Miss Deirdre McQuillan v Western Australia Government T/A Department of Mines

[2017] FWC 5079

[2017] FWC 5079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Deirdre McQuillan
v
Western Australia Government T/A Department of Mines
(U2017/8883)

DEPUTY PRESIDENT BULL PERTH, 29 SEPTEMBER 2017

Application for relief from unfair dismissal. State of Western Australia, parties not National System employee/employer, no jurisdiction, application dismissed.

[1] On 16 August 2017, Miss Deirdre McQuillan made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act)stating that the Department of Mines was her employer.

[2] On 17 August 2017 the Fair Work Commission (the Commission) contacted Miss McQuillan regarding her employment and enquired whether Western Australia Government T/A Department of Mines was a national system employer. Miss McQuillan was advised that employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy. Written correspondence confirming this advice was sent to her. She was directed to advise the Commission within 14 days whether she wished to proceed with her application.

[3] No correspondence was received from Miss McQuillan.

[4] On 31 August 2017 the Commission sent further correspondence to Miss McQuillan advising that based on the information provided, her application did not appear to be valid and in those circumstances the Commission may not have jurisdiction to deal with her application. She was directed to advise the Commission within 7 days whether she wished to proceed with her application.

[5] Miss McQuillan did not contact the Commission or provide any further information.

[6] On 13 September 2017 the Commission contacted Ms McQuillan via telephone to follow up on its earlier email correspondence and to enquire whether she intended on pursuing the unfair dismissal application. Ms McQuillan confirmed she wanted to continue with the application.

[7] Division 1 of Part 3-2 of the FW Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”.

[8] Section 380 of the FW Act states that an employee and employer means a national system employee and national system employer respectively. These terms are defined in ss. 13 and 14 of the FW Act as follows:

“Section 13 Meaning of national system employee

13 A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

…

Section 14 Meaning of national system employer

14(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(d) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(e) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.”

[9] The jurisdiction of the Commission in respect of an unfair dismissal application is therefore restricted to where the employee is employed by a national system employer which must be a constitutional corporation. An extended meaning of national system employer to cover unincorporated employers applies where a State has, before 1 July 2009, referred its powers to the Commonwealth for the purposes of paragraph 51 (xxxvii)¹ (see s. 30B of the FW Act). Unlike some other states², the State of Western Australia has not referred its powers under s.30B.

[10] In view of the above, Miss McQuillan and the Western Australia Government T/A Department of Mines do not respectively fall within the scope of this definition.

[11] In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine Miss McQuillan’s application for unfair dismissal as her employment was not with a national system employer.

[12] Section 587(1) of the FW Act provides as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[13] In this circumstance, I have determined that the application was not made in accordance with the FW Act.

[14] Consequently, the application is dismissed under s.587(1)(a) of the FW Act.

DEPUTY PRESIDENT

1 Section 51(xxxvii) of the Constitution provides a mechanism through which state parliaments can refer powers over matters to the Commonwealth Parliament. The Commonwealth Parliament is consequently provided the power to make laws with respect to those referred matters, but only for those states from which the matter is referred.

2 For example on 25 September 2009, at a meeting of the Workplace Relations Ministerial Council the NSW government signed an agreement to refer its powers to the Commonwealth for the purposes of creating a national industrial relations system. The state parliament of NSW then enacted the Industrial Relations (Commonwealth Powers) Act 2009 No 115 to give legislative effect to this agreement.

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