Lisa Courtney Rodwell v South West Aboriginal Medical Service Aboriginal Corporation T/A South West Aboriginal Medical Service

[2022] FWC 474

[2022] FWC 474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Lisa Courtney Rodwell
v

South West Aboriginal Medical Service Aboriginal Corporation T/A South West Aboriginal Medical Service

(C2022/503)

COMMISSIONER WILLIAMS PERTH, 3 MARCH 2022

Dispute resolution - jurisdiction.

1. On 13 January 2022 Ms Lisa Courtney Rodwell (the Applicant) made an application under section 739 of the Fair Work Act 2009 (the Act). The Respondent is the South West Aboriginal Medical Service Aboriginal Corporation T/A South West Aboriginal Medical Service.

1. The matter was listed for a conference on 2 March 2022 and at the direction of the Commission the Respondent filed a written response to the application on 10 February 2022.

1. In its response the Respondent submits that the Commission is not authorised to deal with the dispute identified in the application.

1. At the conference the Applicant was provided the opportunity to respond to the jurisdictional objection. The parties were advised that the Commission would issue a decision dealing with the jurisdictional issue.

1. This decision deals only with the Respondent’s jurisdictional objection.

1. The Applicant in her application identifies the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 [MA000115] (the Award) as covering her employment and containing the dispute resolution procedure relevant to the application. In its response the Respondent confirms the Award applies to the Applicant.

1. The application is based on clause 31 - Dispute Resolution of the Award. This clause states at 31.1 that the clause “...sets out the procedure to be followed if a dispute arises about a matter under this award or in relation to the NES.”

1. Consequently, if this dispute does not arise about a matter under the Award or in relation to the NES the Commission has no jurisdiction to deal with this.

1. In the application in answer to the question at 1.4 “What clause of the industrial instrument or other written agreement does the dispute relate to?”, the Applicant replied “It is not listed within the Award”.

1. In her application the Applicant explains what the dispute is about at 2.1 which in summary is, “Refusing to comply with ‘workings conditions’ within my contract not within Award as listed above despite that my workplace has not amended my contract to include vaccination of COVID 19”.

1. Attached to the application is a copy of an employment contract, an employee handbook, two letters from the Respondent to the Applicant regarding the Western Australian Government’s directions regarding COVID-19 vaccinations and a letter dated 14 October 2020 from the Applicant to the Respondent headed “COVID-19 Vaccine Direction: Your economic duress is negating my ability to decline a Covid-19 vaccine”.

1. In its response the Respondent says the dispute that has arisen in the workplace is that the Applicant has refused to be vaccinated against COVID-19 notwithstanding the employer giving her a reasonable and lawful direction to do so and to prove that she has been so vaccinated.

1. It is clear to the Commission that the dispute the Applicant has identified is not one that arises about a matter under the Award nor in relation to the NES.

1. For completeness, in the event the Applicant asserts the dispute concerns a refusal to agree to a request for flexible working arrangements or an extended period of unpaid parental leave, I note that section 739 (2) of the Act expressly states the Commission must not deal with a dispute about whether an employer had reasonable business grounds to reject such requests under section 65 (5) or 76 (4) of the Act unless the parties had agreed in a contract, enterprise agreement or other written agreement for the Commission to deal with such matters. There is nothing before the Commission demonstrating the parties had agreed that such matters could be dealt with by the Commission and so the Commission has no jurisdiction to consider any such disputes.

Conclusion

1. It is clear the Commission has no jurisdiction to deal with the dispute in this application. This application should not have been made.

1. This matter will be dismissed and an order [PR738971] to that effect now issued.

Printed by authority of the Commonwealth Government Printer

<PR738970>