Fair Work Commission Jurisdiction

In Australia, the Fair Work Commission (FWC) can only assess unfair dismissal applications that fall within its jurisdiction. When an employer feels that the FWC does not have the authority to deal with an unfair dismissal application, or that the worker is not eligible, then they can lodge a jurisdictional objection. This article looks at the grounds for jurisdictional objection in the Fair Work Commission.

What is a jurisdictional objection?

An employer can raise a jurisdictional objection at the outset of a matter by including the objection on the standard Form F3 Response to an Unfair Dismissal Application. Lodging a jurisdictional objection means that the employer does not believe that the FWC has the authority to deal with the claim. The employer can also raise an objection at a later stage by lodging a Form F4 Objection to Application for Unfair Dismissal Remedy.

Forms F3 and F4 both provide an opportunity for the employer to raise an objection to the application for unfair dismissal if the applicant:

• was not employed by the employer specified in the application
• was employed for less than six months (or less than a year for employees of a small business)
• was not an employee of the business (for example because they were in fact a volunteer or an independent contractor)
• was dismissed at the end of a seasonal contract, specified period or task, or traineeship
• was not a regular casual employee with a reasonable expectation of continued employment
• was not a national system employee
• was genuinely made redundant
• resigned voluntarily or was in some other way not dismissed
• earned over the high-income threshold and was not employed under an enterprise agreement or covered by a modern award
• has made multiple applications on this matter or
• lodged their application after the deadline and had no grounds for extension.

What is the effect of a jurisdictional objection?

It is important to note that a jurisdictional objection does not halt an applicant’s unfair dismissal application. Rather, under Section 396 of the Fair Work Act 2009, any preliminary matters such as jurisdictional objections must be settled before the FWC can consider the merits of the application for unfair dismissal. A jurisdictional objection can be heard at the same time as the merits of an unfair dismissal application if the evidence that will be presented at the hearing is likely to be the same. At this hearing, the employer can present submissions and provide evidence of their jurisdictional concern.

If the objection is dismissed during a jurisdictional objection hearing, the FWC will then determine the merits of the unfair dismissal application, either at the same hearing or at a later hearing or conference.  Conversely, if the FWC decides that the objection is valid, it will dismiss the unfair dismissal application and the matter is at an end. If the matter is listed for conciliation when an objection is raised, the Commission staff will ask the respondent whether they are still willing to participate in the conciliation. If the parties do agree to continue to conciliation, the conciliators will try to help the parties resolve the dispute irrespective of the jurisdictional objection.

Case Study

The FWC recently held a hearing on a jurisdictional objection to a General Protections Application in Mr Gabriel Peddie v CJ Global Tech Pty Ltd [2024]. The applicant, Mr Peddie, filed an application on 1 March 2024 against a technology business called CJ Global Tech alleging that he was dismissed in contravention of section 365 of the Fair Work Act. On 9 March 2024, the respondent lodged a jurisdictional objection on the basis that Mr Peddie was not dismissed because he was never an employee of CJ Global Tech.

The matter was listed for hearing on 3 April 2024, where Commissioner Crawford considered evidence as to whether the applicant was an employee at the time of his dismissal, and therefore entitled to make a General Protections Application against the employer.

CJ Global Tech provided Mr Peddie with a signed letter of engagement for the position of Junior Full Stack Developer dated 20 December 2023. The letter contained a clause stipulating that the start date would be subsequently advised and was later agreed through email to be 29 January 2024. Mr Peddie attended the place of employment on this date and performed work in the subsequent days under the direction of the CEO, Mr Derry. On 31 January 2024, Mr Peddie met with Mr Derry and was told to cease work at the company. On 15 February 2024, Mr Peddie received an email terminating his employment, stating that the offer for employment was ‘not going to work’ and that they did not have a position for him going forward.

CJ Global Tech argued that the applicant had never commenced as an employee as he had not yet provided information (such as verification of identity) required for onboarding in the company’s internal accounting system. Commissioner Crawford rejected this argument and found that the applicant had commenced employment on 29 January 2024, as pursuant to the contract terms. The Commissioner noted that the parties had reached an agreement on the commencement date, and the applicant had attended the offices and begun to perform work at the direction of company. Crucially, it was found that the incomplete onboarding paperwork could not legally alter the fact that the applicant commenced work in accordance with the terms of the contract. Commissioner Crawford dismissed the jurisdictional objection and found that the applicant was an employee with a right to make a General Protections Application, and that his employment was terminated by CJ Global Tech.

For any assistance with defending an unfair dismissal claim or a jurisdictional objection, or for further information about any employment law matter, please contact Go To Court Lawyers on 1300 636 846.