ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – jurisdiction – ss.595. 739 Fair Work Act 2009 – applicant lodged application for Commission to deal with a dispute under dispute settling procedure of the Brotherhood of St Laurence, NUW and SDA Enterprise Agreement 2013 (Agreement) – applicant described the dispute as regarding respondent’s refusal to honour her entitlement to accrued days off as provided for in her contract of employment – the Agreement stated she shall not be unreasonably refused her request – respondent raised jurisdictional objection – claimed Commission did not have power to deal with dispute insofar as it related to the applicant’s contract of employment and dispute settling procedure in Agreement was limited to disputes about the Agreement or NES – applicant submitted question of jurisdiction was irrelevant because she had sought to rely on provisions of the Agreement – claimed her contract of employment incorporated the Agreement into the terms and conditions of her employment – respondent submitted Agreement was not incorporated into applicant’s contract and could not be unless it was the express intention of the parties [Byrne]; [ACTEW v Pangallo] – construction of subclause 4 of dispute settling procedure in Agreement – Commission found meaning of subclause must be derived from the wording of the subclause as a whole and its place within the rest of the dispute settling procedure clause – found subclause 4 did not prevent respondent from raising jurisdictional objection – whether wording of applicant’s employment contract incorporated Agreement into applicant’s terms and conditions – Soliman applied – Commission found wording of employment contract did not support applicant’s contention that the terms of the Agreement were intended to be incorporated into contract of employment and have such contractual effect – no evidence to suggest terms of Agreement ought to have been implied into employment contract – Commission not satisfied wording of employment contract or circumstances supported a finding that the employment contract incorporated the Agreement expressly or by implication – found applicant was able to access dispute settling procedure of the Agreement in relation to the dispute relating to the Accrued Days Off clause of the Agreement – found applicant not able to access dispute settling procedure of the Agreement in relation to an entitlement to accrued days off as provided by her contract of employment – Commission to proceed on the basis it had jurisdiction to deal with applicant’s dispute as it related to the Accrued Days Off clause of the Agreement. Noisette v Brotherhood of St Laurence
