DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Mr Mark Reginald McDonnell
(AG2021/4067)

Fast food industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 APRIL 2021

Application for termination of the Flag of Convenience Enterprise Agreement after its nominal expiry date – standing – application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 24 March 2021. On 5 March 2021 Mr Mark Reginald McDonnell (Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Flag of Convenience Enterprise Agreement (Agreement) after its nominal expiry date.

[2] The application was listed for a telephone directions hearing before me on 24 March 2021. Mr McDonnell was invited to provide written submissions on the question of standing to make the application. Mr McDonnell declined to do so. In the circumstances I determined to dismiss the application. My reasons for doing so follow.

[3] Section 225 of the Act provides who has standing to make an application to terminate an agreement after its nominal expiry date as follows:

“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 followingmay 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; and

[4] Relevantly, one of the classes of persons is an employee covered by the agreement that is the subject of the application.

[5] It is uncontroversial that Mr McDonnell’s employment with Ishaka Pty Ltd (Respondent) ceased on 28 February 2021. When the employment came to an end Mr McDonnell ceased to be covered by the Agreement.

[6] Mr McDonnell lodged his application with the Commission on 5 March 2021, and was therefore, at the time of lodgement, not employed by the Respondent or covered by the Agreement. In the result Mr McDonnell does not have standing to bring the application to terminate the Agreement.

[7] The application was therefore not made in accordance with the Act. It follows that the application is dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

Mr M McDonnell on behalf of himself
Mr M Shamim on behalf of the Respondent

Hearing details:

2021
Melbourne (via telephone)
24 March

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Mr Mark Reginald McDonnell involved an application for the termination of the Flag of Convenience Enterprise Agreement following its nominal expiry date. Mr McDonnell sought the termination of the agreement, which was governed by the Fair Work Act 2009. The dispute centred around the interpretation and application of the Act in the context of the expiry of the enterprise agreement. The court was required to determine whether the application was properly before it and if the agreement could be terminated despite its expiry.

The primary legal issue the court had to address was the standing of Mr McDonnell to bring the application for the termination of the enterprise agreement. The court considered whether Mr McDonnell had a sufficient connection to the agreement and the parties involved to warrant the court's intervention. Additionally, the court examined whether the application was made within the appropriate timeframe and whether there were any procedural irregularities that might affect the validity of the proceedings.

The court found that Mr McDonnell did not have the necessary standing to bring the application for termination of the enterprise agreement. The decision was based on the interpretation of the Fair Work Act 2009 and the procedural requirements outlined therein. The court held that Mr McDonnell did not meet the criteria for standing as required by the Act, and therefore, the application was dismissed. The decision underscored the importance of procedural compliance and the limitations on who may seek to terminate an enterprise agreement under the Fair Work Act.

The court's dismissal of the application resulted in no orders being made in favour of Mr McDonnell. The Flag of Convenience Enterprise Agreement remained in effect beyond its nominal expiry date, pending any further legal challenges or negotiations between the parties involved.

Mr Mark Reginald McDonnell

DECISION

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