Frank Spanoudis v Canterbury-Bankstown Council
[2025] FWC 1497
•26 AUGUST 2025
| [2025] FWC 1497 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Frank Spanoudis
v
Canterbury-Bankstown Council
(C2025/63)
| COMMISSIONER MATHESON | SYDNEY, 26 AUGUST 2025 |
Application to deal with contraventions involving dismissal
Mr Frank Spanoudis (Applicant) has filed a Form F8 application (Form F8) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth)(Act). The respondent in the matter is Canterbury-Bankstown Council (Respondent).
The Applicant was dismissed from his employment with the Respondent on 17 December 2021. The application was made 1095 days after the Applicant’s dismissal, which is well in excess of 21 days.
The Respondent submitted that:
The application should be dismissed on the basis the Respondent is not a national system employer as defined in the Act and the Applicant is not a national system employee as defined in the Act.
Should the Commission determine that it is seized of jurisdiction, that the application be dismissed on the basis that it is made out of time and there are no exceptional circumstances that would warrant an extension of time.
The hearing
A hearing in relation to the matter took place on 2 June 2025. The Respondent sought permission to be represented by a lawyer in the proceedings. The matter raises complex questions about the nature of the Respondent and the Commission’s jurisdiction to deal with the dispute. I granted permission for the Respondent to be represented by a lawyer pursuant to s.596(2)(a) of the Act on the basis that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Accordingly, at the hearing, the Respondent was represented by Mr Anton Duc of counsel and the Applicant was self-represented.
Both the Applicant and Respondent filed submissions ahead of the hearing[1] and the Respondent filed a witness statement of Benjamin James King, together with annexures.
The jurisdictional question
The Applicant’s application indicates that the Applicant believes he was dismissed in contravention of s.351 of the Act. In particular, the Applicant submits that his dismissal was based on his decision not to receive a COVID-19 vaccination and that this was a choice informed by his religious beliefs. The Applicant submitted that his dismissal was adverse action on the basis of his religious beliefs.
In this regard s.351(1) provides that:
‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin’.
Section 342(1) includes a table setting out the circumstances in which a person takes adverse action against another person and Item 1 of that table is set out below:
| Meaning of adverse action | ||
| Item | COLUMN 1 ADVERSE ACTION IS TAKEN BY … | Column 2 if… |
| 1 | an employer against an employee | the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer. |
The terms ‘employee’ and ‘employer’ are referred to in both ss 342(1) and 351 of the Act. In this regard s.335 provides that in Part 3-1 the terms ‘employee’ and ‘employer’ have their ordinary meanings. This is different to the definition of those terms in Part 3-2 of the Act dealing with unfair dismissal and I return to this below.
Where a person makes an application under s.365 of the Act, the Commission can only deal with the dispute where the person has been ‘dismissed’ within the meaning of s.386 of the Act. In this regard, section 386(1) of the Act provides that a person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
While the application before the Commission is a general protections application involving dismissal, the definition of ‘dismissed’ is in Part 3-2 of the act dealing with unfair dismissal. For the purposes of Part 3-2 of the Act, which deals with unfair dismissal, s.380 defines ‘employer’ as a ‘national system employer’.
Section 14 of the Act provides the following definition 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.
As noted above, the Respondent raised a jurisdictional objection to the application, submitting it is not a national system employer. Canterbury-Bankstown Council is:
“a body established for a public purpose by or under a law of a State”, being a body established for a local government purpose by or under a law of a State or Territory;[2]
“specifically declared, by or under a law of the State” not to be a national system employer for the purposes of this Act” noting that:
a.section 9A(1) of the Industrial Relations Act 1996 (NSW)(IR Act) provides that an eligible employer is declared not to be a national system employer for the purposes of the Act if the Minister, by order published on the NSW legislation website, declares the employer not to be a national system employer; and
b.the Industrial Relations (National System Employers) Order 2009 made in accordance with s.91 of the IR Act declares that Canterbury-Bankstown Council is not a national employer; and
an endorsement by the Minister under paragraph (4)(a) is in force in relation to the Respondent, being the Fair Work (State Declarations – employers not to be national system employers) Endorsement 2009 (Cth) of which item 30 of Schedule 1 declares the Respondent not to be a national system employer.
