Kerry Hobbs v ISGM

[2014] FWC 4599

[2014] FWC 4599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Kerry Hobbs
v
ISGM
(C2014/4396)

DEPUTY PRESIDENT SMITH MELBOURNE, 10 JULY 2014

Application to deal with other contraventions dispute - request for the Fair Work Commission to exercise its power under s.586 of the Fair Work Act to correct and amend applications - conversion of s.372 application to s.365 application - power cannot be exercised in this context - request refused.

Introduction

[1] This is an application brought by Ms Kerry Hobbs against ISGM under s.372 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a non-dismissal dispute involving an alleged contravention of Part 3-1 of the Act by ISGM.

[2] Ms Hobbs has requested that the Commission exercise its power under s.586 to amend her application from one brought under s.372 to one brought under s.365 as her employment ended after the s.372 application was lodged.

[3] Ms Hobbs is represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and ISGM by Gadens Lawyers.

Background

[4] Ms Hobbs’ application was lodged on 9 May 2014 and the application was processed in the usual way by the Commission. On 19 May 2014 my chambers sent a letter to ISGM drawing attention to s.374(1)(b) of the Act, namely, that the Commission may only hold a conference in relation to this type of application if the parties to the dispute agree to participate. On 20 May 2014 the employer responded advising that Ms Hobbs’ employment came to an end on or about 14 May 2014 and that they refused to participate in the conference.

[5] On 20 May 2014 my chambers advised the CEPU that s.372 did not apply as Ms Hobbs was no longer employed by ISGM.

[6] On 4 June 2014 the period of 21 days after the dismissal took effect, as prescribed in s.366(1)(a), within which an application under s.365 must be made, expired.

[7] On 19 June 2014 the CEPU sought an amendment to the application by converting it from a s.372 application to a s.365 application, and requested that the Commission exercise its power under s.586(a) to do so.

Consideration

[8] I am not satisfied that I can properly amend a s.372 application to a s.365 application for two reasons.

[9] Firstly, the general protections provisions of the Act, which deal with workplace rights, have different rights and obligations attached to them for the parties involved and the Commission depending on whether the applicant has been dismissed. For example, a s.372 conference may only take place if both parties to the dispute agree to participate, whereas the Commission must deal with a dispute when a s.365 application is made, even if the respondent refuses to participate. In a s.365 application the Commission has a statutory duty to find that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.

[10] Secondly, and perhaps more importantly, a s.365 application must be lodged within 21 days after the dismissal took effect. In the present matter the applicant did not act within the specified period to correct the situation and therefore a s.365 application would be out of time.

[11] It would be inappropriate to use a power (which may or may not be available to the Commission in this instance) to defeat the need to demonstrate exceptional circumstances for lodging an application under s.365 out of time.

[12] Against that background, I entertain some doubt over the ability in this instance to amend the application by using the power under s.586(a) to correct and amend applications. Assuming, however, that I have the power to do so, and in light of the timeframes referenced earlier, I decline to do so.

Decision

[13] I refuse to exercise the discretion under s.586 to amend Ms Hobbs’ application from one made under s.372 to one made under s.365 of the Act.

DEPUTY PRESIDENT

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