David Plath v Isaac Regional Council

[2019] FWC 3368

[2019] FWC 3368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Plath
v
Isaac Regional Council
(U2019/2091)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MAY 2019

Application for an unfair dismissal remedy.

[1] On 26 February 2019, Mr David Plath made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Plath named Isaac Regional Council as his former employer and advised he worked there from 26 November 2018 to 16 February 2019.

[2] On 27 February 2019, the Fair Work Commission (the Commission) telephoned Mr Plath regarding his application. The following day, correspondence was sent to Mr Plath, via email and post, confirming that employees must be employed by a national system employer to make an application for an unfair dismissal remedy. It was noted it appeared Isaac Regional Council may not be a national system employer. It was further noted that Mr Plath’s application indicated he had not been employed for the minimum employment period required under the Act and the Commission may not have jurisdiction to deal with his application on this basis as well. Mr Plath was directed to file any documents/evidence to support his claim he was employed by a national system employer or that he had served the minimum employment period. Contact details were provided for Community Legal Centres for the purpose of obtaining independent advice about the options available to Mr Plath. The letter advised that if Mr Plath did not contact the Commission within 14 days, his application may be dismissed without further notice.

[3] As Mr Plath had not made contact with the Commission, on 10 April 2019 the Commission attempted to telephone Mr Plath, however this was unsuccessful and no voicemail message could be left. Email correspondence was then sent to Mr Plath which noted that unless he contacted the Commission within seven days with an acceptable explanation for not responding to the direction contained in the letter of 28 February 2019, his application would be determined based on the material before the Commission without further reference to him.

[4] To date, Mr Plath has not responded to the Commission’s correspondence.

[5] The unfair dismissal provisions under the Act are contained in Part 3-2. Under Part 3-2, ‘employee’ means a national system employee and ‘employer’ means a national system employer. 1 A national system employee is defined at s.13 of the Act as follows:

“13 Meaning of national system employee

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.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

[6] A national system employer is relevantly defined as follows at s.14 of the Act:

“14  Meaning of national system employer

…

Particular employers declared not to be national system employers

(2)  Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a)  that employer:

(i)  is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii)  is a body established for a local government purpose by or under a law of a State or Territory; or

(iii)  is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b)  that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c)  an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

…

Endorsement of declarations

(4)  The Minister may, in writing:

(a)  endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b)  revoke or amend such an endorsement.

…”

[7] I am satisfied Isaac Regional Council is a body established for a local government purpose under a law of a State or Territory. 2 The Industrial Relations Regulation 2011 (Qld) declares Isaac Regional Council not to be a national system employer.3 Pursuant to s.14(4)(a) of the Act, the Fair Work (State Declarations - employer not to be a national system employer) Endorsement 2012 (No.3) declared Isaac Regional Council not to be a national system employer from 1 January 2013.

[8] In considering the above, I am satisfied that the Commission has no jurisdiction to determine Mr Plath’s application for unfair dismissal remedy as Isaac Regional Council was not a national system employer at the time of Mr Plath’s dismissal and therefore he was not a national system employee for the purpose of Part 3-2 of the Act at the relevant time. Further, I am also not satisfied Mr Plath has completed the required minimum employment period under the Act and therefore the Commission does not have jurisdiction to determine his application on this basis also.

[9] Section 587(1) of the Act provides as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[10] Having regard to the circumstances of this matter, I am satisfied the application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009, s.380.

 2   Fair Work Act 2009, s.14(2)(a)(ii).

 3   Fair Work Act 2009, s.14(2)(b).