Ross Wells v Brenex Trucking Pty Ltd T/A Brennen Express/Shaft Enterprises

[2021] FWC 408

[2021] FWC 408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Ross Wells
v
Brenex Trucking Pty Ltd T/A Brennen Express/Shaft Enterprises
(C2021/4)

COMMISSIONER PLATT ADELAIDE, 29 JANUARY 2021

Alleged dispute about any matters arising under the modern award and the NES; [s146].

[1] On 1 January 2021, Mr Ross Wells (the Applicant) lodged an application to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act).

[2] On 4 January 2021, an email was sent to the Applicant requesting that he serve the application and placing him on notice that I would need to be satisfied that the dispute settlement procedure in the relevant Modern Award had been complied with. The application was served on the same day and the matter was listed for a telephone Conference on 11 January 2021. On 5 January 2021, Mr Mark Brennen of the Respondent requested that the matter be adjourned until a time after 21 January 2021 as he was on annual leave. The adjournment was granted and the matter was listed for a telephone Conference on 28 January 2021.

[3] The telephone Conference proceeded on 28 January 2021. Mr Ross Wells appeared on his own behalf and Mr Mark Brennen appeared on behalf of the Respondent.

[4] The Applicant confirmed the contents of the form F10 application, which is summarised as follows:

•  Mr Wells commenced employment on 24 October 2020 driving a Freightliner cab over prime mover between Adelaide and Melbourne.

•  Mr Wells’ employment was covered by the Road Transport (Long Distance Operations) Award 2020 (the Award).

•  On 26 November 2020, Mr Wells employment was terminated.

•  On 26 November 2020, Mr Wells received a separation certificate by email.

•  On 29 November 2020, Mr Wells received a final payslip.

•  On 29 November 2020, Mr Wells emailed the Respondent disputing his wages and entitlements described in the payslip. The dispute lodged is confined to those issues.

[5] Having confirmed this information, I gave a preliminary view that I lacked jurisdiction to hear the matter under s.739 of the Act as the dispute settlement procedure had not been invoked whilst the Applicant was still in the Respondent’s employ. Despite this, I invited the parties to participate in a conciliation. Each party placed offers that were rejected. Having come to the end of the conciliation, I proposed to close the Conference and the file. The Applicant requested that I publish my findings in relation to the jurisdictional issue, based on the information before me. The Applicant declined the opportunity to provide written submissions on the jurisdictional issue.

Legal Authorities

[6] In Toohey v QBE Management Services Pty Ltd T/A QBE Insurance (Toohey), 1 Deputy President Clancy discussed and applied the relevant legal authorities as follows:

“[26]A majority in the Full Bench decision of ING Administration Pty Ltd v Jajoo (Jajoo)found the Commission had jurisdiction to hear an application to deal with a disputein circumstances where Mr Jajoo had filed his application in the Commission after his employment had terminated. The majority in Jajoo said:

“In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.”

[27] The majority in Jajoo further stated:

“In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.”

[28] Importantly, the majority in Jajoo noted:

“In reaching this conclusion, we acknowledge that parties to agreements are entirely free to draft disputes procedures in any number of different ways. Agreements may limit rights to resolve matters under disputes procedures to persons who are current employees and many agreements may properly be construed as doing so. In the circumstances of this case, we believe that the Agreement empowers the Commission to determine the dispute notwithstanding that prior to the matter being resolved (and prior to Mr Jajoo referring the dispute to the Commission) his employment was terminated by ING.” 

[29] In referring to and relying on Jajoo, the Commission in Shields & Spriggs v Alfred Health, (Shields & Spriggs) noted that Jajoo was decided under the Workplace Relations Act 1996 and that “care should be exercised in considering earlier decisions given changes to the legislative provisions, the constitutional head of power underpinning the relevant legislative provisions and the differences in the wording of dispute settling clauses in relevant instruments.” I have adopted this reasoning.

[30] In similar circumstances to the application before me, the Applicant in Draeger v Ventura Bus (Draeger)filed his application to deal with a dispute under s.739 of the Act in the Commission after his employment had been terminated. Commissioner Lee, who considered Jajoo and Shields & Spriggs in his Interim Decision, said:

“…It is clear that there is a capacity for jurisdiction to be enlivened where an employee is no longer employed at the time of making an application. In this matter, the key consideration is whether or not the Applicant has complied with the requirements of the relevant dispute settling procedure whilst still an employee of the Respondent.”

[31]The recent Full Bench decision of Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd  (Broadspectrum)confirmed Jajoo “is authority for the finding that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated.” The Full Bench in Broadspectrum indicated it was not prepared to depart from Jajoo, stating:

“We are not persuaded that the Commissioner erred with his construction of the Act in finding that there was jurisdiction for the dispute to be arbitrated by the commission in circumstances where Mr Crawford was no longer an employee of Broadspectrum.” (citations omitted)

Consideration

[7]   I have adopted the legal authorities as set out in Toohey. It is clear, based on the information before me, that the Applicant was dismissed on 26 November 2020 and having received a final payslip on 29 November 2020 wrote to the Respondent disputing his wages and entitlements. Whilst the Applicant may have recourse in another jurisdiction, such as the South Australian Employment Tribunal for underpayment of wages and entitlements, is clear that the dispute settlement procedure was not invoked until after the Applicant’s employment had been terminated and, as such, I lack jurisdiction to hear the matter.

[8] Accordingly, the s.739 application is dismissed.

COMMISSIONER

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 1   [2017] FWC 510