Arthena Howard v Auscor Pty Ltd
[2023] FWC 272
•27 FEBRUARY 2023
| [2023] FWC 272 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Arthena Howard
v
Auscor Pty Ltd
(C2023/136)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 27 FEBRUARY 2023 |
Alleged dispute about any matters arising under the modern award and the NES; [s 146]
The issue and conclusion
Auscor Pty Ltd (Auscor) has applied to the Commission to have Ms Howard’s application under s 739 of the Fair Work Act 2009 (Cth) (the Act) and the dispute resolution procedure in clause 43 of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award)[1] dismissed.
Briefly stated, Ms Howard observes that the Award provides for entitlements such as annual leave, public holidays, long service leave and payment in lieu of notice in accordance with the National Employment Standards (NES). Ms Howard asserts that she was an employee whilst working for Auscor and as such has an entitlement under the Award to those benefits. On 11 January 2023, Ms Howard made her application under s 739 of the Act essentially seeking from the Commission a declaration that at all material times she was an employee of Auscor and is therefore entitled to her entitlements under the NES.
Auscor contends the Commission is absent jurisdiction to deal with the dispute because Ms Howard was not its employee whilst working for it and Ms Howard’s application concerns a question of law extraneous to a dispute under the Award or in relation to the NES. Even if Ms Howard was its employee, which Auscor does not concede, it notes:
a) the dispute was not raised when Ms Howard was in its employ (Ms Howard’s application was made some 11 months after having concluded her work with Auscor);
b) the dispute resolution process under the Award was not followed; and
c) the matter does not arise under the Award.
Auscor has in addition highlighted that prior to this application, Ms Howard filed Application M8 of 2022 against Auscor and its director, Mr Mike McCoy, in the Industrial Magistrates Court of Western Australia on 25 January 2022 (the IMC Application/IMC Case). According to Auscor, in the IMC Case, Ms Howard made identical allegations to those made in these proceedings. In short, Auscor considers this application an abuse of process.
For the reasons that follow, I have dismissed Ms Howard’s application on the basis that the application cannot proceed for want of jurisdiction. For that reason, I have not dealt with the substance of the alleged dispute and it has approved unnecessary to address the contention that the application constitutes an abuse of process.
Background
Ms Howard contends that she was an employee of Auscor in the period from 1 January 2005 to 17 January 2022.
Auscor denies that Ms Howard was ever its employee. It contends that between 1 January 2005 and 17 January 2022, it contracted with various entities, under three separate contracts, for the supply of Ms Howard’s labour, presumedly as a draftsperson:
a) Arthena Howard trading as AHD Drafting Services, ABN 68 407 135 431, from 1 January 2005 until 25 September 2006;
b) The Howard Discretionary Trust, ABN 88 556 317 843, from 25 September 2006 until 10 August 2011; and
c) Arthena Howard trading as AH Drafting Services, ABN 68 407 135 431, from 10 August 2011 until 17 January 2022.
As noted, Ms Howard filed the IMC Application on 25 January 2022. Mr Brendan Taylor, a solicitor at Robertson Hayles Lawyers who was acting on behalf of Auscor, provided evidence in respect of the IMC Application.
The IMC Case alleged, among other things, that Ms Howard had been an employee of Auscor from 1 January 2005 until 17 January 2022.[2] It was said that she was owed various amounts of annual leave, long service leave, notice and payments for public holidays.[3] On 21 February 2022, Auscor and Mr Mike McCoy filed a response disputing the IMC Case and stating that Ms Howard was a contractor.[4]
As the litigation unfolded in the Industrial Magistrates Court, discovery orders were issued. By 11 November 2022, Auscor and Mr Mike McCoy filed an application to have the IMC Case dismissed on the basis of Ms Howard’s wilful and persistent breaches of discovery orders.[5] Mr Taylor stated that the application was filed because, by 11 November 2022, Auscor and Mr Mike McCoy had made repeated unsuccessful attempts in correspondence to seek Ms Howard’s compliance with the discovery orders made on 5 September 2022.
