Venetta Dimopoulos v City Chic Collective Limited

[2019] FWC 3884

[2019] FWC 3884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Venetta Dimopoulos
v
City Chic Collective Limited
(C2019/1304)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 JUNE 2019

Alleged dispute about a matter arising under an enterprise agreement.

Background

[1] Ms Venetta Dimopoulos has purported to bring a dispute under the SFG National Retail Enterprise Agreement 2011 (the Agreement).

[2] In March 2017 and April 2018, applications were respectively made by the Shop, Distributive and Allied Employees Association (SDA) and Ms Dimopoulos to terminate the Agreement. At the time of filing her application to terminate the Agreement, Ms Dimopoulos was an employee of Specialty Fashion Group Ltd (SFG), performing work for the brand ‘Katies.’

[3] In June 2018, the Fair Work Commission (the Commission) was advised that certain brands of SFG had been divested to Noni B Limited (Noni B), and in connection with the acquisition of the acquired businesses, Noni B became the employer of persons who had been employed by SFG to work within the acquired businesses. Consequently, Ms Dimopoulos’ employment transferred to Noni B on or around 2 July 2018. The Commission was advised the City Chic brand had not been divested to Noni B.

[4] On 18 January 2019, having considered a consent position reached by all the parties and the matters I was required to be satisfied of under ss.225-226 of the Fair Work Act 2009 (Cth) (the Act), I issued a decision 1 terminating the Agreement with effect from 4 March 2019.

The current application

[5] On 28 February 2019, Ms Dimopoulos filed an application under s.739 of the Act for the Commission to deal with a dispute (the Application). The dispute Ms Dimopoulos raises broadly pertains to her wages and classification.

[6] In the Application, Ms Dimopoulos named City Chic Collective Limited (City Chic) as the Respondent and recorded City Chic’s ABN details. The trading name was noted as ‘Formerly Speciality Fashion Group.’ I have noted that in the Application, Ms Dimopoulos recorded a number of items in response to the question of what relief was being sought, and she concluded that the relief sought was “reflected towards SFG, not Noni B.”

[7] On 13 March 2019, a Notice of Listing was issued to the parties scheduling a conference for 1 April 2019.

[8] On 18 March 2019, the legal representative for City Chic wrote to the Commission and raised a number of jurisdictional objections to the Commission convening a conference or otherwise dealing with the matters raised by Ms Dimopoulos. I determined to amend the method of the conference and scheduled the matter for telephone conference on 1 April 2019.

[9] Following the telephone conference, I caused directions to be issued to the parties in relation to the jurisdictional objections raised by City Chic. City Chic was directed to file its material in support of its jurisdictional objections by 4.00pm on 15 April 2019. Ms Dimopoulos was directed to file material in opposition to the jurisdictional objections by 4.00pm on 29 April 2019.

[10] Both parties filed submissions in compliance with the directions.

[11] For reasons which follow, I have upheld the first of City Chic’s jurisdictional objections and dismissed Ms Dimopoulos’ application.

City Chic’s submissions

[12] City Chic has raised the following four jurisdictional objections to the Commission dealing with the Application:

A. the Commission has no jurisdiction to deal with the Application because the Agreement ceased operating with effect from 4 March 2019;

B. Ms Dimopoulos is no longer an employee of City Chic, and did not pursue any dispute under the Agreement prior to the end of her employment with City Chic;

C. None of the matters raised in the Application are matters which can be the subject of a dispute under the dispute resolution clause of the Agreement; and

D. In any event, the Commission does not have the power to award Ms Dimopoulos the remedies she is seeking.

[13] As to the first objection at [12.A] above, City Chic submitted that in circumstances where an enterprise agreement has ceased operating, the Commission no longer has jurisdiction to deal with, or make orders in relation to, disputes under the enterprise agreement. It referred to Queensland Services, Industrial Union of Employees v Ergon Energy Corporation Limited, 2 where Deputy President Asbury considered the status of a dispute raised under an enterprise agreement that had ceased to operate in circumstances where it had been replaced. In that case, City Chic highlighted that reference was made to the relevant principles derived from Matthew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State)3 and the Full Bench decision in Pulle v Commonwealth of Australia acting through the Department of Parliamentary Services.4 Having considered those cases, Deputy President Asbury said:

“[53] The principles set down in the cases are that:

•  Absent a savings provision in either the legislation dealing with an agreement ceasing to operate or in the successor agreement, or a provision in relation to the same matter in a successor agreement, a right does not survive the cessation of an agreement.

•  Where a dispute clause in an agreement empowers the Commission to settle a dispute in relation to that agreement, and a dispute is commenced, the Commission will no longer have jurisdiction to deal with the dispute if the agreement ceases to operate while the dispute is on foot, unless the successor agreement has a savings clause, or the legislation preserves rights in this respect.

•  Where a series of agreements contains the same provision, the Commission may have jurisdiction to deal with a dispute about that provision in accordance with a dispute procedure in a current agreement, notwithstanding that the dispute also relates to a period of time where predecessor agreements containing the same or a similar provision, operated.

•  The terms of a dispute procedure, including whether it is expressed to apply to all disputes or those arising under the current agreement, are critical, and may limit the jurisdiction of the Commission to deal with a dispute that relates to a provision that has been included in both the current and predecessor agreements.” [City Chic’s emphasis]

[14] City Chic submitted the approach of Deputy President Asbury has recently been approved and followed in the decision of Vanessa Freeman v State of Victoria [Department of Education & Training] T/A Department of Education & Training. 5 It summarised that Ms Freeman had applied for the Commission to deal with a dispute under an enterprise agreement that had ceased to operate, due to the commencement of a replacement enterprise agreement, five days prior to the filing of her application. It was said Commissioner Bissett held she was unable to deal with the dispute in line with the principles of Stephenson and Pulle.

