ADAM v APPLE PTY LTD
[2012] FMCA 881
•19 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ADAM v APPLE PTY LTD | [2012] FMCA 881 |
| INDUSTRIAL LAW – Application made pursuant to s.773 of the Fair Work Act 2009 – applicant entitled to make general protections application – application summarily dismissed for want of jurisdiction. |
| Fair Work Act 2009, ss.337, 338, 339, 340 (1), 342(1), 343(1), 344, 345, 365, 369, 371, 723, 725, 727, 729, 731, 772(1), 773, 777, 779 |
| Hill v Compass Ten Pty Ltd [2012] FCA 761 Newman v East Yarra Friendly Society Pty Ltd trading as My Chemist Pharmacy [2011] FCA 1262 |
| Applicant: | NEMO KEVIN ADAM |
| Respondent: | APPLE PTY LTD |
| File Number: | MLG 315 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 19 September 2012 |
| Date of Last Submission: | 19 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Jacobs |
| Solicitors for the Respondent: | Baker and McKenzie |
ORDERS
That the Application filed 21 March 2012 is summarily dismissed.
That the Directions hearing on 19 November 2012 is vacated.
That the Mediation before Registrar Caporale on 2 November 2012 is vacated.
That there is no Order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 315 of 2012
| NEMO KEVIN ADAM |
Applicant
And
| APPLE PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 21 March 2012 the Applicant made an application in the Fair Work Division of this Court. The application was accompanied by a Certificate issued by Fair Work Australia (“FWA”) under s.777 of the Fair Work Act 2009 (“the Act”).
The Certificate refers to an application by Mr NEMO KEVIN ADAM (“the Applicant”) pursuant to s.773 of the Act alleging a dismissal in contravention of s.772(1) of the Act.
The claim lodged with the application to the Court alleges that the termination was unlawful as one or more of the following reasons applied:
·temporary absence from work because of illness or injury of the kind prescribed by the regulations;
·the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
·race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
·other.[1]
[1] Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment, Part G, Question 24, page 4.
In the details of the claim provided, the Applicant alleges that the Respondent contravened Part 3-1 (General Protections) of the Act and in particular s.340(1), s.342(1), s.343(1), s.344 and s.345 of the Act.
·Section 340(1) of the Act relates to the taking of adverse action against a person in relation to a workplace right.
·Section 342(1) of the Act defines adverse action.
·Section 343(1) of the Act relates to coercion associated with the exercise of a workplace right.
·Section 344 of the Act concerns the exerting of undue influence in relation to various rights of an employee.
·Section 345 of the Act concerns the making of false or misleading misrepresentations about workplace rights.
The application in this matter was made to FWA under s.773 of the Act. Section 723 of the Act says that a person must not make an unlawful termination application – to which s.773 applies – if the person is entitled to make a general protections court application.
In order to bring a general protections court application, an applicant must first apply to FWA under s.365 of the Act and receive a certificate under s.369 – unless the application to the Court is for injunctive relief.
As the Applicant has not made an application under s.365 of the Act or received a certificate under s.369 of the Act, that part of his application which refers to contravention of Part 3-1 (General Protections) of the Act cannot proceed.
The application under s.779 of the Act, before the Court, requires that the person be entitled to apply under s.773 of the Act to FWA.
Section 723 of the Act provides that a person must not make an application under that provision if they are entitled to make a general protections court application. That requires that the person be entitled to apply under s.365 of the Act.
Sections 337, 338 and 339 of the Act set out to whom the general protections provisions apply. As the Respondent in these proceedings is a constitutional corporation and the Applicant is an employee in the State of Victoria the general protections provisions of the Act apply to him. He is, therefore, unable to make an application to this Court under s.779 of the Act or an application to FWA under s.773 of the Act.
The Applicant should have been advised that his application to FWA was misconceived. The legislative provisions are not easy for a person without the advice of a union or legal adviser to navigate. I understand that the Respondent was legally represented at the time the application under s.773 of the Act was made, but no objection to jurisdiction was made at that stage of the proceedings. It also appears that FWA itself did not question its jurisdiction to deal with the application.
The failure by the Applicant to bring his application under the correct provisions of the Act set off a chain of events leading to the application by the Respondent before the Court today.
I accept that the Applicant could not bring the s.773 application before FWA and, therefore, could not bring the application under s.779 of the Act which is currently before the Court.
Further, I accept that I cannot simply allow the Applicant to amend his application to bring it under the provisions of s.371 of the Act. The Court’s jurisdiction under that provision is contingent upon the Applicant having received a certificate under s.369 from FWA (unless the application includes an application for an interim injunction). This Court has no power to amend a certificate issued by FWA.[2]
[2] Newman v East Yarra Friendly Society Pty Ltd trading as My Chemist Pharmacy [2011] FCA 1262.
Further, the Court cannot simply adjourn these proceedings to allow the Applicant to make an application under s.365 of the Act to FWA, obtain a certificate under s.369 of the Act and then seek to amend this application to bring it under s.371 of the Act.[3]
[3] Hill v Compass Ten Pty Ltd [2012] FCA 761.
Section 725 of the Act provides that a person who has been dismissed must not make an application or complaint of a kind referred to in – relevant to these proceedings – s.727 of the Act which deals with making a general protections application to FWA – if – in this case s.731 of the Act applies.
Section 731 of the Act applies if an unlawful termination court application has been made and it has not been withdrawn or failed for want of jurisdiction.
As the combination of these provisions make it impossible for the Applicant to succeed with the current application before the Court, I am satisfied that the Respondent has met the onus of establishing that summary dismissal is appropriate.
As the s.729 application has been dismissed for want of jurisdiction, the Applicant is free, if he wishes to do so, to institute proceedings under s.365 of the Act in FWA and seek that FWA extends the time for lodgement of that application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 20 September 2012
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