Karen Moffitt v Superpartners Pty Ltd T/A Superpartners

[2016] FWC 1668

[2016] FWC 1668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Karen Moffitt
v
Superpartners Pty Ltd T/A Superpartners
(C2016/11)

COMMISSIONER GREGORY MELBOURNE, 1 JUNE 2016

Alleged dispute about any matters arising under the enterprise agreement

Introduction

[1] Ms Karen Moffitt was employed by Superpartners Pty Ltd T/A Superpartners (“Superpartners”) under the Superpartners Enterprise Agreement 2011 (“the Agreement”). 1On 4 January 2016 she made application to the Commission under s.739 of the Fair Work Act 2009 (Cth) (“the Act”) notifying a dispute to do with entitlements due to her on termination. Her application attached a document headed “Superpartners – Estimated Retrenchment Payment,” which indicated Ms Moffitt’s employment with Superpartners had ended.

[2] The application was set down to be dealt with in conference on 13 January 2016, but was subsequently adjourned until 19 January 2016 due to the parties’ unavailability.

[3] However, on 15 January 2016 the Commission received correspondence from Ms Jewil Fulton, the Head of Human Resources at Superpartners, indicating it raised a jurisdictional objection to the application on the basis that the Commission has no jurisdiction to deal with the matter because Ms Moffitt is no longer employed by the business. It also indicated it was prepared to have its jurisdictional objection dealt with on the basis of the information contained in its correspondence.

[4] The Commission provided details of that correspondence to Ms Moffitt, and the proposed conference was cancelled, as the Commission was now required to deal with the jurisdictional objection. The Commission also advised Ms Moffitt that she had the opportunity to provide submissions in response to the objection, and the matter could also be set down for hearing, if she preferred to have it dealt with in that way. The Commission also asked her to provide her views in response. She subsequently advised she had no further submissions to add in regard to the jurisdictional objection, and did not believe it was necessary for the matter to be dealt with by way of a hearing.

[5] This decision accordingly deals with the jurisdictional objection raised by Superpartners on the basis of the materials provided by the parties.

The Evidence and Submissions

[6] Superpartners submits Ms Moffitt was employed under the terms and conditions contained in the Superpartners Enterprise Agreement 2011. Clause 12 in that Agreement provides for disputes to be dealt with in regard to matters arising under the Agreement or the National Employment Standards. It continues to submit that sub Clause 1.3 indicates the Agreement applies to “employees of the Respondent,” 2 and Clause 12 makes clear it deals only with disputes with an employee.

[7] It continues to submit that Ms Moffitt ceased employment with Superpartners on 27 November 2015, and when the present application was lodged with the Commission on 4 January 2016 she was no longer employed by the business. It submits that in these circumstances Ms Moffitt has no standing to make the application or, conversely, the Commission has no jurisdiction to deal with the matter.

[8] It also makes reference to the decision in Mr Denis Seiffert & Ors v Patrick Projects Pty Ltd, 3 and the subsequent Full Bench decision on appeal,4 and the reference in that decision at paragraph 43 when the Full Bench stated:

“An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act can only be heard when the Applicants are employed.” 5

[9] Ms Moffitt submits, in response, that the issues raised in the dispute notification could not be dealt with while she was still employed. She had raised the issues two days before her last day at work, but did not receive a formal response before leaving her employment.

[10] She said a discussion then took place about the issue on her final day at work, being 27 November 2015, when she was assured the correct payments would be provided to her. However, it was only when she actually received the payments, sometime after leaving her employment, that she was able to verify what she had actually received. This payment was made in accordance with the fortnightly pay cycle, and was not received by her until after 8 December 2015.

[11] She submits, therefore, that there are mitigating circumstances which make it appropriate for the Commission to deal with the matter.

Consideration

[12] In dealing with the jurisdictional objection raised by Superpartners it is not disputed that the present application was lodged around 5 weeks after Ms Moffitt was last employed by Superpartners. She submits this occurred because she only became aware about what she considers to be a discrepancy in the payments made to her on termination when she finally received the payments some 2 weeks after she had left her employment. It was only at this time that she was able to verify what payments had actually been made to her.

[13] I can understand the reason for the delay in making application, given these circumstances.

[14] It is also well established that the Commission’s powers under s.739 to deal with disputes derive, in the case of an enterprise agreement, from the terms of the dispute resolution procedure contained in the relevant Agreement. The Commission may accordingly deal with the dispute only on application by a party to the dispute, and is prohibited from exercising any powers limited by the disputes resolution procedure in the Agreement.

[15] The dispute resolution procedure in Clause 12 of the Agreement in this case indicates that it deals with, “[a]ny dispute about any matters arising under this Agreement or in relation to the National Employment Standards”. 6 It then sets out the procedure to apply in such cases and makes clear it applies to the parties to the Agreement, being the employer and the employees. The clause also makes reference throughout to “the employee,” and concludes by indicating, “Without prejudice to either party, work will continue in the manner prior to the dispute arising while the matters in dispute are being dealt with in accordance with this Clause.”7

[16] As the Full Bench found in the decision in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd, 8 handed down in October last year, an Agreement containing terms expressed in this way does not bind individuals who are no longer employed by the employer.

[17] I have also had regard to the decision of the Full Bench in King and Ors 9 when it concluded:

“[43] Further and in relation to A3, we consider that the Commissioner correctly identified that he had no jurisdiction to hear a s.739 matter in circumstances where the applicants were no longer employed. An application for the Commission to deal with the dispute in accordance with the dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act can only be heard when the applicants are employed. This is an uncontroversial jurisdictional point supported by manifold authorities and the express provisions of the Act. There was no error in the Commissioner’s approach in that regard and it was not unreasonable for the matter to be heard by way of written submissions in the particular circumstances.” 10

[18] In conclusion, based on these authorities and the circumstances involved in this matter I am satisfied the Commission has no jurisdiction to deal with the application. The application is accordingly dismissed.

[19] However, I also note that the issues raised by Ms Moffitt concern the entitlements due to her on termination under the terms and conditions contained in the Superpartners – Enterprise Agreement 2011. This would appear to raise issues that could properly be taken up with the office of the Fair Work Ombudsman for further investigation, and Ms Moffitt may wish to pursue this option.

COMMISSIONER

Final written submissions:

Applicant’s final submissions on 18 January 2016

Respondent’s final submissions on 18 January 2016

 1   AE894416.

 2   Respondent’s submissions, dated 15 January 2016 at para 2.

 3   [2014] FWC 7019.

 4   [2015] FWCFB 6323.

 5 Ibid at [43].

 6   Above n 1 at cl 12.

 7   Ibid at cl 12(k).

 8   [2015] FWCFB 5619.

 9   Above n 4.

 10 Ibid at [43].

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