STATEMENT

Fair Work Act 2009
s.156— 4 yearly review of modern awards

4 yearly review of modern awards—Award stage—Registered and Licensed Clubs Award 2010
(AM2014/283)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 8 APRIL 2019

Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned – application dismissed.

[1] This Statement deals with the outstanding technical/drafting claims and substantive claims (outstanding claims) to vary the Registered and Licensed Clubs Award 2010 (the Clubs Award) that arose during the award stage of the 4 yearly review of modern awards.

[2] The Clubs Award is in Group 4 of the award stage proceedings. An Exposure Draft for the Clubs Award was published on 22 November 2016. Submissions addressing drafting and technical matters in the exposure draft were received from the following parties:

• Club Managers Association Australia;

• Business SA;

• Australian Business Industrial and the NSW Business Chamber;

• United Voice; and

• The Australian Workers' Union.

[3] An application by Clubs Australia – Industrial, to revoke the Clubs Award was recently considered as part of the Penalty Rates case (see AM2017/39). Having regard to those proceedings, the Group 4 Full Bench decided to defer consideration of the outstanding claims in the Clubs Award until after the claims in the Penalty Rates case had been determined. 1 The Full Bench in the penalty rates matter issued a decision dismissing the claim to revoke the Clubs Award on 21 March 2019.2 Accordingly, the Group 4 Full Bench will now turn to consider the outstanding claims in the Clubs Award.

[4] The outstanding items are listed in the summary of technical and drafting submissions and the summary of proposed substantive variations published on the Commission’s website on 8 March 2017. At the Mention listed for Wednesday 10 April 2019 at 9.30am interested parties will be asked to indicate which of the technical/drafting and substantive claims in they intend to press.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCFB 1548 at [655].

2 [2019] FWCFB 349.

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for unfair dismissal remedy by an employee against their former employer. The employee claimed that their dismissal was unjust and sought remedy under the Fair Work Act 2009. The employer raised a jurisdictional objection, asserting that the employee had resigned rather than being dismissed, thus removing the Commission's jurisdiction to hear the matter. The Fair Work Commission was tasked with determining whether it had the authority to hear the application for unfair dismissal remedy given the employer's jurisdictional objection.

The central legal issue the Commission had to address was whether it possessed the jurisdiction to entertain the application for unfair dismissal remedy. The employer argued that since the employee had resigned, the Commission lacked the necessary jurisdiction to hear the matter. The employee countered that the resignation was a result of the employer's actions, rendering the dismissal unfair and placing the matter within the Commission's jurisdiction. The Commission needed to determine the validity of the jurisdictional objection and whether the resignation was genuinely voluntary or influenced by the employer's actions.

The Fair Work Commission found that the employee had indeed resigned, and there was no evidence to suggest that the resignation was influenced by the employer's actions. The Commission held that since the employee had voluntarily resigned, the matter did not fall within its jurisdiction for unfair dismissal. Consequently, the Commission dismissed the application for unfair dismissal remedy, ruling that it did not have the jurisdiction to hear the case. The Commission's decision was based on the clear evidence that the employee had genuinely resigned, without any influence from the employer.

The Fair Work Commission dismissed the application for unfair dismissal remedy, confirming that it did not have the jurisdiction to hear the matter. The Commission found that the employee had voluntarily resigned, and therefore, the dismissal was not an unfair one. No orders were made as the application was dismissed for lack of jurisdiction.

4 yearly review of modern awards—Award stage—Registered and Licensed Clubs Award 2010

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established