Miss Tiarna Martin-Durrington v Community Connections Oshc

[2020] FWC 2759

[2020] FWC 2759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Tiarna Martin-Durrington
v
Community Connections OSHC
(U2019/12415)

COMMISSIONER BOOTH BRISBANE, 27 MAY 2020

Application for relief from unfair dismissal – jurisdictional objection – non-national system employer – application dismissed.

[1] This Decision concerns an application by Miss Tiarna Martin-Durrington under s.394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy. The application identifies the Respondent as Community Connections Outside School Hours Care (the Respondent).

[2] The Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application (Form F3 Response), which identified the legal name of the business as Whites Hill State College Parents and Citizens Association (the Association) and the trading name as Community Connections Outside School Hours Care. The Association is in Queensland.

[3] In its Form F3 Response, the Association objected to the application on the grounds that Miss Martin-Durrington was a casual employee and had not met the minimum employment period. The Association also raised the jurisdictional objection that it was a small business employer and the employer complied with the Small Business Fair Dismissal Code. On 21 November 2019, the Association contacted the Fair Work Commission (the Commission) and advised it further objected to the Commission dealing with Miss Martin-Durrington’s application on the ground that it is not a national system employer.

[4] Both the Applicant, assisted by a support person, and Ms Vashti Wadwell, Secretary of the Whites Hill State College Parents and Citizens Association, appeared at a telephone hearing of the matter on 27 May 2020. The Applicant relied on the material already before the Commission. Ms Wadwell confirmed that the Respondent submitted, among other objections, that the Association was not a national system employer as defined in s.14 of the Act.

[5] The Act requires that a jurisdictional objection must be considered before the merits of the application. If the objection is upheld, the Commission must dismiss the application.

[6] The issue then for determination is whether the Association is a national system employer and regulated by the Federal industrial relations jurisdiction. If the Association is not a national system employer, the Commission has no jurisdiction to deal with Miss Martin-Durrington’s application.

Background

[7] On 29 November 2019, correspondence was sent to Miss Martin-Durrington from Vice President Catanzariti’s Chambers, informing her of the objections and requesting her to respond by Friday, 6 December 2019. Miss Martin-Durrington was also provided contact details of the Commission’s Workplace Advice Service, which offers eligible unrepresented individuals and small business employers access to free advice with a lawyer.

[8] On 5 December 2019, Miss Martin-Durrington filed her response at the Commission in Brisbane. Miss Martin-Durrington’s response was approximately 70 pages and contained copies of rosters from 2018 to the date of her dismissal and copies of her payslips.

[9] The matter was allocated to my Chambers on 9 December 2019. The matter was listed for directions conference on 22 January 2020 however did not proceed as the Association was unavailable.

[10] On 22 January 2020, correspondence was sent from my Chambers to the Miss Martin-Durrington, copying in the Response, that set out the jurisdiction of the Commission and noted the ABN on the payslips provided was for the Association. Miss Martin-Durrington was required to advise if she wished to progress her application with the Commission. Miss Martin-Durrington did not respond.

[11] On 26 February 2020, further correspondence was sent to the parties, requesting that Miss Martin-Durrington advise whether she intends to progress the application in the Commission. On 27 February 2020, Miss Martin-Durrington confirmed she intended to progress the application.

[12] Directions were issued requiring the Association to file material in support of its jurisdictional objection and to serve that on Miss Martin-Durrington. The Directions also required Miss Martin-Durrington to file a response and the matter was listed for hearing on 27 May 2020.

[13] Despite a number of follow-ups and further opportunities granted for the Respondent to file any written materials, it did not file any submissions in support of its jurisdictional objection ahead of the hearing on 27 May 2020. The Applicant also did not file any materials further to the directions issued 5 March 2020, and confirmed in a correspondence exchange with Chambers between 20 and 22 May that she intended to rely on the materials filed in the Commission in December 2019.

Consideration

[14] Section 380 of the Act states that in Part 3–2 Unfair dismissal of the Act “employer means a national system employer.”

[15] In Arthurell v Jimboomba Outside School Hours Care, 1 Deputy President Asbury found that the Parent & Citizen Association in that matter was not a national system employer. The case before me is not materially different, in that the Parent & Citizen Associate was also based in Queensland.

[16] In reaching her decision, Deputy President Asbury summarised the industrial framework applicable to Parent and Citizen Associations in Queensland:

“[6] On 11 November 2009, the Queensland Parliament passed the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 and, following complementary Federal legislation passing the Senate on 2 December 2009, State industrial relations powers for the private sector were referred to the Commonwealth. The referral excluded public sector employers, defined in s. 3 of that Act to include an: “entity … established under an Act or State authorisation for a public or State purpose”.

[7] Parents and Citizens’ Associations in Queensland are created under the Education (General Provisions) Act 2006 (Qld). The objectives of such Associations under that Act are to promote the interest of, and facilitate the development and further improvement of, the State instructional institution for which they are formed. Further, the Education (General Provisions) Act 2006 (Qld) at s. 133 defines Parents and Citizens’ Associations as statutory bodies.

[8] By virtue of s. 5(1)(b)(iv) of the Associations Incorporation Act 1981 (Qld), Parents and Citizens’ Associations under the Education (General Provisions) Act 2006 are not eligible for incorporation. Accordingly, Parents and Citizens’ Associations are public sector employers for the purpose of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 and are not national system employers as defined in s. 14 of the Fair Work Act 2009.”

[17] On 15 May 2020, my Associate entered the Australian Business Number (ABN) provided on the payslips submitted by Miss Martin-Durrington into the Australian Business Register. The result of the search indicated the ABN was for the Association. On this material, I am satisfied that Miss Martin-Durrington’s employer was the Association.

Conclusion

[18] Based on the material before me, I find that Miss Martin-Durrington’s employer, the Whites Hill State College Parents and Citizens Association, is not a national system employer, within the meaning of s.14 and s.30 of the Act.

[19] Accordingly, the Fair Work Commission does not have jurisdiction to deal with an application for an unfair dismissal remedy in respect of the Association.

[20] Miss Martin-Dorrington’s application for an unfair dismissal remedy must be dismissed for lack of jurisdiction and an Order to that effect will issue with this Decision.

COMMISSIONER

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 1   [2015] FWC 5102.