NXGEN Cabling Pty Ltd

[2022] FWC 735

[2022] FWC 735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NXGEN Cabling Pty Ltd

(AG2022/632)

COMMISSIONER P RYAN SYDNEY, 1 APRIL 2022

Application for approval of a single-enterprise agreement – Application dismissed for want of prosecution

Background

1. NXGEN Cabling Pty Ltd (Applicant) filed an application for approval of a single-enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act) (Application)

1. On 21 March 2022, my chambers sent correspondence to the Applicant seeking responses and/or undertakings in relation to various issues of concern that were identified with Application. That correspondence requested a response by 4:00pm on 23 March 2022. The Applicant did not respond.

1. On 24 March 2022, my chambers sent correspondence to the Applicant referring to the correspondence set out at [3] above and sought responses and/or undertakings in relation to the various issues of concern that were identified with Application, as well as an explanation for the lack of a response to the earlier correspondence. This correspondence requested a response by 4:00pm on 25 March 2022. The Applicant did not respond.

1. On 29 March 2022, my chambers sent correspondence to the Applicant referring to the correspondence set out at [3] and [4] above and advised that if “a response is not received by 4:00pm on Thursday 31 March 2022, the Application may be dismissed pursuant to s587 of the Fair Work Act 2009 without further notice.” (Emphasis in original)

1. The Applicant did not respond.

1. I note each item of correspondence referred to above was copied to the bargaining representatives notified to the Commission as part of the Application.

Legislative Provisions

1. Section 587 of the FW Act provides 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 words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Consideration

1. Taking into consideration the Applicant’s failure to respond to correspondence from the Commission on three occasions, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

1. For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

Disposition

1. The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

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