Mr Matthew Dally-Watkins v VFG Services Pty Ltd T/A Vogue Advisory Group

[2020] FWC 6780

[2020] FWC 6780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Matthew Dally-Watkins
v
VFG Services Pty Ltd T/A Vogue Advisory Group
(C2020/6793)

COMMISSIONER HUNT BRISBANE, 23 DECEMBER 2020

Alleged dispute about any matters arising under the modern award and the NES; [s146]- Commission’s power to arbitrate under the terms of an award and/or the contract of employment - no power to arbitrate without consent from both parties - Respondent does not consent to arbitration - application dismissed.

[1] Mr Matthew Dally-Watkins has applied to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure.

[2] The dispute concerns Mr Dally-Watkins’ former employment with VFG Services Pty Ltd T/A Vogue Advisory Group (the Respondent). The Respondent is in the financial services industry. Mr Dally-Watkins was dismissed from his employment with the Respondent on 10 August 2020, having commenced employment in January 2020. Mr Dally-Watkins commenced an application for unfair dismissal relevant to the termination of his employment. That application is not before me for determination.

[3] Relevant to the application before me, Mr Dally-Watkins seeks relief for alleged unpaid overtime, superannuation and hours that he states have been incorrectly deducted from payslips and time sheets by the Respondent.

Jurisdiction of application

[4] On allocation to my chambers I convened a conference between the parties. At the conference the matter was unable to be resolved by conciliation. Following the conference, Mr Dally-Watkins was to consider whether he wished to pursue this application. He was informed that the Commission must establish jurisdiction to arbitrate the dispute before the matter could proceed to arbitration.

[5] On 16 November 2020, and after following up Mr Dally-Watkins, I issued directions requiring him to nominate an instrument which governed his employment and to provide evidence in the form of a witness statement whether the dispute was raised with the Respondent while the employment was in place.

[6] On 24 November 2020, Mr Dally-Watkins provided the below statement:

“Good morning Associate and Commissioner Hunt,

I hear-by state that this matter was raised with the respondent in the first week of June 2020 while I was employed, leading up to the termination of employment, my unfair dismissal as I have previously stated with the commission by telephone and in writing to the FWC by email. 

I state that my “contract of employment” details the dispute resolution process with the FWC which I have provided to the Fair Work Commission.

If you do not have the contract for my employment please let me know and I can forward asap.

Kind regards,
Matthew Dally-Watkins”

[7] I reviewed Mr Dally-Watkins employment contract and was unable to identify any dispute resolution procedure that confers power on the Commission to arbitrate the dispute.  As such, on 24 November 2020 I wrote to the parties as below:

“The Commissioner has reviewed your employment contract (version filed attached), and is unable to identify any dispute resolution procedure that confers power on the Fair Work Commission to arbitrate disputes.

The Commissioner proposes to dismiss your application pursuant to s.739 of the Act for lack of jurisdiction. The relevant sections of the Act for your consideration are s.738 and s.739. 

If you wish to file any further information with respect to the jurisdiction of the Commission in matter C2020/6793, you are invited to do so by 12:00 pm Thursday, 26 November 2020.”

[8] On 26 November 2020, Mr Dally-Watkins advised that he was attending an appointment with a legal service on 1 December 2020. Accordingly, I decided to hold the file in abeyance until Mr Dally-Watkins had taken the opportunity to obtain legal advice.

[9] On 2 December 2020, I followed up Mr Dally-Watkins, as below;

“Reference is made to the correspondence of below, noting that matter C2020/6793 was to be held in abeyance until 1 December 2020.

It is noted that you have been invited to file any further information with respect to the jurisdiction of the Commission in matter C2020/6793 prior to the Commissioner making her decision about whether there is power to hear your application.

As previously stated, the Commissioner has reviewed your employment contract (version filed attached), and is unable to identify any dispute resolution procedure that confers power on the Fair Work Commission to arbitrate disputes.

The Commissioner proposes to dismiss your application pursuant to s.739 of the Act for lack of jurisdiction. The relevant sections of the Act for your consideration of s.738 and s.739…

If you wish to file further information, you are invited to do so by 4:00 pm Monday, 7 December 2020.”

[10] I have not received any correspondence from Mr Dally-Watkins following the above correspondence sent 2 December 2020.

Consideration

[11] Section 595 of the Act deals with the powers the Commission may exercise in dealing with disputes. Section 595(1) provides that the Commission may only deal with a dispute if it is expressly authorised to do so under or in accordance with another provision of the Act. Section 595 goes on to provide:

“(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

[12] Sections 738 and 739 are also relevant in the context of this matter. Section 738 of the Act provides that the 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

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.” [my emphasis]

[13] Section 739 of the Act applies if a term referred to in s.738 requires or allows the Commission to deal with a dispute. Section 739 provides:

“Disputes 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.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[14] Considering s.738(a)-(d) of the Act, Mr Dally-Watkins has been unable to nominate an industrial instrument or other written agreement that covered his employment relationship with the Respondent which contains a dispute resolution procedure relevant to this application.

[15] There is presently no evidence before me that Mr Dally-Watkins’ employment is governed by any modern award of the Commission. It is possible, however, that he could have been covered by the Banking, Finance and Insurance Award 2020. That award provides for a dispute resolution procedure at clause 30. That award only allows for the Commission to arbitrate a dispute, if it is properly made, by consent of the parties to the dispute. No consent has been given by the Respondent to arbitrate the application before the Commission.

Conclusion

[16] For the above reasons, I am satisfied that the Commission does not have power to arbitrate the dispute in accordance with a dispute settlement procedure found in a modern award, enterprise agreement, public sector determination, contract of employment or other written agreement that applied to Mr Dally-Watkins during his employment with the Respondent.

[17] Accordingly, I find that there is no power vested in the Commission to arbitrate the dispute Mr Dally-Watkins has with the Respondent.

[18] In the event that the Banking, Finance and Insurance Award 2020 applied to Mr Dally-Watkins’ employment, I have convened a conference as I considered it appropriate to do so. I consider that to be the extent of the assistance the Commission can provide to Mr Dally-Watkins in the form of conciliation in the circumstances.

[19] The application is therefore dismissed. An order to that effect will be issued concurrently with this decision.

COMMISSIONER

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