Josh Gordan v Rapid Roof Plumbing

[2019] FWC 49

[2019] FWC 49

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Josh Gordan
v
Rapid Roof Plumbing
(C2018/5878)

DEPUTY PRESIDENT MASSON MELBOURNE, 4 JANUARY 2019

Alleged dispute about matters arising under a modern award – application filed following termination of employment – application dismissed for want of jurisdiction.

[1] On 19 October 2018, Mr Josh Gordan (the Applicant) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s 739 of the Fair Work Act 2009 (the Act). The Respondent in the matter is Rapid Roof Plumbing.

[2] In the F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, the Applicant stated that the industrial instrument covering his employment relationship with the Respondent was the “Plumbing Award”, but he did not specify the dispute resolution clause from the Award that he wished to rely on at question 1.3. At question 2.4, the Applicant set out what steps have been taken to resolve the dispute under the dispute resolution procedure as follows:

“Was let go by employer, seeking 2 weeks notice in lieu of being let go

Have asked for it

Was let go Wednesday 10/10/18

Was employed for more than year was in my second year of apprenticeship therefore should be paid 2 weeks notice according to award”.

[3] In the F10 application form, the only contact details the Applicant included was his postal address and telephone number. He did not provide contact details for the Respondent. On 19 October 2018, Commission staff attempted to contact the Applicant by telephone. A voicemail message was left requesting the Applicant to call the Commission and provide contact details for the Respondent. The Applicant did not return the call, and therefore, it is unknown if the application was served on the Respondent.

[4] On 22 October 2018, the matter was allocated to my chambers. After consideration of the application, I formed a preliminary view that the Commission did not have the jurisdiction to deal with the application as the Applicant was no longer employed by the Respondent. On 26 October 2018, my chambers sent the Applicant a letter to the postal address listed on the F10 application form. The letter stated in part:

“……

Based on the information contained in your application, it appears that at the time of making this application on 19 October 2018, you were not an employee of Rapid Roof Plumbing.

The Plumbing and Fire Sprinklers Award 2010 provides a procedure for dealing with disputes, however, any application to deal with a dispute pursuant to the dispute resolution clause in the Award would need to have been filed when you were still an employee.

Consequently, it would seem that you are not eligible to bring this application and it is therefore not within the jurisdiction of the Fair Work Commission.

……

In the circumstances, you may wish to consider your position in relation to this application and, in particular, you may wish to seek advice as to alternative avenues for pursuing your claim. In the event you wish to discontinue your application, please complete and file the attached Form F50 – Notice of Discontinuance…”

[5] In this letter, the Applicant was also advised that the Fair Work Ombudsman (FWO) was the appropriate organisation if he wished to make a claim for underpayment and the contact details of the FWO were provided. No response was received to this letter.

[6] On 11 December 2018, my chambers attempted to contact the Applicant by telephone, however, the call rang out and it was not possible to leave a voicemail message.

[7] On 11 December 2018, my chambers sent a further letter to the Applicant to the postal address listed on the F10 application form. The letter repeated the information in the letter sent on 26 October 2018 and requested the Applicant to advise as to whether he wished to pursue his application with the Commission by close of business on Monday, 17 December 2018. The Applicant was further advised that if no response was received, then the matter would be determined on the papers. No response was received to this letter.

[8] I will now proceed to determine the matter on the papers.

Jurisdiction

[9] Section 739 of the Act empowers the Commission to deal with certain disputes under Award dispute settlement clauses. Clause 9 of the Plumbing and Fire Sprinklers Award 2010 (the Award) relevantly provides as follows:

9. Dispute resolution

9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.

9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.

9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.

9.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.

9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.

9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.

[10] It is clear that under clause 9 of the Award that any application for the Commission to deal with a dispute would have needed to have been filed whilst the Applicant was still an employee. Clause 9.1 specifies that there must be an attempt to resolve the dispute in the first instance at workplace level and cl 9.6 states that “work must continue in accordance with this award and the Act”.

[11] I am satisfied based on the Applicant’s answers at question 2.4 of the F10 application form that the Applicant’s employment ceased on 10 October 2018. As stated at [1] above, the F10 application form was filed with the Commission on 19 October 2018. I am satisfied that the Commission lacks the jurisdiction to deal with the dispute as the Applicant was not an employee of the Respondent at the time the application was made. The application is consequently dismissed.

DEPUTY PRESIDENT

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