Application by Mrs Savannah Stapleton

[2020] FWC 4291

[2020] FWC 4291

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Application by Mrs Savannah Stapleton
(AG2020/2217)

Retail industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 AUGUST 2020

Application for termination of the Maxi Foods Supermarkets Workplace Agreement (2006).

[1] On 28 July 2020 Mrs Savannah Stapleton applied to the Commission, pursuant to item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act), for termination of the Maxi Foods Supermarkets Workplace Agreement (2006) (Agreement), which is a collective agreement-based transitional instrument.

[2] Section 585 of the Fair Work Act 2009 (Act) provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind.

[3] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Rule 26(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that an application under s.225 of the Act for termination of an enterprise agreement after its nominal expiry date must be accompanied by a declaration by the applicant or an officer or authorised employee of the applicant setting out the basis upon which the Commission can be satisfied that the requirements of s.226 of the Act have been met.

[4] The application was not accompanied by a declaration and so did not comply with Rule 26(2) of the FWC Rules.

[5] On 29 July 2020, after attempting unsuccessfully to contact the Applicant by telephone, a staff member of the Commission wrote to Mrs Stapleton advising that a declaration was required. Later that day the Applicant contacted the Commission by telephone and was directed to the relevant section of the Commission’s website where the approved form could be accessed. Mrs Stapleton indicated that she would complete the requisite declaration and return it to the Commission.

[6] On 4 August 2020 my Associate attempted unsuccessfully to contact the Applicant by telephone to request submission of the declaration as soon as possible.

[7] On 5 August 2020 my Associate again attempted unsuccessfully to contact the Applicant by telephone. On even date, my Associate wrote to Mrs Stapleton attaching a blank copy of the required declaration and requesting that it be completed and returned as soon as practicable. No response was received.

[8] On 12 August 2020, after a further unsuccessful attempt to contact the Applicant by telephone and in the ongoing absence of any response from Mrs Stapleton, my Associate wrote to her indicating that her application would likely be dismissed if the requisite declaration was not received by midday on Friday, 14 August 2020.

[9] At the time of this decision, Mrs Stapleton has not filed a declaration in support of her application. She has taken no measures to press her application despite numerous attempts by the Commission to obtain a complete application. Consequently, and as foreshadowed in the correspondence to Mrs Stapleton on 12 August 2020, I have decided to dismiss her application pursuant to s.587 of the Act.

[10] Section 587 of the Act relevantly states:

“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

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

...”

[11] Although the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution, 1 the numerous attempts made to contact Mrs Stapleton to discuss her application and the issue mentioned above have amounted to naught. The Applicant has failed to engage with the application. In circumstances where Mrs Stapleton has been notified of a deficiency with her application and has been invited to remedy this deficiency, but has failed to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

[12] There is an alternative basis for dismissing the application. As earlier set out, ss.225 and 226 of the Act apply to this application as though the reference in those provisions to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Despite repeated attempts to obtain from the Applicant material in support of the application to terminate the Agreement, apart from the bare application nothing has been provided. In the circumstances I am unable to reach the requisite state of satisfaction as to the matter in s.226(a), nor am I able to reach the conclusion that termination of the Agreement is appropriate including the matters identified in s.226(b)(i) and (ii). Accordingly, I would refuse the application and dismiss it.

Order

[13] The Application in AG2020/2217 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AC300018 PR721844>

 1   General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 at 128-9