Christopher Shaun Adamson v Gfk Australia Fieldwork Pty Ltd

[2022] FWC 645

[2022] FWC 645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Christopher Shaun Adamson
v

Gfk Australia Fieldwork Pty Ltd

(C2022/453)

DEPUTY PRESIDENT CROSS SYDNEY, 24 MARCH 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

1. On 12 January 2022, Mr Christopher Shaun Adamson (the Applicant) lodged an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a dispute. The application was said to be lodged in relation to the non-payment of redundancy pay by Gfk Australia Fieldwork Pty Ltd (the Respondent).

1. The dispute concerned the operation of Clause 35.1 of the NUW and AMSRO Market & Social Research Industry Agreement 2017-2020 (the Agreement), which provides as follows:

   “35. REDUNDANCY – CASUAL EMPLOYEES

   35.1 This clause shall apply to a casual employee who:

   35.1.1 is terminated by the employer on the grounds of redundancy due to an operational restructure of a work site or work group by the employer and who is not offered acceptable alternative employment. Provided that this clause does not apply to termination due to an increase or decrease in work or the customary turnover of labour; and

   35.1.2at the time of termination has been engaged by the employer:

·     for a sequence of periods of employment under this Agreement during a period of at least two years on a regular and systematic basis; and

·     for at least 456 hours in the last twelve months.”

1. I conducted a conference on 28 January 2022 however this did not resolve the dispute. Directions for the filing of materials were issued on 1 February 2022, and the matter was listed for Hearing on 16 March 2022.

1. In their submissions filed on 3 March 2022, the Respondent raised a jurisdictional objection to the application, being that on a proper construction of the dispute resolution procedure clause, the power of the Commission to deal with the dispute had not been enlivened. The dispute resolution procedure clause is contained in Clause 32 of the Agreement and provides:

“32. DISPUTES PROCEDURE

32.1 Any dispute or claim (whether any such dispute or claim arises out of the operation of this Agreement or not) as to the wages or conditions of employment of any of the employees covered by this Agreement, including a claim that the Agreement or the NES (excluding subsections 65(5) or 76(4)) has been breached, or as to the relationship between an employer and the NUW, shall be settled in the following manner:

32.1.1 Where practicable the aggrieved employee and the employee’s supervisor shall first discuss the matter. The employee is entitled to request the presence of union representative for this discussion (which shall not be unreasonably refused).

32.1.2 If settlement is not reached the matter shall be discussed between the delegate and the site manager or other appropriate officer of the employer.

32.1.3 If not settled the matter shall then be discussed between the union organiser and the appropriate representative employer.

32.1.4 If local discussions are unsuccessful or if either party desires to discuss the matter immediately at a higher level, discussions may be held between the NUW State NUW and AMSRO Market Research Industry Agreement 2017– 2020 - 29 - and/or National Office representatives and the employer representatives, including if necessary, AMSRO.

32.1.5 If the matter is still not settled then it shall be submitted to a member of Fair Work Australia for conciliation and if necessary arbitration, whose decision shall, subject to any rights of appeal, be final and accepted by the parties.

32.1.6 Without prejudice to either party, and except where a bona fide safety issue is involved, work shall continue in accordance with this Agreement while matters are negotiated in good faith.

32.1.7 If arbitration is necessary the parties agree that Fair Work Australia shall have the power to do all such things as are necessary for the just resolution or determination of the matter in dispute. This includes the exercising of procedural powers in relation to directions, hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

32.1.8 A nominated employee representative may be involved in any of the above steps.”

1. At the hearing on 16 March 2022, I delivered an ex tempore decision. The following is a transcript of that decision:

“This is an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure filed by Mr Christopher Adamson.  The application for the Commission to deal with the dispute was relevantly filed on 12 January 2022.

The dispute related to employment of the Applicant by Gfk Australia Fieldwork Pty Ltd, a survey company to deal with market research and ratings.  The facts of the matter involve the termination by way of redundancy of Mr Adamson, such termination occurring on 28 October 2021.

The Respondent has raised a jurisdictional issue in relation to the application that necessarily was dealt with at the commencement of proceedings.  That jurisdictional issue related to when in fact the Applicant was an employee, particularly an aggrieved employee, subject to the dispute resolution procedure of the relevant agreement applied to the respondent's operation.

It is clear that the Applicant had ceased employment on 28 October 2021 and that as noted, the application for the Commission to deal with a dispute was not filed until 12 January 2022; some, it would seem, 10 weeks later.

In circumstances where an aggrieved employee is no longer an employee of a Respondent, the authorities are clear that the Applicant does not have standing to seek relief, pursuant to s.739 of the Fair Work Act.

… There can be circumstances where the aggrieved employee, having agitated a dispute prior to the termination of employment, can be seen to be within jurisdiction.[1]  However, that is not the case in these proceedings, because it is clear and understood between the parties that the letter of demand relating to the claim that was the subject of the dispute notification was not sent until 18 November 2021 or after the termination of employment of the Applicant.

The Applicant not being an aggrieved employee pursuant to any dispute resolution procedure, he cannot progress his application for relief pursuant to s.739 of the Fair Work Act. In that circumstance, I consider there are no reasonable prospects of success and pursuant to s.587 of the Fair Work Act I dismiss the Application.”

1. The application made by the Applicant pursuant to s.739 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

C Adamson, Applicant.
J Adams and K Yoon of the Respondent.

Hearing details:

2022.
Sydney (by videoconference):
March 16.

Printed by authority of the Commonwealth Government Printer

<PR739629>

[1] Fairall v St George & Sutherland Community College Inc (2012) 226 IR 402.

Printed by authority of the Commonwealth Government Printer

<PR739629>