This portion of a decision by a Full Bench of the Fair Work Commission deals with the issue of the jurisdiction of the Commission to deal with general protections claims when there is a dispute as to whether the person bringing the application was an employee or there is a dispute as to the identity of the employer; and see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152
“Consideration
[21] Where a person makes an application under s 365 of the Act, the Commission must deal with the dispute under s 368. The Commission may deal with the dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.12 If the dispute is not able to be resolved by conciliation, the Commission must issue a certificate under s 368(3). A certificate issued under that subsection is, unless the application includes an application for an interim injunction, a precondition to the commencement of a general protections court application13 or alternatively, and if the parties agree, to the Commission dealing with the dispute by arbitration.14
[22] Section 365 appears in Subdivision A of Division 8 of Part 3-1 of the Act. It provides as follows:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) 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 this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
[23] Section 365 defines the persons who are entitled to make a general protections application involving dismissal to the Commission. For an application to be made under s 365, it must be made by a person described in the section. It must also be made within the time period provided for in s 366(1).15
[24] Section 368 relevantly provides:
368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3). Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
[25] In Milford, the Full Court was concerned to draw a distinction between the purpose and operation of s 365 and s 368. The Full Court observed that the non-determinative functions of the Commission under s 368 are only enlivened in the event that “an application is made under s 365”, and then only in relation to “the dispute”.16 As to what constituted “the dispute” under s 368 the Court said:17
The answer is found in s 365 and in the opening words to s 368 itself. As observed earlier, when s 368 refers to an “application” made under s 365, it refers to an application validly made by a person entitled to make it. The text and structure of s 365 is such that there has been a dismissal in fact and that there is an allegation that the dismissal was for a prohibited reason. Construed in the context of s 365, when s 368 refers to “the dispute” it must be taken to refer to the dispute agitated by the allegation: that is, the allegation concerning the reason for the dismissal, and not an allegation of dismissal per se. It does not assist Mr Milford to show that the power under s 368 is non-determinative. We are presently concerned with an antecedent question as to whether the non-determinative powers are enlivened at all.
[26] In relation to the possibility of the parties being “in dispute” as to whether or not a person had been dismissed under s.365(a) the Full Court said:18
It is not difficult to conceive of cases where the parties may be in “dispute” as to whether or not a person has been dismissed. Most often that will occur in cases where the applicant alleges (and the respondent contests) that he or she has been constructively dismissed. But that dispute is not to be confused with the dispute forming the subject matter of the FWC’s conciliation powers as just described. A dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes.
[27] Notably in Milford, in relation to s 365, the Full Court said:19
The second observation that may be made is that s 365 contains two criteria conditioning a person’s entitlement to make an application. The first criterion is expressed in objective terms: the person has been dismissed. The second criterion is also expressed in objective terms, albeit by reference to the fact that an allegation has been made that “the dismissal” was in contravention of a provision of Pt 3-1. The word “alleges” is found in the criterion in s 365(1)(b) (sic), but not in the criterion in s 365(1)(a) (sic). In its ordinary meaning, the criterion in s 365(1)(a) (sic) will be fulfilled if there has been a dismissal in fact. It will not be fulfilled merely because an applicant asserts that he or she has been dismissed. The words “the dismissal” to
which subs (b) refers is clearly a reference back to subs (a) and so refers to “the dismissal” that has occurred in fact.
[28] The point raised by Civmec, both at first instance and on appeal, is whether Mr Minchin has made a valid application under s 365 in circumstances where the application named as the respondent an entity that was not the entity that had employed and allegedly dismissed him. As was pointed out by the Full Court in Milford (at [54]) above and as is plain from the text of the section itself, there are two criteria conditioning the entitlement of a person to make an application under s 365. The first criterion is that the person was dismissed. The second is that the person alleges the dismissal was in contravention of Part 3-1 of the Act. Although the point raised here did not directly arise in Milford, there is no suggestion in the decision that there are any additional qualifications or criteria for the making of a valid application under s 365. Having regard to the plain language of the section, we see no reason to conclude otherwise.
[29] Section 365(a) refers to a person, the applicant, who has been dismissed. Section 12 defines what is meant by the term “dismissed” in the Act by simply stating “see section 386”. Section 386 describes when a person has been “dismissed”. Leaving aside the exceptions in s 386(2), the principal aspect of the definition is that “the person’s employment with his or her employer has been terminated on the employer’s initiative” or the person “has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”. For there to be a valid application, the applicant must have in fact been dismissed on his or her employer’s initiative or have resigned in circumstances in which he or she was forced to do so by the employer.
[30] 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.
