TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Sarah Jane Walker
(T12979 of 2007)

and

Fourways Nominees Pty Ltd

Industrial dispute - termination of employment - constitutional corporation - application dismissed

REASONS FOR DECISION

[1] On 20 June 2007, Sarah Jane Walker (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Fourways Nominees Pty Ltd (the respondent) in relation to her termination of employment.

[2] The matter was listed for hearing (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 13 July 2007 at 11.00 am. However, this was subsequently changed to 20 July 2007.

BACKGROUND

[3] The applicant had worked for Fourways Pharmacy (Fourways Nominees Pty Ltd) as a full-time employee from 11 January 2005 until the offer of ongoing employment was retracted, effective 31 May 2007.

[4] In Late 2003 the applicant was offered full-time employment with the Bay Village Pharmacy, under a Mr Terry Bennett, as a trainee. In June 2004 the business was sold to Mr Peter Pitt. When the applicant's traineeship was completed in November 2004 her hours of work were cut to casual employment. In December 2004 the applicant was transferred to the Terry White Kingston Pharmacy where her hours of work were reduced further.

[5] The applicant resigned her position with the Terry White Kingston Pharmacy to take up full time employment with Mr David Dureden of Fourways Pharmacy at Devonport, on 11 January 2005.

[6] The Fourways Pharmacy was sold on or around early April 2007.

[7] On 26 April 2007 the applicant received a letter from the new owners of the business, Peter Pitt and Partners, offering her a casual position. She sought an explanation for her change in status from Mr Matthew Pilkington, a director of the company. The applicant was advised that due to restructuring the company not all of the employees would be offered the similar conditions.

[8] On 25 May 2007 the applicant received a registered letter advising her that if the respondent did not receive a signed letter of acceptance of her new conditions, the respondent would assume she no longer wanted to be employed by them. The applicant sought further discussion with the principals of the business, but was unsuccessful.

[9] On 31 May 2007 the applicant received a letter from the respondent withdrawing the offer of employment.

[10] Mr C Cunningham, for the respondent, offered no response to the position put by the applicant. He sought to have the jurisdiction of this Commission to hear the matter addressed. He asserted the respondent was a constitutional corporation and as such was subject to the Australian Workplace Relations Act 1996 and not within the jurisdiction of the Industrial Relations Act 1984 of this Commission.

[11] Mr Cunningham relied on an historical company extract provided by The Australian Securities and Investment Commission as proof of the respondent's status as a constitutional corporation. The extract he provided indicated the respondent operated under an Australian Company Number. The Commission sought more evidence as to the nature of the company's structure and mode of operation.

[12] Mr Cunningham was given a further 10 days to provide the supporting evidence.

[13] Mr Cunningham provided a statement from Mr Lindsay J May, of Lindsay May Consulting (LMC), Chartered Accountant and Business Consultant. LMC is the nominated accountant and tax agent for the respondent.

[14] Mr May confirmed that the respondent is incorporated. He provided a copy of the Certificate of Registration of a Company which confirmed the respondent is registered as a company under the Corporations Act 2001.

[15] I accept this evidence as proof of the respondent's company status.

FINDINGS

[16] The respondent has been confirmed to be a trading corporation and, as such, s.109 of the Australian Constitution must apply with respect to the entity being subject to Australian Workplace Relations Act 1996 over the Industrial Relations Act 1984. It is my finding that this Commission lacks jurisdiction in this matter.

[17] Therefore, pursuant to s.21(2)(c) of the Act, I dismiss the application, and I so Order.

James P McAlpine
COMMISSIONER

Appearances:
Ms SJ Walker for herself with Mr M Walker
Mr C Cunningham, Simmons Wolfhagen, Barristers and Solicitors, for Fourways Nominees Pty Ltd

Date and Place of Hearing:
2007
July 20
Ulverstone