Lenny Krajancic v UGL Limited

[2016] FWC 2091

[2016] FWC 2091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Lenny Krajancic
v
UGL Limited
(C2016/2960)

COMMISSIONER WILLIAMS PERTH, 4 APRIL 2016

Application to deal with a dispute.

[1] This decision concerns an application made under section 739 of the Fair Work Act 2009 (the Act) by Mr Lenny Krajancic (Mr Krajancic). The respondent is UGL Limited (UGL or the respondent).

[2] In his application Mr Krajancic says that the applicable industrial instrument is an enterprise agreement but he does not identify any specific agreement. UGL however acknowledged that the United Group Resources Pty Ltd Project Delivery and Asset Services Workplace Agreement 2009 [AC328943] (the Agreement) applied to Mr Krajancic until his employment ended in 2013.

[3] Mr Krajancic’s application states that he is seeking a full weeks’ pay which he asserts he was entitled to because he was wrongly given notice of termination concurrently with his R&R leave. Mr Krajancic relies on the recent decision of Commissioner Bissett 1.

[4] I note that at the time of writing this decision a Full Bench of the Commission is considering an appeal against Commissioner Bissett’s decision. The outcome of that appeal however is not relevant to the determination of Mr Krajancic’s application.

[5] The respondent has raised jurisdictional objections that:

(a) Mr Krajancic is not, and has not been, an employee of the respondent from on or around 13 August 2013;

(b) The matter the subject of the application was not raised with the respondent until around 15 February 2016; and

(c) Further and in the alternative, Mr Krajancic had not at any time prior to 15 February 2016 followed all required steps in the dispute resolution procedure contained in the Agreement.

[6] Consequently the respondent submits the Commission lacks jurisdiction to hear and determine this matter.

[7] Mr Krajancic was invited to provide a response to the submissions of UGL made in support of their objections.

[8] Relevantly Mr Krajancic submits that:

“I agree that this case should not be heard, but for different reasons than UGL. This case should not be heard simply because a ruling regarding “Notice period running concurrently with R&R” has already been made by the FWC. As the FWC has already determined that an employees Notice Period cannot run concurrently with R&R, and UGL admitting that they have served my notice period concurrently with my R&R – it is my belief that this case should not be heard and that the FWC should simply make an “Order to Pay” to UGL.

Over the last six years (from a broad calculation), there would have been approximately 200,000 FIFO workers that would have been made redundant with their Notice Period running concurrently with R&R. It beggars belief that the FWC will potentially list 200,000 individual cases for hearing on this matter – when you have already determined that this is not allowed to occur.

Should you wish to proceed to a hearing and not automatically order them to pay – then I would refute UGL’s application to not have the case heard by making the following remarks.

1. UGL’s insistence that someone must be a current employee of theirs to be able to file a claim in the FWC is anti-intellectual at best, and corrupt at worst. Anyone with a single brain cell left in their brain would find it obvious that anybody making a claim against Unfair Dismissal, Termination Payments, False Redundancy etc, would no longer be an employee of that company. This issue is a pathetic attempt by a mafia style leadership team to impose their ingrained bullying and thuggery over myself and should be ignored by the FWC...” [sic]

Consideration

[9] The relevant clause of the Agreement is clause 1.6−Dispute Resolution Procedure which is set out below.

“1.6 Dispute Resolution Procedure

1.6.1 Subject to Sub-Clause 1.6.6 of this Agreement, where an Employee (or Employees) has any issue, dispute or concern arising from this Agreement about a matter pertaining to the employment of the Employee or Employees the following procedure shall apply:

(i) The Employee shall discuss the issue with his or her supervisor.

(ii) If not resolved, the Employee (with a support person if desired) shall discuss the issue with the relevant manager.

(iii) If not resolved, the Employee (with a support person if desired) may refer the matter to a senior management representative of the Company, nominated by the Company.

1.6.2 If not resolved, the issue may be referred by either party to the Australian Industrial Relations Commission (the "Commission") for conciliation or mediation to resolve the matter. Upon the Commission being notified of a dispute, the Commission may exercise such powers and functions as the parties to the dispute agree are appropriate at the time.

1.6.3 To ensure a dispute free culture the patties undertake that no sttike, ban or limitation of work shall occur in respect of any issue, dispute or concern whilst the above procedure is being followed and the status quo prior to the dispute shall be maintained.

1.6.4 Where any issue arises, this procedure shall be followed and work shall continue normally unless Employees have a reasonable concern about an imminent risk to their health or safety. Where such a concern does arise alternative work shall be performed as directed by the Company where such a risk is not present.

1.6.5 Where shutdowns, break downs and repairs, tie-ins, essential work (to maintain plant operation) or emergency work is carried out under this Agreement, Employees are committed to ensuring that there is an uninterrupted and continuous supply of labour to ensure that the work being carried out shall not be stopped, interrupted or delayed, provided it is safe to do so.

1.6.6 Should an issue arise relating to safety, the matter shall be dealt with under Clause 1.7 of this Agreement and not this Clause.”

[10] With respect to Mr Krajancic’s period of employment, attached to his application is an email sent by him on 15 February 2016 to UGL wherein he raised his concern about this issue and states he was employed up until July 2013. It is not disputed that on 11 March 2016, the date this application was made, Mr Krajancic was not employed by UGL. I am satisfied that Mr Krajancic has not been an employee of UGL since 2013 and was not an employee of UGL at the time he made this application.

[11] There are numerous decisions of this Commission including recent appeal decisions of Full Benches being King & Ors v Patrick Projects Pty Ltd 2 and Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd3, that have held that the Commission does not have jurisdiction to deal with a dispute in relation to people who are no longer covered by the relevant agreement.

[12] That is the case here. Mr Krajancic was not an employee of UGL when he made this application. Consequently he had no right under the Agreement to bring a dispute to the Commission under clause 1.6−Dispute Resolution Procedure.

[13] I uphold the jurisdictional objection of the respondent. The Commission has no jurisdiction to deal with Mr Krajancic’s dispute and so this application is hereby dismissed.

[14] I note in any event that Mr Krajancic, as he explains in his submission, believes the Commission should simply make an “Order to Pay” requiring UGL to pay him the monies he believes he is owed. This relief involves enforcement of the Agreement which is something that is beyond the power of the Commission. Only the Federal Circuit Court or the Federal Court is empowered to make such an order.

COMMISSIONER

Final written submissions:

Applicant, 1 April 2016.

Respondent, 30 March 2016

 1   [2016] FWC 669.

 2   [2015] FWCFB 6323.

 3   [2015] FWCFB 5619.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578663>