An application has been made for approval of an enterprise agreement known as the SDAEA Mulgrave Produce and Recycling Enterprise Agreement 2009-2012 (the agreement). When the Fair Work Commission considers a dispute involved by a party in the context of an enterprise agreement, the dispute cannot be heard or decided after the termination of the agreement. Full Bench concluded that the Board was not otherwise competent and that calls for policy and fairness could not create jurisdiction if there were none. The Commission can only resolve the dispute if all the negotiators of the proposed agreement have agreed that it can do so.  The Fair Work Commission can only deal with disputes if a party to the dispute has filed an application with the Fair Work Commission. Dispute resolution procedures should not, as far as possible, affect the sustainability of the activity. Any dispute resolution clause contained in an agreement, contract or directive should require that work continue as normal during the dispute resolution process, provided they have legitimate health and safety concerns. If the employer and the worker are not subject to an enterprise agreement or a modern award with respect to the dispute, the procedure applies in an employment contract (if any). For more information on how to negotiate in good faith and in companies that have proven themselves, see the Ombudsman`s Guide to Good Practice for Fair Work – improving productivity at work in negotiations. In particular, in the event of a replacement of an agreement, unless the new agreement provides for a mechanism for “conservation” of existing disputes, there will be no jurisdiction for the Commission to deal with such disputes, even if the dispute had been notified during the implementation of the agreement. The termination of the operation of an enterprise agreement means that the dispute settlement rights under this agreement no longer exist. Instead, the onus is on the party pursuing the case to assert a violation of the agreement in the course of a judicial proceeding. Simplot submitted that Section 58(1) of the FW Act, which provides that only an enterprise agreement can be applicable to a worker on a specified date, prohibited the Commission`s decision.
Enterprise Agreement Disputes