Mr Andrew Szopory v Catch Consultants T/A Catch Fitness
[2022] FWC 209
| [2022] FWC 209 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Andrew Szopory
v
Catch Consultants T/A Catch Fitness
(C2021/8120)
| DEPUTY PRESIDENT CROSS | SYDNEY, 18 MARCH 2022 |
Dispute notification – dispute allegedly arising from contract of employment or other written agreement – no term providing for a procedure for dealing with disputes – no reasonable prospects of success - application dismissed.
On 30 November 2021, Mr Andrew Szopory (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that he had not been paid bonuses pursuant to his contract of employment with Catch Fitness (ABN 18 640 300 796; ACN 640 300 796) (the Respondent).
In the Form F10 by which the Applicant commenced the Application, the Applicant:
(a) In answer to the question “What is the name of the instrument or other written agreement containing the dispute resolution procedure?” answered “Employment Contract as attached;”
(b) In answer to the question “What clause of the industrial instrument or other written agreement contains the dispute settlement procedure?” answered “5C, Bonus clause;” and
(c) In answer to the question “What clause of the industrial instrument or other written agreement does the dispute relate to?” answered “5C, Bonus.”
Contrary to the assertion outlined in [2(a)] above, the Applicant did not annexe a copy of his employment contract to the Application. On 20 December 2021, the matter was referred to the Commission as currently constituted, and on 6 January 2022, my chambers wrote to the Applicant as follows:
“I advise that the above matter has been allocated to Deputy President Cross for consideration and determination.
Chambers notes that you appear to rely on a contract of employment, and requests that you provide the alleged contract and identify the term of the contract that “provides a procedure for dealing with disputes between the employer and the employee,” as required by s. 738(c) of the Fair Work Act 2009 (Cth).”
The Applicant provided a copy of the contract upon which he relied, and the matter was listed for Conference on 13 January 2022. In the email advising of the listing my Chambers wrote to the Applicant as follows:
“I note that your contract of employment has been provided to Chambers, however that you have not complied with the Deputy President’s request to identify the dispute resolution provision. As requested, please identify the term of the contract that “provides a procedure for dealing with disputes between the employer and the employee.” As noted below, the identification of this term is required pursuant to section 738(c) of the Fair Work Act 2009 (Cth).”
In response, on 12 January 2022, the Applicant replied to my Chambers as follows:
“You will need to ask catch fitness about their contract I had no involvement in its making. As far as I can see there is no such dispute resolution clause included.”
Further correspondence flowed between the Applicant, the Respondent and my Chambers regarding whether the Applicant sought to continue with the Application, and if so,
could he provide submissions as to how, in the absence of a dispute resolution clause in the contract, the Commission had power to hear the Application. The Applicant responded as follows:
“I’m sorry [name deleted] but this response is a joke. You’re tell me the commission can’t help me because the employer who wrote the contract ommited (sic.) a clause yet the ownus (sic.) is on me to provide this to you?????
Please explain this to me!
Makes absolutely no sense.”
The Conference originally listed for 13 January 2022 was rescheduled to 19 January 2022. While the Applicant did not attend that Conference, the Respondent did attend.
Dispute Resolution Jurisdiction
Section 739 of the Act provides:
Disputes Dealt with by the FWC
This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
In dealing with a dispute, the FWC must not exercise any powers limited by the term.
If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
The FWC may deal with a dispute only on application by a party to the dispute.
Section 738 of the Act provides:
Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
The Commission is not “at large” in the exercise of the dispute resolution jurisdiction of the Act. It is necessary that a relevant term referred to in s.738 exists, here being a term of a contract of employment or other written agreement, and that the Commission only exercise powers within the scope of that term.
No Reasonable Prospects of Success
The Applicant has conceded that there is no dispute settlement clause in the Contract upon which he relies. A review of that contract discloses that the Applicant’s concession is correct.
In the absence of a term of a contract of employment or other written agreement that provides a procedure for dealing with disputes, the Application has no reasonable prospects of success. I dismiss the Application pursuant to s.587(1)(c) of the Act.
DEPUTY PRESIDENT
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