s.365 - Application to deal with contraventions involving dismissal

The Corporation of the Society of the Missionaries of the Sacred Heart

Applications to deal with alleged contraventions involving dismissal - named respondent to applications not the employer of applicants - application to amend the named respondent -whether employer is individuals concerned in the management of unincorporated voluntary association or a corporation created by statute - whether Commission should determine true employer of applicants - exercise of discretion in application to amend named respondents

[1] An application has been made by each of two applicants, Ms. Jackman and Ms. Snelling, under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that the applicants in these matters have been dismissed in contravention of Part 3-1 of the Act. The respondent was described in both initiating applications as The Corporation of the Society of the Missionaries of the Sacred Heart (ANC 24 004 222 306, ABN 20 311 706 971) (Corporation).

[2] Since the filing of the applications there has been considerable uncertainty and an ongoing dispute as to the proper respondent to each application. The initial F53 Notices and F8A Responses filed in response to the applications identified the respondent to both applications as the Corporation. Since then, an F53 Notice was filed by solicitors appearing for 'Missionaries of the Sacred Heart' in both matters and referring to that entity as the respondent. A number of Amended F8A Responses have also been filed which have contended that the Corporation is not the proper respondent to either application and that the employer and proper respondent is a different entity.

[3] On 15 September 2025 an Amended F8A was filed in both matters in which it was said that the respondent in both matters was Missionaries of the Sacred Heart (ABN 20 311 706 971) (MSC). Further Amended F8A Forms were filed in both matters on 16 September 2025 which stated that the respondent in both matters was MSC. Those response forms indicated that the respondents objected to the application on the basis that the respondent was not a national system employer. The response forms dated 16 September are the most current version of the responses to both applications.

[4] In advance of a directions hearing for the Jackman matter on 3 October 2025, legal representatives for the respondent, which was described in a written submission as the Missionaries of the Sacred Heart, filed a brief written note in which it was put that 'the employing entity is the unincorporated entity, The Missionaries of the Sacred Heart ABN 20 311 706 971.'

[5] By 13 October 2025, further written submissions had been filed by the solicitors who had to that point filed appearances and responses in both applications in which it was contended that the employing entity of each of the applicants was in fact The Trustees of the Missionaries of the Sacred Heart ABN 20 311 706 971 (Trustees Corporation). The Trustees Corporation is a body corporate that owes its existence to an Act of the New South Wales Parliament titled Roman Catholic Church Communities Lands Act 1942 (NSW) (Lands Act). Presumably, because the originating applications referred to the Corporation as the respondent, these submissions also referred to the respondent in both matters as the Corporation. The submissions were filed by the firm describing themselves as solicitors for the respondents.

[6] Further submissions in reply dated 5 November 2025 were then filed by the Trustees Corporation (through the same legal representatives) contending that it (the Trustees Corporation) was the proper employer. The Trustees Corporation also filed submissions dated 2 December 2025 in opposition to an amendment application by the applicants which is discussed in further detail below. Although no F53 Notice has been filed by representatives of the Trustees Corporation, they are the same legal representatives as originally appeared for the named respondents. The recent substantive submissions in which it has been asserted that the proper employer is the Trustees Corporation have been made by the Trustees Corporation through its legal representatives rather than by the respondents named in the originating applications.

• [7] The applicants' position as to the employing entity and the proper respondent to both applications has also changed over time. Having originally asserted that the Corporation was the employer, by written submissions filed in October 2025, the applicants contended that the employer was either one of three different entities/persons. 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. In the alternative, the applicants seek an order that if the Commission determines that some other entity or person/s were the employer of the applicants as at the date of the decision to terminate their employment,[1] then that entity or person/s be substituted for the Corporation as the respondent to the applications.

[8] The Trustees Corporation maintains that the application to amend the named respondents should be refused other than to permit an amendment to replace the current named respondent with the Trustees Corporation.

[9] As should be apparent from the above summary, all parties now accept that the respondent named in the initiating process in both matters was not the employer of either applicant.

[10] The matter was listed for hearing on 3 December 2025. Submissions were made prior to and at the hearing to the effect that the Commission should determine the true employer of each applicant and deal with the applications to amend the named respondent to both applications. Detailed evidence and submissions were provided in relation to those matters.

• [11] After the hearing on 3 December 2025, I wrote to the parties drawing their attention to the decision of the Full Bench of the Commission in Civmec Construction and Engineering Pty Ltd v. Minchin[2] (Civmec) and posing a series of questions as to the possible significance of that decision for the present matters. The parties were asked to provide brief submissions as to whether:

(i) there is any present jurisdictional impediment to the Commission conducting a conference under s.368 of the Act;

(ii) the Commission is required to or should determine the correct employer of each of the applicants in these matters prior to conducting a conference under s.368 of the Act;

(iii) it is necessary/appropriate to deal with the applications to amend the named respondents prior to the Commission dealing with the matters any further; and

(iv) if the Commission determines to amend the application as proposed by the applicants, whether there would be any jurisdictional impediment to the Commission conducting a conference under s.368 of the Act following such amendment.

