Ms Maree Liddell v NSW DET
[2022] FWC 2245
•14 SEPTEMBER 2022
| [2022] FWC 2245 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Maree Liddell
v
NSW DET
(C2021/7876)
| DEPUTY PRESIDENT CROSS | SYDNEY, 14 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal
On 18 November 2021, Ms Maree Liddell (the Applicant) lodged a General Protections application involving a dismissal (the Application) pursuant to s.365 of the Fair Work Act (the Act). The Application alleged that the Applicant had been dismissed by “NSW DET”. In the Form F8A Response to general protections application (the Form F8A), the Respondent outlines the legal name of the Respondent as “the Crown in the Right of the State of New South Wales, acting through the Secretary, Department of Education” with the trading name or registered business name of “NSW Department of Education” (the Respondent).
The Applicant commenced employment with the Respondent on 13 July 2021. She was employed as a teacher on a casual basis, one day per week at Bodalla Public School and two days a week at Narooma Public School.
Alleged Contravention
On 22 October 2021, Ms Yvette Cachia, Chief People Officer of the Respondent directed the Applicant to enter her vaccination status in the department’s COVID-19 Vaccination Attestation and Confirmation System (VACS). The Applicant did not do so.
Ms Cachia subsequently advised the Applicant that she was required to comply with that direction before 8 November 2021. Again, the Applicant did not do so. The Applicant was subsequently not offered any further casual work by the Respondent.
Jurisdictional Objections
In the Form F8A, the Respondent outlined the jurisdictional objections to the Application. The Respondent submitted that:
(a)The Crown in right of the State of NSW is not a “constitutionally-covered entity”, a “trade or commerce employer” or a “Territory employer” for the purposes of s.338 of the Act. The Respondent denies that the Fair Work Commission (the Commission) has jurisdiction with respect to the claim (the Non-National System Objection); and
(b)The Respondent noted that the Applicant at Questions 1.2 and 1.3 of the Application states that she is “not dismissed as yet”. The Applicant had been employed on a casual basis for a short period of time, and as such, had no expectation of ongoing employment with the Respondent (the No Dismissal Objection).
In the evidence and submissions of the parties, the focus was on the Non-National System Objection, and consequently that objection is the focus of this decision.
Commission Proceedings
The Applicant did not attend the directions hearing on 27 January 2022. Further directions were issued in the absence of the Applicant requiring the Respondent to advise their position regarding their jurisdictional objection, and whether the Applicant wished to proceed with her Application.
On 4 April 2022, the Applicant advised she wished to proceed with the Application notwithstanding the Non-National System objection. The matter was listed for hearing on 1 July 2022. At that hearing an issue arose regarding a Notice to Produce agitated by the Applicant. The matter was listed for further hearing on 10 August 2022, to allow for the production of documents and further submissions by the parties.
Applicant’s Submissions
Insofar as the Applicant made submissions regarding the Non-National System objection, the Applicant’s submission prepared for the 10 August 2022 hearing addressed that issue as follows:
Submission for the living woman ‘Maree Dorothy Anne’, of the family “Liddell”
in response to the Respondent’s submission
In the hearing on 1 July, the Respondent was ordered by “Deputy President Cross” to provide a copy of the Applicant’s contract. The respondent supplied only two letters: - “Interim Approval to Teach” and an “Approval to Teach”.
These teaching approval letters verify ‘eligibility’ for employment with the “NSW Department of Education” and are not in any way a contract. The Respondent therefore has failed to provide the contract as ordered by the “Fair Work Commission”.
The Respondent’s claim that the entities that can be identified as the Applicant’s employer are the
“Department of Education (NSW), the “Teaching Service of New South Wales”, the “Government
of New South Wales” (including the “Government of New South Wales in the service of the Crown”). None of these entities are listed on the Applicant’s payslips.
Payment to the 'Applicant' was made by the “entity” named, “NSW Government Education”,
“ABN 40300173822”. The registration of an “ABN” thus makes it a recognised business operating and trading under the “Australian Government’s” jurisdiction.
The public schools that the Applicant worked for also have “Australian Business Numbers”:
“Bodalla PS”,”ABN 16 088 676 445”; “Narooma PS”, “ABN 61 921 926 952” and “Central Tilba PS”, “ABN 73 919 209 780”, bringing all of these entities under Federal jurisdiction.