On 30 November 2022, O’Donnell IM dismissed the IMC Case.[6]
Mr Taylor gave evidence that on 14 December 2022, Ms Howard’s agent wrote to him informing him of his intention to recommence the dismissed matter in the Commission. The email dated 14 December 2022 stated:
Good morning Brendan:
We refer to the above matter. We note the Industrial Magistrate has dismissed the claim on your client’s application that she had not complied with discovery orders. To remedy that situation the claimant will need to appal to the Federal Court thereby incurring considerable costs for both parties.The critical issue between the parties is whether Arthena is an employee for the purposes of the FW Act 2009.
This is a discrete question more readily decided by the Fair Work Commission.
We are presently preparing a Dispute Notice under the applicable Modern Award to ultimately bring the matter before the Commission.
Please confirm that you have instructions to accept service of the notice.[7]
…
Consideration
3.1 The application concerns a question of law extraneous to the Award and the
NES
A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in an Award are exercised. The Commission is authorised to exercise powers under the Award to settle disputes about a matter under the Award or in relation to the NES and, accordingly, its powers are limited to disputes of that kind.
Relevantly, clause 43 of the Award contains a dispute resolution procedure, which provides:
43.1 Clause 43 sets out the procedure to be followed if a dispute arises about a matter under this award or in relation to the NES.
(emphasis added)
In characterising the nature of the dispute in this matter, the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced and evidence tendered.[8] This approach to the characterisation of a dispute, oft referred to as being a broad approach,[9] is adopted for present purposes.
Whilst Ms Howard seeks to characterise the dispute in her evidence as one which relates to the issue of whether she is entitled to the ‘NES and Award entitlements for [her] employment by Auscor as a draftsperson’,[10] I consider this a simplification of what really lies at the heart of this dispute. As was aptly put by Ms Howard’s agent in the email dated 14 December 2022, the ‘critical issue between the parties is whether [Ms Howard] is an employee for the purposes of [the Act].’[11] However, that identification is not sufficiently particularised in my view.
Having considered the Form F10, the evidence, and the submissions of the parties, I have formed the view that the dispute is about whether Ms Howard, when working for Auscor in the period of 1 January 2005 to 17 January 2022, was an employee or an independent contractor. The dispute therefore concerns the common law question of whether Ms Howard was an employee, and in circumstances where she was, it becomes a claim for contravention of the Award and/or underpayment (in addition perhaps to others).
In Association of Professional Engineers, Scientists and Managers Australia v GM Holden Pty Ltd (APESMA v Holden),[12] the Deputy President addressed a dispute concerning redundancy pay outs. The Association of Professional Engineers, Scientists and Managers Australia (APESMA) contended that GM Holden Pty Ltd (Holden) had undercalculated the redundancy payments of the employees because their length of service did not include additional periods where the workers had been engaged as independent contractors for third parties (but their labour had been supplied to Holden). APESMA contended that the workers had been employees for the disputed periods and sought to have the Commission arbitrate the dispute under the dispute resolution provisions of the relevant enterprise agreement. APESMA argued that the dispute fell under the enterprise agreement because it was a dispute about the redundancy entitlements contained in the enterprise agreement. At paragraph [24] of APESMA v Holden, the Deputy President stated:
[24] In my view, the matter to which the dispute relates is a question of law, namely whether the affected members were employees of Holden during the disputed periods. That matter does not arise under, nor does it relate to, the Agreement. The relationship between the affected members and Holden was formed outside of the Agreement, many years before the Agreement was created. This situation can be contrasted with a dispute concerning the status or character of the relationship between an employer and an employee under an enterprise agreement, such as might arise in relation to an employee’s correct classification under an agreement, or a dispute about whether an employee falls within the coverage of an agreement. There is no dispute about the character of the affected members’ relationship with Holden under the Agreement, during its period of operation. In the present case, the disputed matter concerns the application of the common law of Australia to facts that existed in the distant past. The determination of that disputed matter has an implication for the application of the Agreement, because it affects the length of service. But it is extraneous to the Agreement. That matter does not arise under the Agreement.
