Mr Diego Nunes v State of Queensland
[2021] FWC 2323
•7 MAY 2021
| [2021] FWC 2323 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Diego Nunes
v
State of Queensland; AWX Pty Ltd
(C2021/1377)
COMMISSIONER HUNT | BRISBANE, 7 MAY 2021 |
Application to deal with contraventions involving dismissal – whether jurisdiction for application to proceed against first respondent – public sector employer per Fair Work (Commonwealth Powers) and Other Provisions Act 2009 – not national system employer per s.14(2) Fair Work Act 2009 – respondents to application amended.
[1] On 11 March 2021, Mr Diego Nunes made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.
[2] Mr Nunes listed the first respondent to be “RoadTek.” RoadTek does not have its own legal personality and is not a corporation. It is a business unit within the Department of Transport and Main Roads, a department of the State of Queensland established under the Public Service Act 2008 (Qld) (the First Respondent).
[3] Mr Nunes listed the second respondent as AWX Pty Ltd (the Second Respondent), a labour hire company.
[4] The First Respondent has a standing offer arrangement with the Second Respondent whereby the Second Respondent agrees to supply labour hire services to the First Respondent as and when requested. On 2 February 2021, the First Respondent requested the supply of labour hire and the Second Respondent employed Mr Nunes for this purpose, to perform work for the First Respondent. It is understood Mr Nunes performed work from 15 February 2021 to 5 March 2021 under this arrangement.
[5] The First Respondent raised two jurisdictional objections to the application:
(a) the State of Queensland does not fall within the jurisdiction of Part 3-1 of the Act; and
(b) the State of Queensland did not dismiss Mr Nunes because it was not his employer.
[6] The Second Respondent also raised a jurisdictional objection to the application that it did not dismiss Mr Nunes.
[7] This decision determines only whether the State of Queensland falls within the jurisdiction of Part 3-1 of the Act (the general workplace protections provisions), and therefore whether it can continue to names as a respondent to Mr Nunes’ application before the Commission.
First Respondent’s submissions
[8] The First Respondent says the Commission does not have jurisdiction to deal with the general protections dismissal application against it because the State of Queensland does not fall within the jurisdiction of Part 3-1 of the Act. It submits the Department of Transport and Main Roads is a public sector employer under s.3 of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (the Queensland Referral Act).
[9] The Queensland Referral Act referred certain matters to the Commonwealth that it does not otherwise have legislative power for. Section 6 of the Queensland Referral Act excludes from the referral “matters relating to public sector employees and employers.” The First Respondent says the definition of ‘national system employer’ per s.14 of the Act therefore does not apply to RoadTek, the Department of Transport and Main Roads or the State of Queensland. 1
[10] The First Respondent notes ss.337, 338 and 339 of the Act outline the extent to which Part 3-1 of the Act applies. It says ss.338 and 339 do not cover RoadTek, the Department of Transport and Main Roads or the State of Queensland because they are not:
(a) A constitutionally-covered entity as defined in s.338(2) of the Act;
(b) A trade and commerce employer as defined in s.338(3) of the Act;
(c) A territory employer as defined in s.338(4) of the Act; or
(d) A ‘nation system employer’ as referred to in s.339(a) and defined in s.14 of the Act.
Directions and conference
[11] On allocation to my chambers I issued the below directions to the parties:
“…
First Respondent
The Commissioner notes the jurisdictional objection made by the First Respondent. It says, inter alia that because it is the State of Queensland, the Fair Work Commission (a Commonwealth Tribunal) does not have authority over it.
Further, the First Respondent denies that there has been a dismissal by it as the Applicant was never employed by it.
Directions
1. The Applicant is directed to file and serve material as to how he says there is authority for the Fair Work Commission to have the First Respondent continue as a Respondent in these proceedings. The material must be filed to Commissioner Hunt’s chambers by email by no later than 4:00pm Tuesday, 13 April 2021.
2. A teleconference about this issue will be convened at 10:00am Wednesday, 21 April 2021. A notice of listing is to follow.
If the Applicant so wishes, he may make inquiries as to whether any general protects application against the First Respondent might be made to the Queensland Industrial Relations Commission (a State Tribunal) instead of to the Fair Work Commission. It is noted that time limits that apply might already have been reached and an extension of time might need to be sought from the Queensland Industrial Relations Commission. Further, the Applicant might need to be able to demonstrate that he was an employee of the First Respondent, which it is assumed he does not allege.
Second Respondent
The Commissioner proposes to hold the Second Respondent’s jurisdictional objection (that the Applicant was not dismissed) in abeyance until such time as the issue related to the First Respondent is resolved.
…” [original emphasis]
[12] Mr Nunes did not comply with direction [1] by 13 April 2021. On 14 April 2021 my Associate wrote to Mr Nunes confirming no materials had been received and advising if he seeks an extension to comply with this direction he is to write to chambers.
[13] On 20 April 2021, Mr Nunes sent the below correspondence to my chambers:
“…
To answer the below, the applicant states the following:
1. The applicant was employed through a labour hire (Second Respondent) contract to the First Respondent, hence there is two respondents in this matter.
2. The matter discussed is not about dismissal.
3. The matter relates to violation of general protections stated by the FWC. All parties were notified of the content of the dispute at the beginning of this process.
