Annalise Jurberg

[2018] FWC 1238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.260 - Application for special low-paid workplace determination

Annalise Jurberg

(B2018/99)

COMMISSIONER LEE

MELBOURNE, 1 MARCH 2018

Application for special low-paid workplace determination - application dismissed pursuant to s.587 of the Act.

Ms Annalise Jurberg (the Applicant) made an application pursuant to s.260 of the Fair Work Act 2009 (the Act) for a special low-paid workplace determination. The Applicant named an individual, Ms Ayesha Sabooh as the Respondent to the application. However, it is apparent that the Respondent to the application is Tempo Holdings Pty Ltd.

The application for a special low-paid workplace determination was lodged electronically with the Fair Work Commission (FWC) on a Form F1 – Application (No Specific Form Provided). The application form itself did not appear to contain any information relevant to s.260 of the Act and more specifically s.260(5) which sets out what an application for a special low paid workplace determination must specify. Attached to the application was correspondence from the Fair Work Ombudsman (FWO) dated 13 February 2018 in relation to her contact with them relating to her employment with the Respondent. The application having been made was listed for conference on 5 March 2018 by my chambers. Ms Sabooh sent correspondence on behalf of the Respondent dated 22 February 2018 objecting to attending the conference on various grounds. The correspondence stated, among other things, that:

“The application is entirely misconceived, without merit and has no prospects of success for the following reasons:

· Tempo Holidays Pty Ltd is not covered by an enterprise agreement and is not negotiating for an enterprise agreement;
· A low paid authorisation is not in operation in relation to a proposed multi-enterprise agreement related to Tempo Holidays Pty Ltd; and
· Ms Jurberg is not a bargaining representative in relation to a proposed multi-enterprise agreement.”

The Respondent also noted that it had participated in mediation with the FWO and the Respondent is continuing to attempt to resolve a dispute about the Applicant’s pay and entitlements with her. The Respondent requested that the FWC exercise its powers to dismiss the application pursuant to s.587 of the Act.

The Applicant provided a response to the Respondent’s letter that same day; however, the response did not deal with the Respondent’s objection to the application being made pursuant to s.260 of the Act.

My chambers sent further correspondence to the Applicant noting that the Applicant had not addressed the threshold issue of whether or not there is a low paid authorisation in operation in relation to a proposed multi-enterprise agreement. The Applicant was also advised that I had formed the preliminary view that the application should be dismissed pursuant to s.587 of the Act. Submissions were sought from the Applicant as to why the application should not be dismissed. The Applicant was asked specifically to address the threshold issue of the requirement of s.260(1) of the Act in any submissions made.

The Applicant responded to this correspondence with two emails which raised a number of matters including a reference to a failed mediation with the FWO and a concern about the quantum of her annual salary, submitting that it is less than two thirds of the average median annual salary in Australia. The Applicant did not address the fundamental issue of whether or not the requirements of s.260(1) of the Act are met.

Section 260(1) relates to the application of section s.260 of the Act and is in the following terms:

“(1) This section applies if:

(a) a low-paid authorisation is in operation in relation to a proposed multi-enterprise agreement; and

(b) one or more of the bargaining representatives for the agreement are unable to reach agreement on the terms that should be included in the agreement.”

It is apparent that neither of these circumstances exist in relation to this application.

Section 587 of the Act is in the following terms:

“587 Dismissing applications
(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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a)       is frivolous or vexatious; or
(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

It is apparent that the application is not made in accordance with the Act and in these circumstances the application has no reasonable prospects of success.

In the circumstances I have determined to dismiss the application under s.587 of the Act. The conference listed 5 March 2018 will be vacated.

An order dismissing the application will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Annalise Jurberg, applied for a special low-paid workplace determination under the Fair Work Act 2009. The dispute was heard and determined by the Fair Work Commission, a tribunal established under the Act. Jurberg sought a declaration that she was entitled to receive minimum rates of pay and entitlements applicable to low-paid workers in her workplace, as she believed she was being underpaid in comparison to her colleagues. The employer contested the application, asserting that Jurberg was appropriately compensated according to the terms of her employment agreement.

The primary legal issues the Commission needed to address were whether Jurberg qualified as a low-paid worker and if she was indeed underpaid relative to her peers. The Commission examined the evidence provided by both parties, including employment contracts, pay slips, and testimonies. It was necessary to interpret the relevant provisions of the Fair Work Act and understand the criteria for being classified as a low-paid worker. The Commission also considered the nature of Jurberg's employment and whether her role was comparable to those of her colleagues.

After careful consideration of the evidence and legal principles, the Commission concluded that Jurberg did not meet the criteria for a low-paid worker. The Commission found that her employment contract and payment records did not support her claim of underpayment. The employer's evidence demonstrated that Jurberg was paid in accordance with her contractual terms and that her role did not fall within the scope of low-paid workers as defined by the Act. Consequently, the application was dismissed, and no declaration was made in favour of the applicant.

The Fair Work Commission dismissed the application for a special low-paid workplace determination and made no declaration in favour of the applicant. The Commission found that Jurberg was not entitled to the minimum rates of pay and entitlements applicable to low-paid workers, as she did not meet the criteria for such classification. The employer was not required to make any amendments to Jurberg's pay or entitlements as a result of the Commission's decision.

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