Ms Mandy Arthurell v Jimboomba Outside School Hours Care

[2015] FWC 5102

[2015] FWC 5102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Mandy Arthurell
v
Jimboomba Outside School Hours Care
(U2015/4408)

DEPUTY PRESIDENT ASBURY BRISBANE, 31 JULY 2015

Application for relief from unfair dismissal - jurisdiction - non-national system employer.

[1] This Decision concerns an application by Ms Mandy Arthurell under s. 394 of the Fair Work Act 2009, for an unfair dismissal remedy in respect of her dismissal by Jimboomba Outside School Hours Care.

[2] A Response to the application was filed on behalf of Jimboomba State School Parents and Citizens’ Association (the Association) by the Australian Community Services Employers Association, Union of Employers (ACSEA) t/a Community Management Solutions. The Response asserted that the Association was Ms Arthurell’s employer and stated that it objects to the Fair Work Commission (the Commission) dealing with Ms Arthurell’s application on the ground that Parents and Citizens’ Associations in Queensland are within the jurisdiction of the Queensland Industrial Relations Commission and covered by the Industrial Relations Act 1999 (Qld).

[3] The issue for determination is whether the Association is a national system employer and regulated by the Federal industrial relations jurisdiction. If the Association is not a national system employer, the Commission has no jurisdiction to deal with Ms Arthurell’s application.

[4] Correspondence was forwarded to Ms Arthurell by the Commission informing her of the objection, providing her with contact details of Community Legal Centres, and stating that she should urgently seek advice as to the validity of her application and consider filing an application with the Queensland Industrial Relations Commission given that time limits can apply to such applications. If Ms Arthurell wished to proceed with her present application she was also requested to provide a response to the jurisdictional. Ms Arthurell did not respond.

[5] A Mention of the matter was held by telephone on 18 June 2015 and Ms Arthurell attended. Directions were issued requiring the Association to file material in support of its jurisdictional objection and to serve that material on Ms Arthurell. The Directions also required Ms Arthurell to file a response and the matter was listed for hearing on 27 July 2015. Ms Arthurell did not comply with the Directions. The material on the file indicates that all information was forwarded to Ms Arthurell by way of an email address advised by her and from which she communicated with the Commission as recently as 24 June 2015. Ms Arthurell filed no response and did not attend the hearing conducted on 27 July 2015.

Discussion

[6] On 11 November 2009, the Queensland Parliament passed the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 and, following complementary Federal legislation passing the Senate on 2 December 2009, State industrial relations powers for the private sector were referred to the Commonwealth. The referral excluded public sector employers, defined in s. 3 of that Act to include an: “entity … established under an Act or State authorisation for a public or State purpose”.

[7] Parents and Citizens’ Associations in Queensland are created under the Education (General Provisions) Act 2006 (Qld). The objectives of such Associations under that Act are to promote the interest of, and facilitate the development and further improvement of, the State instructional institution for which they are formed. Further, the Education (General Provisions) Act 2006 (Qld) at s. 133 defines Parents and Citizens’ Associations as statutory bodies.

[8] By virtue of s. 5(1)(b)(iv) of the Associations Incorporation Act 1981 (Qld), Parents and Citizens’ Associations under the Education (General Provisions) Act 2006 are not eligible for incorporation. Accordingly, Parents and Citizens’ Associations are public sector employers for the purpose of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 and are not national system employers as defined in s. 14 of the Fair Work Act 2009.

[9] On 30 July 2015, ACSEA filed in the Commission a PAYG payment summary and a number of payslips with respect to Ms Arthurell as well as an ACNC Charity Registry Summary and an extract from the Australian Business Register regarding the Association. On the basis of this material I am satisfied that Ms Arthurell’s employer was the Association.

Conclusion

[10] I accept the submissions of ACSEA and find that Ms Arthurell’s employer, the Jimboomba State School Parents and Citizens’ Association is not a national system employer, within the meaning of s. 14 and s. 30 of the Act and the Fair Work Commission does not have jurisdiction to deal with an application for an unfair dismissal remedy in respect of the Association. Ms Arthurell’s application for an unfair dismissal remedy must be dismissed for lack of jurisdiction and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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