Rozalia Hart v Department of Premier and Cabinet

[2016] FWC 467

[2016] FWC 467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rozalia Hart
v
Department of Premier and Cabinet
(U2015/16777)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 FEBRUARY 2016

Application for relief from unfair dismissal- not a National System Employer – jurisdictional objection upheld.

[1] On 15 December 2015, Ms Rozalia Hart made an application for relief from unfair dismissal under section 394 of the Fair Work Act 2009 (the FW Act).

[2] In her application, Ms Hart advised that she had commenced working with the Department of Premier and Cabinet on 12 January 2015 prior to the termination of her employment on 26 November 2015 for performance issues.

[3] On 22 December 2015, the Department filed a response to Ms Hart’s application, objecting to the application on the grounds that Ms Hart was employed as a Ministerial officer under the Public Administration Act 2004 (Vic) and was therefore excluded from the unfair dismissal provisions of the FW Act by the operation of section 5(1)(f) of the Fair Work (Commonwealth Powers) Act 2009 (Vic).

[4] On 14 January 2016, the Fair Work Commission directed Ms Hart to advise the Commission, by noon on 21 January 2015, if she was employed as a Ministerial officer, and if so, to file submissions as to why her application should not be dismissed because it has no reasonable prospects of success.

[5] In her submission, Ms Hart set out the reasons why her application should not be dismissed which included that she was employed as a receptionist and administration assistant and not as a Ministerial officer, and that the functions and duties she performed supported this submission. Ms Hart submitted that “while I may have been a Ministerial office appointee, I was not a Ministerial Officer as specified in s98 of the Public Administration Act 2004, as my functions and duties were those of an administration support capacity”.

[6] Ms Hart’s submission questioned the decision maker’s responsibility in terminating her employment, along with the processes around and the rationale behind it.

[7] The Department submitted that:

“all staff, regardless of title, are in fact employed, and indeed can only be employed, as ‘Ministerial Officers’ pursuant to Section 98 of the Public Administration Act 2004. The Office of the Premier has no capacity to enter into an employment arrangement other than on those terms”.

[8] Attached to the Department’s submission was a copy of an Acceptance of Offer of Employment document, signed by Ms Hart and dated 20 November 2015. That document is set out as follows:

“I accept the offer of employment at the grade of Admin Grade 1 for Office of the Premier under section 98 of the Public Administration Act 2004.

I understand that the role is being offered on a fixed term basis, with the end date being Monday 31 December 2018, subject to any existing probationary period.

I acknowledge that the terms and conditions of employment are governed by the Ministerial Staff Collective Agreement (Vic) 2015.

…

I am aware that I will be bound by the Ministerial Staff Code of Conduct, as amended from time to time by the Premier.”

[9] As that document was dated after the date Ms Hart’s employment commenced, the Department was provided with a further opportunity to file submissions and Ms Hart was given an opportunity to respond.

[10] The Department submitted while persons may be employed in various roles, for example, an administrative officer, Ms Hart was still appointed as a Ministerial officer. Further, she was made a further offer of employment in November 2015 which was agreed to by Ms Hart on 23 November 2015 which expressly provided that Ms Hart accepted the offer of employment made under s.98 of the Public Administration Act 2004.

[11] Ms Hart did not respond to the Department’s further submissions but made submissions as to why her dismissal was unfair. I make no judgement about the merits of Ms Hart’s application. The question that needs to be determined is whether Ms Hart was protected from unfair dismissal.

[12] Section 98 of the Public Administration Act 2004 is as follows:

98 Employment of Ministerial officers

(1) The Premier may employ a person as a Ministerial officer for a term, not exceeding 4 years, and on terms and conditions specified in the person’s contract of employment.

[13] There is no definition for the term Ministerial officer in the Public Administration Act 2004. However, I accept the submission that Ms Hart accepted employment under s.98 of Part 6 of the Act and therefore she accepted employment as a Ministerial officer. That her duties were administrative is not relevant.

Application of the Fair Work Act 2009 (Cth)

[14] The referral of powers in Victoria, with respect to workplace relations matters for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth, was effected by the Fair Work (Commonwealth Powers) Act 2009. The relevant sections of that Act came into operation on 1 July 2009.

[15] Division 2B of the FW Act sets out the provisions with respect to its application in States that refer matters after 1 July 2009 but on or before 1 January 2010.

[16] Section 30K(1) of the FW Act contains a definition for “referred subject matters”. This definition includes the rights and responsibilities of persons, including employees and employers, with respect to termination of employment however, the definition does not include any excluded subject matter.

[17] The Fair Work (Commonwealth Powers) Act 2009 at section 4 provides:

4 Reference of matters

(1) Subject to section 5, the following matters are referred to the Parliament of the Commonwealth—

(a) the matters to which the initial referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the provisions set out in the scheduled text in the Commonwealth Fair Work Act, as originally enacted, in the terms, or substantially in the terms, set out in the scheduled text;

(b) the referred subject matters, but only to the extent of making laws with respect to any such matter by making express amendments of the Commonwealth Fair Work Act;

(c) the referred transition matters.

(2) The reference of a matter under subsection (1) has effect only—

(a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth); and

(b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

(3) The operation of each paragraph of subsection (1) is not affected by any other paragraph.

(4) For the avoidance of doubt, it is the intention of the Parliament of the State that the Commonwealth Fair Work Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts whose operation is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1).

…

[18] Section 5 of the Fair Work (Commonwealth Powers) Act 2009 provides:

5 Matters excluded from a reference

(1) A matter referred by section 4(1) does not include—

…

(f) matters pertaining to persons employed as Ministerial officers under Part 6 of the Public Administration Act 2004;

Conclusion

[19] The operation of section 5(1)(f) of the Fair Work (Commonwealth Powers) Act 2009 specifically excludes any person employed as a Ministerial officer under Part 6 of the Public Administration Act 2004 from accessing the unfair dismissal provisions of the FW Act.

[20] I agree with the submissions of the Department that the Commission does not have jurisdiction to deal with this matter and Ms Hart’s application must be dismissed. An order to this effect will be issued shortly.

[21] It is not necessary that I deal with Ms Hart’s contention that her termination was inconsistent with the Ministerial Staff Collective Agreement (Vic) 2015. Whatever rights Ms Hart may have under that agreement are not relevant to the consideration of whether she was protected under the FW Act from unfair dismissal.

DEPUTY PRESIDENT

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