Brendan Baker v NC Labour Services Pty Ltd T/A Qfibre Labour

[2017] FWC 815

[2017] FWC 815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Brendan Baker
v
NC Labour Services Pty Ltd T/A Qfibre Labour
(C2016/6825)

COMMISSIONER LEE MELBOURNE, 7 FEBRUARY 2017

Alleged dispute about any matters arising under the modern award.

[1] Mr Brendan Baker (the Applicant) has made an application under s.739 of the Fair Work Act 2009 notifying a dispute to the Fair Work Commission (the Commission). The Respondent is NC Labour Services Pty Ltd T/A Qfibre Labour. The relevant instrument is the Building and Construction General On-site Award 2010 (the Award).

[2] The application was lodged on 18 November 2016. On 23 November 2016 my chambers wrote to the Applicant noting that based on the information provided in the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Form F10) it appeared that the Commission did not have jurisdiction to deal with the dispute as it appeared that no steps were taken to invoke the dispute resolution procedure at clause 9 while he was still employed by the Respondent. On 30 November 2016 the Applicant provided a response to chambers in relation to the jurisdictional issue raised.

[3] The matter was listed for conference, by telephone at 2.00pm AEDT on Wednesday 14 December 2016.

[4] On 14 December 2016 the Applicant was unable to be contacted by telephone to participate in the conference. Mr Willey, appearing for the Respondent, had misread the time as a result of the daylight savings time difference between Victoria and Queensland, however he advised he could proceed with the conference at approximately 3.00pm AEDT.  In any event, the conference could not be rescheduled given the failure of the Applicant to respond to contact from chambers.

[5] Prior to the scheduled conference on 13 December 2016 the Respondent sent correspondence to chambers attaching a Deed of Settlement (the Deed) dated 30 May 2016.

[6] Having considered the Applicant’s Form F10, the Deed provided and the Applicant’s failure to attend the scheduled conference, on 14 December 2016 I wrote to the parties indicating that based on the information in the Deed provided I had formed the preliminary view that the application had no reasonable prospects of success. The correspondence noted that the Applicant had made no contact with chambers to explain his failure to participate in the conference and that if he wished to proceed with the application he was to advise chambers by close of business Wednesday 21 December 2016.

[7] Subsequently, the Applicant sought to have the matter re-listed and advised that the reason for his non-attendance at the conference was that he was unavailable to take the conference call due to his phone being left at another premises that morning and it was not retrieved until a few days later.

[8] The matter was listed for conference, by telephone today 7 February 2017 at 3.00pm (Vic Time)/2.00pm (QLD Time).

[9] The Applicant was not contactable by telephone at the commencement of the conference. Numerous attempts were made by my chambers to contact the Applicant by telephone without success.

[10] Mr Willey, appearing for Respondent was available to participate in the conference. Mr Willey confirmed with me that no offer would be made by the Respondent to settle this matter and that the Respondent would not agree that the Fair Work Commission arbitrate the dispute.

[11] The Applicant has failed to participate in two conferences conducted by the Fair Work Commission. The Applicant’s excuse for not taking the call for the first conference does not explain why he did not make an attempt to contact the Commission on an alternate phone or by email in circumstances where he had been advised that the matter had been listed. In respect of the Applicant’s failure to participate in the conference today on 7 February 2017, there has been no contact from the Applicant at the time of this decision being issued.

[12] Section 587(1) of the Act provides:

“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.”

[13] The Applicant has manifestly failed to prosecute the application. The Respondent considers all matters related to the Applicant’s employment to have been settled as part of the Deed entered into on 30 May 2016 and have made clear that they will make no offers to settle this alleged dispute, nor consent to the Commission arbitrating the matter. In considering all the circumstances, I am satisfied that the application has no reasonable prospects of success. In that light, I am satisfied that it is appropriate in all the circumstances to dismiss the application.

[14] Accordingly, the application is dismissed under s.587(1)(c) of the Act.

COMMISSIONER

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