Taylor Tarawhiti v Cairns and Hinterland Hospital and Health Service

[2015] FWC 2470

[2015] FWC 2470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taylor Tarawhiti
v
Cairns and Hinterland Hospital and Health Service
(U2015/3234)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 APRIL 2015

Application for relief from unfair dismissal.

[1] On 20 February 2015, Mr Taylor Tarawhiti made an application for remedy for unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] Correspondence was sent to Mr Tarawhiti on 20 February 2015 advising that on the basis of the information provided to the Commission, it appeared that Cairns and Hinterland Hospital and Health Service may not be a national system employer. Mr Tarawhiti was advised to seek legal advice. It was also suggested that he contact the Queensland Industrial Relations Commission (QIRC) for information about lodging an application there.

[3] On 23 February 2015, Mr Tarawhiti telephoned the Commission. The contents of the letter dated 20 February 2015 (which was delivered via email) were explained to Mr Tarawhiti. Mr Tarawhiti requested a copy of the letter be sent via post, which was done the same day, and he advised he would consider his options and advise the Commission whether he wished to proceed or not.

[4] On 9 March 2015, further correspondence was sent to Mr Tarawhiti asking that he advise the Commission within 14 days if he wished to proceed with his application and in the absence of such advice, his application would be dismissed.

[5] On 10 March 2015, Mr Tarawhiti telephoned the Commission and confirmed he was employed by the Queensland government and had not yet contacted the QIRC. He was provided with QIRC’s phone number and advised to contact them as soon as possible.

[6] Mr Tarawhiti has not contacted the Commission since 10 March 2015.

Legislative Framework

[7] Part 3-2 of the Act deals with unfair dismissals. The definition of "employer" and "employee" as used in this Part as follows:

380 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

[8] Unless an employee is employed by a national system employer the employee is not protected from unfair dismissal.

[9] Section 14 of the Act defines a national system employer as follows:

14 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 neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies 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.

[10] On 31 July 2012, under paragraph 14(4)(a) of the Fair Work Act 2009 the Cairns and Hinterland Hospital and Health Service was declared not to be a national system employer.

[11] Accordingly Mr Tarawhiti was not protected from unfair dismissal and his application is dismissed.

DEPUTY PRESIDENT

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