Application by Chelsey Williams

[2021] FWC 3424

[2021] FWC 3424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Application by Chelsey Williams
(AG2021/5176)

COMMISSIONER PLATT ADELAIDE, 16 JUNE 2021

Application for termination of the Tenowsue Holdings Pty Ltd Employee Collective Agreement 2009 – applicant not an employee covered by Agreement at the time of application – application dismissed.

[1] On 17 May 2021, Ms Chelsey Williams (the Applicant) made an application to terminate the Tenowsue Holdings Pty Ltd Employee Collective Agreement 2009 (the Agreement).

[2] On her “Form F24B – Application for termination of an enterprise agreement after the nominal expiry date”, Ms Williams indicated that she was making her application as an employee covered by the Agreement.

[3] On 24 May 2021, a Directions Conference was held by telephone. Ms Williams represented herself and Mr Graham Lilleyman (of counsel) represented the Respondent. Mr Lilleyman sought leave on the basis of s596(2)(a) of the Act – complexity and efficiency. Ms Williams had no objection to the Respondent being represented, and leave was granted.

[4] The Respondent contended that Ms Williams was not entitled to bring the application, on the basis that she was not an employee covered by the Agreement at the time of the application.

[5] A Hearing was listed to deal with the jurisdictional objection, and directions were issued for the filing of material in relation to the jurisdictional issue.

[6] On 16 May 2021, a Hearing was held by teleconference. Ms Williams did not attend, despite my Associate telephoning her and sending an email advising her that the Hearing would commence at 11.10am in her absence. Mr Lilleyman continued to represent the Respondent. Mr Lilleyman agreed that the Hearing would be conducted as a determinative conference.

Evidence

[7] Ms Williams had previously submitted a statement which was received. 1 Ms Williams contended that she had not been dismissed from her employment prior to lodgement of the application and disputed the Respondent’s position that she was dismissed on 5 May 2021.

[8] Ms Susann Davey (a Director of the Respondent) submitted a statement, 2 and gave evidence. Ms Davey gave evidence of the matters discussed in her phone call with Ms Williams on 5 May 2021, which lasted approximately 50 minutes. Ms Davey advised that the topics discussed included issues with the way in which Ms Williams was performing her role and security breaches committed by Ms Williams, such as allowing her partner on a client’s site and giving him the site keys. Ms Davey advised that she told Ms Williams that she was dismissed during that telephone call.

[9] Mr Owen Edmunds (Operations Supervisor of Tenowsue Holdings Pty Ltd and partner of Ms Davey) also submitted a statement, 3 and gave evidence. Mr Edmunds corroborated Ms Davey’s account of the portion of the phone call that he was present for (approximately 15 minutes), including hearing Ms Davey dismiss Ms Williams and provide the reasons why.

[10] I note that a request was made to Ms Williams to return her uniform to the company by text message on 11 May 2021. This is consistent with a dismissal occurring on 5 May 2021. The Respondent communicated Ms Williams’ dismissal to the relevant regulatory authority in a letter dated 6 May 2021. Whilst I note that it was not received by the authority until 22 June 2021, Ms Davey provided a plausible explanation for the delay.

[11] I have determined to accept the evidence of Ms Davey and Mr Edmunds over the information contained in Ms Williams’ untested statement. Their evidence as to the dismissal occurring on 5 May 2021 is supported by the 11 May 2021 text message concerning the return of the uniform and the communication to the regulatory authority.

[12] I find that Ms Williams was dismissed on 5 May 2021 and ceased to be an employee covered by the Agreement on that date.

Legislation

[13] Section 225 of the Act determines who may make an application for the termination of an enterprise agreement after its nominal expiry date:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c)  an employee organisation covered by the agreement.”

[14] As a result of my factual finding, Ms Williams lacks the standing required by s.225 of the Act to make this Application, and as a result the Application must be dismissed.

COMMISSIONER

Appearances:

G Lilleyman for the Respondent.

Hearing details:

2021.
Adelaide:
June 16.

Printed by authority of the Commonwealth Government Printer

<PR730717>

 1   Exhibit A1

 2   Exhibit R1 (including attachments)

 3   Exhibit R2