APESMA v Holden may not be on all fours with Ms Howard’s application. The Deputy President in APESMA v Holden expressed that the relationship between the affected APESMA members and Holden was formed outside of the Agreement, many years before the Agreement was created. This differs to Ms Howard’s circumstances, as the Award appears to have been in operation since 2010, and arguably would at least have ‘covered’ (not in the sense of s 48 of the Act) part of Ms Howard’s and Auscor’s working relationship. However, what is evident in the application before me is the historical context to this dispute. The dispute before me is not one concerning the status or character of the relationship between Ms Howard and Auscor under the Award because at the time Ms Howard raised her dispute, the working relationship with Auscor had already ended.
As was said by the Deputy President in APESMA v Holden, ‘[i]n the present case, the disputed matter concerns the application of the common law of Australia to facts that existed in the distant past’.[13] Whilst perhaps not so distant, the observation remains apposite. The dispute between Ms Howard and Auscor ultimately comes down to a question of law as to whether Ms Howard was an employee when working for Auscor in the period of 1 January 2005 to 17 January 2022, and if she was, whether the Award was contravened.
On this basis alone, the Commission has no jurisdiction to deal with Ms Howard’s dispute. However, if I am wrong on this point, for the reasons that follow, Ms Howard’s application can still not proceed.
3.2 The dispute was raised after Ms Howard concluded working for Auscor
One of the issues in this case is whether the Commission has the jurisdiction to deal with a dispute under s 739 concerning a purported former employee.
It is clear from ING Administration Pty Ltd v Jajoo (Jajoo)[14] and the decisions that follow it both under the Workplace Relations Act 1996 (Cth),[15] and under the Act,[16] that there is capacity for the Commission’s jurisdiction to be enlivened in a dispute involving a former employee if there is compliance with an applicable dispute settlement procedure during the employment. It is however observed that the aforementioned decisions considered the Commission’s jurisdiction in circumstances where the dispute resolution procedure arose from an enterprise agreement or certified agreement.
In Jajoo, the Full Bench considered this issue in respect of a dispute resolution procedure in a certified agreement and the preceding authorities, and stated that:
[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer. If the dispute is progressed to the point of seeking the assistance of the Commission, the ING interpretation would require the employee to remain in employment. If it was intended to incorporate a limitation in s 170LW of the nature contended for by ING, we would expect there to be a clear express reference to that effect.
[39] The ING interpretation involves construing the provision as disqualifying employees from any process the parties may agree to confer on the Commission once they cease to be employed by their employer. Further, it requires s 170LW to be construed as depriving the parties to agreements of the ability to have a dispute continue to be resolved under an agreed procedure after termination of employment. Such a consequence would arise with respect to any dispute over any aspect of the agreement, even claims such as the non-payment of a meal allowance. It would also operate to deprive the Commission of jurisdiction at any time during the process. If termination arises after a decision is reserved, the jurisdiction to hand down the decision would not exist. As a matter of interpretation, a court or tribunal should not read a limitation into a source of power unless the words clearly bear such a meaning. Further, we do not believe that concepts of legal and industrial disputes provide any assistance in resolving the matter. Nor do we believe that it matters how the termination of employment occurred. We do not believe that s 170LW should be interpreted as including a limitation on the rights of parties to agreements in this way. If a dispute arises when the employment relationship exists, we are of the view that it is a dispute between the employer and an employee. We believe that a limitation of the nature contended for by ING should not be inferred from the words of s 170LW. In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.
In Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd, the Full Bench expressed that Jajoo is authority for the finding that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated.[17]
Similarly, in Mitchell v University of Tasmania, the Full Bench expressed:
We now turn to grounds 1 and 2 of the appeal. As the University properly acknowledged, insofar as the Commissioner determined that there was a lack of jurisdiction by reason of the fact that the Agreement ceased to apply to Mr Mitchell from the date that his employment terminated, his decision was contrary to a long line of Commission authority both pre- and post-dating the enactment of the FW Act. The decisions which were made under the Workplace Relations Act 1996, namely Jajoo, Telstra and Deakin University, determined that there was no basis to read a limitation into s 170LW of that Act preventing the Commission from arbitrating a dispute which had arisen at a time when there was there was an employment relationship between the disputants solely because the employment relationship had terminated after the Commission was seized of the dispute. That approach continued to be applied under the FW Act in the Full Bench decisions in Kentz, Broadspectrum and Goonyella on the basis that, where an application under s 739 of the FW Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employees remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end.[18]
In Ms Howard’s Form F10, she is asked to outline the steps that she has already taken to resolve the dispute under the dispute resolution procedure. Ms Howard states that that the first step that she took was to issue a notice to Auscor to confer about the dispute. Ms Howard attached that notice to her Form F10. The notice is dated 19 December 2022 (Notice) and reads in part:
