Mrs Kaetlin Maend v The Trustee for Aus Sweetpotato Seed Trust T/A Aus Sweetpotato Seed
[2022] FWC 1334
•6 June 2022
| [2022] FWC 1334 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mrs Kaetlin Maend
v
The Trustee for Aus Sweetpotato Seed Trust T/A Aus Sweetpotato Seed
(C2022/2786)
| COMMISSIONER LEE | MELBOURNE, 6 June 2022 |
Alleged dispute about any matters arising under the modern award and the NES – applicant no longer employed – application filed following termination of employment – no jurisdiction to deal with the dispute – application dismissed.
On 6 May 2022, Mrs Kaetlin Maend (Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with an alleged dispute about about matters arising under the modern award and the NES. The Respondent to the application is The Trustee for Aus Sweetpotato Seed Trust T/A Aus Sweetpotato Seed (Respondent).
The relevant industrial instrument is the Horticulture Award 2020 (the Award). This dispute includes a number of claims, the bulk of which allege underpayment of various allowances during the time that the Applicant was employed for the Respondent, including wet work allowance and travelling allowance.
The matter was listed for conference on 27 May 2022. At the commencement of the conference, the Applicant confirmed, as was stated on the Form F10 application, that she is no longer employed by the Respondent and that her employment with the Respondent ended in January 2022.
After the Conference on 27 May 2022, I issued a Statement to the parties. The Statement outlined a provisional view in relation to the application. Furthermore, the Applicant was given 7 days from the date of the Statement to provide a response to the provisional view expressed in the Statement. It was indicated that in the event that a response was received, the matter would be listed for hearing. In the event that a response was not received, I would issue a decision confirming the provisional view expressed in the Statement and dismiss the application. The Applicant did not respond to the Statement issued. This decision affirms the provisional view expressed in that Statement.
Jurisdiction
Section 739 of the Act empowers the Commission to deal with certain disputes under modern award dispute settlement clauses. Clause 30 of the Award relevantly provides as follows:
“30. Dispute resolution
30.1 Clause 30 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
30.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
30.3 If the dispute is not resolved through discussion as mentioned in clause 30.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
30.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 30.2 and 30.3, a party to the dispute may refer it to the Fair Work Commission.
30.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
30.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
30.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 30.
30.8 While procedures are being followed under clause 30 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
30.9 Clause 30.8 is subject to any applicable work health and safety legislation.”
It is clear that under clause 30 of the Award that any application for the Commission to deal with a dispute would have needed to have been filed whilst the Applicant was still an employee. Clause 30.2 specifies that there must be an attempt to resolve the dispute in the first instance at workplace level and clause 30.8 states that “work must continue in accordance with this award and the Act”.
As the Applicant confirmed in her answer to question 2.1 of the Form F10 that her employment ceased in January 2022, and the application was filed with the Commission on 6 May 2022, it is my provisional view that the Commission lacks the jurisdiction to deal with the dispute as the Applicant was not an employee of the Respondent at the time the application was made.
In any event, as the Applicant is no longer an employee, there is no longer jurisdiction to deal with the dispute by parity of the reasoning in Jonathan Dugald Mitchell v University of Tasmania.[1]
I note that as this matter involves a claim for underpayment, the appropriate organisation to deal with such a claim is the Fair Work Ombudsman.
I am satisfied that the Commission lacks the jurisdiction to deal with the dispute as the Applicant was not an employee of the Respondent at the time the application was made. The application is consequently dismissed.
COMMISSIONER
[1] [2022] FWC 1115.
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