Annalise Jurberg
[2018] FWC 1238
•1 MARCH 2018
| [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
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