1. Arthena Howard worked for you between the 28th May 2008 and the 17th January 2022.
2. During her employment her terms and conditions were covered by the Fair Work Act 2009, the National Employment Standard (the NES) and the Manufacturing and Associated Industries & Occupations Award 2020 (the Award).
3. You terminated her employment on the 17th January 2022 when she met with you to discuss a better job offer and your requirement to pay her long service leave.
4. You refused to pay her any of her entitlements at termination to annual leave, long service leave, public holidays and notice (her entitlement).
5. Mrs Howard claims her entitlements pursuant to the NES and the Award.
6. You dispute that she was an employee during the period she worked for you.
7. She seeks to meet and discuss this issue regarding whether she is an employee covered by the Award.
8. Mrs Howard is obliged by clause 43 of the Award to have discussions with you regarding this issue with a view to resolution without invoking the dispute resolution jurisdiction of the Fair Work Commission.
Auscor denies the assertions in the Form F10 and submits that the first step that Ms Howard took to raise a dispute about her purported entitlements was on or shortly after 25 January 2022 when she served her IMC Application on Auscor.
Auscor further highlights that there is no dispute between the parties that Ms Howard was not employed either on 25 January 2022 (or shortly after) or 19 December 2022.
Ms Howard’s argument is premised upon a presumed acceptance that she was an employee covered by a modern award. As observed, in this case that modern award is the Manufacturing and Associated Industries and Occupations Award 2020. Putting to one side the issue of whether Ms Howard was an employee and assuming for the following discussion she was, for Ms Howard to access the dispute resolution procedure at clause 43 of the Award, the Award had to cover Ms Howard in her employment when she raised the dispute.
It is trite to observe that the Commission may make a modern award.[19] A modern award is understood to mean a modern award made under Part 2-3 of the Act.
Part 2-3 sets out that a modern award must include terms setting out the employers, employees, organisation and outworker entities that are covered by the award.[20] In respect of employers and employees, a modern award must be expressed to cover: (a) specified employers; and (b) specified employees of employers covered by the modern award.[21]
A modern award covers an employer and employee if the award is expressed to cover the employee or employer.[22] Of course, a reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.[23]
It is understood that a modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.[24] Similarly, a modern award does not give a person an entitlement unless the award applies to the person.[25] It should be noted that a person must not contravene a term of a modern award.[26]
A modern award only applies to an employee and employer if it covers the employee and employer, it is in operation, and no other provision of the Act has the effect that the modern award does not apply to the employee or employer.[27]
A modern award is permitted to include procedures for dispute settlement,[28] and it must include a term that provides a procedure for settling disputes about any matters arising under the award and in relation to the NES.[29] This makes sense when one considers that the objects of the Act, which include the provision of accessible and effective procedures to resolve grievances and disputes.[30]
It is accepted that an award is not a law,[31] but when made, its provisions are given the force of a law of the Commonwealth.[32] However, it is the Act which which contains a general
prescription as to the powers of the Commission to ‘deal with disputes’.
It is apparent from ss 595(2) and (3) that the concept of ‘dealing’ with a dispute encompasses any dispute measures which the Commission considers appropriate to resolve a dispute, and non-exhaustively includes mediation, conciliation, making a recommendation, expressing an opinion, or arbitration:
595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
Ms Howard’s application has been brought under Part 6-2 of the Act. Under that Part, s 738 prescribes the circumstances in which Div 2 of Part 6-2 applies. Broadly speaking, those circumstances relate to the existence of a dispute resolution procedure in four listed types of employment instruments, namely modern awards, enterprise agreements, contracts of employment/employment agreements and determinations made under the Public Service Act 1999 (Cth).
