Laurence Baker

[2015] FWC 6490

[2015] FWC 6490

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Laurence Baker
(AG2015/1425)

Tasmania
COMMISSIONER LEE	MELBOURNE, 22 SEPTEMBER 2015

Application for termination of the Golden Electronics Control Room Operators Employee Collective Agreement 2007 - application dismissed.

[1] On 12 June 2015, Mr Laurence Baker (the Applicant) made application to terminate the Golden Electronics Control Room Operators Employee Collective Agreement 2009 1 (the Agreement) pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Agreement covers employees of Maura Holdings Pty Ltd (the Respondent). Maura Holdings Pty Ltd trades as Golden Electronics Security. The Respondent opposes the application.

[2] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides at Item 16 of Schedule 3 states;

“16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) contains sections 225 to 227.

[4] Sections 225 and 226 of the FW Act provide as follows:

“s. 225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

s. 226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[5] I issued Directions for the filing of material relevant to my determination, and listed the matter for hearing on 24 August.

[6] On 20 July 2015, the Respondent advised my chambers that the Applicant was no longer employed with the business.

[7] The Applicant did not comply with my directions to file material in support of his application.

[8] I wrote to the Applicant and advised that as he had not provided documents in response to my Directions, I sought his urgent advice as to whether he wished to proceed with the application.

[9] The Applicant responded to that correspondence outlining a number of reasons as to why he had not complied with my Directions. The Applicant advised that whilst he was no longer an employee he wished to continue his application.

[10] Subsequent to this correspondence, my associate advised the parties that I would conduct a telephone conference on Tuesday 25 August. It was noted that as the Applicant had not provided materials in the matter, the hearing listed for 24 August would be cancelled.

[11] The Applicant did not attend the telephone conference on 25 August.

[12] As a consequence, I issued further Directions advising the Applicant that he was to provide in writing reasons why the application should not be dismissed by no later than Thursday 3 September 2015. The Directions indicated that should I not hear from the Applicant by that time, the application would be dismissed.

[13] No response has been received from the Applicant.

[14] Section 587 of the FW Act 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.”

[15] The Applicant has failed to provide the Fair Work Commission with any material in support of his application, despite several opportunities to do so. As such, I find the application has no reasonable prospects of success, and the application is dismissed pursuant to s.587(1)(c).

COMMISSIONER

 1   AC312158

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