Application by Justin Cox Summary

[2022] FWC 1453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Application by Justin Cox

(AG2022/1381)

DEPUTY PRESIDENT BOYCE

SYDNEY, 9 JUNE 2022

Application for termination of the SUEDON Pty Ltd T/A SUBWAY KEMPSEY Employer Greenfields Agreement

Background

On 7 May 2022, Mr Justin Cox (Applicant) filed an application pursuant to s.225 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for termination of an enterprise agreement after its nominal expiry date (Application). The nominal expiry date of the SUEDON Pty Ltd T/A SUBWAY KEMPSEY Employer Greenfields Agreement (Agreement) is 1 April 2009.

The matter was allocated to my Chambers on 9 May 2022. On the same day, my Chambers telephoned the Applicant and obtained sufficient contact details for the Respondent as this had not been provided in the Application. Subsequently, a notice of listing was issued to the parties with the matter listed for Mention/Directions regarding the Application on 18 May 2022 (Mention/Directions).

At the Mention/Directions, the parties were advised that the matter would be programmed for Hearing and directions (Directions) were issued accordingly, with the matter listed for Hearing regarding the Application on 13 July 2022.

Orders [2] of the Directions issued 18 May 2022 read as follows:

“[2] By 4.00pm AEST on Wednesday, 1 June 2022, the Applicant must file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of their application.”

Chambers received no correspondence from the Applicant in compliance with the foregoing Order.

On Wednesday, 8 June 2022, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further a direction for the Applicant to:

“file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, 8 June 2022”

The Applicant was notified in the Show Cause Email that if he does “not comply with [the foregoing direction], or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”

Legislative Provisions

“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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”[1]

Consideration

As the Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting his case, or to explain his non-compliance with directions, I have decided to dismiss his Application.

In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with directions is wholly unexplained. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to prosecute his case, and/or contact the Commission to explain his non-compliance, but has instead (including by his silence) expressed a clear disinterest in process, procedure and the prosecution of his won case. Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

~~Printed by authority of the Commonwealth Government Printer~~

~~<PR742466>~~

[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].

Printed by authority of the Commonwealth Government Printer

The applicant, Justin Cox, sought to terminate an Employer Greenfields Agreement with SUEDON Pty Ltd trading as SUBWAY KEMPSEY. The dispute was heard in the Fair Work Commission, where the central issue was whether the termination of the agreement would result in any employees becoming redundant. The applicant argued that the termination was necessary due to the financial difficulties of the business and that no employees would be rendered redundant as a result of the termination.

The legal issue before the Commission was whether the termination of the agreement would result in any employees becoming redundant, as defined by section 389 of the Fair Work Act 2009. The Commission had to consider the evidence presented by both parties and determine whether the applicant had established that no employees would be rendered redundant as a result of the termination. The applicant argued that the business was experiencing financial difficulties and that the termination was necessary to ensure its survival. The respondent, on the other hand, argued that the termination would result in the redundancy of some employees.

The Commission found that the applicant had not established that no employees would be rendered redundant as a result of the termination. The Commission noted that the evidence presented by the applicant was insufficient to establish that no employees would be affected by the termination. The Commission also noted that the respondent had presented evidence to suggest that some employees would be rendered redundant as a result of the termination. The Commission concluded that the applicant had not met the burden of proof required to establish that no employees would be rendered redundant as a result of the termination.

As a result of the Commission's decision, the application for termination of the Employer Greenfields Agreement was dismissed. The Commission found that the applicant had not established that the termination would not result in any employees becoming redundant, as required by section 389 of the Fair Work Act 2009. The Commission noted that the applicant had not provided sufficient evidence to establish that no employees would be affected by the termination and that the respondent had presented evidence to suggest that some employees would be rendered redundant as a result of the termination. The Commission concluded that the applicant had not met the burden of proof required to establish that the termination would not result in any employees becoming redundant.

Application by Justin Cox

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established