Fair Work Act 2009
Section 372 - Application to deal with other contravention disputes

Sonia Louise D'Ambrosio
v
Fair Work Ombudsman
(C2022/1645)

General protections not involving dismissal – procedure – whether jurisdiction must be determined in advance of a conference – respondent consent to conference – Coles v Milford distinguished – Commission to proceed directly to conference

[1] These are reasons for decision given ex tempore on 12 April 2022 concerning a preliminary question arising in an application under s 372 of the Fair Work Act 2009 (FW Act). The question is whether, in light of a jurisdictional issue raised by the respondent, the application can proceed directly to conference under s 374 or whether the jurisdictional issue first requires determination.

Background

[2] On 9 March 2022 Sonia D’Ambrosio (the applicant or Ms D’Ambrosio) applied to the Commission (F8C) under s 372 of the FW Act (general protections not involving dismissal) alleging contravention of workplace rights and seeking monetary compensation.

[3] The respondent is the Fair Work Ombudsman 1 (respondent or FWO).

[4] On 18 March 2022 the FWO filed a response (F8A).

[5] The FWO opposes the application.

[6] The FWO response raises a jurisdictional issue. It contends that Ms D’Ambrosio was not an employee or prospective employee of the FWO and thereby not entitled to make a claim against it under s 372. It says that whatever arrangement Ms D’Ambrosio had to perform future work at the FWO it was with a labour hire agency and in that respect she was not the FWO’s employee or prospective employee.

[7] The FWO response also indicates that it agrees to participate in a conference under s 374 of the FW Act.

[8] In proceedings to date, Ms D’Ambrosio has been self-represented. The FWO has been represented by a solicitor from the Australian Government Solicitor.

[9] I called on the matter for mention on 28 March 2022. Without deciding whether a conference under s 374 could be held given the jurisdictional issue, I facilitated an informal discussion of the parties, by consent, to explore whether a resolution could be reached. The matter did not resolve.

[10] Both parties subsequently maintained agreement to a conference under s 374 though on different terms. Ms D’Ambrosio wants conciliation to occur but also wants the FWO’s jurisdictional objection dismissed. The FWO agrees to a private conference, subject to a jurisdictional hearing not being held as it does not consider the Commission need first determine the jurisdictional issue. The FWO appears to express agreement to participate in a conference, in part, on the basis that, as a Commonwealth authority, it seeks to be a model litigant.

[11] On 7 April 2022 I invited the parties to make submissions on whether the Commission could proceed directly to a s 374 conference.

[12] I heard the parties on the issue on 12 April 2022.

Consideration

[13] For the following reasons, I consider that the Commission is able to conduct a s 374 conference on the application notwithstanding that the FWO, in responding to the application, has challenged the entitlement of the applicant to make the claim against it.

[14] Section 372 provides:

“372 Application for the FWC to deal with a non‑dismissal dispute

If:

(a) a person alleges a contravention of this Part; and

(b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;

the person may apply to the FWC under this section for the FWC to deal with the dispute.”

[15] Section 374(1) provides:

“374 Conferences

(1) If:

(a) an application is made under section 372; and

(b) the parties to the dispute agree to participate;

the FWC must conduct a conference to deal with the dispute.” (notes omitted)

[16] Section 374 does not confer on the Commission a power to make an order binding on any person. Rather, s 374(1) simply imposes a duty on the Commission to conduct a conference if two preconditions are satisfied: (1) an application has been “made under” s 372, and (2) the parties to the dispute agree to participate in the conference. If either precondition is not satisfied, the Commission is not authorised to conduct a conference or take other action.

[17] It is not in contest that an application under s 372 dated 9 March 2022 has been made by Ms D’Ambrosio.

[18] It is also evident from the FWO’s response dated 18 March 2022, and its submissions, that it has agreed to participate in the conference. I note that, unlike the position in XP Recruitment Pty Ltd v Boerkamp 2, I am required to determine whether the first precondition in s 374(1) is met given that the respondent has agreed to participate in the conference. I do not consider the FWO’s conditional consent to constitute withdrawal of consent.

[19] The Full Court of the Federal Court in Coles Supply Chain Pty Ltd v Milford 3 required the prior determination of a jurisdictional fact (whether an applicant was dismissed) in s 365 applications (general protections involving dismissal) in advance of conducting a conference under s 368.

