XP Recruitment Pty Ltd ATF Thivagar Family Trust, Absolute Excellence Dental Pty Ltd & Thivagar Nirmalann v Anthony Boerkamp [2021] FWCFB 2297 (27 April 2021)

[2021] FWCFB 2297

Fair Work Act 2009

s.604 - Appeal of decisions

XP Recruitment Pty Ltd ATF Thivagar Family Trust, Absolute Excellence Dental Pty Ltd & Thivagar Nirmalann

Appeal against interim decision of Commissioner Yilmaz at Melbourne on 5 February 2021 in matter number C2020/8370.

[1] The appellants, XP Recruitment Pty Ltd (acting as trustee for the Thivagar Family Trust), Absolute Excellence Dental Pty Ltd and Dr Thivagar Nirmalann, seek permission to appeal what is said to be a decision by Commissioner Yilmaz not to allow them to be heard as to their "jurisdictional objections" to an application made under s 372 of the Fair Work Act 2009 (FW Act) by Mr Anthony Boerkamp.

[2] Section 372 of the FW Act provides:

372 Application for the FWC to deal with a non-dismissal dispute

(a) a person alleges a contravention of this Part; and

(b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;

the person may apply to the FWC under this section for the FWC to deal with the dispute.

[3] Section 374 sets out the Commission's function with respect to an application made pursuant to s 372 as follows (excluding the statutory notes):

(b) the parties to the dispute agree to participate;

the FWC must conduct a conference to deal with the dispute.

(2) Despite subsection 592(3), the FWC must conduct the conference in private.

[4] Section 375 also requires the Commission, if it considers that a general protections court application in relation to the dispute would not have a reasonable prospect of success, to advise the parties accordingly.

[5] The usual practice of the Commission is that if any of the parties do not agree to participate in a conference pursuant to s 372(b) and the Commission forms no view of the application pursuant to s 375, it simply closes the file and takes no further action in relation to the application, there being no other action it is empowered to take.

[6] In respect of the condition for the making of an application in s 372(b), s 365 permits the Commission to deal with a dismissal dispute if a person has been dismissed, and the person (or an industrial association that is entitled to represent the industrial interests of the person) alleges that the person was dismissed in contravention of Pt 3-1 of the FW Act.

[7] The factual background to the matter may briefly be stated. On 13 November 2020, Mr Boerkamp filed a Form 8C application pursuant to s 372. In that application, Mr Boerkamp contended that various actions taken by the appellants towards him whilst he was employed by them were in contravention of the general protections provisions in ss 340, 343 and 351 of the FW Act. In summary, Mr Boerkamp alleged that, after he had exercised a workplace right by inquiring about a performance review, pay rise and bonus, and by subsequently making a complaint, the appellants took adverse action him by injuring him in his employment, altering his position to his prejudice, and discriminating against him, and also by threatening to take action against him with intent to coerce him to not exercise a workplace right to make a complaint or inquiry to this Commission and to accept a termination of employment settlement. In his application, Mr Boerkamp noted that he had been made redundant with an effective dismissal date of 23 October 2020 and stated: "I will not be pursuing that my dismissal was in contravention of Section 365 of the Fair Work Act 2009".

(1) contended that Mr Boerkamp was not entitled to bring an application under s 372 because he was entitled to bring an application under s 365;

(2) contended that the application was frivolous or vexatious and should be dismissed pursuant to s 587(1)(a) or (b) of the FW Act;

(3) denied Mr Boerkamp's allegations of contraventions of ss 340, 343 and 351 of the FW Act; and

(4) stated that they did not agree to participate in a conference convened by the Commission.

