Mr K v The Employer

[2021] FWC 5611

[2021] FWC 5611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Mr K
v
The Employer
(B2021/870)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 SEPTEMBER 2021

Application for a bargaining order – Application dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] In a decision made on 19 April 2021 (the Dismissal decision), 1 Commissioner Platt dismissed an unfair dismissal application made by Mr K (the Applicant) pursuant to s.587 of the Fair Work Act 2009 (the Act). In making the Dismissal decision, the Commissioner determined to de-identify the names of the Applicant and the Employer.2 The Applicant then lodged notices of appeal and sought permission to appeal the Dismissal decision. Permission to appeal was refused by the Full Bench in a decision made on 12 August 2021.3 The Full Bench maintained the de-identification of the parties and I also did so in a decision made on 2 September 20214 in which I dismissed four subsequent applications made by the Applicant.5

[2] On 6 September 2021, the Applicant made an application pursuant to s.229 of the Act for a bargaining order (the s.229 Application). Section 229 falls within Part 2-4 of the Act which deals with enterprise agreements and which has the stated objects outlined in s.171 of the Act. Further, it falls within Division 8 of Part 2-4, which deals with the Commission’s role in facilitating enterprise bargaining.

[3] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. Having reviewed the Form F32 application form and having regard to the decisions referred to above, I consider I am in a position to determine the s.229 Application on the papers and will do so. The facts giving rise to this application do not involve enterprise bargaining and neither the Applicant nor the Employer are bargaining representatives. As such neither party has standing to apply to the Commission for a bargaining order. This being the case, the s.229 Application has no reasonable prospects of success. I am therefore persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the s.229 Application on this basis. An Order to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

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<PR733695>

 1   [2021] FWC 2132.

 2 Ibid at [28].

 3   [2021] FWCFB 3162.

 4   [2021] FWC 5489.

 5   The four applications were made pursuant to s.234, s.240, s.448 and s.603 of the Fair Work Act 2009.