Marian-Eduard Cojocaru v Arc Holdings (WA) Pty Ltd T/A Arc Switchboards

[2022] FWC 552

[2022] FWC 552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Marian-Eduard Cojocaru
v

Arc Holdings (WA) Pty Ltd T/A Arc Switchboards

(C2022/1006)

COMMISSIONER WILLIAMS PERTH, 14 MARCH 2022

Dispute resolution - jurisdiction.

1. This decision concerns an application made by Mr Marian-Eduard Cojocaru (the Applicant) under section 739 of the Fair Work Act 2009 (the Act). The Respondent is Arc Holdings (WA) Pty Ltd T/A Arc Switchboards (the Respondent).

1. In the application the Applicant asserts he is a Senior Design Engineer - Electrical and his employment is covered by the Arc Switchboards Enterprise Agreement 2014-2018 [AE411435] (the Agreement).

.

1. The application was listed for a conciliation conference with directions to the parties.

1. The Applicant was directed to explain how the Agreement covers his employment relationship as was asserted in the application, given the Agreement does not appear to cover an employee classified as a Senior Design Engineer – Electrical (see clause 2 - Definitions, the meaning of “The Parties”, and the classifications in Schedule A).

1. The Applicant and the Respondent accordingly filed submissions as requested.

1. At the conference the central issue as to whether the Agreement nominated in the application covers the Applicant’s employment was discussed.

1. Clause 2 - Definitions of the Agreement says that “The Parties to this Agreement shall mean the Company and all of its Employees engaged in any of the classifications named in Schedule A of this Agreement.”.

1. Employees is defined as follows “Employees means any person employed by the Company, performing work within Australia and who performs work in accordance with the classifications covered by this Agreement.”

1. “Schedule A - Basic Periodic Hourly Rate of Pay” of the Agreement lists classifications as follows, Tradesperson, Draughtsperson, Trades Assistant, Clerk, Apprentices and Adult Apprentices.

1. Schedule A does not include a classification of Senior Design Engineer – Electrical, nor more generally any type of engineer.

1. Consequently, if the Applicant is employed as a Senior Design Engineer – Electrical as he asserts in his application then his employment is not covered by the Agreement.

1. As an employee who is not covered by the Agreement, he is not able to rely on the Dispute Settlement Procedure set out at clause 10 of the Agreement as the jurisdictional basis for his application to the Commission under section 739 of the Act.

1. Consequently, this application is beyond the Commission’s jurisdiction and must be dismissed. An Order [PR739260] to that effect will now be issued.

Appearances:

M-E Cojocaru on his own behalf.
K. Kutasi, solicitor for the Respondent.

Conference details:

2022.
Perth:
March 10.

Final written submissions:

Applicant, 27 February 2022.
Respondent, 9 March 2022.

Printed by authority of the Commonwealth Government Printer

<PR739259>