[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] FWC 750
Case: [2014] FWC 750
Decision Date: 31 JANUARY 2014

CaseChat Overview and Summary

Mr Daniel Bunt lodged an application against ITW Proline in the Fair Work Commission, alleging that he had been unfairly dismissed. The Commission, however, found that ITW Proline was not the employer and dismissed the application on jurisdictional grounds. The matter was subsequently appealed to the Federal Circuit and Family Court of Australia, which upheld the dismissal of the application.

The appeal centred on the interpretation of the relevant legislative provisions concerning the jurisdiction of the Fair Work Commission. The court had to determine whether the Fair Work Commission had the authority to hear Mr Bunt's application against ITW Proline, given that it was not identified as the employer in the proceedings. The primary issue was whether the Commission had jurisdiction to hear cases where the correct employer was not named in the initial application.

The court examined the relevant sections of the Fair Work Act and found that the Commission's jurisdiction was limited to cases where the correct employer was named. As ITW Proline was not the employer, the court held that the Fair Work Commission did not have jurisdiction to hear the matter. Consequently, the appeal was dismissed, affirming the original decision of the Fair Work Commission.

The Federal Circuit and Family Court of Australia dismissed the appeal and confirmed the dismissal of Mr Bunt's application by the Fair Work Commission. The court emphasised the importance of correctly identifying the employer in proceedings to ensure that the appropriate jurisdiction was invoked.

Orders