Queensland Nurses' Union of Employees v Tamvang Pty Ltd T/A Ashgrove Chemmart Day and Night Compounding Pharmacy
[2010] FWA 4498
•21 JUNE 2010
[2010] FWA 4498 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Queensland Nurses' Union of Employees
v
Tamvang Pty Ltd T/A Ashgrove Chemmart Day and Night Compounding Pharmacy
(C2010/324)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 21 JUNE 2010 |
Summary: application to allow a further period within which to make an application - second application under s.365 of the Fair Work Act 2009 amending a certificate under s.369 of the FW Act - functus officio
[1] This application is the second application filed by the Queensland Nurses Union (“QNU”) on behalf of Ms Claire Anderson alleging a contravention variously of s.340, s.342, s.345(1) and s.345(2) of the Fair Work Act 2009 (“FW Act”). The factual matrix in this application is largely the same as in the previous application.
[2] I note at the outset that there appears to be no legislative bar to a second application of this kind being made under the FW Act.
[3] In the first application (C2010/214), which was itself amended, the QNU identified the Respondent as being The Trustee for Christlock Unit Trust. This was the name of the Applicant’s legal employer before such time as there was a sale of the business at an earlier date.
[4] The correct identity of the Respondent is Tamvang Pty Ltd. The current application corrects the error in the first application.
[5] The certificate that I issued under s.369 of the FW Act (which followed an unsuccessful conciliation conference arising from the first application conducted on 18 May 2010) itself was dated 21 May 2010. The certificate issued on this date relates to the termination of Ms Anderson’s employment which occurred on 23 February 2010 and it identified The Trustee for Christlock Unit Trust as the legal employer of the Applicant.
[6] In order to correct the identity of the legal employer before such time as the Applicant proceeded to the Court, the QNU sought to make a second application which nominated the actual legal employer, which would then give rise, in all probability, to a certificate issued under s.369 of the FW Act which identified the correct Respondent.
[7] Arguably, the QNU may have sought to have the certificate as issued under s.369 of the FW Act amended. However, issues arise as to whether FWA is functus officio once a certificate has been issued and a matter is no longer before the tribunal (for the purpose of the exercise of its powers).
[8] Section 586 of the FW Act reads as a follows in this regard:
“Correcting and amending applications and documents etc.
FWA may:
(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to FWA.”
[9] Section 369 of the FW Act reads as follows:
“369 Certificate if dispute not resolved
If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.”
[10] The Full Court of the Federal Court was required to consider whether a member of the Australian Industrial Relations Commission (as he was then) had jurisdiction to re-open an application to hear a jurisdictional objection although the same member had already issued a certificate pursuant to s.170CF(2) of the Workplace Relations Act 1996. The decision was an appeal from a decision of a Full Bench of the Australian Industrial Relations Commission.
[11] The Full Court held:
“In its submissions before us, Spotless contended that “the jurisdiction of the Commission is always alive”. No authority was cited in support of that submission. We reject it as inconsistent with the scheme of the Act set out in sub-div B of Div 3 of Part VIA.
[...]
“Spotless also contended that the Deputy President should have re-opened the applications so as to permit the matters to be heard. The Deputy President had no jurisdiction to re-open the applications because under the statutory scheme provided by the Act the applications were no longer before the Commission.” 1
[12] It does not appear to me that the statutory scheme under the FW Act has been amended such that the judgment of the Full Court is no longer relevant.
[13] As a consequence of the above, a second application may be a necessary course of action where a party seeks, in effect, to amend a certificate issued under s.369 of the FW Act. This is because FWA may have no power to amend the certificate as issued as the application (from which the action under s.369 of the FW Act arose) is no longer before the tribunal.
[14] A second application, however, will need to meet the requirements of s.366 of the FW Act.
[15] Section 366 of the FW Act reads as follows:
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[16] In the current circumstances, the second application has been made in non-compliance with s.366(1)(a) of the FW Act. That is, the application is forty days beyond the period of time stipulated at s.366(1)(a) of the FW Act. As a consequence I must now consider whether I should allow a further period within which the application should be made.
[17] The Respondent and the QNU both requested that I determine this matter without recourse to either written submissions or a hearing. Both were content for me to rely on the submissions they had put to me over two conciliation conferences (the first being in relation to C2010/214 and the second being in relation to C2010/324) for purposes of expediting a decision in relation to the current application.
