Dean Weikl v Western Australian Turf Club T/A Perth Racing

[2018] FWC 6374

[2018] FWC 6374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Dean Weikl
v
Western Australian Turf Club T/A Perth Racing
(C2018/5013)

COMMISSIONER WILLIAMS PERTH, 15 OCTOBER 2018

Application to deal with a dispute - jurisdiction.

[1] This decision concerns an application made by Mr Dean Weikl (the Applicant) under section 739 of the Fair Work Act 2009 (the Act). The respondent is Western Australian Turf Club T/A Perth Racing (the Respondent).

Background

[2] At the direction of the Commission the Respondent filed a response to this application on 21 September 2018 (the Respondent’s Outline of Submissions) and served a copy of this on the Applicant.

[3] A conference regarding this matter was held on 26 September 2018.

[4] Later that day the Commission directed the Applicant, by 11 October 2018, to either advise that he wished to discontinue his application or alternatively provide written submissions in response to the jurisdictional objection detailed in paragraphs 12 to 22 of the Respondent's Outline of Submissions.

[5] On 11 October 2018 the Respondent’s representative emailed the Commission requesting that the matter now been dismissed because the Applicant had not provided any response as directed by the Commission. That email was copied to the Applicant and to his representative.

[6] As at the date of this decision the Applicant has not complied with the Commission’s direction nor otherwise been in contact with the Commission.

The Respondent’s objection

[7] The Respondent’s jurisdictional objection was as follows.

[8] Section 739 of the Act only permits the Commission to deal with a dispute if the Dispute Settlement Procedure contained in an enterprise agreement permits the Commission to deal with the dispute. Furthermore, this section only permits the Commission to exercise the powers contained in the Dispute Settlement Procedure.

[9] In addition, s.595(1) of the Act only permits the Commission to deal with a dispute if the Commission is expressly authorised to do so under or in accordance with another provision of the Act.

[10] Addressing the application, firstly, Part 6-2, Division 2 of the Act does not apply to the Respondent’s policies that it has in place because these policies are not a term of:

•  A modern award; or

•  An enterprise agreement; or

•  A contract of employment or written agreement between the Respondent and the Applicant; or

•  A determination under the Public Service Act 1999

[11] The Applicant’s employment was covered by the Perth Racing Enterprise Agreement 2016 [AE418617] (the Agreement). Clause 18 of the Agreement contains the Dispute Settlement Procedure enabling the Commission to deal with disputes. However, this clause applies only where there is a dispute about any matter arising under the Agreement or in relation to the National Employment Standards (NES).

[12] It is clear from the application that the dispute which the Applicant is seeking to have the Commission deal with relates to the finding by the Respondent that the Applicant committed misconduct by making an inappropriate racially motivated statement to another employee and the issuing of a written warning by the Respondent. The Applicant claims that the Respondent denied him procedural fairness and natural justice in coming to its finding.

[13] At no stage did the Applicant make any request for flexible working arrangements as provided for in the NES and in any event, even if it was found that after one engagement, the Applicant had a reasonable expectation of continuing employment on a regular and systematic basis, the Applicant was not a long term casual.

[14] There is no clause in the Agreement relating to the Respondent’s disciplinary process and the way it makes decisions in relation to grievances, complaints or disciplinary penalties. There is also no NES that concerns these matters.

[15] Therefore, this dispute is not covered by clause 18 of the Agreement and it then follows that the Commission does not have the jurisdiction to deal with the application.

Decision

[16] The Applicant has had an opportunity to put submissions to the Commission regarding the Respondent’s jurisdictional objection but has not done so.

[17] I am satisfied on the information before me including the application and the Respondent’s Outline of Submissions that the Commission, as the Respondent argued, has no jurisdiction to deal with the dispute raised in this application.

[18] Accordingly this application is hereby dismissed.

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