Mr Jason Giles Farnham v State of Queensland (Queensland Corrective Services)
[2023] FWC 363
•22 FEBRUARY 2023
| [2023] FWC 363 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Jason Giles Farnham
v
State of Queensland (Queensland Corrective Services)
(C2022/7283)
| COMMISSIONER HUNT | BRISBANE, 22 FEBRUARY 2023 |
Application to deal with contraventions involving dismissal
On 1 November 2022, Mr Jason Farnham 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. Mr Farnham stated that he had been dismissed from his employment with the Queensland Corrective Services on 12 October 2022.
On 22 February 2023, I amended the name of the Respondent to State of Queensland (Queensland Corrective Services).
In its Form F8A – Response to general protections application, the Respondent objected to the application contending that it was not a national system employer and therefore the Commission lacked jurisdiction to deal with the application.
On 9 December 2022, I issued directions for the filing of material for hearing to determine whether the Respondent is national system employer. Mr Farnham elected against providing any material. The Respondent filed a witness statement of Ms Rosie Grace, Acting Director of Legal Strategy and Services.
After having reviewed the materials filed in compliance with the Directions, I advised the parties it was not necessary to hold a hearing to determine the Respondent’s jurisdictional objection, and consequently vacated the hearing.
Relevant Legislation
The question before the Commission is whether the Respondent is a national system employer, and therefore, whether Mr Farnham is protected by the general protections provisions in the Act.
Section 14 of the Act defines national system employer as follows:
“14 Meaning of national system employer
(1) A national system employer is:
(a)a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b)the Commonwealth, so far as it employs, or usually employs, an individual; or
(c)a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d)a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i)a flight crew officer; or
(ii)a maritime officer; or
(iii)a waterside worker; or
(e)a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f)a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).
Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.
Particular employers declared not to be national system employers
(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 Statute 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.
(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.
Endorsement of declarations
(4) The Minister may, in writing:
(a)endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or
(b)revoke or amend such an endorsement.
(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
Employers that cannot be declared
(6) Subsection (2) does not apply to an employer that:
(a) generates, supplies or distributes electricity; or
(b) supplies or distributes gas; or
(c) provides services for the supply, distribution or release of water; or
(d) operates a rail service or a port;
unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.
(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.”
Section 12 of the Act defines a constitutional corporation as “a corporation to which paragraph 51(xx) of the Constitution applies.”
Paragraph 51(xx) of the Australian Constitution applies to “foreign companies, and trading or financial corporations formed within the limits of the Commonwealth.”
Witness Statement of Ms Rosie Grace
Ms Grace is the Acting Director of Legal Strategy and Services.
Ms Grace advised that the Respondent operates eleven high security and six low security correctional centres, as well as 35 probation and parole district officers and over 140 reporting locations across the State of Queensland. The Respondent’s purpose is to provide safe, modern and responsive correctional services which rehabilitate prisoners and offenders and prevent crime.
Ms Grace further stated that the Respondent provides correctional services in accordance with the Corrective Services Act 2006 (Qld), Penalties and Sentences Act 1992 (Qld), Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Parole Orders (Transfer) Act 1984 (Qld), and Community Based Sentences (Interstate Transfer) Act 2020 (Qld).
The Respondent is bound by the Public Service Act 2008 (Qld) (PS Act), which inter alia, provides the framework for the establishment, employment, and discipline of the Queensland Public Service.
Ms Grace explained that the Respondent is a declared department of the State of Queensland, as can be found in the Public Service Departmental Arrangements Notice (No. 4) 2020 made by the Governor in Council and published in the Government Gazette on 12 November 2020.
Prior to this, Ms Grace noted that under Public Service Departmental Arrangement Notice (No.4) 2017, published in the Government Gazette on 21 December 2017, the Queensland Corrective Services was established, absorbing those functions relating to adult corrective services previously undertaken by the Department of Justice and Attorney-General.
Ms Grace stated that the Respondent is not a corporation.
Ms Grace explained that Mr Farnham’s employment was governed by the following industrial instruments:
· the PS Act, including any relevant directives made under ss.53 and 54 of the PS Act;
· the Industrial Relations Act 2016 (Qld) (IR Act);
· Corrective Services Act 2006;
· the Correctional Award; and
· Queensland Corrective Services – Correctional Employees’ Certified Agreement 2021, certified by the QIRC (the 2021 Agreement).
On 12 October 2022, Mr Farnham was advised that pursuant to s.188 of the PS Act his employment was terminated. Ms Grace stated that Mr Farnham was advised in the letter of termination that he may lodge an application for reinstatement pursuant to the IR Act with the QIRC. Mr Farnham was advised that he could make such an application as this was a requirement under cl 8.6 of the Discipline Directive.