[18] The FW Act requires that I must reach such a decision only after I have been satisfied that exceptional circumstances warrant allowing a further period taking into account the various matters stipulated at s.366(2) of the FW Act.
[19] In respect of s.366(2)(a) of the FW Act, the reason for the delay is that the QNU, in acting for Ms Anderson, inaccurately advised her as to the legal identity of her employer and made application on her behalf on the same inaccurate basis. This inaccuracy arose from some confusion where there had been a sale of the business at an earlier date.
[20] The second application has therefore been necessitated for reason of ensuring that the application and the ensuring certificate issued under s.369 of the FW Act is free of any defects before it is the subject of an application to the courts.
[21] It appears readily apparent that the reason that Ms Anderson’s application has been made outside of the period of time within which applications must be made for purposes of s.366(1)(a) of the FW Act is because of the incorrect advise provided to her by her representative.
[22] This is not a case in which an applicant has sat on his or her rights or otherwise failed to agitate an application even when that application is in the hands of a representative, and those failings have contributed to the delay. In this case, the cause of the delay was the inaccurate identification of the legal employer, which in most cases is a matter any applicant might reasonably expect an experienced representative (as is currently the case) to be able to identify accurately on their behalf.
[23] I cannot attribute any reason for the delay to the Applicant herself in this matter.
[24] None of the further statutory requirements at s.366(2) of the FW Act bear upon this matter in any substantive way.
[25] In respect of s.366(2)(b) of the FW Act, the Applicant has pursued her application and attended Fair Work Australia for purposes of a conciliation conference (now on two occasions), which would suggest that she has disputed the dismissal and has pressed her view continuously in that regard.
[26] In respect of s.366(2)(c) of the FW Act there would appear to be no prejudice to the Respondent for reason the delay since the first application has been limited. The actual or real legal employer has at all times been informed about both applications and attended both conciliation conferences.
[27] In respect of s.366(2)(d) of the FW Act the merits of the matter have not been subject to any determinative exercise, though they have been canvassed in conciliation.
[28] The Respondent’s position is that it never contracted with Ms Anderson but only interviewed her and asked her to perform some limited duties to evaluate her performance before deciding she was not an appropriate person to employ, largely because of her remuneration expectations. The QNU contends the relationship was more complex by far, which the Applicant being offered work, completing two shifts and then being dismissed for reason of the costs associated with the applicable industrial instrument.
[29] I should also add that the QNU has made further claims, arguably in the alternative, that are not dependent upon the employment relationship but which amount to adverse actions nonetheless. One of these appears to be that the Respondent, as a “prospective employer”, has taken adverse action against the Ms Anderson as a “prospective employee” (s.342 of the FW Act), or adverse actions having been taken by the Respondent as a “person” in relation to Ms Anderson (as “another person”) concerning her workplace rights. Claims such as this are not dependent on a certificate being issued under s.369 of the FW Act.
[30] In respect of s.366(2)(e) of the FW Act there are no similar persons in a like position to whom I should give consideration.
CONCLUSION
[31] There are particular circumstances relevant to the circumstances now before me.
[32] Firstly, it appears to me that where an applicant placed his or her trust in an experienced representative to complete an application on his or her behalf, and where that application is in error on a technical or legal matter (such as the identification of the legal employer), the applicant should not bear the burden of the representative’s oversight.
[33] Secondly, this is a case where the actual or real employer has at all relevant times been apprised of the application, and has attended the two conciliation conferences.
[34] Thirdly, this is also a case in which the Applicant has acted at all relevant times to press her application and has not merely sat on her rights and relied only on the efforts of her representative alone or been indifferent to the manner in which her case was proceeding.
[35] In my view, taken together, these are exceptional circumstances in this case, largely because the Applicant herself has been powerless to affect the circumstances which gave rise to the second application. That is, the late application arises from circumstances outside the control of the Applicant. I am satisfied, as a further step (for reason there are no other relevant matters bearing on my discretion), that I should allow for a further period within which the second application should be made.
[36] An order to this effect will issue simultaneously with his decision.
SENIOR DEPUTY PRESIDENT
1 Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh and Ors [2004] FCAFC 136 (19 May 2004) at PNS 24 and 27
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