Mr Matt Dain v Commworx Construction Pty Ltd T/A Commworx, Commworx Civil Pty Ltd T/A Commworx, Commworx Civil Projects Pty Ltd T/A Commworx

[2024] FWC 770

[2024] FWC 770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Matt Dain
v

Commworx Construction Pty Ltd T/A Commworx, Commworx Civil Pty Ltd T/A Commworx, Commworx Civil Projects Pty Ltd T/A Commworx

(C2024/5)

COMMISSIONER PERICA MELBOURNE, 26 MARCH 2024

Alleged dispute about any matters arising under the modern award and the NES

1. On 2 January 2024, Matt Dain (the Applicant) has made an application to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) alleging he was dismissed from his employment with either Commworx Construction Pty Ltd, Commworx Civil Pty Ltd or Commworks Civil Projects Pty Ltd (the Respondents) in contravention of Part 3-1 of the Act.

1. In answer to question 2.1 of the Form F10, which asks the Applicant to describe what the dispute is about, he stated:

“Unpaid wages entitlements, include notice of termination and allowances and failure of employer to reimburse expenses.”

1. The Applicant identifies himself as an “ex employee of Commworx on the Murray Basin Project” in his Form F10 Application. On the filed material, it appears that the Commission does not have jurisdiction to deal with the dispute in this matter. The Commission cannot exercise its powers under the Act to deal with a dispute under a s 739 application if it does not have jurisdiction to do so.

1. For the following reasons, I have decided to dismiss this application for want of jurisdiction.

Procedural history

1. The Applicant commenced an application to deal with a dispute in accordance with a dispute settlement procedure on 2 January 2024. In his application form, the Applicant has provided “The Applicant/ Ex employee of Commworx on the Murray Basin Project” under the “Capacity/Position” section.

1. On 5 January 2024, the Commission put to the Applicant’s representative, Mr. Adrian Nippress, that the Commission is unable to deal with the application given he is no longer employed by the Respondents.

1. In a subsequent email on 9 January 2024, Mr. Nippress did not refute that the Applicant is no longer employed. He explained:

“Not sure if my client has responded, as he is currently interstate and uncontactable? We will confirm the response once Mr Dain and I speak so I can obtain instructions.

Naturally, we are disappointed in the position of the Fair Work Commission in this matter. It is worth noting that before we ventured down the path of notifying a dispute, I took considered advice from your centrally located intake (on 29 December) as we were seeking to pursue essentially an underpayment of wages claim. The Fair Work Ombudsman was unwilling to assist as the original employer’s company (based on the ASIC searches) had since dissolved.”

1. On 25 January 2024, the Commission sought a further update from Mr. Nippress on whether the Applicant wished to continue with his application given the apparent jurisdictional issue. He replied on 29 January 2024 that he had tried to contact the Applicant several times to no avail.

1. On 19 February 2024, my Chambers issued Directions for submissions in relation to the apparent jurisdictional issue in this matter. In this time up until the Directions were issued, the Commission had not received any further correspondence from the Applicant or his representative.

1. On 27 February 2024, the day after material was due from the Applicant, Mr. Nippress wrote to my Chambers noting he had not been able to make contact with the Applicant and reiterated his intention to “resolve outstanding wage and reimbursement issues”.

1. Section 587 of the Act states:

   587Dismissing 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

1. It does not appear the Commission has jurisdiction to deal with a dispute under s 739 of the Act.

1. Section 739 of the Act states relevantly that:

   739Disputes dealt with by the FWC

   (1)             This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

1. Section 738 of the Act states relevantly that:

   738        Application of this Division

   This Division applies if:

   (a)   a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

1. In his application form the Applicant provides he is an “ex employee of Commworx on the Murray Basin Project”, which has not been disputed by his representative. 

1. I am satisfied that at the time the application was made the Applicant’s employment relationship with the employer Respondent had ended. The relevant reference instrument which might engage s 739 of the Act, the Rail Industry Award 2020, would not have applied to the Applicant at the time the application was made.

1. The dispute settlement procedure in clause 30 of the Award is available to “parties” covered by the Award and their registered organisations. The coverage clause of the Award in clause 4 states: “This industry award covers employers throughout Australia who are rail transport operators and their employees in the classifications listed in Schedule A—Classification Definitions.” As the Applicant had ceased to be an employee at the time he made the application, the dispute settlement procedure did not apply to him.

1. In the circumstances, I find that the Commission has no jurisdiction to deal with the matter as an application to deal with a dispute in accordance with a dispute settlement procedure.

1. In deciding to dismiss this application I have had regard to the observation in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others that the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution.[1]

1. The Applicant has failed to engage with the application overall despite numerous attempts being made to contact him, and his representative has not provided any submissions in relation to the issue of jurisdiction. In circumstances where the Applicant and his representative have been notified of a preliminary view that the Commission lacks jurisdiction to deal with the matter and have been invited to make submissions addressing this issue, but have chosen not to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

COMMISSIONER

[1] (1964) 112 CLR 125 at 128-9.

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