The Respondent’s Submissions
The Respondent submitted that it is not a national system employer, and the relevant power remains with the State of Queensland, as it was not referred to the Commonwealth. The Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Queensland Referral Act) contains the referral of power from the State of Queensland to the Commonwealth. As a result of the Queensland Referral Act, the Commission has jurisdiction over Queensland-based employees and companies to the extent provided for in the Queensland Referral Act, as this legislation referred certain matters to the Commonwealth that it does not otherwise have legislative power for.[1]
The Respondent noted that s.5 of the Queensland Referral Act sets out the matters that were referred to the Commonwealth. Section 6 sets out the matters excluded from the reference. Section 6(d) states that excluded from the referral is “matters relating to public sector employees and employers”.
Section 3 of the Queensland Referral Act defines a “public sector employer” to mean “a department or public service office”, and also defines “public sector employee” to mean “a person employed or appointed in or by a public sector employer”.
The Respondent submitted it is a gazetted department pursuant to the powers vested in the Governor Council by section 44 of the Constitution of Queensland 2001, satisfying the definition of public sector. Accordingly, the Respondent argued that Mr Farnham, a person employed by the Respondent and appointed under the PS Act, satisfies the definition of a public sector employee.
The Respondent submitted that the relevant power was not referred to the Commonwealth and thus rests with the State. The relevant tribunal with jurisdiction is submitted to be the QIRC, being the body that Mr Farnham was told to contact in his letter of dismissal, should he wish to lodge an application for reinstatement.
Furthermore, in reference to the Act, the Respondent argued that a Department has no relevant legal personality and any claim against a department of the State is made and enforced against the State of Queensland.[2] The Respondent denied that it is a constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a territory or an organisation, nor does it undertake activities in a Territory.
The Respondent advised that Mr Farnham was employed as a CCO, and not employed as a flight crew officer, a maritime employee or a waterside worker. Therefore, he was not employed by a trade and commerce employer.
The Respondent contended that it does not meet the definition of “national system employer” contained in s.14(1) of the Act as a state government department does not fall within the definitions contained at subsections (1)(a)-(f). Consistent with these propositions, the Respondent submitted that the Commission has previously held that a Queensland state government department does not fall within the definitions of “constitutionally-covered entity”, “Trade and commerce employer” or “Territory employer”.[3]
For completeness, the Respondent noted that s.14(2) of the Act deals with particular employers declared not to be national system employers, notwithstanding s.14(1). Section 14(2) of the Act contains an overriding exclusion.[4] The Respondent noted the decision of Nunes v State of Queensland; AWX Pty Ltd [2021] FWC 2323, wherein the Commission found that the Department of Transport and Mains Roads was not a national system employer due to s.14(2) of the Act.
In summary, the Respondent submitted that:
· Mr Farnham has not provided any submissions or compelling reasons to suggest that the Commission has jurisdiction to hear the application;
· The Respondent is a public sector employer and not a national sector employer;
· The power to deal with public sector employees was not referred to the Commission, and the correct tribunal is QIRC, noting that the award and certified agreement that cover Mr Farnham’s employment are instruments certified in the QIRC;
· Part 3-1 of the Act does not apply to the Respondent; and
· The Commission does not have jurisdiction to hear the application.
The Respondent therefore seeks orders that the application be dismissed for want of jurisdiction.
Consideration
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.
As set out in the 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;
…”
If the Respondent is a public sector employer, it is excluded from the referral and cannot be a national system employer.
Section 3 of the Queensland Referral Act defines the terms “public sector employee” and “public sector employer” as follows:
“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—
(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, no 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 proceeding 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).”
I accept the Respondent’s submission that the Queensland Correction Services is established under the PS Act and 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.
I do not consider Part 3-1 to apply to the 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 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 of the Act would apply.
Conclusion
For the above reasons, I have determined that the Respondent does not fall within the jurisdiction of Part 3-1 of the Act.
Section 587 of the Act states as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
I am satisfied that Mr Farnham’s application has not been made in accordance with the Act. The application is dismissed.
COMMISSIONER
[1] Mr Diego Nunes v State of Queensland; AWX Pty Ltd [2021] FWC 2323 at 9.
[2] State of Queensland v Queensland Teachers’ Union of Employees [2014] ICQ 12, [2]; and Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008, [14].
[3] Mr Diego Nunes v State of Queensland; AWX Pty Ltd [2021] FWC 2323 at 24.
[4] Appeal by CPSU, the Community and Public Sector Union & Civil Service Association of Western Australia [2013] FWCFB 661 at [20].
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