Ervin v Serco Asia Pacific

[2016] FWC 3035

[2016] FWC 3035

DECISION

Fair Work Act 2009
s.739—Dispute resolution
Earnest Ervin
v
Serco Asia Pacific
(C2016/129)
COMMISSIONER WILLIAMS	PERTH, 13 MAY 2016
Application to deal with a dispute.

[1]        This application was made on 25 January 2016.

[2] The application is made under section 739 of the Fair Work Act 2009 (the Act). The

respondent is Serco Asia Pacific [Serco Australia Pty Limited].

[3]        The application states the dispute is about non-payment of statutory leave entitlements

and leave loading on ceasing employment.

[4]        The relief sought is payment of all outstanding leave entitlements, associated loadings

for leave entitlements and statutory interest on outstanding leave entitlements and loading and

any other relevant penalties and fines that may be applicable.

[5]        The respondent objects to the application proceeding on jurisdictional grounds.

[6]        A conference was held on 19 April 2016.

[7]        Following that conference on 20 April 2016 I wrote to the applicant explaining, as was

done at the conference, the nature of the employer’s jurisdictional objections.

[8]        The first is that the applicant is no longer an employee and took no steps to pursue the

matters in dispute prior to his employment ending.

[9]        Secondly the relief sought amounts to a declaration and enforcement of his alleged

legal rights which is beyond the jurisdiction of the Commission.

[10]      The letter advised the applicant that the Commission’s preliminary view was that these

jurisdictional objections would be upheld if the Commission was required to determine the

matter.
[2016] FWC 3035

[11]      The applicant was invited to either withdraw his application, or provide submissions in

response to the jurisdictional objections and the Commission would consider those

submissions and decide the matter.

[12]      The letter advised that if no response was received within 21 days of the date of that

letter the Commission would take it that the application has been withdrawn.

[13]      No response as at the date of this decision has been received from the applicant nor

has he otherwise contacted the Commission. Accordingly I take it that the applicant has

discontinued the application.

[14]      In any event as is plain from the above I am satisfied that there is no jurisdiction for

the Commission to deal with the matters and had the applicant sought for the application to be

determined it would have been dismissed.

[15]      Given the applicant has discontinued the application the file will be closed and there

will be no further proceedings.

COMMISSIONER

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