s.365 - Application to deal with contraventions involving dismissal

Fr Stephen Hackett, Lokimi Vunivesilevu and Others

Applications to deal with alleged contraventions involving dismissal - amended applications substituting named respondents - whether leave granted to amend in respect of one named individual respondent - whether extension of time required - objection that respondents were not the employer of the applicants - whether valid applications made

• [1] On 13 February 2026 I published a decision[1] (Decision) in which I granted leave under s.586 of the Fair Work Act 2009 (Act) to each of the applicants in these matters to amend their respective applications to substitute named individuals as respondents to the applications in lieu of an entity described as The Corporation of the Society of the Missionaries of the Sacred Heart.

[2] Amended applications in the form sought by the applicants were filed by them on 3 December 2025 just prior to the hearing following which I determined that the applications to amend should be granted. Those amended applications named seven individuals as the proposed respondents to both applications. One of those individuals was Father Stephen Hackett. The remaining six persons can be described as members of the Provincial Council of the Australian Province of the Missionaries of the Sacred Heart.

[3] At the end of the Decision granting leave to the amend, I directed the applicants to file and serve the amended applications on the individual respondents within seven days and for the individual respondents to thereafter file a response to the applications. The seven persons who were named as respondents and served with the amended applications, and who have since filed a response in accordance with those directions, are the same seven persons who were identified in the amended applications filed prior to the hearing in December 2025.

[4] The new respondents have now raised two objections to the amended applications. The first is that they say leave to amend was limited to the six Provincial Council members only and did not extend to Fr. Hackett whom they say is not and has never been, a member of the Provincial Council. Consequently, they say that to the extent the amended applications relate to Fr. Hackett, the applications are out of time and an extension of time must be granted under s.366 before the applications relating to him can proceed. Secondly, the seven individual respondents object to the amended applications on the basis that there was no employment relationship between the applicants and the seven named respondents and therefore no dismissal of the applicants by those respondents.

[5] As to the first objection, the respondents rely on an extract from paragraph [23] of the Decision which says:

'...The applicant tendered evidence as to the composition of the Provincial Council as at July 2025. Those persons identified as Council members at that time are the individuals that the applicants now seek to name as respondents.'

[6] The respondents submissions made no reference to paragraph [7] of the Decision which includes the following:

... The applicants now contend that they were employed by the individuals on the governing committee of an unincorporated voluntary association, the Australian Province of the Missionaries of the Sacred Heart, as at the date of the termination of their employment. As an unincorporated voluntary association, the Australian Province of the Missionaries of the Sacred Heart lacks legal personality. Accordingly, the applicants have now sought to amend the applications to change the respondent to both applications from the Corporation to seven named individuals, one of whom is said to be the Provincial Superior of the Australian Province of the Missionaries of the Sacred Heart and six of whom are said to be members of the Provincial Council of the Australian Province of the Missionaries of the Sacred Heart...(emphasis added)

[7] At paragraph [23] of the Decision, I granted the amendments 'as sought by the applicants.'

• [8] There was evidence in the proceedings leading to the Decision that Fr. Hackett was at the relevant times the Provincial Superior of the Australian Province of the Missionaries of the Sacred Heart.[2] The applicants made submissions during the proceedings in which the amendments were sought to the effect that the employer was the provincial superior and the members of the council.[3] As mentioned above, the amended applications themselves identified Fr. Hackett as one of the seven proposed alternative respondents to the applications and identified him specifically in his capacity as the Provincial Superior of the Australian Province of the Missionaries of the Sacred Heart. In granting the applications as sought by the applicants, the Decision had the effect of including Fr. Hackett as one of seven respondents to each application. No extension of time is required. I reject the respondents' first objection.

[9] The respondents also maintain that the correct employer of both applicants is a corporation, which owes its existence to New South Wales legislation, and which is called The Trustees of the Missionaries of the Sacred Heart ABN 20 311 706 971. They say that that there is no employment relationship between the applicants and the seven respondents named as the alleged employer and therefore no dismissal of the applicants by any of the respondents or the alleged employer.

• [10] In Civmec Construction and Engineering Pty Ltd v. Minchin[4] (Civmec) a Full Bench of the Commission rejected the proposition that s.365(a) of the Act requires that the dismissal referred to in that subsection be a dismissal by the respondent to the application or that an application is invalid because it failed to name the applicant's former employer. The respondents contended that Civmec was contrary to the decision of the Federal Court of Australia in McGory v. Horizon One Recruitment Pty Ltd and anor[5] (McGory) and should not be followed.

[11] In McGory, her Honour Collier J was dealing with an interlocutory application to dismiss an application insofar as it concerned a second respondent who had not been named as a respondent in the initial application under s.365 before the Commission and not identified in the certificate issued by the Commission under s.368. The uncontested evidence in that matter was that the second respondent had not only not been named as a respondent in the application under s.365 but also had no record of being notified of the proceeding before the Commission and took no part in the Commission proceedings. The Court determined in those circumstances that the jurisdiction of the Court had not been properly invoked and dismissed the application as it related to the second respondent.

[12] The question for determination and circumstances in McGory are plainly distinguishable from those in Civmec. The Court and the Commission have different roles to play in dealing with applications under Part 3-1 in which it is alleged that there has been dismissal in contravention of that Part. Where the jurisdiction of the Court or the Commission is called into question in such proceedings it is for the relevant decision-maker to determine whether jurisdiction exists in that forum to enable the matter to proceed. Civmec stands for the proposition that a valid application under s.365 is conditioned only by a requirement that a person has been dismissed and that the dismissal is alleged by the person to be in contravention of Part 3-1. If those conditions are met, then there is a valid application under s.365 and the Commission is able to 'deal with dispute' under s.368. In this instance, neither of those conditions were contested. In McGory, the Court determined that it had no jurisdiction to deal with an application relating to a second respondent because on the facts there was no 'dispute' with that respondent in the Commission proceedings that preceded the Court application. That result followed at least in part, because the second respondent in the Court was not named as a respondent in the Commission and took no part in the Commission proceedings. Here, the respondents are named respondents to the application. It may be that if the matters are not resolved in conference before the Commission and the applicants proceed to Court, then, consistent with McGory, the Court may need to make an assessment as to whether there was a dispute involving those respondents before the Commission so as to allow court proceedings against them to continue. Whilst it seems unlikely that there would be any doubt about the matter in the present circumstances, that issue is of course, a matter for the Court.

[13] The preconditions referred to in Civmec have been met in these matters. I do not consider that the decision in McGory means that I am unable to deal with the disputes in accordance with s.368 of the Act. I reject the respondents' second objection.

The matters will be listed for conference on date to be advised.

[1] [2026] FWC 460.

[4] [2025] FWCFB 2.

[5] [2024] FCA 810.

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