[9] On 24 November 2020, Mr Boerkamp sent the Commissioner's chambers a lengthy email concerning the nature of his application, apparently following a discussion with the Commissioner's Associate. The email relevantly stated (underlining added):

"I had consulted the Workplace Advice Service through the Fair Work Ombudsman, and ended up with a referral to JobWatch, who provided me with one hour of free legal services. One of my specific questions relating to my situation, was whether I would lodge my application under s.365 or s.372. It was decided I should lodge under s.372, as even though I was dismissed (genuine redundancy), but my situation supposedly didn't satisfy s.365 (b) because I am not alleging that the actual dismissal was a contravention as it was a genuine dismissal. The contraventions in my application relate to matters leading up to my dismissal. I have made this a point in my application at 3.1.61 in that 'I will not be pursuing that my dismissal was in contravention of Section 365 of the Fair Work Act 2009'.

However, following my discussion .... that I should probably have lodged my application under s.365, especially as I seek to have a Conference with my Respondents to settle the matter, then he suggested I should approach you by email to request for you to exercise your discretion to amend my application from s.372 to s.365. ...otherwise, a hearing would need to occur on the jurisdictional issue, and even if it was determined s.372 was the correct section for me to apply under, the Respondents have indicated in their Form F8A they do not agree to participate in a Conference. Thus, I would need to pursue my matter in the Federal Circuit Court anyway. That seems like a waste of time and expense for everyone involved.

Accordingly, I am happy to request for you to exercise your discretion to amend my application from s.372 to s.365 if this means a Conference can be held. Note: My effective date of dismissal was 23 October 2020, and I lodged my application on the 13 November 2020, thus within the 21 day time limit."

[10] On 24 November 2020, the Commissioner's chambers sent an email to the appellants in which, in light of what had occurred the appellants were invited to reconsider whether they agreed to participate in a conference under s 374; alternatively, it would be necessary for the Commissioner to consider whether she should amend Mr Boerkamp's application if he pressed for it to be amended. In an email in response dated 25 November 2020, the appellants requested that "the jurisdictional issue be resolved in the first instance". It did not expressly respond to the invitation to reconsider whether it would agree to participate in a conference.

[11] The Commissioner conducted a mention of the matter on 4 December 2020, and it was adjourned to permit Mr Boerkamp to obtain legal advice and clarify his position. On 11 December 2020, Mr Boerkamp sent an email to the Commissioner's chambers which advised that he had obtained legal advice and that (underlining added):

"Accordingly, I still wish to pursue my application under s.372, as even though I was dismissed, my situation didn't satisfy s.365 (b) because I am not alleging that the actual dismissal was a contravention as it was a genuine dismissal. The contraventions in my application relate to matters leading up to my dismissal. I have made this a point in my application at 3.1.61 in that 'I will not be pursuing that my dismissal was in contravention of Section 365 of the Fair Work Act 2009'. Thus, per section 372 (b), I am not entitled to apply to FWA under section 365 for FWA to deal with this dispute."

[12] Mr Boerkamp also stated that he was happy for the Commissioner to deal with the appellants' jurisdictional issue concerning his purported entitlement to bring a s 365 application.

[13] On 16 December 2020, the Commissioner made directions for the filing of submissions concerning the jurisdictional issue, pursuant to which the appellants were to file submissions by 6 January 2021, and the matter was listed for a "jurisdictional hearing" on 8 February 2020.

[14] On 17 December 2020, Mr Boerkamp sent an email to the Commissioner's chambers which began by saying "Further to our phone call today..." and went on to refer to the decision of Frank Faulkner v Tidewater Marine Australia Pty Ltd.[1] This email was not copied to the appellants. On 24 December 2020, the appellants sought an extension of time to file their submissions. The Commissioner's chambers indicated on 30 December 2020 that an extension would be granted but that the date for filing such submissions would be reviewed in the new year. On 15 January 2021, the Commissioner's chambers advised the parties that, due to circumstances beyond the Commissioner's control, the hearing scheduled for 8 February 2021 would not proceed.

[15] On 2 February 2021, the following email was sent to the parties on behalf of the Commissioner (omitting formal parts):

"Mr Boerkamp lodged a dispute pursuant to s.372 alleging a contravention of the general protections' provisions during the course of his employment. Mr Boerkamp is not alleging that his dismissal is in contravention of the general protections' provisions.

