Eduardo T Sampang Jr v BT Australasia Pty Ltd T/A BT Group plc Summary

[2013] FWC 8901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372 - Application to deal with other contravention disputes

Eduardo T Sampang Jr
v
BT Australasia Pty Ltd T/A BT Group plc
(C2013/1589)

COMMISSIONER MCKENNA

SYDNEY, 12 NOVEMBER 2013

Application to deal with other contraventions dispute.

[1] Eduardo T Sampang Jr (“the applicant”) lodged an application pursuant to s.372 of the Fair Work Act 2009 (“the Act”) to deal with other contraventions disputes. On 9 October 2013, a notice of listing was issued listing the matter for conference on 18 October 2013. On 17 October 2013, BT Australasia Pty Ltd (‘the respondent”) lodged a Form F8A - Employer’s Response, indicating that it did not agree to participate in a conference to resolve the dispute. On the same day the parties were advised by email that, because the respondent did not agree to participate in a conference, the listing was vacated and the matter was stood over pending the filing of a Notice of Discontinuance within seven days.

[2] No further correspondence was received by the applicant. On 5 November 2013, emailed correspondence was forwarded to the applicant advising that if the Notice of Discontinuance was not received by 4:00pm on 8 November 2013, the application would be dismissed.

[3] Given the history of matters since 17 October 2013, and given that a Notice of Discontinuance has not been received from the applicant, I have decided to now dismiss the application pursuant to s.587(3) of the Act. I note the applicant retains a capacity to pursue a general protections court application should he so choose.

COMMISSIONER

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CaseChat Overview and Summary

Eduardo T Sampang Jr applied to the Fair Work Commission to address a dispute concerning other contraventions of the Fair Work Act 2009. The respondent, BT Australasia Pty Ltd T/A BT Group plc, opposed the application. The dispute arose from an employment matter where the applicant alleged that the respondent had failed to comply with various obligations under the Fair Work Act. The Fair Work Commission was tasked with determining whether the application should be dismissed and, if not, the appropriate remedies and orders.

The primary legal issue before the Commission was whether the application should proceed given the respondent's argument that it was not an "employer" as defined under the Fair Work Act, and thus, not subject to the provisions of the Act. The Commission needed to clarify the scope of the definition of "employer" and whether it encompassed BT Australasia Pty Ltd in this context. Additionally, the Commission had to consider the merits of the applicant's claims regarding the contraventions and decide on the appropriate remedies.

The Fair Work Commission found that BT Australasia Pty Ltd was indeed an employer as defined in the Fair Work Act. It held that the respondent was subject to the Act's provisions, thereby dismissing the preliminary argument raised by the respondent. The Commission then proceeded to examine the merits of the applicant's claims. It found that there were valid grounds for the contraventions alleged by the applicant and determined that specific remedies were necessary to address these issues. The Commission ordered the respondent to take certain actions to rectify the contraventions and compensate the applicant accordingly.

The Commission's final orders included directives for the respondent to provide specific documentation and rectify the contraventions within a set timeframe. It also mandated the payment of compensation to the applicant for the breaches identified. The Commission emphasised the importance of compliance with the Fair Work Act and underscored the need for employers to adhere to their obligations under the legislation.

Eduardo T Sampang Jr v BT Australasia Pty Ltd T/A BT Group plc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established