Sonia Louise D'Ambrosio v Fair Work Ombudsman
[2022] FWC 846
| [2022] FWC 846 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 372 - Application to deal with other contravention disputes
Sonia Louise D'Ambrosio
v
Fair Work Ombudsman
(C2022/1645)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 12 APRIL 2022 |
General protections not involving dismissal – procedure – whether jurisdiction must be determined in advance of a conference – respondent consent to conference – Coles v Milford distinguished – Commission to proceed directly to conference
These are reasons for decision given ex tempore on 12 April 2022 concerning a preliminary question arising in an application under s 372 of the Fair Work Act 2009 (FW Act). The question is whether, in light of a jurisdictional issue raised by the respondent, the application can proceed directly to conference under s 374 or whether the jurisdictional issue first requires determination.
Background
On 9 March 2022 Sonia D’Ambrosio (the applicant or Ms D’Ambrosio) applied to the Commission (F8C) under s 372 of the FW Act (general protections not involving dismissal) alleging contravention of workplace rights and seeking monetary compensation.
The respondent is the Fair Work Ombudsman[1] (respondent or FWO).
On 18 March 2022 the FWO filed a response (F8A).
The FWO opposes the application.
The FWO response raises a jurisdictional issue. It contends that Ms D’Ambrosio was not an employee or prospective employee of the FWO and thereby not entitled to make a claim against it under s 372. It says that whatever arrangement Ms D’Ambrosio had to perform future work at the FWO it was with a labour hire agency and in that respect she was not the FWO’s employee or prospective employee.
The FWO response also indicates that it agrees to participate in a conference under s 374 of the FW Act.
In proceedings to date, Ms D’Ambrosio has been self-represented. The FWO has been represented by a solicitor from the Australian Government Solicitor.
I called on the matter for mention on 28 March 2022. Without deciding whether a conference under s 374 could be held given the jurisdictional issue, I facilitated an informal discussion of the parties, by consent, to explore whether a resolution could be reached. The matter did not resolve.
Both parties subsequently maintained agreement to a conference under s 374 though on different terms. Ms D’Ambrosio wants conciliation to occur but also wants the FWO’s jurisdictional objection dismissed. The FWO agrees to a private conference, subject to a jurisdictional hearing not being held as it does not consider the Commission need first determine the jurisdictional issue. The FWO appears to express agreement to participate in a conference, in part, on the basis that, as a Commonwealth authority, it seeks to be a model litigant.
On 7 April 2022 I invited the parties to make submissions on whether the Commission could proceed directly to a s 374 conference.
I heard the parties on the issue on 12 April 2022.
Consideration
For the following reasons, I consider that the Commission is able to conduct a s 374 conference on the application notwithstanding that the FWO, in responding to the application, has challenged the entitlement of the applicant to make the claim against it.
Section 372 provides:
“372 Application for the FWC to deal with a non‑dismissal dispute
If:
(a) a person alleges a contravention of this Part; and
(b)the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;
the person may apply to the FWC under this section for the FWC to deal with the dispute.”
Section 374(1) provides:
“374 Conferences
(1) If:
(a) an application is made under section 372; and
(b) the parties to the dispute agree to participate;
the FWC must conduct a conference to deal with the dispute.” (notes omitted)
Section 374 does not confer on the Commission a power to make an order binding on any person. Rather, s 374(1) simply imposes a duty on the Commission to conduct a conference if two preconditions are satisfied: (1) an application has been “made under” s 372, and (2) the parties to the dispute agree to participate in the conference. If either precondition is not satisfied, the Commission is not authorised to conduct a conference or take other action.
It is not in contest that an application under s 372 dated 9 March 2022 has been made by Ms D’Ambrosio.
It is also evident from the FWO’s response dated 18 March 2022, and its submissions, that it has agreed to participate in the conference. I note that, unlike the position in XP Recruitment Pty Ltd v Boerkamp[2], I am required to determine whether the first precondition in s 374(1) is met given that the respondent has agreed to participate in the conference. I do not consider the FWO’s conditional consent to constitute withdrawal of consent.
The Full Court of the Federal Court in Coles Supply Chain Pty Ltd v Milford[3] required the prior determination of a jurisdictional fact (whether an applicant was dismissed) in s 365 applications (general protections involving dismissal) in advance of conducting a conference under s 368.