…”
[14] On 21 April 2021 I convened a conference by telephone between the parties to discuss the issue of the Commission’s jurisdiction over the First Respondent. Mr Nunes attended the conference. Mr Lachlan Grant, Senior Lawyer for Crown Law appeared for the First Respondent. Ms Carla Stieper, Head of Employee Relations appeared for the Second Respondent.
[15] Following the conference, I caused the below correspondence to be sent to Mr Nunes:
“Dear Applicant,
You have made an application pursuant to s.365 of the Fair Work Act 2009 in the federal jurisdiction, which is a general protections application involving dismissal.
You are directed to, by 12:00pm Thursday, 22 April 2021 communicate by email to chambers, copying in the first and second respondents, advising whether you wish to continue the applications against either of the first and second respondents.
The first respondent has made clear its jurisdictional objection that the Commission does not have jurisdiction over it.
The second respondent maintains that it did not dismiss you, and if you pursue your application against the second respondent, the Commissioner will the Applicant and the second respondent to file evidence and material relevant to whether there has been a dismissal. A hearing will be required.
Please ensure you communicate your position by 12:00pm tomorrow.
…” [original emphasis]
[16] Mr Nunes did not comply with the abovementioned direction. Instead, on 22 April 2021 Mr Nunes sent the below correspondence to my chambers:
“Unfortunately I won’t be able to respond to this request as I’m currently quite busy and the timeframe stipulated by the Commissioner does not fit in my schedule. I appreciate your understanding.”
[17] I subsequently wrote to the parties providing Mr Nunes a further opportunity to communicate with my chambers, by no later than 4:00pm, 27 April 2021. I advised if no correspondence had been received by that time my decision on the Commission’s jurisdiction relevant to the First Respondent would be reserved.
[18] I have not received any correspondence to my chambers from Mr Nunes since the correspondence set out above at [16].
Consideration
[19] By operation of s.14(2) of the Act, an employer is not a national system employer if it is established for a public purpose by or under a law of a state or territory, and that employer is specifically declared not to be a national system employer. Section 14(2) provides:
“…
(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:
(a) that employer:
(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or
(ii) is a body established for a local government purpose by or under a law of a State or Territory; or
(iii) is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001 ) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and
(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and
(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.”
[20] As set out in the First Respondent’s submissions, the Queensland Referral Act provides for referral of industrial relations powers to the Commonwealth, except for matters excluded by s.6 of the Queensland Referral Act. Section 6(d) of the Queensland Referral Act excludes from the referral:
“…
(d) matters relating to public sector employees and employers;
…”
[21] If the State of Queensland/the Department of Transport and Main Roads/RoadTek is a public sector employer it is excluded from the referral and cannot be a national system employer.
[22] Section 3 of the Queensland Referral Act defines the terms “public sector employee” and “public sector employer”:
““public sector employee” means—
(a) a person employed or appointed in or by a public sector employer; or
(b) the chief executive of a public sector employer.
“public sector employer” means any of the following—
(a) a Minister;
(b) a department or public service office;
(c) an employing office;
(d) a registry or other administrative office of a court or tribunal of the State of any jurisdiction;
(e) an agency, authority, commission, corporation, instrumentality, office, or other entity, not otherwise mentioned in a preceding paragraph, established under an Act or under State authorisation for a public or State purpose;
(f) a chief executive of, or part of, an entity mentioned in a preceding paragraph;
but does not include the following—
(g) a GOC;
(h) an entity mentioned in schedule 1 ;
(i) a chief executive of an entity mentioned in paragraphs (g) and (h).”
[23] I accept the First Respondent’s submission that the Department of Transport and Main Roads as a department of the State of Queensland established under the Public Service Act 2008 (Qld) is a public sector employer per s.3 of the Queensland Referral Act. It is clearly established under an Act for a public or State purpose. It is therefore not a national system employer by operation of s.14(2) of the Act.
[24] The First Respondent is correct that ss.337, 338 and 339 of the Act outline the extent to which Part 3-1 (the part providing general workplace protections) applies. I do not consider Part 3-1 to apply to the First Respondent because it is not a national system employer as referred to in s.339(a) and defined by s.14. I do not otherwise consider the First Respondent to be a constitutionally-covered entity per s.338(2), a trade and commerce employer per s.338(3) nor a territory employer per s.338(4), the other circumstances in which Part 3-1 would apply.
Conclusion
[25] For the above reasons I have determined the State of Queensland does not fall within the jurisdiction of Part 3-1 of the Act, and therefore it cannot continue to be listed a respondent to Mr Nunes’ general protections application involving dismissal pursuant to s.365 of the Act.
[26] The State of Queensland is removed as a respondent to this application. As the State of Queensland has been removed from this application it is not necessary for me to determine its second jurisdictional objection that it did not dismiss Mr Nunes because it was not his employer.
[27] I will proceed to issue directions for the determination of the jurisdictional objection raised by the Second Respondent, now the Respondent.
COMMISSIONER
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1 CPSU, the Community and Public Sector Union; Civil Service Association of Western Australia Incorporated v Australian Health Practitioners Regulation Agency[2013] FWCFB 661.
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