Gregory Faulkner v BIS Industries Limited
[2011] FWA 8240
•30 NOVEMBER 2011
[2011] FWA 8240 |
|
DECISION |
Fair Work Act 2009
s.372—General protections
Gregory Faulkner
v
BIS Industries Limited
(C2011/5550)
DEPUTY PRESIDENT LEARY | HOBART, 30 NOVEMBER 2011 |
.
[1] This is an application by Gregory Faulkner (the applicant) made pursuant to s.372 of the Fair Work Act, 2009 (the Act) alleging the following contraventions by BIS Industries Limited (the respondent):
s.340(1) Protection:
adverse action by BIS Industries Limited by “unlawfully/unfairly terminating my contract of services with them…”
s.345(1) Misrepresentation:
that “Mr GH showed me a computer screen in his office and told me that I was a contractor and therefore I did not have a claim. The computer screen showed a Fair Work Australia page which contained a list of information.”
s.351 Discrimination:
“…explained to Mr GH that I was 55 years at the time of my dismissal and that I had several health issues and that I would find it very difficult to find alternative employment/work and Mr GH replied that this is of no concern of BIS Limited” and
Discrimination on the grounds of not being “covered by the two collective agreements with the CFMEU that apply to BIS Limited’s worksite…….”
s.355 Coercion – allocation of duties etc to particular person:
“Mr CH of TEMCO advised Mr GH to remove me from the site. TEMCO owns the site at Bell Bay in Tasmania and BIS Industries Limited contract with TEMCO for the supply of certain services to TEMCO on this site.”
S.362 Advising, encouraging, inciting or coercing action:
“I say that as Mr CH of TEMCO told Mr GH to remove me from the site that TEMCO has also taken adverse action against me and has also contravened this section and therefore may need to be made a second Respondent to my application.”
Background:
Matter U2011/4639
[2] Matter U2011/4639 was an application made pursuant to s.394 (Unfair dismissal) of the Act lodged by Gregory Faulkner (the applicant) alleging that his termination of employment by BIS Industries Limited (the respondent) was unfair.
[3] By decision issued in transcript on 6 May 2011, Commissioner Blair found that Fair Work Australia (FWA) lacked jurisdiction to hear and determine the application. The application had been lodged some 112 days outside the prescribed 14 day time limit and the Commissioner declined to exercise his discretion to extend the prescribed time limit having not been satisfied there existed any reason why the application was not lodged within the time limit.
[4] Further the application was dismissed as the Commissioner found that the applicant was not an employee of the respondent but was a sub-contractor. The Commissioner said “Mr Faulkner in my mind, and there is no doubt in my mind, was a sub-contractor. He knows he is a sub-contractor. The mere fact he wears a uniform of BIS does not make him an employee…..” [Transcript PN371]
[5] And further “There is no contract of employment between BIS and Mr Faulkner. There is a verbal contract of employment between Mr Faulkner and Mr H-H and that verbal contract goes to the rate of pay that Mr Faulkner charges for his services. There is no annual leave, there is no sick leave, there is no superannuation paid by BIS. There are no pay slips given by BIS. All those things add up to Mr Faulkner being a sub-contractor….” [Transcript PN372]
Matter C2011/4666
[6] Matter C2011/4666 was an application by Gregory Faulkner (the applicant) made pursuant to s.365 of the Act and filed on 10 June, 2011, and the alleged contraventions were in identical terms as the current application (C2011/5550).
[7] Directions were issued and the respondent rejected the application on the basis that the application was some 207 days out of time and no application for an extension of time had been made. Further the “applicant was not dismissed. The applicant was the contractor of a sub-contractor to the company. Following a number of safety breaches, the applicant’s site access was removed.”
[8] The applicant sought to change his application made pursuant to s.365 to one made pursuant to s.372. This request was rejected.
[9] The applicant did not provide a written submission in response but provided a signed Notice of Discontinuance dated 5 August, 2011 advising that he “wholly discontinues this matter.”
Matter C2011/5550
[10] As noted above this is an application pursuant to s.372 of the Act lodged 22 August, 2011.
Section 372 of the Act prescribes (where relevant):
“372 Application for FWA to deal with a dispute
If:
(a) a person alleges a contravention of this Part; and
(b) the person is not entitled to apply to FWA under section 365 for FWA to deal with the dispute;
the person may apply to FWA under this section for FWA to deal with the dispute.
374 Conferences
(1) If:
(a) an application is made under section 372; and
(b) the parties to the dispute agree to participate;
FWA must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).”
[11] Directions were issued and the respondent submitted: “Section 374 of the Act provides that FWA may only conduct a conference to deal with a dispute pursuant to an application under s.372 of the Act only where the parties to the dispute agree to participate in a conference.”
[12] Further the respondent said that “it does not agree to participate in a conference before FWA in respect of the dispute which is subject of the application in this matter…”
[13] Accordingly it was submitted that the matter be determined on the papers and that FWA has no jurisdiction to consider the application “because it is made under s.372 of the Act and BIS does not agree to participate in a conference to deal with the dispute.”
[14] By telephone and email on 7 November, 2011, the applicant was given the opportunity to respond and on 10 November, 2011, he advised that he wished “to continue this matter against BIS Industrys (sic); I will seek either a response to the respondants submissions or pursue it in another jurisdiction, I am seeking legal advice early next week. I do not wish to sign a discontinuance notice as this stage.”
[15] Nothing further has been heard from the applicant.
Considerations:
[16] S.374 provides that FWA may only conduct a conference in respect to an application made pursuant to s.372 of the Act only where there is agreement. The respondent in this matter has indicated it does not agree to attend a conference.
[17] In respect to the powers of FWA s.592 prescribes the conference process as follows:
S.595 of the Act provides (where relevant):
“592 Conferences
(1) For the purpose of performing a function or exercising a power of FWA (other than a function or power under Part 2-6), FWA may direct a person to attend a conference at a specified time and place.
Note: Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2-6.
(2) An FWA Member (other than a Minimum Wage Panel Member), or a delegate of FWA, is responsible for conducting the conference.
(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.
Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).
595 FWA’s power to deal with disputes
(1) FWA may deal with a dispute only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.
(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.
Example: FWA could direct a person to attend a conference under section 592.
(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.” (my underlining)
[18] Having considered the legislation I am of the view that as the respondent does not agree to attend a conference before FWA to deal with the dispute I therefore have no jurisdiction to deal with the matter.
[19] The application is dismissed.
DEPUTY PRESIDENT
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