Fiona Maloney

[2021] FWC 4409

[2021] FWC 4409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.66M - Application to deal with a dispute about the right to request casual conversion

Fiona Maloney
(C2021/3815)

COMMISSIONER WILLIAMS PERTH, 23 JULY 2021

S.66M - Application to deal with a dispute about the right to request casual conversion - Jurisdiction.

[1] This decision concerns an application made by Ms Fiona Maloney (Ms Maloney or the Applicant) under section 66M of the Fair Work Act 2009 (the Act) concerning a dispute about casual conversion.

[2] The Respondent employer identified in the application is the North Metropolitan TAFE.

[3] The application was listed for a conference and the Respondent was directed to file a response prior to the conference, by 14 July 2021.

[4] In compliance with those directions the Respondent filed their response. The Response identified the jurisdictional objection that the Respondent is not a national workplace relations system employer and consequently it was submitted there was no jurisdiction for the Commission to deal with the dispute.

[5] On 16 July 2021 the parties attended the conference in person. The jurisdictional objection pressed by the Respondent was discussed at the conference and explained to the Applicant.

[6] The conference was adjourned, and further time was allowed for the Applicant to provide a considered response to the Respondent’s objection. Subsequently by email the Applicant has provided her views on the objection.

Consideration

[7] The Act does not apply to all employees working in Western Australia.

[8] The coverage of the Act is confined to employees of national system employers.

[9] The meaning of ‘national system employer’ is prescribed in section 14 of the Act, set out below.

“14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).

Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

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.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of 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.

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment (see regulations made for the purposes of paragraph 54(2)(b) of that Act).

Employers that cannot be declared

(6) Subsection (2) does not apply to an employer that:

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

(c) provides services for the supply, distribution or release of water; or

(d) operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.”

[10] Whether an employer is a national system employer depends on the location, the state or territory, of the employment relationship and in some cases the legal status and business of the employer.

[11] Unlike other states, the Western Australia Government has not referred its industrial relations powers to the Commonwealth Government.

[12] Consequently, the Act in Western Australia covers only employees employed by a constitutional corporation or employed by some local governments and authorities.

[13] State government employers in Western Australia are therefore not national system employers and so they and their employees are not covered by the Act. They are instead covered by Western Australian legislation, including the Industrial Relations Act1979 (WA).

[14] I accept the submission of the Respondent that it is a body established for a public purpose by or under a law of the State Government. I accept the submission that the North Metropolitan TAFE is not a national system employer.

[15] Consequently, I find that the Applicant, Ms Maloney, is not a national system employee. Ms Maloney’s employment is not covered by the Act. The Commission therefore has no jurisdiction to consider her application.

[16] This application is beyond the jurisdiction of this Commission and consequently must be dismissed.

[17] This decision is not in any way a determination of the merit or otherwise of the subject matter of Ms Maloney’s dispute with her employer.

[18] An Order [PR732031] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

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