s.365 - General protections

The Crown In Right Of The State Of New South Wales

• [1] This decision concerns an application by Ms Tania Bosheh (Ms Bosheh) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

• [2] In its Form F8A Response, the Crown in Right of the State of New South Wales, acting through the Office of the Children's Guardian (Respondent) objected to the application on the basis that it is not a constitutionally-covered entity, that the alleged action did not take place in a Territory or Commonwealth place, and that it is not a trade or commerce employer or a Territory employer. The Respondent submitted that in those circumstances the Commission does not have jurisdiction to deal with the Application.

• [3] In Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67], [74]-[75] the Full Court of the Federal Court of Australia held that where a respondent to an application made under s.365 contends that the Commission does not have jurisdiction because the applicant is not an employee, or there was no dismissal, or the respondent is not a national system employer, that is an antecedent dispute that must be resolved before the powers conferred by s.368 can be exercised.

• [4] In response to the Respondent's jurisdictional objection, Ms Bosheh accepted that the Application may fall outside the Commission's jurisdiction and did not contest the issue.

• [5] Having regard to ss.14 and 338 of the FW Act, s.47A of the Constitution Act 1902 (NSW), s.127 of the Children's Guardian Act 2019 (NSW), and s.22 and Part 3 of Schedule 1 of the Government Sector Employment Act 2013 (NSW), I am satisfied that the Commission does not have jurisdiction to deal with an application under Part 3-1 of the FW Act made by a person who was an employee of the New South Wales Office of the Children's Guardian.

• [6] The Application is dismissed. An Order to that effect will be issued with this Decision.

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