Ward Alwyn Gunn v MEGT (Australia) Ltd T/A MEGT

[2022] FWC 635

[2022] FWC 635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Ward Alwyn Gunn
v

MEGT (Australia) Ltd T/A MEGT

(C2022/915)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 MARCH 2022

Application for the Commission to deal with a dispute under an enterprise agreement – application by former employee – enterprise agreement terminated – enterprise agreement ceases to operate – no jurisdiction for the Commission to deal with the dispute under the enterprise agreement – application dismissed

Introduction

1. Mr Ward Gunn was formerly employed by MEGT (Australia) Ltd (MEGT). Mr Gunn alleges that he was not paid his entitlement to overtime payments under the MEGT Staff Enterprise Agreement 2015-2018 (Enterprise Agreement) during his employment with MEGT.

1. In mid-June 2021, Mr Gunn resigned from his employment with MEGT. He says that he did so “due to being bullied by Management and to preserve my health”.[1]

1. At 1:32pm on 4 February 2022, Mr Gunn filed an application in the Fair Work Commission (Commission) pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute resolution procedure in clauses 128 to 133 of the Enterprise Agreement (Application). The Application concerns Mr Gunn’s claim for “unpaid overtime hours worked”.[2]

1. The nominal expiry date of the Enterprise Agreement was 30 June 2018.

1. On 2 February 2022, Commissioner Simpson made an order to terminate the Enterprise Agreement with effect from 4 February 2022, pursuant to s 226 of the Act.[3]

1. MEGT contends that the Commission does not have jurisdiction to deal with the Application. Mr Gunn disagrees. I have had regard to the written submissions filed by MEGT on 28 February 2022 and 16 March 2022, together with the material filed by Mr Gunn on 6 March 2022, in determining MEGT’s jurisdictional objections to the Application.

Jurisdiction

1. In Simplot Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union[4] (Simplot), a Full Bench determined that the “Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate”.[5] As a single member of the Commission, it is appropriate that I follow the decision of the Full Bench in Simplot.[6]

1. An enterprise agreement ceases to operate on the day on which a termination of the agreement comes into operation under s 224 or 227 of the Act.[7]

1. Termination of the Enterprise Agreement came into operation on 4 February 2022. It follows that the Enterprise Agreement ceased to operate on 4 February 2022.

1. An enterprise agreement which has ceased to operate does not give a person an entitlement under the agreement and does not impose any obligations on a person.[8] As was concluded by the Full Bench in Simplot, the “Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate”.[9]  In light of my conclusion in relation to this issue, I do not need to determine MEGT’s alternative arguments to the effect that the Commission does not have jurisdiction to determine the dispute because (a) Mr Gunn first raised the dispute in February 2022, after the termination his employment, and therefore the Enterprise Agreement did not apply to him or (b) nothing in the Form F10, nor the material filed by Mr Gunn on 6 March 2022, gives rise to any question within the jurisdiction of the Commission; Mr Gunn only raises issues in respect of alleged underpayments.

Conclusion

1. For the reasons given, the Application is dismissed for want of jurisdiction. This conclusion does not prevent Mr Gunn from pursuing his claim for unpaid overtime under the Agreement. Such a claim may be litigated in a court of competent jurisdiction, including the Federal Circuit and Family Court of Australia.

DEPUTY PRESIDENT

Appearances:

Mr W Gunn, for the Applicant

Ms S Williams, for the Respondent

Hearing details:

Determined on the papers.

[1] Form F10 at 3.1

[2] Form F10 at 2.1

[3] [2022] FWCA 300

[4] [2020] FWCFB 5054

[5] Simplot at [18]

[6] Cetin v Ripon Pty Ltd (2003) 127 IR 205 at [48]; Re Dalrymple Bay Coal Terminal Pty Ltd [1996] AIRC 2141 at [73]; Pacific Access Pty Ltd v CPSU [1998] AIRC 1745 (Print Q4738); Modern Awards Review 2012 [2012] FWAFB 5600 at [86]-[87]

[7] Section 54(2)(a) of the Act

[8] Section 51 of the Act

[9] Simplot at [18]

Printed by authority of the Commonwealth Government Printer

<PR739588>