The Respondent is therefore not a national system employer as defined in the Act.
However a question arises as to whether, in calling up the definition of dismissal in Part 3-2 of the Act, it was intended that the term ‘employer’ as referred to in that definition was intended as a reference to s.14 of the Act, particularly noting that the contravention alleged by the Applicant uses the term ‘employer’ to which s.335 assigns its ordinary meaning.
In this regard, the Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) states, in relation to Part 3-1 of the Act dealing with general protections:
‘Division 2 – Application of this Part
1346. Part 3-1 does not rely on the terms national system employer and national system employee as defined in clauses 13 and 14. Instead, Division 2 sets out how the Part applies to action taken by a person. It does not apply on the same basis as the main provisions of this Bill which regulate the rights and obligations of national system employers and employees in relation to each other and the rights and obligations of organisations in relation to their employment relationships.
1347. On the face of the provisions of Part 3-1, the Part regulates the conduct of all employers, employees, principals, independent contractors, industrial associations and in some cases, all persons. However, the part only applies to the extent provided for in this Division.
Clause 337 – Application
1348. Clause 337 applies Part 3-1 only to the extent set out in clauses 338 and 339. Those provisions connect the conduct regulated by the Part to the constitutional powers that support the main provisions of this Bill (such as the corporations power and the Territories power) and to the Commonwealth’s power to make laws with respect to Commonwealth places.
Clause 338 - Action to which the Part applies
1349. Subclause 338(1) provides that the Part applies to action:
·taken by national system employers against national system employees (paragraphs 338(1)(a) and 338(1)(e));
·taken by national system employees which affects the activities, functions, relationships or business of national system employers (paragraphs 338(1)(b) and 338(1)(f)),
·whether the national system employer is classified, for the purposes of these provisions, as a constitutionally-covered entity, a trade and commerce employer or a Territory employer. (Constitutionally-covered entity, trade and commerce employer and Territory employer are defined in subclauses 338(2), (3) and (4) respectively and cover all types of national system employers.)
1350. Subclause 338(1) also applies the Part to:
·action taken by a constitutionally-covered entity against any person, even if the action is not taken against one of its employees (paragraph 338(1)(a));
·action taken by any person which affects the activities, functions, relationships or business of a constitutionally-covered entity, whether or not that person is one of its employees (paragraph 338(1)(b)); and
·action taken by any person to advise, incite, encourage or coerce a constitutionally-covered entity to take action, whether or not the person who advises etc., or the person against whom the action would be taken, is one of its employees (paragraph 338(1)(c)).
1351. Paragraph 338(2)(e) also applies the Part to all action by, affecting or advising etc. an organisation.
1352. Paragraph 338(1)(d) also applies the Part to any action taken in a Territory or in a Commonwealth place. (Some of this action would also be covered by other provisions of subclause 338(1).)
1353. Subclause 338(1) largely applies the Part to national system employers and employees and organisations. However, extension of the Part to actions by and affecting national system employers (even if not in their capacity as employers) and organisations, and to all action in Territories and Commonwealth places, means that the Part may in some circumstances also apply to actions by:
·State employers and State employees;
·principals and independent contractors;
·unregistered federal industrial associations;
·registered and unregistered State industrial associations; and
·other persons.
…
Clause 339 - Additional effect of this Part
1354. Clause 339 applies Part 3-1 by giving the Part effect as if a reference to employer, employee, industrial association, officer of an industrial association, workplace law, workplace instrument or industrial body were a reference to the federal manifestation of one of those entities.
1355. For example, the Part has effect as if, in any particular instance, employer were read as national system employer, industrial association were read as federal organisation or unregistered federal industrial association and workplace law were read as Commonwealth workplace law. The Commonwealth has legislative power to regulate all of the action in the Part if restricted in one of these ways to the relevant federal manifestation.
1356. Clause 339 also applies Part 3-1 by giving the Part effect as if a reference to a person were a reference to a constitutionally-covered entity’.
1357. The effect of clause 339 overlaps significantly with the effect of clause 338. Clause 339 ensures that, at a minimum, the Part applies in circumstances where a direct federal connection exists’.