Coles v Milford held that disputes about whether an application can be “made under” s 365 are disputes under s 365. The Court held these are matters going to the Commission’s jurisdiction to deal with a dispute under s 368 and must be resolved before the non-determinative powers conferred by s 368 can be exercised.
Does the reasoning of the Court apply equally to applications under s 372?
Conducting a conference under s 374(1) similarly requires an application to have been “made under” s 372.
As with s 365, for an application to have been “made under” s 372, it needs to have been validly made by a person entitled to make it.[4]
However, in relation to whether an application is validly made by a person entitled to make it, ss 365 and 372 are expressed in materially different terms.
An application under s 365 requires a person to have “been dismissed”. The Court in Coles v Milford concluded that this required dismissal to exist as an objective fact, and not a mere allegation, for the application to have been validly made.[5]
In contrast, the pre-conditions to a valid application under s 372 are that “the person alleges contravention of this Part” and that the person “is not entitled to apply to the FWC under s 365”.
Ms D’Ambrosio alleges such contravention. She is not a person entitled to apply under s 365 as she has not been dismissed in fact (and does not allege such). Hers is a non-dismissal dispute as a prospective employee.
The Court in Coles v Milford recognised that a relevant difference exists between statutory provisions that require the existence of an objective fact and those providing that a person merely alleges breach.[6]
This distinction is a sufficient basis to distinguish the reasoning in Coles v Milford from being apposite to applications under s 372.
It follows that Ms D’Ambrosio’s application is validly “made under s 372” within the meaning of s 374(1)(a) without the jurisdictional issue raised by the FWO being pre-determined.
This outcome is consistent with the statutory terms of s 372. It is also consistent with the differing nature of the s 372 jurisdiction.
In the case of s 365 applications, such as the matter before the Court in Coles v Milford, the Commission is compelled to conduct a conference irrespective of consent, is empowered to and must issue a certificate once satisfied all reasonable steps to resolve the dispute have been taken, may issue a statement of advice that arbitration or court proceedings have no reasonable prospect of success, and may arbitrate by consent. The Commission’s certification is a pre-condition to the applicant making a court application and having the matter determined to finality.
In contrast, conferences on s 372 applications can only be held if both parties agree. There is no requirement or power to issue a certificate that would enliven a right to litigate in the court. A person aggrieved can bypass the Commission entirely and litigate immediately in the Federal Court.
Nor is the Commission empowered to arbitrate.
If a party to a s 372 application does not agree to a conference the Commission is functus officio and closes the file.
Thus, the Commission’s jurisdiction under s 372 is captive to an election on both sides – an applicant can elect to bypass the Commission and a respondent can elect not to participate.
In these circumstances, given that s 372 does not require the objective determination of jurisdictional facts beyond ss 372 (a) and (b) being made out (which they are) and given further that the Commission’s role in s 372 applications is materially different to s 365 applications, I am satisfied that a valid application has been made that empowers the Commission to conduct a conference. I do not consider that the jurisdictional question raised in this matter requires pre-determination in advance of that conference. Pre-determination to establish facts not required to be established lacks utility and does not, in my view, go to jurisdiction in the sense required in Coles v Milford.
I note that a different jurisdictional challenge, such as a respondent advancing the proposition that a person applying under s 372 was, as a matter of fact, dismissed and thus entitled to make an application under s 365, may give rise to a different result. The Commission in that instance would need to first determine whether s 372(b) is made out, as an objective fact, in order to conduct a conference under s 374.
Conclusion
The statutory preconditions in s 374(1) for conducting a conference under s 374 have been met. Subject to a party not withdrawing its consent, I now proceed to convene a conference under s 374(1) of the FW Act.
The application is re-listed for private conference under s 374 at 9.15am (ACST) 19 April 2022.
DEPUTY PRESIDENT
Appearances:
Ms S D’Ambrosio, on her own behalf.
Ms A Cooper, on behalf of the Fair Work Ombudsman.
Hearing details:
2022
Adelaide (by video conference)
12 April
[1] The respondent’s response says that the proper name of the respondent is ‘The Commonwealth of Australia as represented by the Fair Work Ombudsman and Registered Organisations Commission Entity’
[2] [2021] FWCFB 2297 at [27]
[3] [2020] FCAFC 152, 300 IR 146
[4] Coles v Milford at [64]
[5] Coles v Milford at [64]
[6] Coles v Milford at [54] and [57]
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