Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Works Pty Ltd

[2022] FWC 2690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Downer EDI Works Pty Ltd

(C2022/1635)

COMMISSIONER CAMBRIDGE

SYDNEY, 7 OCTOBER 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES.

Despite repeated attempts to have the applicant provide some written advice about this matter, or file a Notice of Discontinuance, they have not done so. Therefore, pursuant to s. 587 of the Fair Work Act 2009, the application has no reasonable prospects of success and is dismissed for want of prosecution.

An Order [PR746562] dismissing the matter will be issued concurrently with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The Fair Work Commission heard a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Downer EDI Works Pty Ltd, concerning alleged issues arising under an enterprise agreement and the National Employment Standards. The union, acting on behalf of its members, submitted an application to the Commission, but despite multiple requests, the union did not provide any written advice or a Notice of Discontinuance as required. Consequently, the matter was dismissed by Commissioner Cambridge, pursuant to section 587 of the Fair Work Act 2009, due to the absence of reasonable prospects of success.

The primary legal issue the Court had to address was whether the union's failure to provide the required documentation or a Notice of Discontinuance resulted in the application being dismissed. This issue turned on the interpretation of section 587 of the Fair Work Act 2009, which allows the Commission to dismiss an application for want of prosecution if it is deemed to have no reasonable prospects of success. The Court found that the union's repeated failure to comply with the Commission's requests to provide necessary information or formally discontinue the application justified the dismissal of the case.

Commissioner Cambridge concluded that the application had no reasonable prospects of success and was dismissed for want of prosecution. The Commissioner emphasised the importance of compliance with procedural requirements in the Fair Work Act 2009 and noted that the union had not taken any steps to address the deficiencies in their application. As a result, the matter was dismissed, and an Order dismissing the application would be issued concurrently with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established