Sloppy Drafting Costs Complainant

Transport Workers’ Union of Australia v Torrens Transit Services Pty Ltd [2013] FWC 7318 (1 October 2013)

The Transport Workers’ Union has been rebuked by Fair Work Commission for not following the disputes procedure in an EBA. But FWC also noted that inattention to drafting the relevant clause in the first place had contributed to the TWU’s problems.

The case revolved around a grievance that one employee had which was taken up by the TWU. Instead of following the step by step approach mandated by the EBAs disputes settling procedure clause, the TWU, after writing one letter to the company, filed a notification in FWC.

The first problem with this was the failure of the individual employee to raise the matter in the first instance with the direct supervisor. The second problem was that if the dispute remained unresolved at that point, it was supposed to go further up the management chain and also be given to the workplace committee to try to resolve.

The TWU went to the Commission having ignored both its obligations under the EBA and the employer’s insistence that the procedure be followed. Fair Work agreed, saying that the words of the EBA did not allow any of the steps to be missed and therefore FWC had no jurisdiction.

The lessons to be learnt from this case are firstly, parties should be very clear about the steps in dispute settling and whether or not they want a device to short-circuit the process in certain circumstances. Secondly, whatever the parties agree to, FWC is very likely to insist on it being followed to the letter.