[20] Coles v Milford held that disputes about whether an application can be “made under” s 365 are disputes under s 365. The Court held these are matters going to the Commission’s jurisdiction to deal with a dispute under s 368 and must be resolved before the non-determinative powers conferred by s 368 can be exercised.

[21] Does the reasoning of the Court apply equally to applications under s 372?

[22] Conducting a conference under s 374(1) similarly requires an application to have been “made under” s 372.

[23] As with s 365, for an application to have been “made under” s 372, it needs to have been validly made by a person entitled to make it. 4

[24] However, in relation to whether an application is validly made by a person entitled to make it, ss 365 and 372 are expressed in materially different terms.

[25] An application under s 365 requires a person to have “been dismissed”. The Court in Coles v Milford concluded that this required dismissal to exist as an objective fact, and not a mere allegation, for the application to have been validly made. 5

[26] In contrast, the pre-conditions to a valid application under s 372 are that “the person alleges contravention of this Part” and that the person “is not entitled to apply to the FWC under s 365”.

[27] Ms D’Ambrosio alleges such contravention. She is not a person entitled to apply under s 365 as she has not been dismissed in fact (and does not allege such). Hers is a non-dismissal dispute as a prospective employee.

[28] The Court in Coles v Milford recognised that a relevant difference exists between statutory provisions that require the existence of an objective fact and those providing that a person merely alleges breach. 6

[29] This distinction is a sufficient basis to distinguish the reasoning in Coles v Milford from being apposite to applications under s 372.

[30] It follows that Ms D’Ambrosio’s application is validly “made under s 372” within the meaning of s 374(1)(a) without the jurisdictional issue raised by the FWO being pre-determined.

[31] This outcome is consistent with the statutory terms of s 372. It is also consistent with the differing nature of the s 372 jurisdiction.

[32] In the case of s 365 applications, such as the matter before the Court in Coles v Milford, the Commission is compelled to conduct a conference irrespective of consent, is empowered to and must issue a certificate once satisfied all reasonable steps to resolve the dispute have been taken, may issue a statement of advice that arbitration or court proceedings have no reasonable prospect of success, and may arbitrate by consent. The Commission’s certification is a pre-condition to the applicant making a court application and having the matter determined to finality.

[33] In contrast, conferences on s 372 applications can only be held if both parties agree. There is no requirement or power to issue a certificate that would enliven a right to litigate in the court. A person aggrieved can bypass the Commission entirely and litigate immediately in the Federal Court.

[34] Nor is the Commission empowered to arbitrate.

[35] If a party to a s 372 application does not agree to a conference the Commission is functus officio and closes the file.

[36] Thus, the Commission’s jurisdiction under s 372 is captive to an election on both sides – an applicant can elect to bypass the Commission and a respondent can elect not to participate.

[37] In these circumstances, given that s 372 does not require the objective determination of jurisdictional facts beyond ss 372 (a) and (b) being made out (which they are) and given further that the Commission’s role in s 372 applications is materially different to s 365 applications, I am satisfied that a valid application has been made that empowers the Commission to conduct a conference. I do not consider that the jurisdictional question raised in this matter requires pre-determination in advance of that conference. Pre-determination to establish facts not required to be established lacks utility and does not, in my view, go to jurisdiction in the sense required in Coles v Milford.

[38] I note that a different jurisdictional challenge, such as a respondent advancing the proposition that a person applying under s 372 was, as a matter of fact, dismissed and thus entitled to make an application under s 365, may give rise to a different result. The Commission in that instance would need to first determine whether s 372(b) is made out, as an objective fact, in order to conduct a conference under s 374.

Conclusion

[39] The statutory preconditions in s 374(1) for conducting a conference under s 374 have been met. Subject to a party not withdrawing its consent, I now proceed to convene a conference under s 374(1) of the FW Act.

[40] The application is re-listed for private conference under s 374 at 9.15am (ACST) 19 April 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740307>

Appearances:

Ms S D’Ambrosio, on her own behalf.

Ms A Cooper, on behalf of the Fair Work Ombudsman.

Hearing details:

2022

Adelaide (by video conference)

12 April

 1   The respondent’s response says that the proper name of the respondent is ‘The Commonwealth of Australia as represented by the Fair Work Ombudsman and Registered Organisations Commission Entity’

 2   [2021] FWCFB 2297 at [27]

 3   [2020] FCAFC 152, 300 IR 146

 4   Coles v Milford at [64]

 5   Coles v Milford at [64]

 6   Coles v Milford at [54] and [57]