John Bolin v Mania Group Australia T/A Bathroomwest

[2016] FWC 8392

[2016] FWC 8392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

John Bolin
v
Mania Group Australia T/A Bathroomwest
(C2016/6237)

COMMISSIONER WILLIAMS PERTH, 23 NOVEMBER 2016

Application to deal with a dispute - jurisdiction.

[1] This decision concerns an application made by Mr John Michael Bolin (Mr Bolin or the Applicant) under section 739 of the Fair Work Act 2009 (the Act). The Respondent is the Mania Group Australia T/A Bathroomwest (Bathroomwest or the Respondent).

[2] A conference to deal with this matter was convened on 22 November 2016 at which Mr Bolin attended. There was no attendance on behalf of the Respondent.

[3] I discussed the detail of Mr Bolin’s application with him and the jurisdictional prerequisites for such applications.

[4] Sections 738 and 739 of the Act provide the jurisdictional basis for the Commission to deal with disputes between employees and their employers. The sections are set out below.

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[5] Mr Bolin’s application purports to be based on a dispute resolution procedure contained in a Letter of Appointment. The Letter of Appointment does not contain a dispute resolution procedure. Mr Bolin also provided me with a copy of a Contract of Employment which appears to be the same as a Contract of Employment to which the Respondent had referred in their written response. That Contract of Employment does not include a dispute resolution procedure let alone one that requires or allows the Commission to deal with a dispute between the employee and employer parties to it.

[6] In this case Mr Bolin has not been able to point to a contract of employment or other written agreement that provides a procedure for dealing with disputes between the employer and the employee as is required by section 738 of the Act.

[7] Consequently in this case there is no jurisdiction for the Commission to deal with the dispute between Mr Bolin and Bathroomwest.

[8] For completeness I note that in addition Mr Bolin is no longer an employee of Bathroomwest. His employment ended in August 2016. In all likelihood even if there was such a dispute resolution procedure which expressly stated that the Commission could deal with a dispute the fact that Mr Bolin at the time he made the application to the Commission was no longer an employee would also mean the Commission would not have jurisdiction to deal with the dispute.

[9] I am satisfied the Commission has no jurisdiction to deal with this application. Accordingly the application will be dismissed and an order will be issued to that effect.

[10] Without in any way judging the merits of Mr Bolin’s concerns which are set out in his application I note there are other jurisdictions within which Mr Bolin may well be able to pursue his claims against Bathroomwest if he wishes.

COMMISSIONER

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