Andrew Rondinella v Fraser Coast Regional Council

[2017] FWC 617

[2017] FWC 617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Rondinella
v
Fraser Coast Regional Council
(U2016/14869)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 14 December 2016, Mr Andrew Rondinella made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Rondinella named Fraser Coast Regional Council as his former employer.

[2] On 14 December 2016, the Fair Work Commission attempted to contact Mr Rondinella via telephone regarding his employment, however this was unsuccessful. On the same day, correspondence was sent to Mr Rondinella noting that it appears Fraser Coast Regional Council is not a national system employer and that he should seek urgent advice as to the validity of the application. Mr Rondinella was advised in the absence of any notification from him within 14 days, his application may be dismissed.

[3] On 3 January 2017, the Commission again attempted to contact Mr Rondinella via telephone and a voice message was left. Further correspondence was sent to Mr Rondinella regarding his eligibility to make an application for unfair dismissal remedy. Mr Rondinella was advised in the absence of any notification from him within 14 days, his application may be dismissed.

[4] On 5 January 2017, the Commission received written correspondence from Fraser Coast Regional Council advising it is a local government entity and is not within the Commission’s jurisdiction.

[5] On 12 January 2017, a final letter was sent to Mr Rondinella noting that on the basis of the information provided, it did not appear the Commission has jurisdiction to deal with his application. He was advised that in the absence of any advice from him within 14 days, his application would be dismissed.

[6] To date, Mr Rondinella has not responded to any of the Commission’s correspondence.

[7] The Commission is only required to hold a hearing or conference if there are disputed facts. 1 In this matter, there is no dispute that Mr Rondinella was employed by the Fraser Coast Regional Council.

[8] The unfair dismissal provisions under the Act are contained in Part 3-2. Under Part 3-2, ‘employee’ means a national system employee and ‘employer’ means a national system employer. 2 A national system employee is defined at s.13 of the Act as follows:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

[9] A national system employer is relevantly defined as follows at s.14 of the Act:

“14  Meaning of national system employer

…

Particular employers declared not to be national system employers

(2)  Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a)  that employer:

(i)  is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii)  is a body established for a local government purpose by or under a law of a State or Territory; or

(iii)  is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b)  that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c)  an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

…

Endorsement of declarations

(4)  The Minister may, in writing:

(a)  endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b)  revoke or amend such an endorsement.

…”

[10] I am satisfied that Fraser Coast Regional Council is a body established for a local government purpose by or under a law of a State or Territory. 3 The Industrial Relations Regulation 2011 (Qld) declares Fraser Coast Regional Council not to be a national system employer.4

[11] Pursuant to s.14(4)(a) of the Act, the Fair Work (State Declarations - employer not to be a national system employer) Endorsement 2012 (No.3) declared Fraser Coast Regional Council not to be a national system employer from 1 January 2013.

[12] In considering the above, I am satisfied that the Commission has no jurisdiction to determine Mr Rondinella’s application for unfair dismissal remedy as Fraser Coast Regional Council was not a national system employer at the time of Mr Rondinella’s dismissal and therefore he was not a national system employee for the purpose of Part 3-2 of the Act at the relevant time.

[13] Section 587(1) of the Act provides as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[14] Having regard to the circumstances of this matter, I am satisfied the application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

 1   Fair Work Act 2009, s.397.

 2   Fair Work Act 2009, s.380.

 3   Fair Work Act 2009, s.14(2)(a)(ii).

 4   Fair Work Act 2009, s.14(2)(b).

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