Baking Industry Association of Queensland - Union of Employers

[2014] FWC 1975

[2014] FWC 1975

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Baking Industry Association of Queensland - Union of Employers
(AM2012/179)

FAST FOOD INDUSTRY AWARD 2010
[MA000003]

Fast food industry

COMMISSIONER BULL

SYDNEY, 1 APRIL 2014

Modern Awards Review 2012 – Fast Food Industry Award 2010.

[1] This application is made pursuant to Schedule 5 - Modern Awards (Other than Modern Enterprise Awards and State Reference Public Sector Modern Awards), Part 2, Item 6 Review of all modern awards (other than modern enterprise awards and state reference public sector modern awards) after first 2 years of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards.

[2] The purpose of the Transitional Review is to ensure that after two years of their operation, modern awards are meeting the modern award objective and are operating effectively without anomalies or technical problems.

[3] On 17 November 2011, the previous President, Justice Giudice, issued a statement [[2011] FWA 7975] calling for applications to be made to vary modern awards as part of the Transitional Review.

[4] The legislative basis for the exercise of the Commission’s power to vary modern awards is found in s.157(1) of the FW Act. The power is discretionary in nature, its exercise conditioned upon the Commission being satisfied that the variation is “necessary” in order “to achieve the modern awards objective.” 1

[5] On 8 March 2012, the Baking Industry Association of Queensland - Union of Employers (the Applicant) applied to vary the Fast Food Industry Award 2010 (the Award).

[6] In its application the Applicant proposed a number of variations to the Award. The Applicant was advised that the some of the proposed variations had been dealt with by way of a Full Bench.

[7] Applications that did not raise common issues were allocated to a single member of the Commission. The matter was allocated to my Chambers on 21 October 2013.

[8] On 21 November 2013, the Commission sent correspondence to the Applicant to outline a number of matters that remained outstanding in respect to their application. The Applicant was requested to advise my Chambers of any outstanding matters it sought to have determined in relation to their application by no later than close of business 29 November 2013.

[9] The Commission did not receive correspondence from the Applicant by this date.

[10] Further correspondence was sent to the Applicant by the Commission on 3 February 2014, providing a further opportunity for the Applicant to advise the Commission with respect to the outstanding matters relating to its application.

[11] As no response was received in relation to this correspondence, the Commission advised the Applicant on 6 March 2014, that the matter would be dismissed if the Commission did not hear from the Applicant by close of business 13 March 2014.

[12] The Commission did not receive correspondence from the Applicant by this date.

[13] On 25 March 2014 my Chambers phoned the Applicant and was advised that the contact person named in the application was no longer employed by the Applicant. My Chambers was advised to send correspondence to the Applicant’s General Manager, Ms Janet Blythman.

[14] Correspondence was sent to Ms Blythman on 25 March 2014 along with a copy of the previous correspondence sent to the Applicant. Ms Blythman was advised that the Commission had reached a conclusion that the Applicant no longer sought to pursue its application but if this was not the case the Applicant should contact my Chambers by no later than Friday 28 March 2014 or the matter would be dismissed.

[15] The Applicant has not made contact with my Chambers.

[16] I note that the Applicant has also made a number of other applications as part of the Modern Awards Review 2012 process and has also failed to participate in the hearings and other processes conducted by the Commission. 2

[17] Section 587 of the FW Act provides powers to the Commission to dismiss applications. It 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

(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.

(My emphasis)

[18] Pursuant to the powers of s.587 of the FW Act it provides that the Commission may dismiss an application on its own initiative (s.587(3)(a)).

[19] The Applicant has been provided with a number of opportunities to advise the Commission as to the outstanding variations it seeks to have determined in its application. The Applicant has not sought to make contact with the Commission.

[20] In these circumstances, and given the absence of any further advice and material to support the application, I hereby dismiss the application pursuant to 587(3)(a) of the FW Act for want of prosecution.

COMMISSIONER

 1   Tracey Jin Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480.

 2   See Modern Awards Review 2012—Penalty Rates [2013] FWCFB 1635 at paragraph 282 and Modern Awards Review 2012 - Food, Beverage and Tobacco Manufacturing Award 2010 [2013] FWC 4637 at paragraphs 5-8 as examples.

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<Price code A, MA000003  PR548939 >