Armando Arcorace v City of Swan

[2016] FWC 8391

[2016] FWC 8391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Armando Arcorace
v
City of Swan
(C2016/6231)

COMMISSIONER WILLIAMS PERTH, 23 NOVEMBER 2016

Application to deal with a dispute - jurisdiction.

[1] This decision concerns an application made by Mr Armando Arcorace (Mr Arcorace or the Applicant) under section 739 of the Fair Work Act 2009 (the Act). The Respondent is the City of Swan (the Respondent).

[2] Mr Arcorace purports to bring the application to the Commission under clause 26−Dispute Settlement Procedure of the City of Swan Waste/Recycling Services Enterprise Agreement March 2005 – 2008 [AE416681] (the Agreement).

[3] The Respondent has raised a jurisdictional objection to the application on the basis that at the time the application was made Mr Arcorace was not an employee of the City of Swan who was covered by the Agreement and he had not commenced this dispute with the City of Swan while he was employed by the Respondent.

[4] Mr Arcorace’s application was the subject of a conference on 22 November 2016. At that conference the Respondent’s jurisdictional objection was discussed as was the substance and the merits of Mr Arcorace’s application.

[5] Mr Arcorace’s application explains that he believes he was entitled to a payment when his employment ended under clause 22−Workplace Attendance Incentive of the Agreement. The City of Swan in addition to the jurisdictional objection submits that no payment under the clause is owing to Mr Arcorace because his employment ended by dismissal for serious misconduct rather than by resignation or retirement.

[6] This decision deals only with the jurisdictional objection raised by the City of Swan.

Decision

[7] At the conference Mr Arcorace agreed he was dismissed from his employment. He explained that the dispute with the City of Swan about this matter did not arise until after his dismissal had occurred. It is clear the application by Mr Arcorace was made after his dismissal.

[8] I have explained to Mr Arcorace the limits on the Commission’s jurisdiction to deal with disputes under clauses such as this. In short a person who is no longer an employee cannot make an application to this Commission under a dispute settling procedure in an agreement after their employment ended.

[9] This was explained by a Full Bench of this Commission on appeal in the decision of King and Ors v Patrick Projects Pty Ltd 1 as follows:

“[43] Further and in relation to A3, we consider that the Commissioner correctly identified that he had no jurisdiction to hear a s.739 matter in circumstances where the applicants were no longer employed. An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act can only be heard when the applicants are employed. This is an uncontroversial jurisdictional point supported by manifold authorities and the express provisions of the Act. There was no error in the Commissioner’s approach in that regard and it was not unreasonable for the matter to be heard by way of written submissions in the particular circumstances. In any event, we note that it was heard by way of written submissions by consent of both parties. The outcome reached was within the range of outcomes reasonably available to the Commissioner and does not demonstrate any manifest injustice or counter-intuitive result.”

[10] I am satisfied in this instance that Mr Arcorace has no standing to bring this dispute under the dispute settlement procedure in the Agreement and the Commission consequently has no jurisdiction to deal with the matter. As a result the application will be dismissed for want of jurisdiction and an order will be issued to that effect.

COMMISSIONER

 1   [2015] FWCFB 6323.

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