[31] A number of aspects of the statutory scheme support the conclusion that we have reached. First, an application under s 365 of the Act is for the Commission to deal with “the dispute”. The “dispute” is identified at a high level of generality by reference to the occurrence of a person’s dismissal which is alleged to have been in contravention of Pt 3-1. The Act itself does not otherwise specify the required content or form of an application under s 365. In Shea v TruEnergy Services Pty Ltd (No 1)20 (Shea), for example, the respondent contended that “the dispute” in relation to which the court application referred to in s 371(1) is made must, in all essential and substantial aspects, be limited and conform to “the dispute” as expressed or described in the application to the Commission. Dodds-Stretton J rejected the contention and, among other things, observed:21
While there are a number of different potential bases of contravention of Pt 3-1, the Act does not prescribe the content, essential inclusions or level of detail of the application which may be made to FWA under s 365. The Form F8 headed “Application for FWA to Deal with a General Protections Dispute — Fair Work Act 2009 — ss 365, 372” completed by the applicant in this case is a short document setting out basic questions, including “Alleged contravention(s) of Part
3-1”, “Section(s) allegedly contravened” and “Description of alleged contravention(s)”. In the present case, the applicant’s description was contained in an annexure. In practice, the dispute identified in general terms under s 365 is likely to be further elaborated or described not only in the FWA application but also in the respondent’s response (if any) and/or the FWA conference conducted to deal with the dispute.
[32] Her Honour emphasised that, whilst in practice the dispute identified in s 365 may be elaborated by the applicant in the application to the Commission and by both parties in the context of that process, including any conference, the legislation does not, in terms, require such elaboration.22 Those aspects of the statutory scheme suggest that, although the applicant must in fact have been dismissed, the jurisdiction of the Commission to deal with a dispute, and of a court to subsequently determine a general protections court application, is not dependent on the content of the application made to the Commission.
[33] Second, there is nothing to suggest that the failure of an applicant to name the correct employer in an application made under s 365 cannot be remedied by way of later amendment. In Knight v Visionstream Australia Pty Ltd23(Visionstream), O’Callaghan J considered an appeal against a decision at first instance in which it had been found that s 368 of the Act operated to prevent an applicant in a s 365 general protections application from substituting one respondent party for another in the court proceedings following a conference in the Commission where the name of the proposed new respondent differed from the name of the entity on the Commission’s certificate.
[34] O’Callaghan J concluded that the judge below had erred by determining that it was not possible to substitute a new respondent. His Honour observed that the Act did not create “a regime providing potential technical defects or traps that would deny a person’s access to justice.”24 As a result, it was unnecessary for an application under s 365, and a resultant certificate under s 368(3)(a), to identify each potentially liable party, or even to correctly identify the employing entity, for there to be a valid court application under s 370.25 The same conclusion had earlier been reached by what was then the Federal Magistrates Court in Rutherford v Hausner.26
[35] Based on the decisions in Visionstream and Rutherford v Hausner, if Mr Minchin is successful in obtaining a certificate from a member of the Commission under s 368(3), it would likely be possible for him to apply to substitute MSP for Civmec as the respondent, or add MSP as an additional respondent, in any subsequent court proceedings. If it is possible to substitute the correct employer at a later stage in the litigation, the identification of the correct employer as the respondent cannot represent a jurisdictional prerequisite to an initial application under s 365 of the Act. If naming the employer was a necessary requirement for a valid application to be made under s 365, the defect could not be remedied by later amendment or substitution.
[36] Admittedly, this is not a case in which Mr Minchin believes or accepts that he has made a mistake in identifying Civmec as the respondent to the application. Mr Minchin fervently believes that Civmec is his employer notwithstanding the finding of the Deputy President that he is wrong in that respect. However, in our opinion, the same conclusion must follow. If it is not a jurisdictional prerequisite for an applicant to identify the correct employer in cases where an error has been made, it cannot be a prerequisite where the applicant’s choice is deliberate albeit mistaken.
[37] For the purposes of this appeal, it is unnecessary to consider the correctness of the Deputy President’s conclusion as to the identity of Mr Minchin’s employer. There is no reason to think it is not correct. We do note, however, that although MSP is named as the entity offering him employment in the letter of offer addressed to Mr Minchin, the letter appears on Civmec’s letterhead. Mr Minchin asserts that he did not have dealings within any person from MSP. It is at least a case in which there is some potential for confusion. The fact that there will be cases in which there is genuine dispute as to the identity of the true employer (including where it is unclear which entity within a group of companies should be regarded at law as the employer of a particular employee or group of employees)27 itself supports the conclusion that the correct identification of the employer is unlikely to have been intended to be a prerequisite for a valid application to be made.
