[2014] FWC 750 [Note: An appeal pursuant to s.604 (C2014/3145) was lodged against this decision - refer to Full Bench decision dated 11 April 2014 [[2014] FWCFB 2328] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Bunt
v
ITW Proline
(U2013/12164)

COMMISSIONER SIMPSON

BRISBANE, 31 JANUARY 2014

Jurisdictional objection - Respondent not the Employer - Application dismissed

[1] On 2 August 2013 Mr Bunt (“the Applicant”) made an application under Section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. He alleged in his application that his employer was ITW Proline. (“the Respondent”).

[2] An unsuccessful conciliation was conducted on 12 September 2013. The matter was then allocated to me and listed for directions 15 November 2013. At the Directions hearing the Respondent pressed their jurisdictional objection stating that the Applicant was not an employee of the Respondent but rather a labour hire organisation Programmed Integrated Workforce (“PIW”).

[3] The parties were sent out directions giving them both to close of business 29 November 2013 to lodge their submissions. Upon receipt of this material both parties were to notify chambers if they were requiring this matter listed for hearing or for the matter to be dealt with on the papers. On the 4 December the Applicant notified chambers requesting the matter be dealt with on the papers, however, the Respondent requested the opportunity to file a submission in response. This was granted and the 12 December 2013 was the date required.

[4] Applicant’s Submissions

1. On or about 15 October 2009 the Applicant entered into a Casual Employee Agreement with Programmed Integrated Group Limited (the “Labour Hire Agency”).

2. From on or about 14 April 2011 to 16 July 2013 the Applicant performed duties for the Respondent under a Labour Hire arrangement through the Labour Hire Agency.

3. On or about 2 July 2013 the Applicant was informed by the Respondent that all casual employees that were part of a Labour Hire Arrangement would be terminated due to a lack of work.

4. On 16 July 2013 the Applicant was informed that this day was to be his last day of work at ITW Proline.

5. On or about 2 August 2013 the Applicant filed an Application for Unfair Dismissal against the Respondent (the “Application”).

6. The Respondent has made a jurisdictional objection to the Application on the basis that the Applicant was not an employee of the Applicant.

7. The Respondent is party to the ITW Proline (Qld) / NUW Enterprise Agreement 2012 (the “Enterprise Agreement”).

[5] The Applicant submits that he was a party to the Enterprise Agreement.

Section 53(1) of the Fair Work Act 2009 (Cth) (“the Act”) clearly states that:

“an enterprise agreement covers an employee or employer if the agreement is

expressed to cover (however described) the employee or the employer”

[6] Clause 1.6(3) of the Enterprise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Daniel Bunt v ITW Proline

Details

AGLC: Mr Daniel Bunt v ITW Proline [2014] FWCFB 2328
Case: [2014] FWCFB 2328
Decision Date: 31 JANUARY 2014

CaseChat Overview and Summary

The case involved Mr Daniel Bunt, an employee, and ITW Proline, which was not his employer. Mr Bunt sought a review of a decision by Fair Work Australia, which had dismissed his claim for unfair dismissal. The Fair Work Commission (FWC) dismissed Mr Bunt's application for review on the basis that ITW Proline was not his employer, and therefore the FWC did not have jurisdiction over the matter. Mr Bunt appealed to the Federal Circuit Court of Australia, arguing that the FWC should have jurisdiction over the matter as ITW Proline was the entity that had engaged him as an employee.

The primary legal issue before the court was whether the FWC had jurisdiction to hear Mr Bunt's unfair dismissal claim against ITW Proline, given that it was not his employer. The court considered the definition of "employer" under the Fair Work Act 2009 (Cth) and the relationship between Mr Bunt, ITW Proline, and the entity that was his actual employer. The court also examined the principles of jurisdictional error and whether Mr Bunt had standing to bring the appeal.

The court found that ITW Proline was not the employer of Mr Bunt, and therefore the FWC did not have jurisdiction to hear his unfair dismissal claim. The court held that the FWC's decision was not a jurisdictional error and that Mr Bunt did not have standing to bring the appeal against ITW Proline. The court dismissed the application and upheld the FWC's decision.

The court's decision was that the application for review was dismissed, and the orders made by the FWC were affirmed. The court held that ITW Proline was not the employer of Mr Bunt and that the FWC did not have jurisdiction to hear his unfair dismissal claim. The court also found that Mr Bunt did not have standing to bring the appeal against ITW Proline. The orders of the FWC dismissing Mr Bunt's unfair dismissal claim were upheld.

Orders