As noted by the Explanatory Memorandum, Part 3-1 does not rely on the terms ‘national system employer’ and ‘national system employee’ as defined in ss. 13 and 14 and on the face of the provisions of Part 3-1, the Part regulates the conduct of all employers and employees.
However when the provisions of Part 3-1 are considered together it is apparent that s.342 was intended to capture within the definition of ‘adverse action’, the actions of an employer to dismiss an employee only to the extent Part 3-1 applies as provided for in Division 2 of the Act.
In this regard section 338 provides:
‘Action to which this Part applies
(1) This Part applies to the following action:
(a)action taken by a constitutionally - covered entity;
(b)action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally - covered entity;
(c)action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally - covered entity:
(i) to take, or not take, particular action in relation to another person; or
(ii) to threaten to take, or not take, particular action in relation to another
person;(d)action taken in a Territory or a Commonwealth place;
(e)action taken by:
(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect
an employee of the employer;
(f) action taken by an employee of:
(i) a trade and commerce employer; or
(ii)a Territory employer;
that affects, is capable of affecting or is taken with intent to affect the employee’s employer.
(2) Each of the following is a constitutionally - covered entity :
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(e) an organisation.
(3) A trade and commerce employer is a national system employer within the meaning of paragraph 14(d)’.
While the Respondent is not a National System Employer, as can be seen above, section 338 provides that Part 3-1 applies to action taken by a constitutionally-covered entity. A constitutionally- covered entity relevantly includes a constitutional corporation.[3] ‘Constitutional corporation’ is defined in s.12 of the Act as “a corporation to which paragraph 51(xx) of the Constitution applies. Paragraph 51(xx) of the Constitution provides that the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth
The status of a local government body was considered by both Deputy President Easton in Bonora v Council of The City of Ryde[4] and Deputy President Roberts in Mazza v Counsil of the City of Ryde.[5] The Respondent submitted that both decisions provide important guidance to the Commission and examine the constitutional and legal framework concerning a local council within the NSW jurisdiction and that the Commission and that the Commission should adopt the legal framework within them.[6] In both of those matters the Deputy Presidents took the view that the question of whether the body was a constitutional corporation should be determined by reference to its potential status as a trading corporation rather than coming to a concluded view as to whether the body was a corporation and I adopt that same approach.[7]
In Bonora v Council of The City of Ryde[8] the Deputy President notes that in Roads and Maritime Services v Leeman[9] the Full Bench provided a comprehensive analysis of the characteristics of trading corporations and set out the principles referred to in Aboriginal Legal Service (WA) Inc v Lawrence (No 2)[10] as a useful starting point for the analysis. Those principles, as set out b Steytler P are as follows:
“(1) A corporation may be a trading corporation even though trading is not its predominant activity …
(2) However, trading must be a substantial and not merely a peripheral activity …
(3) In this context, ‘trading’ is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services…
(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant…
(5) The ends which a corporation seeks to serve by trading are irrelevant to its description … Consequently, the fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as ‘trade’…
(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a ‘trading corporation’ is a question of fact and degree …
(7) The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade …
(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading …”[11]
The Respondent submitted that it is not a trading corporation within the meaning of the Act and in this regard relied on the evidence of Mr Ben King (King), Human Resources Team Leader, together with the Respondent’s Financial Year 2024 Annual Report (Annual Report).
The Annual Report includes that the Respondent’s key activities are:
aquatics
arts and culture
building and development
bushland and biodiversity
child care and youth support
city appearance, amenity and cleaning
climate and resilience
commercial waste
communications and engagement
community development and capacity building
council and governance
customer service and support
domestic waste and recycling
economic development
events and activation
future planning
indoor recreation
library and knowledge
outdoor recreation
parking
parks and open space
private and public transport
public health
public safety
seniors support
walking and cycling
waterways and stormwater
The Respondent’s receipts in Financial Year 2024 were $432.7 million and of this:
67 percent ($291 million) was from the collection of rates and annual charges;
17 percent ($73 million) was from grants and contributions provided for capital and operating purposes;
5 percent ($23 million) was from ‘other revenues’;
4 percent ($18 million) was from interest and investment income;
2 percent ($7 million) was from ‘other income’.[12]
The Respondent submitted that the “other” revenue and income included receipts from parking fines, materials recycling, other rebates, sale of abandoned vehicles and the like, the Applicant did not challenge this and I accept this is likely the case.