As the parties are aware, an applicant cannot make a single application with regards to s.365 and s.372. Further, there is nothing to prevent the making of separate applications in respect to the various protections under the Act.

As a result, there is nothing before the Commissioner for her to form the view that the application was not properly made in accordance with the Fair Work Act 2009 (Cth) (the Act). Further, the application concerns alleged contraventions during employment (inter alia injuring the employee and altering the position of the employee) and not adverse action stemming from the dismissal.

As Mr Boerkamp has made his position clear that he seeks resolution of alleged contravention of the general protection provisions during employment, the scope for resolution before this Commission is limited to a conciliation conference should the Respondent agree to participate.

Furthermore, Commissioner Yilmaz has considered Mr Boerkamp's submission, in response to the Respondent's jurisdictional objection, that he believes the Commission has the power to hold a jurisdictional hearing in relation to this matter in light of the Commission's decision in Frank Faulkner v Tidewater Marine Australia Pty Ltd. However, Commissioner Yilmaz has formed the view that it is unnecessary for this matter to progress to jurisdictional hearing if one considers this decision.

Given that the Respondent has indicated it does not wish to participate in a conciliation conference but raises jurisdictional objections on the ground that the application should have been properly filed as an application pursuant to s.365, in the Commissioner's view it is unwise to waste any further time dealing with this application in the Commission and therefore should Mr Boerkamp wish to pursue his application in the Federal Court he is entitled to do so.

In light of the above considerations, the Commissioner intends to close the matter unless the Respondent advises the Commission that it agrees to participate in a conference. The Respondent has until 3.00 pm on Friday 5 February 2021 to notify chambers as to whether it agrees to a conciliation conference."

[16] On 3 February 2021, the appellants sent a lengthy email to the Commissioner's chambers in which they contested the view by reference to the decision of Full Court of the Federal Court in Coles Supply Chain Pty Ltd v Milford[2] and contended:

"Our client is now being asked to consider agreeing to a conciliation conference in circumstances where the matter, in our view, is not properly before the FWC. Therefore, the powers conferred by section 374 cannot be exercised."

[17] The Commissioner conducted another mention of the matter on 5 February 2021 and, later the same day, her chambers sent an email to the parties which relevantly stated:

"I confirm the Commissioner has indicated that the matter will not proceed to jurisdictional hearing. Instead, the Respondent is required to confirm whether or not it wishes to participate in a conference by no later than 1pm on Monday 8 February 2021.

If the Respondent does not agree to participate in a conference, the Commissions file will be closed."

[18] There followed further emails from the appellants which continued to debate the position arrived at by the Commissioner and requested advice as to whether the Commissioner had received a submission from Mr Boerkamp that was not copied to the appellants. On 8 February 2021, the appellants were provided with a copy of Mr Boerkamp's email of 17 December 2020. On 8 February 2020, the appellants sent another lengthy email to the Commissioner's chambers which, for the first time, identified a number of additional objections to the application, namely that the Commission's jurisdiction expired on the date of the termination of Mr Boerkamp's employment, that the proceedings may be the subject of other proceedings already initiated elsewhere, and that the proceedings had been commenced against the incorrect parties. Accompanying this email were detailed submissions in support of the objections to the application. In an email in response, the Commissioner's chambers informed the parties that the Commissioner had considered the appellant's emails and had decided to grant the appellants until midday on 9 February 2021 to indicate whether they agreed to participate in a conference and, if they did not agree, the Commissioner would close the file. After a further email cavilling with the Commissioner's decision, on 9 February 2021 the appellants advised that, effectively "under protest", that there was agreement to participate in a conciliation conference.

[19] On 9 February 2021, the Commissioner's chambers sent the parties an email clarifying certain matters of record, including that she had not determined any jurisdictional issue raised by the appellants. The appeal was lodged on 26 February 2021 and no conference in relation to Mr Boerkamp's application has yet occurred.

