Cheryle Teni v Disability Services Queensland

[2015] FWC 2241

[2015] FWC 2241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Cheryle Teni
v
Disability Services Queensland
(C2014/1729)

DEPUTY PRESIDENT BOOTH SYDNEY, 31 MARCH 2015

Section 526 Fair Work Act 2009 - Application to deal with a dispute involving stand down - National System employee.

[1] Ms Teni lodged an application in the Fair Work Commission under section 526 of the Fair Work Act 2009 on 17 September 2014.

[2] The Application was made on a Form 13 - Application for the Commission to Deal with a Stand Down Dispute. Ms Teni identified her employer as Disability Services Queensland. Attached to Ms Teni’s application was her pay advice for the period 8 September 2014 to 21 September 2014. That pay advice had the Queensland Government coat of arms in the top left hand corner.

[3] It is my understanding that Disability Services Queensland is a Queensland State government department. As Ms Teni is an employee of a Queensland State government department, I was concerned that the Fair Work Commission did not have jurisdiction to deal with her application.

[4] On 23 September 2014 my chambers phoned Ms Teni to discuss the jurisdictional issue with the Applicant. Ms Teni confirmed her employer was a Queensland State government department and asked for an ‘F50 - Notice of Discontinuance’ form to be sent to her. On that same day, my chambers sent her a blank F50 for completion. Ms Teni did not respond to that letter or file an F50. A copy of that correspondence was also sent to the Respondent.

[5] On 17 February 2015, my chambers again wrote to the parties, inviting the parties to file submissions in relation to the jurisdictional limitation upon the Commission to deal with an employee of a Queensland State government department.

[6] Ms Teni did not make any submission and accordingly Disability Services Queensland did not file any submissions in reply.

[7] The Queensland Government has referred defined subject matters within workplace relations to the Commonwealth legislature by way of section 5 of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) 1 (the “Qld Act”). Section 6 of the Qld Act provides exclusions to the matters referred to the Commonwealth in section 5. Relevantly, Subsection 6(d) of the Qld Act specifically excludes from the referral of powers, matters relating to public sector employees and employers.

[8] The Fair Work Commission derives its powers from the Fair Work Act 2009 which applies to “national system employees” and “national system employers”. National system employees are employees employed by national system employers. National system employers, amongst others, do not include “a body established for a public purpose by or under a law of a State or Territory, the Governor of the State, by the Administrator of a Territory or by a Minister of a State or Territory”. 2

[9] In all the circumstances I am satisfied that the application is not made in accordance with the Act and I have decided to dismiss the application pursuant to 587(1)(a). An order to this effect is issued along with this decision.

DEPUTY PRESIDENT

 1 Section 3 of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) sets out the referred subject matters.

 2 Section 14 Fair Work Act 2009.

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