The Respondent also received:
$8,710,000 in revenue from its Leisure, Aquatics and Sport and Recreation program, being approximately 2 percent of total receipts however the Respondent submitted it incurred expenses of $28,272,000 to generate this revenue, being over three times as such;
$1,670,000 from its library services however the Respondent submitted it incurred $15,566,00 in expenses.
Considering the extent to which the significant losses outweigh the revenue I find that the activities are not trading activities but are activities and services provided to benefit the public community.
The Respondent submitted that all its key activities ran at a loss except for its Waste and Recycling program, Regulatory and Compliance services and Development Planning program that involved the development of statutory land use plans, future planning and development control plans.
Whether the trading activities or an entity are sufficient to justify its categorisation as a trading corporation is a question of fact and degree[13] and having considered the evidence in this matter, I find that the activities of the Respondent are generally activities it is required to carry out as a local government and provide services to community and are not ‘business activities’ that would lead to a finding that the Respondent is a trading corporation. To the extent that activities may be considered trading activities, they are neither substantial nor sufficiently significant to enable a conclusion that the Respondent is a trading corporation.
Conclusion regarding Respondent’s status
The Respondent is not a national system employer. The Respondent is not a constitutionally-covered entity because it is not a constitutional corporation since it is not a foreign, trading or financial corporation. The Respondent is not a body of another kind whose actions are captured by Part 3-1 of the Act and as such I find that Part 3-1 of the Act does not apply to the employment of the Applicant by the Respondent. The application is dismissed on this basis.
Alternative objection – the application is made out of time
The Respondent Submitted that should the Commission determine it had the jurisdiction to deal with the matter the application should nevertheless be dismissed because it was made more than 21 days after the Applicant’s dismissal.
Section 366(1) of the Act provides that an application under s.365 must be made:
(a)within 21 days after the dismissal took effect; or
(b)within such further period as the Commission allows under s.366(2) of the Act.
The Applicant was dismissed on 17 December 2021 and needed to have made his application by 7 January 2022 for the Application to have been made within 21 days of his dismissal. However, the application has been made 1095 days late and had I found that I had the jurisdiction to deal with the matter, the Applicant would have required an extension of time for the application to proceed and for completeness I deal with this issue below.
Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account:
(a)the reason for the delay; and
(b)any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness between the person and other persons in a like position.
Section 366(2)(a) - the reason for the delay
The Applicant wrote to Chambers and indicated that:
he was the sole income earner for his family during the COVID-19 pandemic and had the responsibility of caring for his wife who faced ongoing mental challenges;
during the period of the delay he experienced substantial financial and psychological stress resulting from a combination of personal and medical issues and heightened levels of stress and anxiety that impaired his capacity to act promptly;
he has been actively pursuing employment since the termination of his employment however given the current economic climate, his search had been arduous and time consuming;
the demands of job search, compounded by his domestic responsibilities and declining mental health further contributed to the delay in lodging his application;
at the time of his dismissal, there was considerable uncertainty regarding whether individuals in his position were eligible to file an unfair dismissal claim and this ambiguity was subsequently clarified through public commentary, including a statement made by an Australian Senator which motivated his decision to submit his application.
I accept that the Applicant’s dismissal during a difficult period likely caused him heightened levels of stress and anxiety and likely hardship. However, the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[14]
The Respondent submitted that none of the reasons advanced by the Applicant should be accepted by the Commission. The Respondent submitted that it appears the Applicant came to the decision to contest his dismissal only after seeing a YouTube video by an Australian senator. The Respondent noted that the YouTube video was not in evidence and it was not clear why the expertise of the senator would be of any assistance to the Commission.
Making an application to the Commission is a relatively straightforward process and the evidence before the Commission does not establish that the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application because of a medical condition or hardship across the very considerable period of the delay. It is apparent that the Applicant was only motivated to make his application once he saw a YouTube video by an Australian senator. While the Applicant alleges there was considerable uncertainty regarding whether individuals in his position were eligible to file and unfair dismissal claim and this ambiguity was subsequently clarified through public commentary, I note that many people were faced with the choice of vaccination at either their employer’s request or by public mandate or loss of employment during the COVID-19 pandemic and many employees who chose not to obtain the vaccination did make applications of varying types to the Commission.
