Shane McIntyre v BP and DT McLean T/A Best Price Auto Dismantlers

[2009] FWA 249

[2009] FWA 249

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643—Termination of employment

Shane McIntyre
v
BP and DT McLean T/A Best Price Auto Dismantlers
(U2009/10210)

COMMISSIONER HARRISON SYDNEY, 9 SEPTEMBER 2009

Termination of employment – jurisdiction – whether employer is a constitutional corporation.

[1] On 10 July 2009 Mr Shane McIntyre lodged an application under ss.643(1)(a) and 661 of the Workplace Relations Act 1996 (the Act) in which he claimed that his termination of employment by Best Price Auto Dismantlers Pty Ltd was harsh, unjust or unreasonable and unlawful.

[2] On 14 August 2009 CBD Law, on behalf of the employer, lodged a Notice of Employer’s Appearance and a Notice of Motion to Dismiss the Application for Want of Jurisdiction (Notice of Motion to Dismiss). The employer asserted that its correct name was BP and DT McLean trading as Best Price Auto Dismantlers (the respondent). The respondent objected to Fair Work Australia extending time for lodgement and objected to conciliation before determination of the application to extend time.

[3] Pursuant to s.645 of the Act the respondent further lodged a Notice of Motion to Dismiss on the grounds that Mr McIntyre was not employed by a constitutional corporation but by a partnership. The partnership employed Mr McIntyre under the provisions of the Metal Engineering and Associated Industries (State) Award (State Award). In addition, the respondent stated it employed only four people.

[4] In accordance with s.648 of the Act, on 17 August 2009 I wrote to the parties to invite them to provide further information in response to the respondent’s contention that it was a partnership employing its staff under the provisions of a State Award.

[5] CBD Law, on behalf of the respondent, lodged material in response to my invitation on 31 August 2009. The material included a copy of an extract from the Australian Business Register that indicated that the respondent was a family partnership using the trading name Best Price Autos. Mr McIntyre did not respond to my invitation.

[6] Section 6 of the Act defines an employer as:

“…(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2: See also Part 21 (employees and employers in Victoria).”

[7] Having regard to the submissions of the respondent I am satisfied that the respondent is not a constitutional corporation as defined in section 6 of the Act.

[8] I find that Mr McIntyre is excluded from bringing an application under ss.643(1)(a) and 661 of the Act by virtue of the provisions of s.6(1).

[9] An order dismissing the application will issue as PR989143.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR989142>