Kanodia Nominees Pty Ltd T/A Glendal Foods
[2024] FWCA 3040
•22 NOVEMBER 2024
| [2024] FWCA 3040 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Kanodia Nominees Pty Ltd T/A Glendal Foods
(AG2024/2475)
| COMMISSIONER MIRABELLA | MELBOURNE, 22 NOVEMBER 2024 |
Application for termination of the GLENDAL FOODS: Collective Agreement 2015
An application was filed by Kanodia Nominees Pty Ltd T/A Glendal Foods (the Applicant) seeking the termination of the Glendal Foods Collective Agreement 2015 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement has passed its nominal expiry date of 7 July 2019.
The United Workers’ Union (the UWU) is covered by the Agreement. Upon lodgement of the application on 4 July 2024, the Applicant served copies of the Form F24B application and the Form F24C statutory declaration made by Ms Helen Politis on the UWU. On 17 July 2024, I caused an email to be sent to the UWU seeking their views regarding the proposed termination and requesting that any views be provided by 22 July 2024. UWU stated they do not oppose termination of the Agreement.
The Commission must be satisfied that the requirements in s.225, s.226 and s.226A of the Act are met prior to approving the termination of the Agreement
On 20 August 2024, my chambers sent an email to the Applicant’s representative Ms Politis requesting confirmation that she is an employee of the Applicant or submission of a revised Form F24C by an employee of the Applicant.
On 23 August 2024, Ms Politis sent Chambers an email which appeared to refile the Form F24C already provided.
On the 29 August 2024, my chambers sent an email to Ms Politis advising that she had appeared to have refiled the declaration provided with the Application. Ms Politis was requested to confirm that she is an employee of the Applicant or alternatively submit a revised Form F24C signed by an employee of the Applicant.
Later that same day, Ms Politis sent an email to Chambers which did not appear to have a Form F24C attached to it. I caused an email to be sent to Ms Politis advising her of this and requesting that the completed declaration be submitted to Chambers by 4pm.
On 29 August 2024, Ms Politis sent chambers an email filing a revised Form F24C which was signed by an employee of the Applicant.
On 30 September 2024, my chambers sent an email to the Applicant requesting they specify the grounds upon which application (AG2024/2475) is made.
On 4 October 2024, my chambers received submissions from Ms Politis regarding the grounds upon which the Applicant is applying to terminate the Agreement under.
On 9 October 2024, my chambers spoke with Ms Politis to advise her that despite receiving her correspondence, it was still unclear which parts of the Act the Applicant is relying on to terminate the Agreement under. It was confirmed that the Applicant still has employees which are covered by the Agreement despite having ticked in Form F24C that the Agreement does not apply to any employees. To clarify matters, it was requested that the Applicant resubmit Form F24C by midday 11 October 2024 and provide more information on the ground selected as the reason for terminating the Agreement.
On 11 October 2024 an email was sent to Chambers filing the amended Form F24C declaration. It was provided by the Applicant’s representative.
On 15 October 2024, my Chambers spoke with Ms Politis. She was advised that the Form F24C submitted was still deficient because it needed to be a declaration by the employer and not by the Applicant’s representative. Ms Politis was further advised that the Agreement has not been compared to the Award as required under Q2.1 of Form F24C grounds for termination. Additionally, there was no mention of which award applies and how employees are better off under the Award.
Later that day my chambers sent an email to Ms Politis requesting a new Form F24C be filed. The parties were advised that this is the fourth attempt to submit a correct Form F24C and the Commissioner may proceed to determine the matter on the materials before her if the newly filed Form F24C is deficient.
Chambers left a voicemail to Ms Politis stating that she missed the deadline to submit an amended declaration form. It was requested that Ms Politis inform Chambers how the Applicant would like to proceed with the application.
On the 22 October, a follow up email was sent to the Applicant enquiring as to the reason for the Applicant’s delay in providing the requested material and stating the material must be filed by 4pm 24 October 2024 or the Commissioner will decide the matter on the material currently before her.
Upon request on 24 October 2024, an extension of time to file an amended Form F24C was granted until 30 October 2024.
On 31 October 2024 submissions were requested on the factor in s.226(3)(a) FWA, the views of employees covered by the Agreement. Later that day, Ms Politis stated that due to leave arrangements, she would be unable to provide the views of employees before 11 November 2024.
To date, no further submissions have been provided and the Applicant has not engaged further with the Commission.
Consideration
Section 587 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.
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)
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.”
I consider that as the Applicant has failed to prosecute its application, the application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the Act. An order giving effect to this decision will be issued shortly.
COMMISSIONER
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