All State Shopfitting Pty Limited

[2014] FWCA 5037

[2014] FWCA 5037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

All State Shopfitting Pty Limited
(AG2014/5585)

ALL STATE SHOPFITTING PTY LIMITED / CFMEU ENTERPRISE AGREEMENT EXPIRING 31 MARCH 2008

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 4 AUGUST 2014

Application for termination of the All State Shopfitting Pty Limited.

[1] An application was made pursuant to s.225 of the Fair Work Act (2009) (the Act) for the termination of the All State Shopfitting Pty Ltd / CFMEU Enterprise Agreement expiring 31 March 2008 (AG848824) (the Agreement) by the employer, All State Shopfitting Pty Limited on 20 December 2013. The application was signed by the General Manager, Philip Glendenning.

[2] The Fair Work Commission (the Commission) may terminate an enterprise agreement when an application is made under s.225 where the requirements contained in s.226 are met.

[3] These sections provide as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] An applicant is required to satisfy the Commission that the requirements of s.226 have been met, including by the provision of a statutory declaration and/or other evidence demonstrating compliance.

[5] The application by All State Shopfitting Pty Limited (the Employer) did not meet those requirements, only a F24 form had been provided in the application. My chambers sent an email on 8 April to Mr Glendenning and copied in the contact person mentioned in the F24 form, Ms Melissa Burge. A copy of that email was also sent to the email address "[e-mail]" which appeared on the covering correspondence to the Sydney Registry when the matter was filed. This email set out the criteria listed in s.226 which needed to be satisfied if the agreement were to be terminated. This correspondence stipulated a response was required within seven days (16 April).

[6] There was no response to this email, nor was there a response to a further follow-up email sent on 24 April. This second email copied in the CFMEU, as they were a party to the original agreement. There was no response from the CFMEU either.

[7] The matter was then listed for telephone hearing on 26 May with Telstra connecting. The parties included in the Notice of Listing for the hearing were "Ms Melissa Burge" of All State Shopfitting Pty Ltd and "Debbie" at Hawkesbury Consulting. At the time of the hearing Telstra reported that neither of the parties was available for the hearing.

[8] On 6 July 2014 a further email was sent from my chambers to Ms Burge requesting that if the applicant did not wish to proceed with the application, an attached “Notice of Discontinuance” should be completed and returned to chambers. There was no response to this email.

[9] The Commission has no material before it upon which it can be satisfied that the matters stipulated by s.226 of the Act have been met. In the circumstances I can only conclude that the Applicant has no interest in progressing the application. Accordingly, the application is dismissed pursuant to s.587(3) of the Act, which section is set out as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] The Agreement therefore, remains in operation.

DEPUTY PRESIDENT

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<Price code A, AG848824  PR553568>