Shelley Millen v Brisbane City Council

[2016] FWC 5875

[2016] FWC 5875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shelley Millen
v
Brisbane City Council
(C2016/763)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 19 AUGUST 2016

Application to deal with contraventions involving dismissal.

[1] On 5 April 2016 Mrs Shelley Millen (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act (the Act). The application alleged that the Applicant had been dismissed by Brisbane City Council (the Respondent).

[2] The Applicant commenced employment with the Respondent in October 2013. She was employed to perform various duties in the office of one of the Brisbane City Councillors. She says that she was dismissed on 29 March 2016 and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant submits that she was dismissed, it appears, because she complained about an unsafe work environment. Breaches of s.340, s.346 and s.352 are alleged.

Respondent’s Submissions

[4] The Respondent lodged an F8A response and additional correspondence. The Respondent made the following points:

• The Commission does not have jurisdiction to deal with this application because as a result of s.692(2) of the Queensland Industrial Relations Act 1999 the Brisbane City Council is declared not to be a nation system employer. This is consistent with s.14(2) of the Fair Work Act. An endorsement by the relevant Queensland Minister under s.14(4)(a) is currently in force with respect to the Respondent. Further Brisbane City Council is not a ‘constitutional corporation’ as covered by the Fair Work Act.



• The Applicant has not, in her application, identified any workplace rights which have been contravened.



• The Applicant was employed on a fixed term contract which had ended at the Council elections. The Applicant was therefore, it is submitted, not dismissed.

Commission Proceedings

[5] The Applicant was advised by the Commission in mid April 2016 that a jurisdictional objection had been taken by the Respondent to her application.

[6] After sporadic and difficult email communication, formal directions were issued on 29 April and a telephone hearing was scheduled for 18 May. This hearing was adjourned at the Applicant’s request.

[7] The matter was then allocated to me as part of the General Protections jurisdictional roster and set down for telephone hearing on 3 June but again adjourned at the Applicant’s request.

[8] It was relisted for Monday 20 June. On the morning of the hearing the Applicant requested another adjournment. Given the nature and the history of the matter and the inconvenience to the respondent I decided to go ahead with the hearing. My chambers advised the Applicant that the transcript would be sent to her and she would be given an opportunity to respond to the Respondent’s submissions before any decision was issued.

20 June 2016 Hearing

[9] The Applicant did not appear and could not be contacted. The Respondent was represented by Mr A K Herbert of Counsel together Ms Anne-Marie Treston and Mr Geoff Evans. Mr Herbert was granted permission to appear in accordance with s.597 of the Act.

[10] Written submissions had been lodged by the Respondent dated 6 May 2016 and 2 June 2016.

[11] It is submitted that a General Protections application, made under Part 3-1, must relate to action which is prescribed by s.338.

[12] Section 338 provides:

“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).”

[13] Section 14 defines a national system employer. It provides:

“Meaning of national system employer

(1) A national system employer is:

(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 so far as the person, 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 who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

Endorsement of declarations

(4) The Minister may, in writing:

(a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b) revoke or amend such an endorsement.

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.

Employers that cannot be declared

(6) Subsection (2) does not apply to an employer that:

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

(c) provides services for the supply, distribution or release of water; or

(d) operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.”

[14] The Respondent comes within the exclusions in s.14(2). S.692(2) of the Industrial Relations Act (Queensland) declares the Respondent not to be a national system employer. Further an endorsement by the Queensland Minister under s.14(4)(a) of the Act is in force. The Respondent therefore submits that the application should be dismissed for want of jurisdiction.

[15] In its supplementary submissions the Respondent also relied on the decision of Spender J in AWU v Etheridge Shire Council [2008] FCA 1268 who held that local government, which is a ‘body politic of a State government, is not capable of being a constitutional corporation and therefore not a constitutionally covered entity under the Act.

[16] Mr Herbert expanded on these agreements at the hearing. He further submitted that the application did not disclose any possible General Protections cause of action. There is no allegation under s.340, s.346 or s.352 which has any basis at all. No course of action is disclosed by the application so it therefore should be dismissed.

[17] Therefore the Respondent seeks the dismissal of the matter pursuant to s.587 on both of these grounds.

The Applicant’s Response

[18] Following the hearing, with the Respondent’s agreement, a copy of the transcript was provided to the Applicant on 27 June together with an explanatory letter. The Applicant was requested to provide any response by 15 July.

[19] The Applicant sent an email to Chambers on 13 July 2016. It provided some additional detail around the Applicant’s allegation that there was not a safe workplace. It did not address the Respondent’s jurisdictional arguments.

[20] The Respondent was asked by my chambers whether it wished to make any further submissions. Nothing had been received by the designated day, 12 August 2016.

Consideration

[21] I accept the Respondent’s submissions as to the Commission’s lack of jurisdiction to deal with a General Protections application with respect to the Respondent as a result of s.338 and s.14 of the Act. The Respondent is not a national system employer or a constitutional corporation. This status has been confirmed by the declarations of the Federal and Queensland ministers which are still in force. I am satisfied that I must dismiss the application for want of jurisdiction on this ground.

[22] The Respondent, as a second limb, sought dismissal on the ground that the application did not disclose a General Protections cause of action. Given the terms of s.587(2) which provides:

“(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)  is frivolous or vexatious; or
(b)  has no reasonable prospects of success.”

I am reluctant to do this without full argument. Given the jurisdictional decision, this is not necessary.

Conclusion and Order

[23] I am satisfied that the Fair Work Commission does not have jurisdiction to deal with a General Protections Application by an employee of the Brisbane City Council. Accordingly the application is dismissed.

Order

[24] Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Ms Shelley Millen under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A.K. Herbert, counsel, Ms A. Treston, Mr G. Evans for the respondent.

Hearing details:

Sydney.

2016:

20 June (telephone)

Further submissions:

Applicant – 13 July 2016

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