[20] The appellants' notice of appeal contains, as its grounds of appeal, what amounts to a 79-paragraph submission. The four contentions of error which may be distilled from this appear to be that the Commissioner erred by:

(1) prematurely and/or incorrectly determining that there was no jurisdictional question requiring determination;

(2) failing to afford the appellants procedural fairness;

(3) giving no or inadequate reasons for her decision; and

(4) incorrectly determining that the powers conferred by section 374 were enlivened.

[21] The appellants submitted that:

• the Commissioner's email of 2 February 2021, as well as statements made by her during the mention on 5 February 2021, constituted a "decision" within the meaning of s 598(1) of the FW Act that is appealable under s 604;

• the Commissioner dismissed the jurisdictional objections without allowing the appellants to make "fulsome submissions";

• the Commissioner's determination that there was no jurisdictional issue to be resolved appears to have been based on an incorrect understanding that the appellants had only one jurisdictional objection, when the appellants "reminded" the Commissioner on 8 February 2021 that they had several objections;

• the appellants were denied procedural fairness in that the Commissioner had considered Mr Boerkamp's "submission" of 17 December 2020 about which the appellants were unaware and to which they had no opportunity to respond;

• the Commissioner provided no or inadequate reasons for rejecting the appellants' jurisdictional objection based on the capacity of Mr Boerkamp to make an application under s 365, and provided no reasons at all for the rejection of the appellants' other jurisdictional objections;

• the question of whether Mr Boerkamp's application was properly before the Commission was, on the authority of Coles v Milford, an antecedent question which must necessarily be resolved before the powers conferred by s 374 can be exercised at all;

• Mr Boerkamp was entitled to make a s 365 application because he is entitled to allege that his dismissal was in contravention of Pt 3-1 of the FW Act, and he has in fact made that allegation, and is accordingly not competent to make an application under s 372;

• alternatively, Mr Boerkamp had no standing to make an application under s 372 after the termination of his employment because he did not meet the criteria in ss 338 and 339 concerning the application of the general protections provisions, being a former employee;

[23] We have decided to refuse permission to appeal because, first, the appeal concerns an interlocutory procedural decision and has no utility and, second, the "jurisdictional objections" raised by the appellants to Mr Boerkamp's application are without merit.

[24] We will assume, in the appellants' favour, that the decision the subject of the appeal was made on 5 February 2021, although there are strong grounds to consider that the relevant decision was constituted by the Commissioner's detailed email to the parties of 2 February 2021, in which the case the appeal would be out of time. It is necessary to make clear at the outset what the substance of the Commissioner's decision was, which we consider to have been a determination not to proceed with a hearing previously listed concerning the appellants' jurisdictional objections but rather to first request that the appellants advise whether they agreed to participate in a conference pursuant to s 374(1) within a specified time span. In the absence of such advice being given, the Commissioner stated that she would close the file.

[25] We consider this decision, which was of an interlocutory procedural nature, was entirely unremarkable and constituted a procedural course open to the Commissioner. Section 598 of the FW Act, which deals with the power to make procedural and interim decisions, makes clear the Commission may make decisions as to how, when and where a matter is to be dealt with and that it may do so on its own initiative. It needs to be emphasised that the Commission is not conferred by s 374 with any power to make any order binding on any person. Rather, s 374(1) simply imposes a duty on the Commission to conduct a conference if two preconditions are satisfied:

(2) the parties to the dispute agree to participate in a conference.

[26] If either precondition is not satisfied, the Commission is not authorised to conduct a conference or to take any other action with respect to an application lodged pursuant to s 372. The appellants' "jurisdictional objections" concern whether the first condition was satisfied, insofar as the appellants contend that no valid application was made by Mr Boerkamp under s 372. However, it was obviously a sensible procedural course for Commissioner to seek, in the first instance, advice as to whether the second condition was satisfied. If the appellants did not agree to participate in a conference, no further action could be taken by the Commissioner in respect of the application and so it would be unnecessary for her to require submissions concerning and to determine the "jurisdictional objections". There is no proper basis to grant permission to appeal a discretionary procedural decision of this nature.

