Jamahl Hatherall v Nestle Oceania T/A Nestle Australia Ltd

[2016] FWC 5250

[2016] FWC 5250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamahl Hatherall
v
Nestle Oceania T/A Nestle Australia Ltd
(U2016/857)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 4 AUGUST 2016

Application for relief from unfair dismissal—jurisdiction—not a national system employee.

[1] On 29 February 2016, Mr Jamahl Hatherall filed an application under s.394 of the Fair Work Act 2009 alleging that he had been dismissed by Nestle Oceania T/A Nestle Australia Ltd (Nestle Australia) and that this dismissal was unfair.

[2] It is common ground that Mr Hatherall was employed in the position of Regional Sales Manager Port Moresby, Nestle Pacific Islands during 2015 and that he was working in Papua New Guinea at the time of his dismissal on 8 February 2016. 1

[3] Nestle Australia lodged an objection to the application on the basis that at the time of his dismissal, Mr Hatherall was not employed by Nestle Australia. It contends that on 14 July 2015 Mr Hatherall had accepted employment with Nestle (PNG) Ltd (Nestle PNG), an entity incorporated in Papua New Guinea, and that his employment with Nestle Australia concluded at that time. Further, it contends that Mr Hatherall was not a national system employee and was not employed by a national system employer, and as result, is unable to bring this application.

Procedural History

[4] The matter was listed for conciliation on 13 April 2016 however Nestle Australia advised they wished to have their objection dealt with in the first instance.

[5] Directions were issued on 19 April 2016 requiring Nestle Australia to file their submissions, witness statements and any evidence they wished to rely on by 29 April 2016. Mr Hatherall was required to file his submissions and materials in relation to the objection by 12 May 2016.

[6] Nestle Australia complied with the directions. On 13 May 2016, my associate sent an email to Mr Hatherall seeking a response as to whether he was intending on filing submissions as he had failed to comply with the directions issued on 19 April 2016.

[7] On 16 May 2016 my associate received email correspondence from Mr Hatherall stating:

“I am currently in Queanbeyan working. Is it acceptable to e-mail to you accordingly.”

[8] Mr Hatherall filed a statement, a copy of his employment contract, a payslip and a Grace Removal Group service proposal later that evening.

[9] On 17 May 2016 my associate again wrote to Mr Hatherall seeking a response as to whether he intended on filing submissions in response to the jurisdictional objection raised by Nestle Australia, being that his employer was not Nestle Australia and he was not employed by a national system employer for the purpose of Part 3-2 of the Fair Work Act 2009 (Cth) (the Act). A copy of the relevant section of the Act was also sent to Mr Hatherall as well as a link to the Commission’s Unfair Dismissal Bench Book. Mr Hatherall was also requested to confirm his attendance at the hearing listed for 24 May 2016 in Wodonga.

[10] On 17 May 2016 Mr Hatherall advised he would be attending the hearing and that based on the information provided, he would assess whether a further submission was warranted.

[11] On 22 May 2016 Mr Hatherall wrote to the Commission advising he was unable to attend the jurisdictional hearing although he did not provide reasons. Mr Hatherall requested the Commission give regard to his filed submissions. I have done so to the extent that they are relevant to the determination of the objection.

Legislation

[12] Part 3-2 of the Act enables certain employees to make unfair dismissal applications. Amongst other requirements, an employee must be a national system employee as defined. 2

[13] Section 380 of the Act defines an employee and an employer for the purposes of Part 3-2 - Unfair Dismissal:

“In this Part, employee means a national system employee, and employer means a national system employer.”

[14] A national system employee is defined at s.13 of the Act as follows:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

[15] Accordingly, a national system employee must be employed, or usually employed, by a national system employer.

[16] A national system employer is relevantly defined as follows at s.14 of the Act:

“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
…”

[17] A constitutional corporation is one to which paragraph 51(xx) of the Constitution applies. Paragraph 51(xx) provides the Commonwealth with powers to make laws with respect to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”

[18] A foreign corporation is therefore capable of being considered to be a constitutional corporation for present purposes. 3

[19] In Jones v QinetiQ Pty Ltd t/a QinetiQ Australia, 4 Deputy President Asbury examined the cases dealing with the scope of the Act and its predecessors and concluded:

“[43] In summary, cases where a foreign corporation has been found to be bound by the Act (and its predecessors), or cases where the activities of a foreign corporation have been relevant to the application of the Act to a related corporation formed within the limits of the Commonwealth, have involved foreign corporations in their capacity as employers of persons in Australia.

