Melissa Shrimpton

[2020] FWC 6110

[2020] FWC 6110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Melissa Shrimpton
(AG2020/3201)

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 13 NOVEMBER 2020

Application for termination of the CLO Psychosocial Support Enterprise Agreement 2009.

[1] On 23 October 2020, Ms Melissa Shrimpton (the Applicant) made an application to terminate the CLO Psychosocial Support Enterprise Agreement 2009 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act) using the Form F24B - Application for termination of an enterprise agreement after the nominal expiry date. It appears that the application should have been lodged under item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 using the Form F28 Application for termination of collective agreement-based transitional instrument. Given the applications have a similar effect, and given the outcome of this application, I use the power under s.586(b) of the Act to waive an irregularity in the form in which the application has been made.

[2] It appears that the Agreement is a collective agreement-based transitional instrument and thus is subject to termination in accordance with the Act.

[3] On 28 October 2020, a Directions hearing was conducted. The United Workers’ Union (UWU) appeared and advised that it represented members to whom the Agreement applied. The UWU challenged the Applicant’s standing to make the application. No-one appeared on behalf of Community Living Options (CLO). Directions were issued with respect to the jurisdictional issue (standing to bring the application) and the matter was listed for hearing on 11 November 2020.

[4] On 2 November 2020, the Applicant filed a submission which contended that:

•  The Agreement was subject to termination under the Act.

•  Ms Shrimpton believed she had standing to bring the Application.

•  A single Commissioner did not have the right to determine this matter.

•  Due to the slowness of the Fair Work Ombudsman, the Applicant be granted status as an “affected employee”.

[5] On 2 November 2020, Community Living Options (CLO) advised that it objected to the application to terminate the Agreement and believes that the application should be rejected on the basis that it would be contrary to the public interest and also that the views of the various parties have not been obtained in regards to the application for termination of the Agreement and that the merit of the application has not been thoroughly explored. CLO contended that the application is without merit and should be rejected. The submission did not address the jurisdictional issue.

[6] On 4 November 2020, the UWU filed a submission which contended that:

•  On 2 July 2020, the Applicant’s employment with CLO was terminated effective from the said date.

•  On 23 July 2020, the Applicant resigned her membership with UWU.

•  On 23 October 2020, the Applicant filed her Form 24B application pursuant to s.225 of the Act.

•  Given the above, the Applicant was not an employee with CLO or a member of the UWU at the time that the Application was made.

•  Section 225 of the Act provides the following: “If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement: (a) one or more of the employers covered by the agreement; (b) an employee covered by the agreement; (c) an employee organisation covered by the agreement”.

•  Section 225 of the Act makes it clear that an application must be made by an employee covered by the agreement at the time of making the application.

•  Given the above, the Applicant does not have standing pursuant to s.225(b) of the Act to make the Application as she was not an employee of CLO at the time of making the Application.

•  For completeness sake, the Applicant does not have standing pursuant to s.225(c) of the Act to make the Application as she was not a member of the UWU at the time of making the Application and was not provided with authority by UWU to make the Application on UWU’s behalf.

•  UWU does not support the Application to terminate the Agreement. UWU is in the process of bargaining for a new agreement.

•  The Application should be dismissed for lack of standing.

[7] On 3 November 2020, the Applicant was directed to respond to the factual matters detailed in paragraphs 1-4 of the UWU’s submissions.

[8] On 11 November 2020, the Applicant filed a further submission where she advised, ‘Whilst I do not contest the factual accuracy of points 1-4 raised by UWU, I contend that the conclusions drawn therefrom in points 5-10 do not take into account the unusual specifics in my case.’

[9] On 11 November 2020, the ASU corresponded with my Chambers and advised it had an interest in the matter. The ASU was sent a copy of the Notice of Listing and was invited to attend. The ASU subsequently advised that it would not participate in the hearing concerning standing but sought to be advised if the matter proceeded further.

[10] A hearing was conducted at 2.00pm on 11 November 2020. Ms Shrimpton attended with a support person, CLO was represented by Ms Johnston and the UWU was represented by Mr Zammit with Mr Boyle.

[11] Ms Johnston was invited to address the issue in respect of the application of the Fair Work Act 2009 to the Agreement and advised that CLO did not dispute Ms Shrimpton’s position. The UWU declined an invitation to make a submission on the topic.

[12] Ms Shrimpton was then invited to put any further material. Ms Shrimpton contended that she continued as an employee with a related Corporation (Health Care Australia) as a result of Clause 3.6.3 of the Agreement. Ms Shrimpton was unable to advise on what basis Health Care Australia was a related corporation. Ms Shrimpton was referred to Clause 1.3 of the Agreement (in respect of parties bound) and submitted she was not covered by the Agreement.

Consideration

[13] I find that Agreement is subject to termination under the Act.

[14] I am not persuaded that Ms Shrimpton remains as an employee by virtue of Clause 3.6.3 of the Agreement, that provision is intended to assist the calculation of an employee’s length of service and includes service with related Corporations. The provision does create an employment relationship with CLO as a result of continuing service with a related Corporation (a point that I have not been persuaded exists on the evidence submitted).

[15] In addition, the Applicant contends the Agreement has never covered her.

[16] I find that at the time the application was lodged, Ms Shrimpton was not an employee and/or covered by the Agreement.

[17] I accept that the decision to lodge this application was delayed until after Ms Shrimpton had left the employ of CLO, s.225 of the Act does not provide me with any discretion to accept an application made after the employment has concluded (ignoring for the moment the coverage of the Agreement).

[18] I find that Ms Shrimpton does not have standing under s.225 of the Act to bring the application and, accordingly, the application is dismissed.

COMMISSIONER

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