Kronen v Commercial Motor Industries Pty Ltd
[2009] FMCA 808
•14 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRONEN v COMMERCIAL MOTOR INDUSTRIES PTY LTD | [2009] FMCA 808 |
| INDUSTRIAL LAW – Interpretation of Award sought – applicant’s lack of standing to bring the proceedings – application dismissed. |
| Fair Work Transitional Provisions and Consequential Amendments Act2009 (Cth) Workplace Relations Act, 1996 (Cth), s.848 |
| Applicant: | HORST WILHELM KRONEN |
| Respondent: | COMMERCIAL MOTOR INDUSTRIES PTY LTD |
| File Number: | ADG 68 of 2009 |
| Judgment of: | Simpson FM |
| Hearing date: | 14 July 2009 |
| Date of Last Submission: | 14 July 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 14 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr I. Colgrave |
| Solicitors for the Respondent: | Norman Waterhouse |
ORDERS
The applicant’s application filed on 18 March 2009 be dismissed.
There be no order for costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 68 of 2009
| HORST WILHELM KRONEN |
Applicant
And
| COMMERCIAL MOTOR INDUSTRIES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Revised from Transcript
These extempore reasons relate to an application brought pursuant to the Workplace Relations Act 1996 (Cth) (“the Act”). The applicant seeks final orders that the Court provide an interpretation of a provision of the Vehicle Industry Repair Service and Retail Award 1983 (Cth) (“the Award”) relating to employee superannuation. He says in his application that he also seeks a finding to the effect that, pursuant to the Commonwealth Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth), an employer must make superannuation contributions on an employee’s commission earnings. He also seeks an order for costs.
Before this trial started I expressed concern that the applicant may not have standing to bring the proceedings. Although no application for summary judgment had been made by the respondent prior to the hearing, Counsel for the respondent indicated that I should deal with the matter on the basis of an oral summary judgment application. I declined to deal with the matter on that basis and instead embarked on the trial, indicating that I would deal with the question of standing as a preliminary issue.
The applicant relied on his two affidavits filed on 18 March 2009 and 12 May 2009 respectively. The applicant was cross-examined on his affidavits by Counsel for the respondent. I have taken into account the contents of the affidavits and the oral evidence that the applicant has given.
I take into account oral submissions from Counsel for the respondent and from the applicant in person. I also take into account the written submissions that have been filed by or on behalf of the parties, which submissions deal not only with the preliminary issue, but also the merits of the case generally, namely, the proper interpretation of the Award.
It was conceded by Counsel on behalf of the respondent that s.848 of the Act is the appropriate section for me to be considering, notwithstanding the fact that that section was repealed by the Fair Work Transitional Provisions and Consequential Amendments Act2009 (Cth) (“Transitional Provisions Act”). I am satisfied on the basis of the Transitional Provision Act that this Court still has jurisdiction to deal with questions of interpretation of awards pursuant to s.848 of the Act.
In deciding the threshold issue of the applicant’s standing to bring these proceedings it is necessary to look closely at the wording of s.848. Section 848 of the Act provides as follows:
(1) Application for Interpretation
The court or the Federal Magistrates Court may give an interpretation of an award on application by:
(a) the Minister; or
(b) an organisation or person bound by the award.
(2) Decision of Court Final.
The decision of the Court or the Federal Magistrates Court is final and conclusive and is binding on the organisation and persons bound by the award who have been given an opportunity of being heard by the Court or the Federal Magistrates Court.
Clearly the applicant is neither the Minister nor an organisation bound by the Award. The issue therefore is whether he is a “person bound by the award”. Counsel for the respondent draws the Court’s attention to the provisions of the Award itself which has been tendered as part of the applicant’s evidence. Clause 4 of the Award deals with parties bound by the Award. Subparagraph (a) provides:
The award will be binding on firstly, organisations of employees set out in schedule A and on the members thereof.
Schedule A to the Award details a number of employee organisations. I do not propose to provide full details of the organisation mentioned, but the applicant acknowledges that he was never a member of any organisation and certainly none of the organisations that are mentioned in schedule A.
Clause 4 goes on to say:
The award is binding on organisations of employers set out in schedule B to the award.
Clearly the applicant does not fall within any of these employer organisations.
In my view, the arguments that are put by the applicant as to the basis upon which he is entitled to bring the application, are without merit. He says that clause 4 of the Award is not exhaustive and that it does not say that only the people mentioned in clause 4 are bound by the Award. In my view, that is not an argument that has any merit.
Clause 4 of the Award states those parties who are bound by the Award. There is merit in the argument that was put by the applicant that there is a difference between being bound by an Award and being employed and subject to the terms of an Award.
In my view, the correct interpretation of the Award would not allow the applicant to bring these proceedings pursuant to s.848 of the Act or at all. The only appropriate course is to dismiss the applicant’s claim.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: J. Semler
Date: 10 September 2009
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