Transport Workers' Union of Australia-New South Wales Branch v The Trustee for JLS Hybrid Trust T/A JLS Express Pty Ltd

[2014] FWC 8064

[2014] FWC 8064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Transport Workers’ Union of Australia-New South Wales Branch
v
The Trustee for JLS Hybrid Trust T/A JLS Express Pty Ltd
(C2014/6836)

DEPUTY PRESIDENT KOVACIC CANBERRA, 13 NOVEMBER 2014

Application to deal with contraventions involving dismissal, application to amend .

[1] This decision concerns an application made by the Transport Workers’ Union of Australia - New South Wales Branch (the TWU) for the Fair Work Commission (the Commission) to amend a general protections application (the original application) made by it on 15 October 2014.

Background

[2] On 15 October 2014 the TWU made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that the dismissal of Mr Vince Jessop on 2 October 2014 by The Trustee for JLS Hybrid Trust T/A JLS Express Pty Ltd (the Respondent) was in contravention of the general protections provisions of the Act.

[3] On 29 October 2014, Mr Jason McHenry, the Respondent’s General Manager, wrote to the Commission and the TWU advising that Mr Jessop had not been employed by the Respondent but had been employed by a company called JLS Canberra Pty Ltd.

[4] On 30 October 2014 the TWU made an application under s.586(a) of the Act requesting that the original application be amended to cite JLS Canberra Pty Ltd as the Respondent. By way of background, s.586(a) provides that:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or”

[5] A hearing of that application was held on 11 November 2014. Mr McHenry appeared for the Respondent and Mr Guy appeared for the TWU. Unfortunately, JLS Canberra Pty Ltd was not represented at that hearing despite the Commission’s attempts through Mr McHenry to arrange for a representative from the company to attend. Material provided by the TWU indicates that there is some commonality in the office holders, senior managers and/or shareholders of the Respondent and JLS Canberra Pty Ltd. For instance, Mr McHenry, the Respondent’s General Manager, is cited as the sole shareholder of JLS Canberra Pty Ltd in the ASIC and Business Names extract provided by the TWU.

[6] At the hearing on 11 November 2011, the TWU stated that Mr Jessop’s pay slips identified the Respondent as the employer. Copies of those payslips were provided by the TWU to the Respondent and the Commission after the conclusion of the hearing. In forwarding those payslips the TWU indicated that “It is the view of the TWU that it would be appropriate that both entities are listed as the respondents.”

[7] The Respondent subsequently emailed the TWU and Commission indicating that the reference on the payslips to the Respondent was a “clerical issue”, with the Respondent’s payroll provider entering the Respondent’s name instead of JLS Canberra Pty Ltd.

[8] Ms Colleen McHenry, a current Director and Secretary of JLS Canberra Pty Ltd, emailed the TWU and Commission later on 11 November 2014 confirming that Mr Jessop had been employed by JLS Canberra Pty Ltd and that the company’s solicitor would be representing JLS Canberra Pty Ltd in any future Commission proceedings regarding the matter. Interestingly, Ms McHenry’s email address referred to jlsexpress (i.e. the Respondent).

Consideration of the issues

[9] As can be seen from above, s.586(a) of the Act provides the Commission with a broad discretion to correct or amend an application “on any terms that it considers appropriate”.

[10] With regard to the TWU’s application to amend the original application, the material before the Commission does not provide clarity as to who was the actual employer of Mr Jessop. Further, that material also indicates some commonality in the office holders, senior managers and/or shareholders of the Respondent and JLS Canberra Pty Ltd.

[11] In those circumstances, I consider it appropriate to amend the original application to add JLS Canberra Pty Ltd as a respondent.

[12] The original application will now be listed by the Commission for conference in accordance with s.368 of the Act.

Conclusion

[13] For the reasons outlined above, I consider it appropriate to amend the original application to add JLS Canberra Pty Ltd as a respondent.

DEPUTY PRESIDENT

Appearances:

A Guy for the Applicant

J McHenry for the Respondent

Hearing details:

2014.

Canberra:

November 11.

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