion as to the operation of the relevant terms of the Agreement, in order to discharge the Commission’s role in the dispute resolution procedure to resolve disputes between the parties to the Agreement – held nothing the Commission was doing in relation to the matter in dispute constituted the exercise of judicial power – issue for arbitration – clause 29.3 permits Unilever to propose forms of ‘flexible permanent part time employment’ for consideration by the parties – clause 29.3 is not precatory or hortatory or aspirational as contended for by the AMWU – clause 29.3 must be read and understood in the context of the Agreement – plain words of clause 29.3 refer only to the act of exploring ‘the possibility of creating’ a new concept of part time employment – question proposed by AMWU must be answered in the negative – clause 29.3 of the Agreement is not precatory in any sense. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Unilever Australia Trading Limited
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