ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under WorkPac P/L Mining (Coal) Industry Enterprise Agreement 2012 – whether Field Team Members (FTMs) employed by respondent as Flat Rate employees under Agreement were entitled to be paid afternoon and night shift rates for all hours worked in circumstances where they worked under what CFMEU described as a ‘rotating roster’ – respondent submitted that even if Commission arbitrated dispute, the decision would not be binding on parties on basis that Dispute Settlement Procedure (DSP) did not specifically state that a determination following arbitration was binding on parties – disagreed with applicant’s interpretation of Agreement and asserted they were paying in accordance with Agreement – submitted that applicant had not provided respondent with any details or examples of a particular FTM so respondent could appropriately address issues, despite requests for information to be provided – stage 5 of DSP indicated that Commission could not arbitrate dispute unless each preceding stage of DSP had been completed or where there was agreement between parties to bypass the stages – respondent contended that non-identification of employees in dispute was a jurisdictional barrier to Commission dealing with dispute that could not be cured by amending application – assertion that employees were concerned that they would be dismissed because they were in dispute about matter did not provide a valid reason for their nonidentification in such circumstances – Commission found that DSP in Agreement was validly engaged, despite CFMEU not identifying employees it was representing – if wrong on that point, Commission found respondent had agreed to bypass Stages 1-3 of DSP to escalate it to Stage 4 – held that there were FTMs in dispute with respondent in relation to application or interpretation of Agreement – held that CFMEU acted at all times within its capacity as a representative of employees under dispute – CFMEU did not have standing under DSP to make application in its own right and such an application could only be made by employees who chose to be represented – Commission could exercise power to amend application but as a matter of discretion did not do so unless individual employees who made application were identified – Commission had power to determine dispute – provided CFMEU 7 days to file and serve on respondent an amended application naming employees in dispute – held that if respondent reconsidered its position on non-participation in framing of question for arbitration, it should submit a proposed question to CFMEU and Commission within 7 days of amended application and hold discussions with CFMEU in attempt to agree on question for arbitration – will convene a further conference accordingly – in absence of advice to the contrary from the respondent, the question for arbitration would be the amended version proposed by CFMEU, subject to Commission amending the question after further discussion with the parties – jurisdictional objections to applications dismissed. Construction, Forestry, Mining and Energy Union v WorkPac P/L
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