Mr John Cafferkey v Melbourne Health T/A the Royal Melbourne Hospital

[2025] FWC 735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr John Cafferkey
v

Melbourne Health T/A The Royal Melbourne Hospital

(C2024/7960)

COMMISSIONER JOHNS

MELBOURNE, 21 MARCH 2025

Alleged dispute about any matters arising under the enterprise agreement and the NES – application dismissed

On 9 November 2024, Mr John Cafferkey (Applicant) made an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (FW Act) for the Fair Work Commission (Commission) to deal with a dispute with Melbourne Health T/A Royal Melbourne Hospital (Respondent).

The dispute concerns the removal of a “meal break” payment allegedly received by security officers at the Royal Melbourne Hospital. In his application form, Form F10, the Applicant submitted that he was previously compensated for being unable to take scheduled meal breaks. However, on 12 April 2024, he was informed that these payments would cease as they were deemed an overpayment.

The matter was allocated to my Chambers on 13 November 2024 and was listed for a mentions and directions hearing on 20 November 2024.

At the mentions and directions hearing, the Applicant was self-represented, and the Respondent was represented by Ms Lexie Roso, Senior Workplace Relations Specialist at Melbourne Health.

During the hearing, the Respondent raised an objection asserting that the Commission did not have jurisdiction to deal with the dispute. The Applicant was subsequently given until 27 November 2024 to inform the Commission whether he wished to continue with his application.

On 27 November 2024, the Applicant emailed my Chambers to confirm that he intended to proceed with his application. The Respondent was subsequently directed to formally file its jurisdictional objections by 12 December 2024, and the matter was listed for a further mentions and directions hearing on 18 December 2024.

On 10 December 2024, the Respondent filed its jurisdictional objection:

“… RMH submits that:
·the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025 (Enterprise Agreement) outlines the entitlements relevant to the Applicants employment with the Respondent,
·Clause 50 of the Enterprise Agreement provides an employee an entitlement to an unpaid “a meal interval of not less than 30 minutes and not more than 60 minutes”,
·The Enterprise Agreement does not include a provision for penalty payments in lieu of taking a meal break, and
·The dispute raised by the Applicant relates to the removal of a penalty payment previously received for meal breaks which is not covered by the Enterprise Agreement.

Due to the above, the Respondent requests that the Commission dismiss the matter on the grounds of jurisdiction.”

At the report back mentions and directions hearing on 24 December 2024, I issued the following directions:

“[1] By 4.00pm (Melbourne time) on 10 January 2025, the Respondent must file in the Commission and serve on the Applicant:
a) Submissions, evidence and documents in support of any objections to the Commission’s jurisdiction in the matter.

[2] By 4.00pm (Melbourne time) on 24 January 2025, the Applicant must file in the Commission and serve on the Respondent:
a) Any submissions, evidence and documents in opposition to any jurisdictional objections.

[3] By 4:00pm (Melbourne time) on 7 February 2025, the Respondent must file in the Commission and serve on the Applicant:
a) any submissions, evidence and documents in reply to the Applicant’s opposition to any jurisdictional objections.

[4] The matter is listed for Arbitration on the Jurisdictional Objection at 2:00pm (Melbourne time) on 17 February 2025 by video on Microsoft Teams.”

The Respondent complied with my directions and filed its submissions on 10 January 2025. However, the Applicant failed to file submissions by the 24 January 2025 deadline.

On 4 February 2025, my Chambers contacted the Applicant, requesting reasons for non-compliance and granting an extension until 5 February 2025. No response was received.

On 10 February 2025, the Respondent made an application pursuant to s.587(1)(b) and (c) of the FW Act seeking the dismissal of the application on grounds that it is frivolous, vexatious, or has no reasonable prospects of success.

On 11 February 2025, my Chambers notified the Applicant of the Respondent’s application and provided a final opportunity to respond by 25 February 2025. The Applicant did not respond.

Consideration

s.587(1) of the FW Act relevantly provides:

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

In circumstances where the Applicant has failed to prosecute the matter by failing to comply with the Commission’s directions, the application has no reasonable prospects of success within the meaning of s.587(1)(c) of the FW Act.

Consequently, after considering all the material, the Applicant’s application under s.739 of the FW Act is dismissed. An Order [PR785234] giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr John Cafferkey brought a dispute against Melbourne Health T/A the Royal Melbourne Hospital before the Fair Work Commission (FWC). The Applicant alleged that he was receiving a “meal break” payment, which was subsequently removed and deemed an overpayment. The Applicant sought to have the FWC deal with the dispute, as outlined in the Fair Work Act 2009. The Respondent argued that the FWC lacked jurisdiction over the matter, as the dispute pertained to an alleged overpayment not covered by the applicable enterprise agreement.

The primary legal issue was whether the FWC had jurisdiction to deal with the Applicant's dispute. The FWC considered whether the dispute fell within the scope of its powers under the Fair Work Act 2009. The Applicant argued that the removal of the meal break payment constituted a breach of his employment conditions. The Respondent contended that the dispute was not within the FWC’s jurisdiction because the removal of the meal break payment was not covered by the applicable enterprise agreement. The FWC needed to determine if the dispute fell within its jurisdiction and, if so, whether it had reasonable prospects of success.

The FWC concluded that the dispute was not within its jurisdiction as the enterprise agreement did not provide for the meal break payment in question. The FWC found that the Applicant's application was frivolous and vexatious, as it had no reasonable prospects of success. The FWC considered the Applicant's failure to comply with the Commission's directions, which led to the dismissal of the application under section 587(1)(c) of the Fair Work Act 2009. The FWC determined that the application was without merit and dismissed it accordingly.

The FWC issued an Order dismissing the Applicant's application and confirming that the Commission did not have jurisdiction to deal with the dispute. The Order mandated that the Applicant's application be dismissed on the grounds that it was frivolous, vexatious, and had no reasonable prospects of success. The FWC emphasised the importance of adhering to the Commission's directions and the consequences of failing to do so.

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