[15] City Chic submitted that in the present circumstances, the Agreement ceased operating on 4 March 2019 and there is no savings provision in the Act regarding the Agreement, nor is there any ‘successor enterprise agreement’ that applies to the parties. It was also asserted that there is no longer any employment relationship between Ms Dimopoulos and City Chic.

[16] City Chic submitted accordingly the Commission no longer has the jurisdiction to deal with any dispute because the Agreement has ceased to operate which puts an end to the matter without the need for any further consideration.

[17] City Chic finally noted that Ms Dimopoulos consented to the termination of the Agreement and advised the Commission of this position on 16 November 2018, which was again confirmed by her on 12 December 2018. It relied on Ms Dimopoulos having filed the Application over five weeks’ after I had issued the decision terminating the Agreement with effect from 4 March 2019.

[18] For reasons that are outlined below, it is not necessary for me to deal with City Chic’s submissions relating to its second, third and fourth jurisdictional objections.

Ms Dimopoulos’ submissions

[19] Ms Dimopoulos said she agreed to the proposed orders for the termination of the Agreement on 12 December 2018. She said on that day, she was given an opportunity to raise the question of what a manager’s labour level is and she indicated this query was directed to SFG, which she was advised to contact. Ms Dimopoulos said she was also given the option to get in touch with the Commission which is why she made the Application.

[20] Ms Dimopoulos noted the Agreement ceased operating on 4 March 2019.

[21] Ms Dimopoulos said she has never been an employee of City Chic. She said she was employed by Katies which is owned by SFG and had been sold to Noni B. Ms Dimopoulos said SFG has changed names and is now called City Chic Collective.

[22] Ms Dimopoulos said matters were raised which reflected the then ‘working enterprise agreement’ during her application to terminate the Agreement and in matter “C2019/304” (it appears the latter reference number may include a typographical error and the intention is to refer to the current application which has the matter number C2019/1304).

[23] Ms Dimopoulos said her employment transferred to Noni B on 2 July 2018. She said her assumption is that upon the sale of the business, SFG was to notify Noni B of details of employees, including contracts, leave and financial obligations.

[24] Ms Dimopoulos said she started working for SFG in July 2008 and from 6 July 2018 to 19 November 2018, she was on long service leave. Ms Dimopoulos said she did not work in a store until the second week of December.

[25] Ms Dimopoulos submitted the pay rate in an enterprise agreement cannot be less than the modern award. Ms Dimopoulos said “SFG staff were.” Ms Dimopoulos said the General Retail Industry Award has levels and that enterprise agreements with rosters and persons working in stores should reflect the Award and be no less.

[26] Ms Dimopoulos said that information from the Ombudsman was that she did not have to prove what level she does, she has to demonstrate she does more than that level.

[27] Ms Dimopoulos said the tasks performed at SFG are the same at Noni B. She said she would like her labour level addressed so that she may negotiate a contract which acknowledges the work done and is at the very least equal to the Award.

[28] Ms Dimopoulos said she had contacted the SDA and empathy was shown to her, however their advice was to withdraw as there was no jurisdiction.

Consideration

City Chic’s first jurisdictional objection – the Commission has no jurisdiction to deal with the Application because the Agreement ceased operating with effect from 4 March 2019

[29] It is worth restating what Deputy President Asbury held in Queensland Services, Industrial Union of Employees v Ergon Energy Corporation Limited:

•  “Absent a savings provision in either the legislation dealing with an agreement ceasing to operate or in the successor agreement, or a provision in relation to the same matter in a successor agreement, a right does not survive the cessation of an agreement.

•  Where a dispute clause in an agreement empowers the Commission to settle a dispute in relation to that agreement, and a dispute is commenced, the Commission will no longer have jurisdiction to deal with the dispute if the agreement ceases to operate while the dispute is on foot, unless the successor agreement has a savings clause, or the legislation preserves rights in this respect.” 6

[30] Commissioner Bissett said in Vanessa Freeman v State of Victoria [Department of Education & Training] T/A Department of Education & Training:

“Whilst the decisions in Stephenson and Pulle were made under earlier legislation (the Workplace Relations Act 1996) I am satisfied that the findings remain valid – that is, once an agreement ceases to operate the Commission no longer has the power to exercise the private arbitration power in that agreement.” 7

[31] Having considered the authorities, I am satisfied the Commission does not have power to deal with Ms Dimopoulos’ application brought pursuant to the Agreement, as the Agreement ceased to operate on 4 March 2019. City Chic have submitted and I am satisfied that there is no successor agreement which applies to the parties, nor any legislation which preserves rights in the relevant respect. Given the Agreement has ceased operating, I find the Commission does not have jurisdiction to exercise the private arbitration power in the Agreement which Ms Dimopoulos has sought to press.

[32] Given the above, I uphold the first jurisdictional objection raised by City Chic at [12.A] above. Having done so, it is unnecessary for me to deal with the three other jurisdictional objections raised by City Chic.

Conclusion

[33] Given my finding in relation to the first jurisdictional objection, it is not necessary for me to deal with the remaining jurisdictional objections raised by City Chic noted at [12.B], [12.C] and [12.D] above.

[34] As I have found the Commission does not have jurisdiction to deal with Ms Dimopoulos’ dispute, her application must be dismissed. An Order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCA 316.

 2   [2013] FWC 7025.

 3   [2004] AIRC 1059.

 4   [2009] FWAFB 901.

 5   [2018] FWC 212.

 6   [2013] FWC 7025 at [53].

 7   [2018] FWC 212.