Steve Kape v Golden Mile Loopline Railway Society Inc

[2016] FWC 3507

[2016] FWC 3507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Steve Kape
v
Golden Mile Loopline Railway Society Inc.
(C2015/8247)

DEPUTY PRESIDENT KOVACIC CANBERRA, 30 MAY 2016

Application to deal with contraventions involving dismissal.

[1] Mr Steven Kape (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by the Golden Mile Loopline Railway Society Inc (the Respondent) on 11 December 2015 in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (the Commission) on 21 December 2015.

[2] In its Form F8A – Response to general protections application, the Respondent contended that it was not a constitutional trading corporation and that the Commission therefore lacked jurisdiction to deal with the application. The Respondent also contended in its Form F8A that Mr Kape was not dismissed in contravention of the Act.

[3] The application was the subject of an unsuccessful conciliation conference convened by the Commission on 1 February 2016. The Commission subsequently issued Directions on 18 February 2016 regarding the Respondent’s jurisdictional objection, with the jurisdictional objection the subject of a telephone hearing on 1 April 2016. At the telephone hearing, Mr Kape appeared on his own behalf, while Ms Heather Millar of Counsel appeared with permission for the Respondent. Mr Michael Lucas, the Respondent’s General Manager, gave evidence for the Respondent.

[4] For the reasons set out below, I have found that the Act does not contemplate the Commission determining whether or not the Respondent in this case is a constitutionally covered entity as defined in s.338(2) of the Act for the purposes of a general protections application involving dismissal. Given that a conference has already been held in accordance with s.368 of the Act in respect of the dispute but was unsuccessful, I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. A certificate will therefore be separately issued in accordance with s.368(3) of the Act.

Background

[5] The Respondent is a not-for-profit organisation established to, inter alia, preserve, maintain and improve the historic Loopline Railway in the Kalgoorlie-Boulder goldfields.

[6] Mr Kape commenced employment with the Respondent on 2 February 2014 as its Works Manager. Mr Kape was made redundant on 11 December 2015, with the termination of his employment taking effect that day.

[7] Mr Kape contended that he had been dismissed as a result of him, among other things, raising occupational health and safety concerns. More specifically, Mr Kape contended that he had been dismissed in contravention of s.340 of the Act which deals with protection concerning the exercise or otherwise of a workplace right. Mr Kape also submitted that the Respondent was a national system employer and that it was a trading and financial corporation due to the revenue it receives for a number of its services and products.

[8] On the other hand, the Respondent submitted that the Commission did not have jurisdiction to deal with the application as it was not a trading corporation for the purposes of s.51(xx) of the Constitution and as a result was not covered by the Act.

Consideration of the Issues

[9] It is clear from the above that the issue of whether or not the Respondent in this case is covered by the Act is disputed. A Full Bench of the Commission in Ms Delwyn Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital 1 (Hewitt) considered the issue of the Commission’s power to deal with jurisdictional objections in respect of applications made under s.365 of the Act involving disputed matters of fact. Specifically, the Full Bench in Hewitt observed that:

“[23] The content and structure of the Subdivision tells against the proposition that s.365 is to be read as imposing jurisdictional pre-conditions beyond the mere filing of an application alleging dismissal in contravention of Part 3-1. The Subdivision does not contemplate that the Commission would engage in any sort of determinative process in dealing with a s.365 application. Three points may be made in this regard.

…

[35]… Except in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact. The decision of the Full Bench in Hetherington-Gregory v Harrington Village Motel (Hetherington-Gregory), is relevant in this regard.” (Underlining added, citations not included)

[10] Drawing on the decision in Hewitt, it is not necessary for the Commission to determine whether or not the Respondent in this case is covered by the Act prior to issuing a certificate under s.368(3) of the Act.

Conclusion

[11] For the above reason, and drawing on the decision in Hewitt, I find that the Act does not contemplate the Commission determining whether or not the Respondent in this case is a constitutionally covered entity as defined in s.338(2) of the Act for the purposes of a general protections application involving dismissal. Given that a conference has already been convened in accordance with s.368 of the Act in respect of the dispute but was unsuccessful, I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. A certificate will therefore be separately issued in accordance with s.368(3) of the Act.

DEPUTY PRESIDENT

Appearances:

S. Kape on his own behalf.

H. Millar of Counselfor the Golden Mile Loopline Railway Society Inc.

Hearing details:

2016.

Melbourne and Perth (telephone hearing):

April 1.

 1   [2013] FWCFB 6321

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