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

Printed by authority of the Commonwealth Government Printer

The case involves John Bolin, the applicant, and Mania Group Australia T/A Bathroomwest, the respondent, before the Consumer Affairs Victoria (CAV). The dispute centres around the jurisdiction of CAV to hear the matter, specifically whether it pertains to a retail transaction involving the sale of bathroom products. Bolin seeks to resolve a consumer protection issue, contending that the transaction falls within CAV's remit under the Australian Consumer Law. The respondent challenges the jurisdiction, asserting that the transaction was a business-to-business sale rather than a consumer transaction.

The legal issues before the court encompassed whether the transaction between Bolin and Mania Group Australia was a consumer transaction as defined under the Australian Consumer Law, and consequently, whether CAV had the jurisdiction to adjudicate the dispute. The court had to consider the nature of the relationship between the parties, the terms of the transaction, and whether it constituted a retail sale protected by the Australian Consumer Law. Additionally, the court needed to determine whether the transaction fell outside the scope of a consumer transaction due to any particular characteristics of the agreement or the parties involved.

The court meticulously examined the evidence presented by both parties, focusing on the nature and context of the transaction. It was established that the transaction involved the sale of bathroom products, which are typically classified as consumer goods. The court also considered the roles and characteristics of the parties involved, finding that Mania Group Australia was engaged in business activities, whereas Bolin was acting as a consumer. Ultimately, the court concluded that the transaction did indeed constitute a consumer transaction as per the Australian Consumer Law. Consequently, CAV had the jurisdiction to hear and decide the matter, affirming that the sale of goods by Mania Group Australia to Bolin was subject to consumer protection laws.

The final orders of the court confirmed that CAV had jurisdiction over the dispute, allowing the matter to proceed. The court ruled that the transaction was a consumer transaction under the Australian Consumer Law, thereby enabling CAV to entertain and resolve the dispute. The case underscores the importance of correctly classifying transactions to ensure that consumer protection laws are appropriately applied, highlighting the jurisdictional boundaries and the significance of the nature of the parties involved in a transaction.

John Bolin v Mania Group Australia T/A Bathroomwest

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established