Kevin Cobley v Nepean Blue Mountains Local Health District

[2015] FWC 2086

[2015] FWC 2086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Kevin Cobley
v
NEPEAN BLUE MOUNTAINS LOCAL HEALTH DISTRICT
(C2014/6805)

DEPUTY PRESIDENT BOOTH SYDNEY, 26 MARCH 2015

Application to deal with a dispute - national system employer.

[1] Mr Cobley lodged an application in the Fair Work Commission under section 739 of the Fair Work Act 2009 on 15 October 2014.

[2] The Application was made on a Form 10 - Application for the Commission to Deal with a Dispute in Accordance with a Dispute Settlement Procedure. Mr Cobley identified his employer as Nepean Blue Mountains Local Health District.

[3] Mr Cobley identified his dispute as concerning:

“Formal Warning” where the investigative procedures set out in the services (sic) own documents were not adhered to by the investigating officer.

[4] Question 2 of the Form 10 requires the Applicant to identify the relevant workplace instrument. Mr Cobley wrote “none” next to question 2. Question 3 requires the Applicant to attach the applicable dispute resolution clause. Mr Cobley did not attach the relevant clause.

[5] It is my understanding that the Nepean Blue Mountains Local Health District is a local health district within NSW Health. It is my understanding that NSW Health is responsible for the public health system of NSW and that it is a NSW State government department. As Mr Cobley is an employee of a NSW State government department, I was concerned that the Fair Work Commission did not have jurisdiction to deal with his application.

[6] On 23 October 2014 my chambers wrote to Mr Cobley and the Nepean Blue Mountains Local Health District raising my concern. Mr Cobley did not reply to this email. Nepean Blue Mountains Local Health District replied but did not address the jurisdictional matter.

[7] On 6 February 2015, my chambers again wrote to Mr Cobley and the Nepean Blue Mountains Local Health District inviting the parties to make submissions in relation to the dismissal of the application pursuant to section 587(1)(a) of the Act, which provides for the dismissal of applications that are not made in accordance with the Act. Mr Cobley did not make any submission and accordingly the Nepean Blue Mountains Local Health District did not file any submissions in reply.

[8] The jurisdiction of the Commission to deal with a dispute under section 739 of the Act arises when a term of a workplace instrument, referred to in section 738 of the Act, requires or allows the Commission to deal with a dispute. The Commission’s jurisdiction is derived from the dispute resolution term in the relevant workplace instrument. No such term has been provided to the Commission.

[9] In any event I doubt that a workplace instrument that attracts the jurisdiction of the Commission could be made to cover Mr Cobley in his employment with Nepean Blue Mountains Local Health District.

[10] The New South Wales Government has referred defined subject matters within workplace relations to the Commonwealth legislature by way of section 5 of the Industrial Relations (Commonwealth Powers) Act 2009 (NSW) 1 (the “NSW Act”). Section 6 of the NSW Act provides exclusions to the matters referred to the Commonwealth in section 5. Relevantly, Subsection 6(c) of the NSW Act specifically excludes from the referral of powers, matters relating to State public sector employees.

[11] The Fair Work Commission derives its powers from the Fair Work Act 2009 which applies to “national system employees” and “national system employers”. National system employees are employees employed by national system employers. National system employers, amongst others, do not include “a body established for a public purpose by or under a law of a State or Territory, the Governor of the State, by the Administrator of a Territory or by a Minister of a State or Territory”. 2

[12] In all the circumstances I am satisfied that the application is not made in accordance with the Act and I have decided to dismiss the application pursuant to 587(1)(a). An order to this effect is issued along with this decision.

DEPUTY PRESIDENT

 1 Schedule 1, section 30K of the Industrial Relations (Commonwealth Powers) Act 2009 (NSW) sets out the referred subject matters and the excluded subject matters.

 2 Section 14 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR562443>