Amy Bauer v Xavier Catholic Primary School

[2015] FWC 4334

[2015] FWC 4334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amy Bauer
v
Xavier Catholic Primary School
(U2015/7243)

COMMISSIONER ROE MELBOURNE, 26 JUNE 2015

Application for relief from unfair dismissal.

[1] Ms Bauer was dismissed on 16 June 2014 and made an application for an unfair dismissal remedy on 30 April 2015. Ms Bauer was in hospital at the time she was dismissed. The Archbishop of Perth whom the Catholic Education Office and the Catholic Education Commission of Western Australia and Xavier Catholic Primary School say was the employer of Ms Bauer does not oppose the granting of an extension of time in this matter and accept that there are exceptional circumstances justifying such an extension. However, the Archbishop of Perth argues that neither he nor Xavier Catholic School are national system employers and therefore the unfair dismissal application cannot be made in the Fair Work Commission.

[2] I am satisfied by the evidence of Mr Hill of the Catholic Education Office WA that the staff of the Xavier Catholic School in Perth WA are employed by the Archbishop of Perth. I am also satisfied that the Roman Catholic Archbishop of Perth Non-Teaching Staff Enterprise Bargaining Agreement 2012 covered Ms Bauer’s employment and that agreement was registered by the Western Australian Industrial Relations Commission under state law not federal law. I am also satisfied by the evidence of Mr Hill that Archbishop of Perth is not incorporated other than by legislation that specifically applies to the holding of church property. It is not a corporation within the meaning of s.9 Corporations Act 2001. It is that Act which is specifically referred to in s.14 Fair Work Act 2009 (Cth) for the purpose of defining a national system employee.

[3] I am satisfied of the following in respect to Ms Bauer:

● She was employed in Western Australia and was employed in that State at the time of the dismissal
● Western Australia has not referred its industrial relations powers in respect to non-national system employers to the Commonwealth.
● National system employer is defined by s.14a Fair Work Act 2009 (Cth) and the employer is not a constitutional corporation which is the only part of the definition which could have relevance to the employment. To be a constitutional corporation an entity must be a trading or financial corporation.
● Neither Xavier Primary School nor the Archbishop of Perth are constitutional corporations.

[4] I am satisfied that Ms Bauer was not employed by a trading or financial corporation at the time of her dismissal and as she was employed in Western Australia at the time of her dismissal she was not employed by a national system employer and she is therefore not a national system employee.

[5] It is not suggested that a modern award or an enterprise agreement approved under federal law covers the employment of Ms Bauer.

[6] As Ms Bauer is not a national system employee she cannot achieve an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

[7] The Application in this matter is dismissed and an order to this effect will be issued.

COMMISSIONER

Appearances:

Ms. A Bauer on behalf of herself.

Mr. I Curlewis on behalf of the Respondent.

Hearing details:

2015

Melbourne (by video and by telephone)

June 26

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