Anthony Girdler

[2022] FWC 2642

[2022] FWC 2642

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.158 - Application to vary or revoke a modern award

Anthony Girdler

(AM2022/16)

COMMISSIONER LEE MELBOURNE, 30 SEPTEMBER 2022

Application to vary a modern award – Fast Food Industry Award – special clothing laundry allowance – transport allowance – failure of applicant to attend mention – consideration of s.587 – request for submissions.

1. Mr Anthony Girdler (the Applicant) has made an application pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Fast Food Industry Award 2010 (Fast Food Award 2010).[1]

1. The Applicant seeks for the Commission to make the following variations:

·  by inserting a new subsection 19.2(c) (now 17.5(c)) to clarify that, where an employer has provided laundry facilities for staff to use, use of these facilities by an employee shall be optional; and

·  by increasing the transport allowance in clause 19.6(b) (now 17.8(a)) from $0.42 to $0.63 as a result of the increased cost of fuel and running expenses of motor vehicles.[2]

1. The matter was listed for mention at 2pm on 22 July 2022. The listing was sent by email to the Applicant and posted on the FWC website. The Applicant did not appear at the mention.

1. An email was sent to the Applicant on 22 July 2022, asking him to advise by not later than close of business on 28 July 2022, whether he intended to proceed with the application. No response was received.

1. A further email was sent to the Applicant on 29 July 2022, indicating that no response had yet been received to the 22 July email and requesting that the Applicant provide a response by no later than close of business on 5 August 2022.

1. Again, the Applicant has not responded to the email or made any contact with the Commission regarding his application.

1. Section 587 of the Act provides 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(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.”

1. Section 587(1)(c) of the FW Act provides that the Commission may dismiss an application that has ‘no reasonable prosects of success’. It may do so on its own initiative pursuant to s.587(3)(b).

1. As the Applicant has failed to attend the mention and has not responded to the correspondences referred to above, I am minded to exercise the Commission’s discretion to dismiss the application.

1. Prior to deciding whether the application should be dismissed, the Applicant is invited to provide any submissions as to why his application should not be dismissed, by close of business on 7 October 2022.

COMMISSIONER

[1] On 11 July 2022, the Fast Food Award was substantially varied and renamed the Fast Food Industry Award 2020, with effect from 28 July 2022.

[2] The motor vehicle allowance for employees engaged primarily to deliver an employer’s products using their own motor vehicle increased from $0.42 to $0.48 on 1 July 2022 following the 2021-22 Annual Wage Review. See PR740849.

Printed by authority of the Commonwealth Government Printer

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