This “entity” has also removed 'tax' from the payments to the Applicant and the Respondent has supplied no evidence of there being any authority from the living woman ‘Maree Dorothy Anne’, of the family “Liddell” to deduct tax. Payments were made to the fiction created by the “entity” to the trust account “MAREE LIDDELL” and tax was deducted. The Applicant made a Statement and Declaration of Truth “Affidavit” as a living woman (attached). The Applicant served the affidavit on both the NSW Government and Australian Government. In that affidavit, the Applicant rebutted that she was a ‘person/fiction’. Neither entity challenged the Applicant’s affidavit.
For the reasons outlined above, the alleged jurisdictional issues over which the Respondent seeks to block a fair and equitable outcome, in regard to this application, are invalid. The real issues have been submitted to the “Fair Work Commission” regarding Workplace Violence, Occupational Health and Safety breaches (statutory legislation, both state and federal), the Notice of Request for Better and Further Particulars (that still remains unanswered) and conflict of interest and transparency of oath by the Commission.
Please provide material facts (CONTENT LEGAL) and evidence to substantiate the claim that the “NSW Government Education” is not a business operating under an “ABN”. It will therefore be contended that it is not a government department nor does it have any origin of power. As a business with an “ABN” the matter can be heard by the “Fair Work Commission”.
Respondent’s Submission
Regarding the submissions regarding the Applicant’s payslips, and ABN numbers used in relation to such payments, the Respondent submitted:
(a)The Applicant’s payslip does not record any entity on it. It bears the “waratah logo” for the NSW Government on the right hand side, followed by the word “Education”;
(b)An ABN appears under the branding and an ABN Search shows that that is the registered ABN for the Department of Education; and
(c)The use of an ABN does not bring an entity within the jurisdiction of the Commission. Indeed, as noted in Annexure A, the “Entity Type” is described as “State Government Entity”. The A New Tax System (Australian Business Number) Act 1999 applies to Government Entities, including State Government Entities.
The Respondent noted that the Application has been made under s.365 of the Act for the Commission to deal with a dismissal dispute. The Applicant relies on ss. 340, 343, 344 and 351 of the Act for protection against adverse action, coercion, undue influence or pressure and discrimination.
The provisions relied upon by the Applicant fall within Part. 3-1 of the Act, and Section 337 restricts the application of Part. 3-1 to the extent provided by Division 2, to action captured by s. 338 of the Act, which provides:
Section 338 provides:
“Action to which this Part applies
(1)This Part applies to the following action:
(a)action taken by a constitutionally-covered entity;
(b)action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally-covered entity;
(c)action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity:
(i)to take, or not take, particular action in relation to another person; or
(ii)to threaten to take, or not take, particular action in relation to another person;
(d)action taken in a Territory or a Commonwealth place;
(e)action taken by:
(i)a trade and commerce employer; or
(ii)a Territory employer;
that affects, is capable of affecting or is taken with intent to affect an employee of the employer;
(f)action taken by an employee of:
(i)a trade and commerce employer; or
(ii)a Territory employer;
that affects, is capable of affecting or is taken with intent to affect the employee's employer.
(2)Each of the following is a constitutionally-covered entity :
(a)a constitutional corporation;
(b)the Commonwealth;
(c)a Commonwealth authority;
(d)a body corporate incorporated in a Territory;
(e)an organisation.
(3)A trade and commerce employer is a national system employer within the meaning of paragraph 14(d).
(4)A Territory employer is a national system employer within the meaning of paragraph 14(f).”
The “entities” that could be identified in the circumstances of this matter are the Department of Education (NSW), the Teaching Service of New South Wales, the Government of New South Wales, Bodalla Public School, and Narooma Public School. None of those entities are a “constitutionally-covered entity” within the meaning of s. 338 of the FW Act.
Considerations
A General Protections application, made under Part 3-1, must relate to action which is prescribed by s.338. As the Full Court of the Federal Court observed in Coles Supply Chain Pty Ltd v Milford (Milford),[1] “… when s.368 refers to an ‘application’ made under s.365, it refers to an application validly made by a person entitled to make it”.
Section 14 defines a national system employer. It provides:
“Meaning of national system employer
(1)A national system employer is:
(a)a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b)the Commonwealth, so far as it employs, or usually employs, an individual; or
(c)a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d)a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i)a flight crew officer; or
(ii)a maritime employee; or
(iii)a waterside worker; or
(e)a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f)a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Particular employers declared not to be national system employers
(2)Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:
(a)that employer:
(i)is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or
(ii)is a body established for a local government purpose by or under a law of a State or Territory; or
(iii)is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and
(b)that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and
(c)an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.
