s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 3 October 2025, Mr Stefan Caliaro lodged an application with the Fair Work Commission (the Commission) under under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that he has been dismissed from his employment with NSW Health Pathology in contravention of Part 3-1 of the FW Act.

• [2] NSW Health Pathology filed a F8A Response Form on 23 October 2025 in which it stated that Mr Caliaro was employed by the Government of New South Wales in the service of the Crown as part of the New South Wales Health Service. On this basis, NSW Health Pathology submitted that Government of New South Wales is not a 'national system employer' and Mr Caliaro is not a 'national system employee' for the purposes of the FW Act.

• [3] My Chambers sent emails to Mr Caliaro on 29 October, 7 November and 17 November 2025 inviting him to discontinue the application in light of the submissions of NSW Health Pathology that he is not a 'national system employee'. The email to Mr Caliaro dated 7 November 2025 also invited him to provide submissions if he believed that he was a national system employee at the time of his dismissal.

• [4] On 14 November, 2025, Mr Caliaro sent an email to my Chambers which relevantly provided:

I acknowledge that I was employed by NSW Health, a NSW public sector employer. I understand that as a result, I may not be considered a national system employee under the Fair Work Act 2009 (Cth). I do not require a hearing in this matter and will explore my options under the Industrial Relations Commission of NSW.

• [5] Mr Caliaro has not discontinued his application despite multiple invitations to do so, so I will now determine the matter.

• [6] Section 339 of the Act extends the operation of Part 3-1 of the FW Act to national system employers and employees and relevantly provides:

In addition to the effect provided by section 338, this Part also has the effect it would have if any one or more of the following applied:

(a) a reference to an employer in any one or more provisions of this Part were a reference to a national system employer;

(b) a reference to an employee in one or more provisions of this Part were a reference to a national system employee;

• [7] Section 13 of the FW Act defines a 'national system employee' as an individual so far as she or he is employed, or usually employed, by a national system employer.

• [8] There appears to be no dispute between the parties that NSW Health Pathology is not a national system employer. As such Mr Caliaro was not a national system employee at the relevant time so the Commission does not have jurisdiction to deal with the application.

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