PR583355 - Decision - 26 Jul 2016

[2016] FWC 5063


Fair Work Act 2009

s.739—Dispute resolution

Victoria Lea
Sally’s Place

Children’s services



Alleged dispute about any matters arising under the modern award and the NES;[s146].

[1] On 19 July 2016 Ms Victoria Lea made an application for the Fair Work Commission (the Commission) to deal with a dispute arising under the Children’s Services Award 2010 (the Award). Clause 9 of the Award provides a procedure for dealing with disputes,for the purposes of s.739(a) of the Fair Work Act 2009 (Cth) (the Act).

[2] This dispute was subject to a conference by telephone before me on 26 July 2016.

[3] Ms Lea was represented by Mr Pararajasingham and Ms D’Souza from United Voice. There was no appearance by the Respondent.

[4] Ms Lea submits she has complied with clause 9.1 of the Award by making several attempts to contact the Respondent to ascertain why she had not been paid. The Respondent did not provide any reasons.

[5] A number of unsuccessful attempts were made by my Associate to contact the Respondent prior to the convening of the conference. The Respondent failed to attend the conference or provide any notice advising the Commission that they would not be in attendance.

[6] Ms Lea’s representative from United Voice has also attempted to contact the Respondent to ascertain why she has not been paid. The United Voice representatives have been unable to make contact with the Respondent.

[7] Ms Lea and the representatives from United Voice submit all avenues open to them under clause 9.1 of the Award have been exhausted.

[8] Ms Lea submits the Respondent has failed to comply with Clause 19 of the Award,Payment of Wages. Ms Lea submits she is usually paid on a fortnightly basis however the Respondent ceased paying her wages and other entitlements from 18 June 2016.

[9] Ms Lea sought for the Commission to make an order for the Respondent to make payment of wages in accordance with clause 19.

[10] Section 739 of the Act provides the following:

    Section 739 Disputes Dealt with by the FWC
    (1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

    (3) In dealing with a dispute,the FWC must not exercise any powers limited by the term.

    (4) If,in accordance with the term,the parties have agreed that the FWC may arbitrate (however described) the dispute,the FWC may do so.”

[11] The dispute resolution clause in the Award does not empower the Commission to arbitrate the matter. For this reason,and as acknowledged by United Voice,the Commission is unlikely to have the power to arbitrate the matter and make the orders being sought by Ms Lea.

It is clear from the materials before me the Respondent is required to comply with clause 19.2 of the Award. Ms Lea and United Voice are seeking for the Respondent to comply with clause 19. I therefore strongly recommend the Respondent comply with clause 19 of the Award and communicate with the Applicant,United Voice and its employees about the circumstances of the business.


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PR583355 - Decision - 26 Jul 2016
26 Jul 2016
29 Jul 2017
PR583355 - Decision - 26 Jul 2016
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