I do not accept that the reasons advanced by the Applicant constitute a reasonable explanation for the delay and this would weigh against allowing an extension of time.
Section 366(2)(b) - any action taken by the Applicant to dispute the dismissal
The Respondent submitted that there is no evidence that the Applicant took any action to dispute the dismissal and it appears he came to the decision to contest his dismissal only after seeing a YouTube video by an Australian senator. The Respondent submitted that, prior to the application the subject of these proceedings, the Applicant did not make any complaint to the Respondent, any anti-discrimination body or other industrial tribunal to challenge the dismissal.
It is apparent that the Applicant was only motivated to make his application once he saw a YouTube video by an Australian senator. I find that no action was taken to dispute the dismissal before the Applicant made his application and this weighs against allowing an extension of time.
Section 366(2)(c) - prejudice to the Respondent (including prejudice caused by the delay)
The Respondent submitted that the prejudice to the employer is acute as the application has been lodged over three and a half years since the employee was dismissed.
If the extension of time was allowed, the Respondent would need to defend against an application where the reasons for the Applicant’s dismissal are in contest and the events concerning the dismissal occurred a very long time ago. The extent of the delay is such that I consider that it is likely to result in prejudice to the Respondent and this would weigh against allowing an extension of time.
Section 366(2)(d) - the merits of the application
The Applicant alleged that termination was linked to his religious beliefs, specifically regarding his refusal to receive the COVID-19 vaccine.
The Respondent submitted that:
the application has no merit;
the Applicant made no submissions regarding what the merit of the case is as there is no pleaded case in any form that posits a substantial argument about why the general protections are engaged, or whether the dismissal was “because of” some workplace right;
the Applicant did not comply with a lawful and reasonable direction regarding the COVID-19 vaccine and his dismissal was not motivated by any workplace right but was motivated by genuine reasons related to the Applicant’s capacity to perform his role.
The information before the Commission is very limited and had I found that I had the jurisdiction to deal with I would have found that the merits of the application will necessarily turn on the evidence and developed legal arguments and that it is not possible to make any firm assessment of the merits of the application based on the material before me.
Section 366(2)(e) - fairness between the person and other persons in a like position.
The Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[15]
The parties did not bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to this consideration and I consider this to be a neutral consideration.
Finding regarding extension of time
Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[16] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[17]
As I have earlier found that I do not have the jurisdiction to deal with the Application, the application must be dismissed. However, even if I had found that the Commission was seized of jurisdiction, taking into account my findings regarding the matters in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances after considering those matters individually as well as in combination.
Conclusion
I have found that the Respondent is not a national system employer, constitutionally-covered entity nor a body of another kind whose actions are captured by Part 3-1 of the Act. As such I found that Part 3-1 of the Act does not apply to the employment of the Applicant by the Respondent and the application is dismissed on this basis.
Further, having regard to all of the matters at s.366(2) of the Act, I would not be satisfied that there are exceptional circumstances and as such there would be no basis for the Commission to allow an extension of time. Even if I had reached a different conclusion about the nature of the Respondent and application of Part 3-1 of the Act, the application would also be dismissed on this basis.
COMMISSIONER
Appearances:
Mr F. Spanoudis on his own behalf.
Mr A. Duc of Counsel for the Respondent.
Hearing details:
2025.
2 June,
Sydney, by video using Microsoft Teams.
[1] Applicant’s Outline of Submissions filed 6 May 2025; Respondent’s Outline of Submissions filed 12 May 2025.
[2] King Statement at [6].
[3] Fair Work Act 2009 (Cth), s.338(2).
[4] [2024] FWC 384.
[5] [2024] FWC 580.
[6] Respondent’s Submissions at [3].
[7] [2024] FWC 580 at [17].
[8] [2024] FWC 384.
[9] [2018] FWCFB 5772 at [13] – [19].
[10] [2008] WASCA 254 at [68].
[11] [2008] WASCA 254 at [68].
[12] Annual Report, p.19.
[13] [2018] FWCFB 5772
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[15] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[17] Ibid.
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