(3)Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.
Endorsement of declarations
(4)The Minister may, in writing:
(a)endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or
(b)revoke or amend such an endorsement.
(5)An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.
Employers that cannot be declared
(6)Subsection (2) does not apply to an employer that:
(a)generates, supplies or distributes electricity; or
(b)supplies or distributes gas; or
(c)provides services for the supply, distribution or release of water; or
(d)operates a rail service or a port;
unless the employer is a body established for a local government purpose by or under a law of a State or Territory or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.
(7)Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.”
I accept the Respondent’s submissions as to the Commission’s lack of jurisdiction to deal with a General Protections application with respect to the Respondent as a result of s.338 and s.14 of the Act. The Respondent is not a national system employer or a constitutional corporation. Whilst ss. 30D and 30N of the Act extend the meaning of “national system employer” in relation to a referring State, s. 6(b) of the Industrial Relations (Commonwealth Powers) Act 2009 (NSW) (“the Referring Act”) excludes from reference “matters relating to State public sector employees”. A “State public sector employee” is defined under s.3(1) of the Referring Act to include a member of the Teaching Service.
The Department of Education is a “Department of the Public Service” listed in Part 1 of Schedule 1 to the Government Sector Employment Act 2013 (NSW). The Applicant’s employment is governed by the Teaching Service Act 1980 (NSW) (“the TS Act”). Pursuant to s. 44 of the TS Act, the Applicant was employed in the Teaching Service and by the Government of New South Wales in the service of the Crown.
A constitutional corporation is defined in s. 12 of the Act as “a corporation to which paragraph 51(xx) of the Constitution applies”. This in turn refers to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”. None of the entities identified are incorporated under the Corporations Act 2001 (Cth); nor are they expressly given the status of a corporation or body corporate in other legislation.[2]
None of the identified entities are an organisation (s. 338(2)(e)), as an “organisation” is one registered under the Fair Work (Registered Organisations) Act 2009.[3]
None of the identified entities are trade or commerce employers. They are bodies established for a public purpose by or under a law of a State, and so are excluded from being a national system employer by s.14(2)(a)(i)) of the Act, and s.3(1) of the Referring Act. The Applicant was employed in the Teaching Service by the Government of New South Wales.
Conclusion and Order
In Milford, the Full Court held:[4]
The submission that the power to determine a person’s entitlement to make an application to the FWC under s 365 of the FW Act is “deferred” exclusively to this Court or the Federal Circuit Court under s 370 of the FW Act cannot be accepted. Section 370 is to be interpreted against the background that the FWC may determine the question of a person’s entitlement to make an application to it, although not conclusively. Whilst Mr Milford is correct to state that this Court has the power to determine whether a person is entitled to make an application to the FWC under s 365 of the FW Act, it does not follow that the FWC is precluded from making decisions about the limits of its own powers in cases (such as the present) where there is a genuine challenge to those limits
I am satisfied that the Commission does not have jurisdiction to deal with the Application, being an application by an employee of the NSW Department of Education. I do not consider my conclusion, and subsequent dismissal of the Application, offends the prohibition on dismissal of applications contained at s.587(2) of the Act. In that regard I note the observation of the Full Court in Milford that:[5]
Whether or not it was open to the Deputy President to dismiss the application under s 587(1)(a) of the FW Act on the basis that it had not been made “in accordance with” the FW Act, may be left to a case in which the outcome might turn on it. The better view is that it is not necessary to identify an express power in the FWC to decline to act upon an application on the basis that it fails for want of jurisdiction. It may be that an application purportedly made by a person having no entitlement to make it is not an “application” for the purposes of s 587(1)(a) at all. Section 587(1)(a) has work to do in cases where an otherwise valid application has not been made in accordance with procedural rules made under the FW Act. The statutory note suggests that is its purpose (although the note does not form a part of the Act): see s 40A of the FW Act.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr T Alexander, for the Applicant
Ms S Huang, for the Respondent
Hearing details:
2022.
August 10.
Sydney (via videoconference)
[1] [2020] FCAFC 152, at [64].
[2] The Commission has previously held the Departments of Education in New South Wales, Western Australia, and Victoria to not be constitutional corporations: A.B. [2014] FWC 6723; Ms S.W. [2014] FWC 3288; and Shoshana Amzalak [2016] FWC 6590.
[3] S.12 of the Act.
[4] Milford at [74]
[5] Milford at [69]
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