[12] Civmec concerned an appeal against a decision at first instance in which a Deputy President of the Commission had determined that it was not a jurisdictional prerequisite for a valid application under s.365 to identify the correct employer in the application. The Deputy President determined that a valid application required only an allegation of dismissal in contravention of Part 3-1 and a determination that there had been a dismissal as a matter of fact. The respondent named in the application was Civmec. Civmec appealed that decision and argued that it had never been the employer of the employee who had brought the application and that no application could be brought against it in those circumstances. The Full Bench dismissed the appeal and rejected the proposition that s.365(a) of the Act requires that the dismissal referred to in that subsection must be a dismissal by the respondent to the application or that the application is itself not valid because it failed to name the applicant's former employer. At [30] the Full Bench said:

The question raised by Civmec's submissions is whether there is an additional jurisdictional prerequisite to a valid application under s 365 of the Act. It suggests that not only must an applicant have in fact been dismissed, but the application must also name the correct employer as a respondent to the application for an application to have been validly made. In our opinion, the submission cannot be accepted. Section 365 does not itself require that an applicant name his or her employer as a respondent to the application in order to make a valid application and we are unable to discern from the broader context of the provisions in Subdivision A of Division 8 of Part 3-1 any reason why that requirement should be imposed.

• [13] The decision in Civmec has been applied by a subsequent Full Bench of the Commission.[3]

[14] In response to the Commission's request for further submissions, the applicants submitted that the circumstances of Civmec were not analogous to the those in the present matters. They submitted, amongst other things, that there was no challenge to the Commission's jurisdiction on the basis that the incorrect employer had been named. They submitted that the parties were in agreement that the entity named as the respondent in both matters was incorrect and that both parties had invested resources in proceedings with a view to obtaining a determination as to the correct employer/respondent. Further, the applicants submitted that the Trustees had claimed that they are the proper employer and have objected to the applications on the basis that they are not a national system employer and that this was a jurisdictional question that had to be determined by the Commission. The applicants acknowledged that both parties had proceeded on an erroneous assumption that naming the correct employer was a jurisdictional requirement but that the appropriate course was to determine the correct employer and amend the application accordingly. Alternatively, the applicants accepted that it was open to the Commission to permit the amendment that they sought without making a finding as to the correct employer.

• [15] The Trustees Corporation contended that the decision in Civmec was contrary to Federal Court authority and should not be followed. Reliance for that proposition was placed on the decision in McGrory v Horizon One Recruitment Pty Ltd[4] (McGrory). In that case the Court was dealing with an interlocutory application by a second respondent to Court proceedings that had been initiated following a Commission conference under s.368 in circumstances where it was said that the application to the Commission did not identify that respondent and the certificate issued by the Commission made no reference to that second respondent. At [17] and [19] her Honour Collier J said:

Litigation is dependent on clear claims, being brought clearly, against specific named respondents. The Fair Work Commissioner plainly interpreted the application in the Fair Work Commission as raising Dr McGrory's dispute only with Horizon One. This is not surprising, because, turning to the Form F8 - in particular paras 3.1 and 3.3 of that form, it is plain that Dr McGrory's application was framed in terms of Horizon One being her employer, with the second respondent being only a "host client" with whom she was placed by her employer. Irrespective of Dr McGrory's belief that there are duties of care owed her by both respondents, her claim in the Fair Work Commission did not identify the second respondent as her employer such as to constitute a dispute under the Fair Work Act. (original emphasis)

In the circumstances I am satisfied that the provisions of ss 365, 368 and 370 of the Fair Work Act were not satisfied in respect of the second respondent, insofar as Dr McGrory alleged a "dispute" with the second respondent before the Fair Work Commission. There was no "dispute" in the Fair Work Commission between Dr McGrory and the second respondent such that Dr McGrory could now bring a complaint concerning the second respondent to this Court.

[16] The Trustees Corporation submitted that there was a jurisdictional impediment to the Commission conducting a conference under s.368. As the applicants had accepted that they have not joined the correct respondents to the applications there was no application before the Commission articulating a dispute with the Trustees Corporation. The Trustees Corporation urged that the Commission should proceed to determine the correct employer. They said the Commission could only determine the applications to amend by making a determination as to the correct employer and that the Commission would not exercise its discretion under s.586 of the Act to amend the applications without determining who the correct employer was. Further, the Trustees Corporation said it was both necessary and appropriate for the Commission to deal with the applications to amend prior to dealing with the matters any further. They submitted that in the event that the Commission determined to amend the applications as proposed by the applicants there would be no jurisdictional impediment to the Commission conducting a conference under s.368 but that sufficient time would be required to permit the newly named respondents to respond to the amended application.

[17] I have determined that the appropriate course is to accede to the applications to amend both applications to substitute the named individuals for the Corporation as respondents in each matter. I do so without making any determination as to the true employer of the applicants. Contrary to the submission of the Trustees Corporation, I do not think that I can only determine the applications to amend by making a determination as to the correct employer or that it would not be appropriate to exercise my discretion to determine the amendment applications without deciding who the proper employer was.

