Jamie Salt v African Underground Mining Services Ltd T/A African Underground Mining Services

[2014] FWC 5958

[2014] FWC 5958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Salt
v
African Underground Mining Services Ltd T/A African Underground Mining Services
(U2014/5675)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 18 March 2014, Mr Jamie Salt filed an application alleging that the decision of African Underground Mining Services Ltd T/A African Underground Mining Services (the Respondent) to terminate his employment was unfair.

[2] On his application, Mr Salt advised that the Respondent was located in Ghana, Africa.

[3] The application was listed for mention on 1 May 2014 and I asked Mr Salt’s representative if the Respondent was a national system employer.

[4] During the mention it was submitted that:

● Mr Salt’s contract of employment was with the Respondent;

● the Respondent is a wholly owned subsidiary of Ausdrill Limited (Ausdrill), a publically listed Australian company;

● The Respondent is in a joint venture with Barminco, another publically listed Australian company;

● Mr Salt was interviewed in 2011 by an employee of Barminco in Perth. This person provided Mr Salt with his contract of employment which expressly states, inter alia, that his point of hire is deemed to be in Perth, Australia; and

● Mr Salt performed work in Ghana, Africa.

[5] The application was adjourned for one week to provide Mr Salt’s representatives with an opportunity to consider whether the Respondent was a national system employer. 1

[6] On 7 May 2014, Mr Salt’s representative advised that the parties were attempting to settle the matter and the application was adjourned for a further month.

[7] On 12 June 2014, at a mention, Mr Salt’s representative advised that she intended filing an amended application to include Ausdrill as a respondent. Mr Salt’s representative was directed to serve this amended application on the Respondent and Ausdrill.

[8] Further advice was received by the Commission that settlement discussions were ongoing.

[9] Having not received an amended application, on 21 July 2014, Commissioner Wilson issued directions requiring Mr Salt to file submissions, witness statements and any other material he wished to rely on to support of his submission that the Respondent is a national system employer. Mr Salt was required to file this material by 4 August 2014.

[10] No material was filed with the Commission. Attempts to contact Mr Salt’s representatives by telephone, in relation to the filing of submissions, were not successful. Consequently, I caused correspondence to be sent to Mr Salt’s representatives advising that I had formed the view that the Respondent may not be a national system employee and that the application may be dismissed as the application had no reasonable prospects of success. I provided Mr Salt a further opportunity to respond to this correspondence, although no material was received by the Commission.

[11] Section 380 of the Fair Work Act 2009 (the Act) defines an employee and an employer in Part 3-2 - Unfair Dismissal:

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

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

“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.”

[13] 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;”

[14] 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.”

[15] Section 387 of the Act provides that the Commission must hold a conference or a hearing in relation to a matter if there are disputed facts. In this matter there are no disputed facts and therefore I have determined the matter on the papers.

[16] A search of the Australian Securities and Investment Commission’s website discloses that the Respondent is neither a registered Australian corporation nor a registered foreign corporation. No evidence to the contrary has been provided by Mr Salt.

[17] Deputy President Asbury 2 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 3(the Work Choices Case) where the majority4 cited with approval the decision of Justice Gaudron in Re Dingjan Ex Parte Wagner5to 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.”

[18] The Respondent is not a trading or financial corporation formed within the limits of the Commonwealth. There is no evidence before the Commission that would support a finding that the Respondent, which is a foreign corporation, is registered to carry on a business in Australia or in fact carries on business in Australia. While the submissions stated that the point of hire was Perth, the contract of employment was not produced to the Commission. As such there is no evidence that the contract of employment was subject to the laws of Australia. Further there was no evidence that any work was performed by Mr Salt for the Respondent in Australia or that the termination of employment took place in Australia or that the Respondent, other than employing Mr Salt to perform work overseas, engages in any activities in Australia. I therefore find that the Respondent is not a national system employer.

[19] As Mr Salt is not a national system employee, his application has no reasonable prospect of success 6, and therefore Mr Salt’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

 1 See Section 13 of the Fair Work Act 2009

 2   Jones v QinetiQ Pty Ltd t/a QinetiQ Australia [2013] FWC 3302

 3 (2006) 229 CLR 1.

 4   Ibid at 114.

 5 (1995) 183 CLR 323 at 365.

 6   See section 587(1)(c)

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