Section 738(a) refers to a dispute resolution procedure in a modern award which includes a term that provides for dealing with disputes, including a term in accordance with s 146 of the Act.
Section 739 then sets out the Commission’s parameters for dealing with a dispute in circumstances where a term in s 738 requires or allows the Commission to deal with a dispute.[33] Relevant to the case in hand are those subsections at ss 739(3)–(6):
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.
In this case, the ‘term’ referred to in s 738 is clause 43 of the Award which requires or allows the Commission to deal with a dispute under the Award or in relation to the NES. What is evident from clause 43 is that it contemplates that the dispute arises at a time where the context is the workplace, and the first step involves a discussion between the employee and the relevant supervisor. Clause 43.2 of the Award establishes a temporal nexus such that the dispute resolution procedure can only be availed by an employee in the context of that employee’s workplace. Adding support for this interpretation is the coverage of the Award, which is of course limited to particular employers and specified employees.
Returning to the Award and what is to be derived from the word ‘employee’, at clause 4.1, the coverage clause informs:
This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.
Whilst there are exceptions in the coverage clause, they are not relevant for present purposes.
Clause 2 of the Award defines the word ‘employee’ in the following terms:
employee means national system employee within the meaning of the Act.
A ‘national system employee’ is defined in ss 12 and 13 of the Act is defined as follows:
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.
In respect of disputes arising under enterprise agreements, it is accepted that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated. I similarly hold the view that for Ms Howard to now rely upon the dispute resolution procedure at clause 43 of the Award, she must show that she raised her dispute at a time where she purports to have been employed by Auscor.
Ms Howard gives evidence that she made enquiries with Mr Mike McCoy in or around 2020 about long service leave.[34] Thereafter, she says that she approached Mr Mike McCoy again (including on 10 January 2022), and Mr Kim McCoy, Manager of Auscor, and Mr Scott McCoy, Manager of Auscor, several times over the next two years to question whether she was entitled to long service leave.[35]
Whilst Messrs Mike McCoy and Kim McCoy do not recall holding any such discussions, Mr Scott McCoy gave evidence that on two or three occasions around 2020 up to 17 January 2022, Ms Howard did have conversations with him in which she queried whether she was entitled to payment for long service leave.[36]
Ms Howard gave evidence that she ‘resigned’ on 17 January 2022 and effectively that was her last day at work for Auscor.[37]
Ms Howard stated that on 21 January 2021 (presumedly 21 January 2022), she went to see Workclaims Australia to seek advice on the long service leave matter.[38] Ms Howard stated that having provided her with advice, Workclaims Australia, on her behalf, commenced the IMC Application. However, according to Ms Howard, the IMC Application was dismissed in December 2022 and no ruling was made on whether she had an entitlement to NES benefits.[39]
At hearing, Ms Howard gave evidence in cross examination that following the dismissal of the IMC Application, she decided to pursue the current application. Ms Howard acknowledged that to do so she had to initiate a dispute under the Award and did so by the issuance of the Notice. In this respect, Ms Howard’s evidence aligns with the content of her Form F10 in which she confirms that the first step that she took was to issue a notice to Auscor to confer about the dispute.
The contents of the Notice have been set out at paragraph [27] of this decision. Germane to this dispute is the statement within the Notice that speaks of Ms Howard’s obligation under clause 43 of the Award:
…Mrs Howard is obliged by clause 43 of the Award to have discussions with you regarding this issue with a view to resolution without invoking the dispute resolution jurisdiction of the Fair Work Commission.
The Notice is dated 19 December 2022, nearly 11 months after Ms Howard worked for Auscor. Having considered the evidence provided, I find that Ms Howard raised her dispute pursuant to clause 43 of the Award at a time when she was no longer working for Auscor. This is notwithstanding Ms Howard having asked Mr Scott McCoy about an entitlement to long service leave as detailed at paragraph [49]. In my view, asking whether there is an entitlement to long service leave does not constitute raising a dispute under a dispute resolution procedure in clause 43 of the Award.