[44] As Counsel for QinetiQ Australia submits, these cases are consistent with the principles set out in the decision of the High Court of Australia in New South Wales v The Commonwealth (the Work Choices Case) where the majority cited with approval the decision of Justice Gaudron in Re Dingjan Ex Parte Wagner to the effect that the main purpose of the power to legislate with respect to foreign corporations must be directed to their business activities in Australia.” (endnotes not reproduced)

[20] A foreign company wishing to carry on business in Australia must be registered under Part 5B.2 (Registrable Bodies) of the Corporations Act 2001 (Cth) (the Corporations Act). A foreign company is defined in the Corporations Act as an incorporated or unincorporated body that is formed in an external territory of Australia or outside Australia. 5

Submissions and Evidence

[21] Nestle Australia submits Mr Hatherall is not employed by Nestle Australia and that he is in fact an employee of Nestle PNG who is a separate legal entity.

[22] Nestle Australia submits Nestle Oceania relates to the geographical markets that form part of the broader group of companies under the parent company Nestle SA which is based in Switzerland. Nestle Oceania is a group of individual employing entities operating exclusively in the country in which they are registered.

[23] The submission of Mr Hatherall was that his point of hire was NSW. The evidence before the Commission included a contract of employment signed by Mr Hatherall on 14 July 2016 for employment with Nestle PNG Ltd, located in Morobe Province Papua New Guinea. 6 The contract states the place of work is Port Moresby PNG. There is no evidence that the contract of employment was intended to be subject to the laws of Australia.7

[24] Mr Hatherall submits he was working in Papua New Guinea however all decisions relating to his employment were made by Management representatives in Australia and that at the end of his employment he returned to Australia.

[25] Nestle Australia submits although Mr Hatherall may have made contact with Australian management, this does not make them responsible for his employment. He was not, at the time of his dismissal, engaged in employment with his former employer, Nestle Australia.

[26] Nestle Australia submits on 14 July 2015, Mr Hatherall accepted an employment offer with Nestle PNG. Mr Hatherall’s employment with Nestle Australia subsequently ended on 30 September 2015, prior to his relocation to Papua New Guinea which was initially set for September, however was delayed and took place on 1 October 2015. Nestle Australia provided copies of Mr Hatherall’s payslips 8 to confirm his separation from employment with Nestle Australia and that he was paid any accrued entitlements owing to him on termination of his employment with the Australian company in 2015.

[27] The payslip 9 submitted by Mr Hatherall also confirmed that he was being paid by Nestle (PNG) Limited. There was no evidence that Mr Hatherall was being paid by any Australian entity.

Conclusion

[28] In considering the evidence before me, I am satisfied Mr Hatherall, at the time of his dismissal, was not employed by Nestle Australia. I am satisfied Mr Hatherall was employed by Nestle PNG. I am also satisfied that Nestle Australia and Nestle PNG are different legal and trading entities. I am also satisfied Nestle Oceania is not the correct employer. Accordingly, this application cannot proceed against the present respondent.

[29] To the extent that Mr Hatherall may seek to proceed against Nestle PNG, it is appropriate that I consider the further objection made in this matter. Nestle Australia submitted that Nestle PNG is not a trading or financial corporation formed within the limits of the Commonwealth. Mr Hatherall made no competing submission. Nestle PNG may however be a foreign corporation. However, there is no evidence before the Commission that would support a finding that Nestle PNG, which is a foreign corporation, is registered to carry on a business in Australia or in fact carries out business in Australia. I am therefore satisfied that Nestle PNG is not a national system employer within the meaning of the Act.

[30] Mr Hatherall was not employed, or engaged to perform any work in Australia, by Nestle Australia at the time he was dismissed from his employment with Nestle PNG. Nestle PNG is not a national system employer.

[31] As a result, I am also satisfied Mr Hatherall was not a national system employee for the purpose of Part 3-2 of the Act at the time of his dismissal.

[32] The Commission does not have jurisdiction to deal with Mr Hatherall’s application for an unfair dismissal remedy and that application must be dismissed.

[33] An order 10 dismissing Mr Hatherall’s application will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

There was no appearance for Mr Hatherall.

Mr J De Celis for Nestle Oceania T/A Nestle Australia Ltd.

Hearing details:

2016.

Melbourne and Sydney (video hearing):

May 24.

 1   Exhibit A1.

 2 This arises from s.382 and other provisions of the Fair Work Act 2009 (Cth).

 3   New South Wales v The Commonwealth (1989 - 1990) 169 CLR at 482.

 4   [2013] FWC 3302.

 5   Corporations Act 2001 (Cth), s9.

 6   Exhibit A2.

 7   Exhibit R1.

 8   Exhibit R1 – Annexure 3.

 9   Exhibit A3.

 10   PR583594.

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<Price code C, PR583593>