Mr K v The Employer

[2021] FWC 5610

[2021] FWC 5610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mr K
v
The Employer
(C2021/6151)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 SEPTEMBER 2021

Application to deal with a dispute – Application dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] In a decision made on 19 April 2021 (the Dismissal decision), 1 Commissioner Platt dismissed an unfair dismissal application made by Mr K (the Applicant) pursuant to s.587 of the Fair Work Act 2009 (the Act). In making the Dismissal decision, the Commissioner determined to de-identify the names of the Applicant and the Employer.2 The Applicant then lodged notices of appeal and sought permission to appeal the Dismissal decision. Permission to appeal was refused by the Full Bench in a decision made on 12 August 2021.3 The Full Bench maintained the de-identification of the parties and I also did so in a decision made on 2 September 20214 in which I dismissed four subsequent applications made by the Applicant.5

[2] On 6 September 2021, the Applicant made an application pursuant to s.739 of the Act for the Commission to deal with a dispute by filing a Form F10 (the s.739 Application). On that day, the Applicant also made an application pursuant to s.229 of the Act for a bargaining order, which is dealt with in a separate decision. 6

[3] A review of the Form F10 indicates the Mr K seeks to agitate matters arising out of the termination of his employment and the unfair dismissal application, which was the subject of the Dismissal decision and the Full Bench decision. It is common ground that the dismissal of Mr K from his employment with the Employer took effect on 21 December 2020. In completing the Form F10, Mr K indicated that an enterprise agreement applied to his employment (the Agreement). As the parties have been de-identified throughout the various proceedings that have come before the Commission, I will not disclose the name of the Agreement. I have however been able to review its terms because its name was provided in the Form F3 filed by the Employer in the unfair dismissal application.

[4] Section 738 of the Act entitles a party with a workplace dispute to apply to the Commission to deal with it if an enterprise agreement applying to them includes a dispute resolution procedure and that procedure requires or allows the Commission to deal with a dispute. The Agreement has been in operation at all material times. It covers the Employer and its employees in the operations and classifications described in the Agreement. The employees covered are defined as ‘team members’. The dispute resolution procedure in the Agreement covers disputes between team members and the Employer.

[5] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. Having reviewed the Form F10, the Agreement and the terms of s.738 and s.739 of the Act, and having regard to the decisions referred to above, I consider I am in a position to determine the s.739 Application on the papers and will do so.

[6] The Applicant’s dispute does not fall within the scope of the dispute resolution procedure in the Agreement. The Applicant ceased being covered by the Agreement when his employment was terminated on 21 December 2020 and while he seeks to agitate a dispute through the s.739 Application filed on 6 September 2021, this is not a dispute between a team member and the Employer. From 21 December 2020, the Applicant was not eligible to be covered by the Agreement and therefore he is also not entitled to utilise the dispute resolution procedure in the Agreement.

[7] As the Applicant does not have standing to apply to the Commission to deal with a dispute in accordance with the dispute resolution procedure in the Agreement, the Commission does not have jurisdiction to deal with the s.739 Application. As I have found the Commission does not have jurisdiction to deal with the s.739 Application, it must be dismissed. An Order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733663>

 1   [2021] FWC 2132.

 2 Ibid at [28].

 3   [2021] FWCFB 3162.

 4   [2021] FWC 5489.

 5   The four applications were made pursuant to s.234, s.240, s.448 and s.603 of the Fair Work Act 2009.

 6   [2021] FWC 5611.