National Union of Workers v Healthy Snacks Australia Pty Ltd (Administrators Appointed)

[2017] FWC 3860

[2017] FWC 3860

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Healthy Snacks Australia Pty Ltd (Administrators Appointed)
(C2017/2628)

COMMISSIONER MCKINNON MELBOURNE, 21 JULY 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES; whether employees are covered by the enterprise agreement.

Introduction

[1] On 18 May 2017, the National Union of Workers (NUW) filed an application under section 739 of the Fair Work Act 2009 (FW Act) alleging a dispute over redundancy entitlements under the Healthy Snacks Australia Pty Ltd and National Union of Workers Collective Agreement 2013 (the Agreement).

[2] The NUW seeks a “declaration” that certain redundancy entitlements apply to former employees of Healthy Snacks Australia Pty Ltd (Healthy Snacks). Properly characterised, the alleged dispute is about the effect of an undertaking given under section 190 of the FW Act on terms in the Agreement dealing with redundancy pay entitlements.

[3] The background to this matter is as follows:

a) On 10 December 2013, the Agreement was approved by the this Commission;

b) On 24 March 2017, the employment of all employees covered by the Agreement ceased;

c) On 29 March 2017, PKF were appointed as the Administrators of Healthy Snacks;

d) On 18 May 2017, after initial discussions between the NUW and PKF over the redundancy entitlements of former employees of Healthy Snacks, the NUW notified the Commission of an alleged dispute.

[4] The matter was listed for conference on 22 May 2017 and directions were issued for the filing of submissions, including on whether the Commission had jurisdiction to deal with the dispute. Submissions were subsequently filed by the NUW (on 2 June 2017 and 26 June 2017) and PKF Melbourne Business Recovery & Insolvency (PKF), the administrators appointed to Healthy Snacks (on 19 June 2017).

[5] On 4 July 2017, I expressed a preliminary view that the Commission had no jurisdiction to deal with the matter and invited the parties to make any further submissions and/or advise the Commission as to how they wished to proceed by 14 July 2017. The parties were advised that if no response was received, the matter would be determined on the papers.

[6] On 11 July 2017, the NUW advised the Commission that it had no further submissions to make and that it was content to have the matter determined on the papers. On 17 July 2017, PKF advised the Commission that it also did not intend to make any further submissions.

[7] I will decide the matter based on the materials filed in the Commission.

Relevant law

[8] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 15:

“Any dispute or claim (whether any such dispute or claim arises out of the operation of this Agreement or not) as to the wages or conditions of employment of any of the employees covered by this Agreement or as to any work-related matter, including a claim that the Agreement, the NES (including subsections 65(5) or 76(4) or a General Protection (not involving dismissal) has been breached, or as to the relationship between the Employer and the Union, shall be settled in the manner outlined in this clause.” [emphasis added].

[9] Section 739 confers jurisdiction on the Commission to deal with disputes involving employees who are employed at the time the dispute is lodged, even if the employment relationship subsequently ends. 1 The position is less clear if the employment has come to an end before any dispute arose.

[10] Section 12 defines ‘enterprise agreement’ as a single-enterprise agreement or a multi-enterprise agreement. A single-enterprise agreement is defined in sections 12 and 172(2), and relevantly means an agreement between an employer and employees covered by the agreement.

[11] Section 53 of the FW Act provides that an enterprise agreement covers the employers, employees and organisations that the agreement is expressed to cover. Agreements cover employees in relation to their particular employment.

[12] The terms “employee” and “employer” are defined in section 12 of the Act, and mean respectively, a “national system employee” and a “national system employer” (see sections 736, 30C and 30D of the Act). A “national system employee” is an individual so far as he or she is employed, or usually employed, by a national system employer. A “national system employer” includes a constitutional corporation so far as it employs, or usually employs, an individual.

[13] The meaning of “usually employed” was considered in Australasian Meat Industry Employee’s Union v Belandra Pty Ltd (Belandra). 2 While that decision concerned provisions of the Workplace Relations Act 1996 (Cth), it is also relevant in the FW Act context. As the Explanatory Memorandum to the Fair Work Bill 2008 notes:

“66. The definition of national system employer includes a constitutional corporation that usually employs an individual and national system employee includes an individual usually employed by a national system employer.

67. The Federal Court considered the meaning of 'usually employed' in Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910; 126 IR 165. In that case, the Court held that while an employer ceased operating for a period of time and did not have any employees during that period, it was still an employer for the purposes of then paragraph 298K(1)(c) of the WR Act. Other cases considered in that decision indicate that a casual or daily hire employee may still be an employee for the purposes of the Bill, even though their employment relationship terminates at the end of each shift or daily period of employment.”

[14] Whether a person is usually an employer is a question of fact to be determined in light of all of the circumstances in each case. It involves an inquiry into the existence of a “level of regularity and connection” between the purported employee and employer. 3 An arrangement or relationship must exist at the relevant time, such that the individuals concerned, although not at that time employed, are usually employed, for example because their employment by the purported employer is likely or in prospect.

Consideration

[15] The dispute settlement term in the Agreement provides a mechanism for dealing with disputes over wages and conditions of employment, but only for employees covered by the Agreement. On the materials before the Commission, it appears that there are no employees covered by the Agreement and nor are there likely to be.

[16] The alleged dispute in this matter arose approximately 6 weeks after the employment of each of the affected employees came to an end. Healthy Snacks was under administration and had been for some time. All former employees covered by the Agreement had ceased employment, and there is no evidence to suggest any prospect of their re-employment by Healthy Snacks.

[17] I find that at the time the dispute arose, there was no employee covered by the Agreement. The Commission has no jurisdiction to deal with the dispute. The question of recovery of entitlements conferred by the Agreement is a matter for which a separate remedy exists in another jurisdiction.

[18] The application is dismissed.

COMMISSIONER

 1  Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd[2017] FWCFB 269; ING Administration Pty Ltd v Jajoo[2007] AIRC 773; National Tertiary Education Industry Union v The University of Wollongong PR930177, 9 April 2003

 2 (2003) 126 IR 165.

 3   National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98

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