Supianto Wijaya v SAF-Holland (Aust) Pty Ltd
[2022] FWC 2761
•20 OCTOBER 2022
| [2022] FWC 2761 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections (consent arbitration)
Supianto Wijaya
v
SAF-Holland (Aust) Pty Ltd
(C2022/5846)
| COMMISSIONER MIRABELLA | MELBOURNE, 20 OCTOBER 2022 |
Application to deal with contravention involving dismissal – Jurisdictional Objection – Labour hire – Applicant not an employee of the Respondent
This decision concerns an application by Mr Supianto Wijaya under s. 365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dismissal dispute (the Application). Mr Wijaya alleges that he was dismissed by contravention of the general protections provisions of the Act by SAF-Holland (Aust) Pty Ltd (SAF).
The matter was not resolved by conciliation and a certificate was issued to the parties on 8 August 2022. On 23 August 2022, the parties notified the Commission that they consented to the Commission determining the dispute by arbitration.
The Commission may only deal with a s. 365 dismissal dispute by arbitration if the parties agree to the Commission determining the dispute by arbitration. As per s. 369 of the Act, notification must be made to the Commission within 14 days (or within such a period as the Fair Work Commission allows) of a certificate being issued. Notification was provided to the Commission a day late. Mr Wijaya submits that notification was provided late due to the parties’ “unsettled negotiation”. Mr Wijaya submits that the parties had agreed to the Commission arbitrating the matter on the fourteenth day following the issuance of the certificate, but that SAF had filed the Form F8B Notification of agreement for consent arbitration of a general protections dispute, the day after that agreement. In all the circumstances, I will allow an extension of time for the making of the application in this matter to 23 August 2022.
On 26 August 2022, I issued directions for the filing of material and the conduct of a hearing on 20 October 2022. Additional directions were made on 13 October for Mr Wijaya to provide submissions in reply to SAF. On 29 September 2022, SAF filed submissions and raised a jurisdictional objection that Mr Wijaya was not an employee of SAF, and therefore had not been dismissed as contended in the Application.
Before proceeding to arbitrate this matter, I am first required to determine any jurisdictional disputes.
Materials in support were filed by both Mr Wijaya and SAF. Mr Wijaya filed a document and a copy of an email which I took to comprise his evidence and submissions. SAF filed a copy of a “Proposal for Temporary Recruitment Solutions” signed by SAF on 13 July 2016 and purporting to be proposed by Dekro Recruitment Pty Ltd (Dekro) and submissions regarding the jurisdictional objection including invoices from Dekro and a letter from same regarding Mr Wijaya’s employment. Mr Wijaya failed to provide any submissions in reply to SAF’s submissions. On 18th October 2022, Mr Wijaya confirmed he did not intend to provide submissions in reply.
A Hearing was conducted at the Commission in Melbourne on 20 October 2022. Mr Wijaya represented himself, whilst SAF was represented by Mr Paul Kendrick, the National Operations Manager of SAF.
Mr Wijaya gave evidence on his own behalf. SAF adduced evidence from Mr Chris Rogers, Key Account Manager at Dekro, and Mr Kendrick.
I take into consideration all materials before the Commission.
Facts
Mr Wijaya was engaged by Dekro, a recruitment and labour hire company.[1] Mr Wijaya, through a contract between Dekro and SAF, commenced working for SAF on 14 January 2022. He worked there for 2 days before ceasing work for SAF to take up employment elsewhere. On 14 March, Mr Wijaya returned to SAF and remained there until he was informed on 14 April 2022 by Mr Rogers of Dekro that he was no longer required at SAF. Mr Wijaya has a contract with Dekro and Dekro has a contract with SAF for Dekro to supply temporary workers to SAF. At the hearing Mr Wijaya confirmed these contractual arrangements as they applied to him, giving evidence to the effect “I work for Dekro and they have a contract of work with SAF.”
It is not disputed that all payments for work completed by Mr Wijaya at SAF were made to Dekro. Mr Roger’s undisputed evidence is that Dekro charged SAF $60.10 plus GST for every hour of Mr Wijaya’s work at SAF. He gave evidence that the $60.10 (plus GST) was calculated to cover the costs of Mr Wijaya hourly contractual rate, contribution, to his superannuation, payroll tax, insurance and Dekro’s margin. Mr Wijaya confirmed that the hourly rate paid to him by Dekro from the work contracted to SAF was approximately $43 an hour. It also not in dispute that on 31 August 2022, Dekro granted Mr Wijaya the separation certificate he had requested of them.
Consideration
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in s.386(1), which provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Dismissal of a person on an employer’s initiative requires that person to have been employed by that employer under a contract of employment between that person and the employer.
Thus, whilst a labour hire worker, whether as an employee or independent contractor, is covered by the general protections provisions of the Act, an application under s.365 is only within jurisdiction if the labour hire worker is employed by the entity that dismissed them.
I find that Mr Wijaya was not employed by SAF. He was at all material times employed by Dekro under an orthodox triangular labour hire arrangement. Mr Wijaya did not dispute this arrangement. Whilst it was SAF that asked Dekro to end his placement at SAF’s premises,[2] this was not an act of dismissal by SAF because SAF was not Mr Wijaya’s employer.
As SAF did not employ Mr Wijaya, it could not have and did not dismiss him. SAF being incapable of dismissing, Mr Wijaya, the application under s.365 alleging that SAF unlawfully dismissed Mr Wijaya has no jurisdictional basis and must be dismissed.
Conclusion
As Mr Wijaya was not employed by SAF, he was not dismissed by SAF. His work placement at SAF was brought to an end by his labour hire employer on SAF’s request. Mr Wijaya has a genuine sense of grievance about his placement being ended but it was not, in the required legal sense, a dismissal by SAF.
It follows that application C2022/5846 does not invoke the Commission’s jurisdiction. It therefore cannot proceed further and must be dismissed.
An order[3] giving effect to this decision is issued in conjunction with its publication.
COMMISSIONER
Appearances:
Mr Supianto Wijaya for the Applicant
Mr Paul Kendrick for the Respondent.
Hearing details:
Thursday 20th October 2022
[1] Form F8: General protections application involving dismissal, 3.1.
[2] Respondent’s Submission filed 28th September 2022.
[3] PR746941.
Printed by authority of the Commonwealth Government Printer
<PR746839>
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