Rada Mileva v Crown Melbourne Limited
[2022] FWC 1980
•28 JULY 2022
| [2022] FWC 1980 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Rada Mileva
v
Crown Melbourne Limited
(C2022/2131)
| DEPUTY PRESIDENT BELL | MELBOURNE, 28 JULY 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – jurisdictional objection – objection upheld – application dismissed
This application concerns a dispute raised under s.739 of the Fair Work Act 2009 (the Act) by Mrs Rada Mileva (Applicant)) regarding the Crown Melbourne Limited Enterprise Agreement 2019 (the Agreement). The application was made on 3 April 2022, and the dispute concerns the operation of clauses 16.1.1, 16.1.10, and 30.1 of the Agreement. Primarily, the dispute alleges various underpayments are owed. Crown Melbourne Limited (Respondent) denies any underpayment.
A mention hearing was held on 1 June 2022, during which the Respondent raised jurisdictional objections. Those objections included an objection on the ground that the Applicant made her application under s.739 after her employment had been terminated.
Separately, the Applicant has filed an application for relief against unfair dismissal. That matter proceeded to a hearing before me and, at the time of publishing these reasons, judgment is reserved. I state at the outset that my reasons in this decision are entirely independent of the Applicant’s unfair dismissal claim.
The essential facts for the Respondent’s jurisdictional objection concerning the application under s.739 of the Act are uncontentious. They are:
The Applicant’s employment had been terminated by the Respondent, with the dismissal (on both parties’ account) having taken effect on 24 March 2022.
On 3 April 2022, the Applicant lodged an application for a dispute to be heard under s.739 of the Act.
Division 2 of Part 6-2 of the Act is titled “Dealing with disputes”. Section 738(b) relevantly states that the Division applies if “an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6)”.
Section 739 relevantly provides:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) ….
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
The Agreement is an enterprise agreement for the purpose of s.738. The Agreement commenced operation on 10 April 2020 and was in force at the time of the Applicant’s dismissal and when she made her application under s.739. The nominal expiry date of the Agreement is 30 June 2022.
Clause 2 of the Agreement states that it “covers” the following: the Respondent, “All employees who are employed by the Company in work classifications set out in Attachment A”, and a union (emphasis added).
The relevant term of the Agreement dealing with disputes is clause 30. Clause 30.2 provides that:
“The Company, employees and the Union will follow the procedure set out in this clause for addressing disputes relating to a matter arising under this Agreement, or the National Employment Standards.”
In Emma Marshall v CKC Accountants Pty Limited t/a CKC Accountants[2018] FWCFB 3027 (Marshall), a Full Bench of this Commission stated at [22] (citations omitted):
“… There are a number of decisions which indicate that, in respect of enterprise agreements, the Commission is not conferred with jurisdiction to resolve disputes pursuant to a dispute resolution procedure if the dispute is initiated under the procedure at a time when the persons who are said to be in dispute with the employer are in fact no longer employed. However, those decisions made under the FW Act in each case turned on the terms of the particular dispute resolution procedure in question. There is no clear authority that s 739 itself confines the operation of the Commission’s dispute resolution jurisdiction to disputes initiated by currently employed persons. …”
Immediate attention is drawn to the coverage of “employees” in cl.2 of the Agreement and the dispute provision is cl.30.2 being available to “employees”. To my mind, these requirements establish a very clear intention that the entitlement to invoke the dispute provisions in cl. 30 of the Agreement is confined to those persons specifically covered by the Agreement: namely, the Respondent, the relevant union and “employees”. If a person is not an employee, they are not entitled to raise a dispute. At the time the Applicant raised her dispute, she was not an employee.
The Applicant relied upon a decision of Senior Deputy President Drake, as extracted in paragraph [5] of ING Administration Pty Ltd v Jajoo (2006) 158 IR 239. It is unnecessary to set that extract out in full but it suffices to note that that matter concerned a dispute lodged before the employee was dismissed from employment. In the matter before me, the dispute was lodged wholly after the dismissal took effect.
Accordingly, the application raising a dispute under s.739 must be dismissed (noting again, for completeness, this does not affect the Applicant’s separate claim for relief against unfair dismissal). I order that the application is dismissed.
In the circumstances, it is unnecessary to consider in detail the second basis of the Respondent’s jurisdictional objection, which was that the Applicant had also not complied with various precursor steps prior to asking the Commission to deal with the dispute.
DEPUTY PRESIDENT
Appearances:
M Milev for the Applicant
A Sherr for the Respondent
Hearing details:
2022.
Melbourne
Wednesday 1 June
Final written submissions:
10 June 2022 for the Respondent
16 June 2022 for the Applicant
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