Sharon Jones v The Trustee for Vadakkumchery Family Trust
[2024] FWC 1796
•9 JULY 2024
| [2024] FWC 1796 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sharon Jones
v
The Trustee for Vadakkumchery Family Trust
(C2024/3268)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 9 JULY 2024 |
Application to deal with contraventions involving dismissal
Issue and outcome
On 17 May 2024, Ms Sharon Jones (the Applicant) lodged a general protections application against The Trustee for Vadakkumchery Family Trust (the Respondent) under s 365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 23 April 2024 she was dismissed in contravention of the general protections provisions of the Act.
The Respondent raised two jurisdictional objections to the application. First, it was neither a constitutionally-covered entity nor a national system employer and therefore the Commission did not have jurisdiction to hear the application because Part 3-1 of the Act does not apply to the actions of the Respondent. Secondly, the application had been made outside of the statutory period prescribed by s366(1) of the Act.
The Applicant requested that the matter proceed to a hearing. Directions provided to the parties clarified the hearing would only contend with the first jurisdictional objection. Further, whilst the Applicant had named ‘Just Cutes Cockburn’ as the respondent to the application, the Respondent submitted that it traded as the business registered as ‘Just Cuts Cockburn’ and the Applicant’s employer was the Respondent. Having considered the evidence and submissions of the parties, I considered that to be the case and permitted an amendment to the name of the Respondent under s 586(a) of the Act.
Based on the submissions and evidence of the parties, I have found that the Respondent is neither a national system employer nor a constitutionally-covered entity. It follows that the Applicant’s application under s 365 of the Act cannot continue. An Order[1] dismissing the Applicant’s application issues separately to this decision.
The legislation
The general protection provisions are in Part 3-1 of the Act. Division 2 of Part 3-1 (ss 337-339) sets out the circumstances in which Part 3-1 applies. Sections 338 and 339 are in the following terms:
338 Action to which this Part applies
(1) This Part applies to the following action:
(a) action taken by a constitutionally‑covered entity;
(b) action that affects, is capable of affecting or is taken with intent to affect the
activities, functions, relationships or business of a constitutionally-covered
entity;
(c) action that consists of advising, encouraging or inciting, or action taken with
intent to coerce, a constitutionally-covered entity:(i) to take, or not take, particular action in relation to another person; or
(ii) to threaten to take, or not take, particular action in relation to another
person;
(d) action taken in a Territory or a Commonwealth place;
(e) action taken by:(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect an
employee of the employer;
(f) action taken by an employee of:
(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect the
employee’s employer
(2) Each of the following is a constitutionally‑covered entity:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(e) an organisation.
(3) A trade and commerce employer is a national system employer within the meaning
of paragraph 14(d).(4) A Territory employer is a national system employer within the meaning of paragraph
14(f)
339 Additional effect of this Part
In addition to the effect provided by section 338, this Part also has the effect it would
have if any one or more of the following applied:(a) a reference to an employer in one or more provisions of this Part were a
reference to a national system employer;(b) a reference to an employee in one or more provisions of this Part were a
reference to a national system employee;(c) a reference to an industrial association in one or more provisions of this Part
were a reference to an organisation, or another association of employees or
employers, a purpose of which is the protection and promotion of the interests
of national system employees or national system employers in matters
concerning employment;(d) a reference to an officer of an industrial association in one or more provisions
of this Part were a reference to an officer of an organisation;(e) a reference to a person, another person or a third person in one or more
provisions of this Part were a reference to a constitutionally-covered entity;(f) a reference to a workplace law in one or more provisions of this Part were a
reference to a workplace law of the Commonwealth;(g) a reference to a workplace instrument in one or more provisions of this Part
were a reference to a workplace instrument made under, or recognised by, a law
of the Commonwealth;(h) a reference to an industrial body in one or more provisions of this Part were
a reference to an industrial body performing functions or exercising powers
under a law of the Commonwealth.
Section 14 of the Act defines ‘national system employer’. It states that a ‘national system employer’ is, amongst others, a constitutional corporation, so far as it employs, or usually employs, an individual.
Section 12 of the Act defines a ‘constitutional corporation’ as a corporation to which paragraph 51(xx) of the Constitution applies, which relevantly refers to a trading corporation formed within the limits of the Commonwealth.
Consideration
As noted, the Respondent submits that it is neither a national system employer nor a constitutionally-covered entity. Just Cuts Cockburn is said to be the trading name of The Trustee for Vadakkumchery Family Trust (ABN: 29 328 949 697). The Respondent submits that neither the Trust not the Trustees are not incorporated and as such the status of the employer is that it is not a constitutionally covered entity and not a national system employer. The Respondent further submits that the Trustees namely, Michelle Kollanoor and Tony Joseph are both individuals.
In support of its contention that the Trustees for Vadakkumchery Family Trust were individuals, the Respondent relied upon a Discretionary Trust Deed (the Deed)[2] establishing the Vadakkumchery Family Trust. The Deed was signed by Michelle Kollanoor and Tony Joseph on 8 September 2022, as trustees of the Trust.
It is evident from the Deed, that the Trust (insofar as it is relevant) and the Trustees are not incorporated under the Corporations Act 2001 (Cth). Further, there is no suggestion that they are expressly given the status of a corporation or body corporate in other legislation. None of the individuals are an organisation (s 338(2)(e)), as an ‘organisation’ is one registered under the Fair Work (Registered Organisations) Act 2009 (Cth). Finally, none of the identified individuals are trade or commerce employers (s 338(3)).
Whilst the Applicant questioned the Respondent’s reference in her employment contract to the Act and the Hair & Beauty Industry Award,[3] the Respondent gave evidence that Just Cuts Cockburn was an existing franchisee business that was purchased by the Respondent on 6 February 2023, through a formal sales process. The Respondent submitted that it had not updated the Applicant’s contractual documentation to reflect that the Industrial Relations Act 1979 (WA) or the Minimum Conditions of Employment Act 1993 (WA) applied to her employment.
In relation to any reliance by the Applicant to references in her contractual documentation to the Act or the Award, any such reliance does not change or affect whether the Trust or Trustees are a national system employer or a constitutionally-covered entity.
Conclusion
For the reasons given, I am satisfied that the Commission does not have jurisdiction to deal with the application. I do not consider my conclusion, and subsequent dismissal of the application, offends the prohibition on dismissal of applications contained at s 587(2) of the Act.[4] In this respect, I refer to the observation of the Full Court in Coles Supply Chain Pty Ltd v Milford:[5]
Whether or not it was open to the Deputy President to dismiss the application under s 587(1)(a) of the FW Act on the basis that it had not been made “in accordance with” the FW Act, may be left to a case in which the outcome might turn on it. The better view is that it is not necessary to identify an express power in the FWC to decline to act upon an application on the basis that it fails for want of jurisdiction. It may be that an application purportedly made by a person having no entitlement to make it is not an “application” for the purposes of s 587(1)(a) at all. Section 587(1)(a) has work to do in cases where an otherwise valid application has not been made in accordance with procedural rules made under the FW Act. The statutory note suggests that is its purpose (although the note does not form a part of the Act): see s 40A of the FW Act.
DEPUTY PRESIDENT
Appearances:
Sharon Jones, the Applicant
Tony Joseph and Michelle Kollanoor for the Respondent
Hearing details:
2024
Perth (by telephone):
8 July.
[1] PR776811.
[2] Exhibit R4.
[3] MA000005.
[4] Lidell v NSW DET[2022] FWC 2245.
[5] (2020) 279 FCR 591, 606.
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