[27] Considered in that context, we consider that the appeal is lacking in any practical purpose. No prejudice to the appellants can possibly result from the Commissioner's refusal to give priority to dealing with the appellants "jurisdictional objections". It has at all times been and remains the case that if the appellants do not wish the Commission to conduct a conference under s 374, they may achieve that result simply by declining to agree to participate in such a conference. They do not need their "jurisdictional objections" to be determined in their favour to achieve that result. Nor was there any necessity for the Commissioner to deal with any question concerning whether the first precondition in s 374(1) was satisfied until such time as it was plain that the second precondition was met. At no time prior to the decision the subject of this appeal was there any agreement on the part of the appellants to participate in a conference under s 374, and there was no basis for them to insist that the Commissioner deal with their "jurisdictional objections" in the absence of the communication of any such agreement.

[28] In any event, the appellants' "jurisdictional objections" have no merit. The only matter which we can identify on the materials as having been squarely raised by the appellants before the decision the subject of the appeal was made on 5 February 2021 was that Mr Boerkamp was entitled to make an application under s 365 and therefore was disentitled to make an application under s 372. However, it is clear that Mr Boerkamp in his application and at all relevant times thereafter disavowed the making of any allegation that his dismissal by reason of redundancy, effective from 23 October 2020, was in contravention of any provision of Pt 3-1 of the FW Act. The conduct of the appellants the subject of the allegations in his s 372 application occurred prior to the dismissal and thus could not be the subject of an application under s 365. The proposition that it is sufficient that Mr Boerkamp was "entitled" to allege that his dismissal was in contravention of Pt 3-1 is not consistent with the text of ss 365 and 372 and is logically nonsensical.

(1) The proposition that an application under s 372 cannot be brought by a former employee finds no textual support in the statute. We reject the proposition that ss 338 and 339 operate to exclude former employees from the general protections established in Pt 3-1 of the FW Act. Sections 338 and 339 are concerned with identifying the range of persons within the limits of the constitutional power of the Commonwealth whose actions are subject to the obligations and prohibitions provided for in Pt 3-1. Former employees obviously have the benefit of the protections established by Pt 3-1, otherwise s 365 would have no work to do. An application under s 372 may be made by any "person" who alleges a contravention of Part 3-1, other than one who is entitled to apply under s 365, and this encompasses employees, former employees, prospective employees and independent contractors who have the benefit of any of the general protection provisions.

(2) Section 725 does not operate to impose any bar on a person who has made a workers' compensation application also making an application under s 372 in relation to the same subject matter.

(3) Neither s 372 nor any other provision of the FW Act operates to limit the persons who may be identified as the "parties" to a dispute the subject of an application under s 372. The correct identification of the "parties" to the dispute is not a requirement for a valid application under s 372. In any event, it is conceded that the first appellant (XP Recruitment Pty Ltd) was the employer of Mr Boerkamp, and the third appellant (Dr Nirmalann) is identified in the application as director of the first appellant and a person involved in the alleged contraventions (see s 550).

[30] It is not necessary to deal further with the matters raised by the appellants in their appeal grounds and submissions except to note, insofar as it is alleged that the Commissioner denied the appellants procedural fairness by considering Mr Boerkamp's ex parte submission of 17 December 2020, that is a matter of no moment since the Commission plainly rejected the submission in her email of 2 February 2021.

[31] This matter has now dragged on for over five months unnecessarily because of the appellants' persistence in agitating their spurious "jurisdictional objections". It is also necessary to state that we consider a number of the communications made by the appellants' legal representative to the Commissioner's chambers to have inappropriately cavilled with the Commissioner's rulings and to have been generally disrespectful. This has all constituted a waste of time, money and resources. If the appellants are prepared to agree to a conference pursuant to s 374(1), they should communicate this to the Commission in the next seven days, and the required conference may then be conducted expeditiously. In the absence of any such communication, the file will be closed. The matter will now return to the Commissioner on this basis.

[32] We order that permission to appeal is refused.

[1] [2013] FWC 2457

[2] [2020] FCAFC 152, 300 IR 146

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