Justin Williams v The Allan Engineering Unit Trust T/A Allan Engineering Pty Ltd

[2017] FWC 4289

[2017] FWC 4289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Justin Williams
v
The Allan Engineering Unit Trust T/A Allan Engineering Pty Ltd
(C2017/3966)

COMMISSIONER MCKENNA SYDNEY, 16 AUGUST 2017

Application to deal with an unlawful termination dispute.

[1] In this matter, the applicant, Justin Williams, made an application pursuant to s.773 of the Fair Work Act 2009 (“the Act”). In the initial conference, I raised with the parties whether the application had been appropriately made under s.773 of the Act in circumstances where there was lack of clarity about the entity which relevantly employed the applicant.

[2] The Form F9 – Application for the Commission to deal with an unlawful termination lodged by the applicant named the respondent as The Allan Engineering Unit Trust T/A ATF Allan Engineering Pty Ltd and provided an associated Australian Business Number (“ABN”). The Form F9A – Employer’s response to Application for the Commission to Deal with an Unlawful Termination Dispute named the respondent as The Allan Engineering Unit Trust T/A Allan Engineering P/L and provided the same ABN. Moreover, the respondent’s representative confirmed it was the unit trust which employed the applicant. The proceedings adjourned to allow the parties to seek advice.

[3] To complicate matters, preliminary, internal research conducted at my request to try to bring greater clarity to matters in advance of the listing today indicates discrepancies (I do not say this in any pejorative way) with matters concerning ABN numbers, the location of the respondent, and the like, involving entities having the same or similar names as the named respondent. A search of the Australian Business Register search for the ABN provided in the papers records the entity instead as The Trustee for Allan Engineering Unit Trust – a fixed unit trust with its main business location in Victoria. A website which appears to be associated with the respondent’s enterprise (because the business address listed on the website reflects the information provided in the Form F9, Form F9A, and the Australian Business Register search) lists a different ABN altogether. An Australian Business Register search in relation to that ABN records the entity as The trustee for The Allan Industries Unity Trust T/A ALLAN INDUSTRIES PTY LTD – a discretionary trading trust with its main business location in New South Wales.

[4] Matters were no further advanced as to the potential legal issues concerning the competency of the application (cf s.723 of the Act), including the question of whether the respondent is a national system employer, when the matter was relisted today. Relevantly, the applicant stated he had been in discussions with his solicitor who had advised to him that the application had been appropriately made under the subject section of the Act. This is far from clear to me; and the matter had been adjourned on the last occasion for the purpose of allowing the parties to seek advice which may have assisted in relation to the jurisdictional matters I raised in the initial proceedings. Moreover, for reasons I will not detail given that the conference was private (s.776), discussions in both sets of proceedings to attempt to resolve the dispute were incapable of being advanced.

[5] The Commission must be satisfied as to its own jurisdiction, but a lack of clarity remains on what is before me and I can take this matter no further in all the circumstances. In the absence of anything from either party as to the jurisdictional appropriateness of the issuing of the certificate pursuant to the s.773 application in relation to an application which may more appropriately have been made under s.365 of the Act the position remains that the applicant’s own legal advice is that the application was made under the correct section of the Act, and the respondent’s representative did not advance anything as to jurisdictional objection. In circumstances where the matter was unresolved and there were no relevant submissions as to jurisdiction, the certificate now issues.

COMMISSIONER

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