[38] Third, persons other than the applicant’s employer may be proper respondents to an application under s 365 of the Act. A person will be taken to have contravened a provision within Part 3-1 if the person was “involved in” the contravention for the purposes of s 550 of the Act. That may occur if the person aided, abetted, counselled or procured the contravention, induced the contravention, was knowingly concerned in or party to the contravention, or conspired with others to effect the contravention.28 Generally speaking, an action can be maintained against persons alleged to have been involved in a contravention, although proceedings are not pursued against the primary contravener.29
[39] In the recent decision in Kirkham v Monash University & Ors30 (Kirkham), a Full Bench considered an appeal from a decision involving an application under s 365 in which the applicant named as respondents the University, the National Tertiary Education Union and 17 individuals who were, or were previously, employed by the University. The Commissioner, who dealt with the application at first instance, dismissed the application insofar as it related to all parties other than the University on the basis that they were not the employer that had dismissed the applicant. The Full Bench concluded that the Commissioner had erred in doing so. The Full Bench indicated that the application had satisfied the two criteria in s 365(a) in that the applicant was in fact dismissed by the University and had alleged that the dismissal occurred in contravention of Part 3-1. The application in respect of the applicant’s dismissal by the University had therefore been validly made.31 The Full Bench explained:32
The Commissioner’s decision appears to proceed on the premise that a person cannot be named as a respondent to an application under s 365 unless they are the employer which dismissed the applicant. The decision does not identify the source of that proposition. The Commissioner made reference at [15] to the Full Bench decision in Lipa Pharmaceuticals, but that decision does not deal with the issue of whom an applicant under s 365 may name as a respondent to their application. Lipa Pharmaceuticals merely applied Milford to say that where there is a contest as to whether the alleged dismissal the subject of an application under s365 has actually occurred, this is an antecedent question which must be resolved in the applicant’s favour before the dispute resolution powers under s 368 can be exercised. Nor did Milford itself consider the question of who might be named as a respondent to an application validly made under s 365. (footnote omitted)
[40] The Full Bench was satisfied that there was nothing in ss 365 or 368 which establishes any jurisdictional impediment to an application validly made under s 365 identifying persons in addition to the applicant’s employer as parties to the relevant dispute.33 The fact that persons other than the employer might be named as respondents to an application under s 365, and be the subject of orders in a general protections court application, is inconsistent with the proposition that the identification of the correct employer is a jurisdictional prerequisite to a valid application having been made. There may be cases in which there are legitimate strategic or practical reasons for an applicant to name as respondents, and pursue relief against, persons other than his or her employer. There is no reason for s 365 to be construed as preventing that course being adopted.
[41] We are conscious that some practical difficulties might be encountered in the Commission fulfilling its function under s 368 of the Act to deal with the dispute other than by arbitration if an applicant fails or refuses to identify his or her employer as a respondent to an application under s 365. However, the Commission has a broad discretion as to the manner in which it deals with an application under s 365 when exercising its powers under s 368. In Kirkham, for example, the Full Bench explained:34
Section 368(1) is non-prescriptive as to the means by which the Commission may attempt to resolve the dispute, and s 595(2) provides that the Commission may deal with a dispute (other than by arbitration) ‘as it considers appropriate’, including by mediation, conciliation, arbitration, making a recommendation or expressing an opinion. If the Commission chooses to conduct a conference, it may under s 592(1) direct a person to attend a conference. Although it is the usual practice of the Commission to do so, it is not required that a conference be conducted and, if a conference is conducted, it is a matter for the Commission as to who may be invited or required to attend that conference, regardless of who might be identified as respondents in the applicant’s application.
[42] The manner in which the Commission deals with a dismissal dispute is likely to be affected by the circumstances of a particular case, including the parties named in an application. However, the Commission is empowered to address circumstances such as those presented by Mr Minchin’s insistence that Civmec was his employer. Any practical difficulties that might arise do not provide a justification for construing s 365 as imposing additional jurisdictional hurdles that are not dictated by the text of the section.
[43] For these reasons, we do not accept 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 Mr Minchin’s former employer. We reject grounds 1.1 and 1.3 of the appeal.
[44] As to the remaining appeal ground, we do not read paragraph [24] of the Deputy President’s reasons in the way contended for by Civmec. The Deputy President did not invoke s 590 as a separate source of power to determine an application made under s 365. Having concluded that Civmec was not Mr Minchin’s employer but that the failure to name MSP as a respondent did not invalidate the application, the Deputy President did no more than identify that the “matter” with which the Commission was left to deal was whether the Commission had authority to deal with the dispute in accordance with s 368. That issue depends on the answer to the antecedent question of whether Mr Minchin had been dismissed. The Deputy President simply referred to s 590 as providing a means through which the Commission might inform itself in relation to the remaining objection to the application, that is, whether there had been a dismissal as a matter of fact. We reject ground 1.2 of the appeal.
Disposition
[45] For these reasons, permission to appeal should be granted but the appeal dismissed. The remaining jurisdictional objection will now need to be considered by the Deputy President.
[46] The Full Bench makes the following orders:
(a) Permission to appeal is granted; and
(b) The appeal is dismissed.”
Appeal by Civmec Construction & Engineering Pty Ltd v Minchin- Re [2025] FWCFB 2 delivered 8 January 2025 per Gibian VP, Clancy DP and Roberts DP