• [18] The Commission's role in applications made under s.365 is relatively limited. If an application is validly made under that section, the Commission is required to deal with the dispute (other than by arbitration) under s.368 by conducting a private conference. As the Full Bench made clear in Civmec, the validity of an application is conditioned only by the requirement that a person has been dismissed and that the dismissal is alleged by the person to be in contravention of Part 3-1 of the Act.[5] The Commission may deal with a dispute in an application made under s.365 by mediation or conciliation, or by making a recommendation or expressing an opinion.[6] If, in the course of dealing with the dispute, the Commission is satisfied that all reasonable attempts to resolve the dispute other than by arbitration have been or are likely to be unsuccessful, the Commission must certify to that effect.[7] If the Commission considers that arbitration under s.369 or a general protections court application in relation to the dispute would not have a reasonable prospect of success, the Commission must advise the parties accordingly.[8] The Commission must therefore deal with the dispute by the means permitted by the Act, come to a view as to the likelihood of resolution and make an assessment as whether or not there would be reasonable prospects of success if the matter is taken further. In dealing with the dispute, the Commission is not required to receive evidence, make factual findings or otherwise determine the merits of the application.[9]

• [19] A determination as to the proper party or parties to a dismissal dispute under s.365, as with other proceedings, is generally a matter for the applicant. Where, as here, an applicant has applied for the amendment of an application to substitute a respondent party, the Commission has a discretion under s.586 of the Act as to whether such an application should be permitted. The discretion is broad. An amendment can be made on any terms that the Commission considers appropriate. The discretion includes the capacity to amend an application to substitute parties to the proceedings.[10]

[20] The applicants say that the incorrect respondent has been named in each application. The Trustees Corporation accepts this to be the case. The naming of the current respondent in each matter has not occurred because of any culpability on the part of the applicants. There has been uncertainty on all sides as to the proper respondent from the outset. If the applications to amend were not granted the Commission would be dealing with a dispute in circumstances where it was accepted that the sole respondent to both applications was named in error and no-one was contending that the respondent has any role to play in the proceedings. This circumstance favours the Commission exercising its discretion to grant the applications to amend.

[21] The Trustees Corporation also contended that there is an insufficient evidentiary basis to support the exercise of the discretion in favour of amendment. They submitted that the applicants had not demonstrated that the named individuals were in fact members of the Provincial Council of the voluntary unincorporated association and if so, whether they were members of that body at the relevant time. Further, it was submitted that the applicant had not demonstrated that the named individuals had, as a matter of law, entered into binding legal relations with the applicants by operation of the relevant principles applying in circumstances where individuals are purporting to act on behalf of an unincorporated association.

[22] In the exercise of the discretion conferred by s.586 it is not necessary in my view for the Commission to come to a definitive view as to whether the proposed new respondents are the true employers of the applicants. Nor is it necessary to determine to finality the status and capacity of the named individual proposed respondents or the full extent of their connection to the dispute. These are, as I have said, matters for the applicants to assess and advance. Whether the assessment is ultimately correct in the case of each individual is a matter to be determined at a later time.

• [23] There is however sufficient evidence for me to come to a view that there is some rational basis for the amendment applications. The employment of the applicants was terminated on 14 July 2025. The applicant tendered evidence as to the composition of the Provincial Council as at July 2025.[11] Those persons identified as Council members at that time are the individuals that the applicants now seek to name as respondents. There is evidence that the Provincial Council assists a Provincial Superior with the governing the Australian Province of the unincorporated association known as the Missionaries of the Sacred Heart of Jesus.[12] The letters of termination make reference to a restructure of the MSC and an earlier review process undertaken by the Provincial Council involving a 'process of discernment utilising the communal wisdom methodology' that ultimately resulted in the terminations. There is correspondence to each applicant indicating that recommendations from the review would be provided to the Provincial Council. There are other employment documents that refer to the MSC.

[24] I am satisfied that there is a proper basis on which the discretion should be exercised in favour of the proposed amendments. I propose to grant the amendments as sought by the applicants.

• [25] The Fair Work Commission Rules 2024 require the Commission to serve a copy of the Form F8 on respondents to those applications.[13] In the circumstances, and in accordance with Rule 7 of the Rules, I direct the applicant to file and serve the amended applications on the individual respondents within 7 days of the date of this decision. The individual respondents are directed to file a response to the applications within 7 days thereafter.

[26] The matter will be relisted on a date to be fixed.

Mr. I Latham, of Counsel, instructed by Mr. D Taylor, of Segelov Taylor Lawyers, on behalf of the applicants

Mr M Condon and Mr J Simpkins of Counsel, instructed by Ms. N Town of Prandium Legal on behalf of the Trustees Corporation

[1] Taylor Statement 18 November 2025 at [6(f)] - cf applicants' Submissions on Employer in Reply at [18].

[2] [2025] FWCFB 2.

[3] Zhou v. Yang [2025] FWCFB 206 at [20].

[4] [2014] FCA 810.

[9] Aside from the assessment under s.368(3)(b).

[10] Construction, Forestry, Mining and Energy Union v. Workpac Pty Ltd [2017] FWC 1735.

[12] See Fernando Statement paragraph 9 and Annexure C at 113.

[13] Rule 71.

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