Mid North Coast Plumbing Pty Ltd T/A Mid North Coast Plumbing

[2022] FWC 1478

[2022] FWC 1478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Mid North Coast Plumbing Pty Ltd T/A Mid North Coast Plumbing

(AG2022/1183)

DEPUTY PRESIDENT EASTON SYDNEY, 10 JUNE 2022

Application for termination of the Mid North Coast Plumbing Pty Ltd – Regional Plumbing Enterprise Agreement 2017-2019.

1. On 20 April 2022 Mr Jason Hammond applied to the Fair Work Commission under s.225 of the Fair Work Act 2009 (Cth) (the Act) for the termination of the Mid North Coast Plumbing Pty Ltd – Regional Plumbing Enterprise Agreement 2017-2019 (the Agreement).

1. On the same day a client services representative contacted Mr Hammond advising him that the application must be accompanied by a Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date. Further information was sought from Mr Hammond about the agreement to be terminated as the Commission was unable to locate an approved agreement, decision or application that matched the name provided on the application. The Commission was able to locate an agreement “M.N.C Plumbing Pty Ltd Regional   Plumbing Enterprise Agreement 2016- 2019[1]” approved by Commissioner Cirkovic on 30 May 2018.

1. A further telephone call was made to Mr Hammond seeking to confirm whether “M.N.C Plumbing Pty Ltd Regional Plumbing Enterprise Agreement 2016-2019” was the agreement he wished to terminate. Mr Hammond indicated that he was unsure if it was the correct agreement and was unsure as to whether the Agreement had actually been registered. A copy of the M.N.C Plumbing Pty Ltd Regional Plumbing Enterprise Agreement 2016-2019 was sent to Mr Hammond to check whether that was the agreement he wished to apply to terminate.

1. Mr Hammond contacted the Commission again and advised that he would not be proceeding with the application as to his understanding, the incorrect instrument was named and may need to resolve other issues first. The Commission advised Mr Hammond that he would need to discontinue by writing.

1. The matter was allocated to my Chambers on 28 April 2022. Mr Hammond was asked to respond by 4:00pm on 29 April 2022 whether he wished to continue his application for the termination of the Agreement, and if so, a telephone directions hearing would be listed on 6 May 2022.

2. A further email was sent to Mr Hammond on 13 May 2022 advising that the Commission was unable to progress the application and a telephone directions hearing was listed on 24 May 2022. Mr Hammond was advised that if no response was received and/or there was no attendance at the telephone directions hearing, I would determine, without further reference to the parties, whether there were any reasonable prospects of success and whether the application should be dismissed under s.587 of the Act.

1. There was no appearance by Mr Hammond at the telephone directions hearing. The Commission sent Mr Hammond a text message, an email and attempted to contact him by telephone three times on his mobile phone.

1. The Commission has received no further correspondence or telephone contact has been received from Mr Hammond to date.

1. Section 587 of the Act is 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.”

1. The power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution.[2] This is because such a decision results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their ‘day in court’.[3]

1. Numerous attempts have been made to contact Mr Hammond. The Applicant has failed to engage with the application, has shown no willingness to prosecute his case and has taken no steps to do so.

1. In these circumstances, I am persuaded that I should exercise my discretion under s.587(1)(c) of the Act and dismiss the Applicant’s application for want of prosecution.

DEPUTY PRESIDENT

[1] AE428576.

[2] General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 at 128-9.

[3] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].

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