Even if one is to assume Ms Howard was employed when she says she was – that is on and before 17 January 2022 (which Auscor has denied), by the time Ms Howard raised the dispute under clause 43 of the Award (noting that Ms Howard’s case is that she raised the dispute on 19 December 2022), Ms Howard would simply have been a former employee, no longer covered by the Award and therefore without the benefit of the Award. At that time, she could neither raise a dispute under the Award nor file an application in the Commission to have a dispute under the Award dealt with.
Given that no dispute arose during Ms Howard’s ‘employment’, the application cannot proceed for want of jurisdiction.
3.3 Non-compliance with the dispute resolution procedure
For the sake of fulsomeness, it is relevant to note that clause 43 of the Award sets out the dispute resolution procedure, with the first step contemplating that the resolution of the dispute must first be attempted at the workplace through discussion between the employee concerned and the relevant supervisor. If the dispute remains unresolved, the parties are then required to try to resolve the dispute in a timely manner at the workplace through discussion between the employee and more senior levels of management, as appropriate. Only after those steps have been exhausted and the dispute is unable to be resolved can a party refer the dispute to the Commission.
The evidence does not establish that the dispute resolution procedure in clause 43 of the Award had been followed before the matter was referred to the Commission. On this basis, it can again be considered that the Commission has no jurisdiction under clause 43 unless that condition precedent to referral has been satisfied. This interpretation has been applied consistently in decisions of the Commission with the Commission dismissing applications for lack of jurisdiction.[40]
Conclusion
The dispute does not relate to a matter under the Award or in relation to the NES for the purpose of clause 43 of the Award. Furthermore, the dispute was raised after Ms Howard concluded working for Auscor. Prior to the referral of the dispute to this Commission, the steps in the dispute resolution procedure and not been complied with. The jurisdictional objection is therefore upheld, and the application is dismissed. An Order[41] to this effect issues concurrently with this decision.
DEPUTY PRESIDENT
Appearances:
Mr P Mullally for the Applicant.
Mr B Taylor for the Respondent.
Hearing details:
2023.
Perth (by telephone):
13 February.
[1] MA000010.
[2] Witness Statement of Brendan Taylor, [4].
[3] Ibid.
[4] Ibid [5].
[5] Ibid [15].
[6] Ibid [21].
[7] Digital Hearing Book, 357 (DHB).
[8] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Ltd (2003) 128 IR 101, 110 [47].
[9] See, eg, Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia (2016) 262 IR 83, 93 [36].
[10] Witness Statement of Arthena Howard, [3] (Howard Statement) [3]; DHB (n 7) 34.
[11] DHB (n 7) 357.
[12] [2020] FWC 6519.
[13] Ibid [24].
[14] (2006) 158 IR 239.
[15] See, eg, Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2007) 163 IR 134; Deakin University v Rametta (2010) 196 IR 42.
[16] See, eg, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019; Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd (2017) 262 IR 122 (Broadspectrum); Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619.
[17] Broadspectrum (n 16) 133 [42].
[18] (2022) 319 IR 1, 10–11 [29].
[19] Fair Work Act 2009 (Cth) s 157.
[20] Ibid s 143(1).
[21] Ibid s 143(2).
[22] Ibid s 48.
[23] Ibid s 48(5).
[24] Ibid s 46(1).
[25] Ibid s 46(2).
[26] Ibid s 45.
[27] Ibid s 47(1).
[28] Ibid s 139.
[29] Ibid s 146.
[30] Ibid s 3.
[31] Ex parte McLean (1930) 43 CLR 472, 479 (Isaacs CJ and Starke J); Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 425 (Brennan CJ, Dawson and Toohey JJ), 455 (McHugh and Gummow JJ); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, 438 [51] (City of Wanneroo).
[32] City of Wanneroo (n 31) (2006) 153 IR 426, 438 [51].
[33] Fair Work Act 2009 (Cth) s 739(1).
[34] Howard Statement (n 10) [22].
[35] Ibid.
[36] Witness Statement of Scott McCoy, [4].
[37] Howard Statement (n 10) [28].
[38] Ibid [29].
[39] Ibid [31].
[40] See, eg, National Tertiary Education Union v Charles Sturt University (2005) 145 IR 319, 324–6 [11]–[15]; Transport Workers’ Union of Australia v Torrens Transit Services Pty Ltd (2013) 236 IR 263.
[41] PR751038.
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