Joshua Findley

[2018] FWC 1869

[2018] FWC 1869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Joshua Findley
(AG2016/3814)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 29 MARCH 2018

Application for termination of the MSS Security Victorian Enterprise Agreement 2011.

[1] Mr Joshua Findley made an application (the Application) to the Fair Work Commission (Commission) under s.225 of the Fair Work Act 2009 (Cth) (the Act) for termination of the MSS Security Victorian Enterprise Agreement 2011 (the 2011 Agreement) after its nominal expiry date.

[2] The employer covered by the Agreement, MSS Security Pty Ltd t/a MSS Security (MSS), objected to the application. The application was subsequently listed for hearing before me on 21 February 2018.

[3] On 19 February 2018, the Commission granted the application for the approval of the MSS Security Victorian Enterprise Agreement 2017 (the 2017 Agreement) 1. It was not disputed by the parties that the 2017 Agreement would apply to employees who were covered by the 2011 Agreement.

[4] The hearing date was vacated and my chambers sent correspondence to the parties on 19 February 2018 seeking their views as to the utility of the application proceeding considering the operation of section 58(2)(e) of the Act. Mr Findley requested that the matter be adjourned for 21 days pending the filing of any possible appeal. MSS did not object to this request.

[5] I advised the parties that I was amenable to holding the application open for a further 21 days and advised that, if a Notice of Discontinuance was not received at that time, I may exercise my discretion to dismiss the application under section 587 of the Act.

[6] On 13 March 2018, Mr Findley filed a submission in response. Mr Findley did not request to be heard in relation to this issue.

[7] In his submission, Mr Findley reiterated his concerns that the decision approving the 2017 Agreement may be appealed and submitted that, as he is no longer an employee of MSS, if he were to discontinue the application he would have no recourse if the 2011 Agreement were to resume operation.

The operation of section 58 of the Act

[8] Section 58 of the Act provides as follows:

“58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1) Only one enterprise agreement can apply to an employee at a particular time.

General rule – later agreement does not apply until earlier agreement passes its nominal expiry date

(2) If:

(a) an enterprise agreement (the earlier agreement ) applies to an employee in relation to particular employment; and

(b) another enterprise agreement (the later agreement ) that covers the employee in relation to the same employment comes into operation; and

(c) subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d) if the earlier agreement has not passed its nominal expiry date:

(i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e) if the earlier agreement has passed its nominal expiry date – the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.”

[9] Mr Findley raised concerns regarding the interpretation of s.58(2)(e). He submitted that on his interpretation, the 2011 Agreement could never apply again regardless of any appeal. However, Mr Findley noted that this had not been the case in recent matters before the Commission.

[10] Whilst it is not relevant to the issue before me, I note that if a decision approving an agreement is appealed and subsequently overturned, the effect of the Agreement being overturned is the same as if the Agreement had not been approved under the Act in the first instance. As such, s.58(2)(e) does not apply.

Utility of proceeding with the Application

[11] Section 587 of the Act provides as follows:

“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.”

[12] Mr Findley submitted that the application should not be dismissed under s.587(1)(c) of the Act as he believed it was highly likely to succeed. Mr Findley further submitted that, whilst it was not admitted, it could be said that as a result of the 2017 Agreement being approved, the application has now become frivolous. He submitted that he would support such a finding.

[13] The 2017 Agreement came into operation on 26 February 2018. In the circumstances, I am satisfied that due to the approval of the 2017 Agreement, Mr Findley’s application has now become frivolous. Therefore, I will exercise my power under s.587(1)(b) of the Fair Work Act 2009 to dismiss the application.

[14] An order 2 to that effect will be published separately to this decision.

COMMISSIONER

<PR601619>

 1   [2018] FWCA 926

 2   PR601620

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