Robert Loveridge, Lynette Searle, Frank West, Dennis Morgan, Terence Tobutt

[2013] FWC 4241

[2013] FWC 4241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Robert Loveridge, Lynette Searle, Frank West, Dennis Morgan, Terence Tobutt
(AG2012/10862, AG2012/10887, AG2012/11385, AG2012/11889, AG2012/11891)

Miscellaneous
COMMISSIONER BISSETT	MELBOURNE, 1 JULY 2013

Case procedure - no action taken to prosecute claims - applications dismissed.

[1] In September 2012 the Fair Work Commission (then Fair Work Australia) received a number of applications from named individuals for the termination of the Serco Sodexo Defence Services Pty Ltd Garrison Support Services Central Northern New South Wales Agreement 2009 (the Agreement).

[2] A hearing with respect to the applications was held in Sydney on 16 October 2012. 1 United Voice represented some of the Applicants at that hearing. At the conclusion of the hearing United Voice undertook to advise me within six weeks of the hearing the extent to which United Voice represented individual Applicants and, if so, whether it was intended to proceed with the applications.

[3] On 22 October 2012 some further applications (including AG2012/11889 and AG2012/11891) were lodged with the Commission.

[4] On 26 October 2012 my chambers contacted the Applicants in respect of the applications received on 22 October 2012 and advised each of them that their applications would be dealt with along with the applications which were subject to the hearing on 16 October 2012. They were also advised that, arising from the hearing on 16 October 2012 the Commission was waiting for advice from United Voice as to whether the applications were to be pressed and inviting the Applicants to contact my chambers should they have any query.

[5] United Voice subsequently advised me that it represented some of the Applicants and that these applications were discontinued.

[6] The applications listed for this decision have not been discontinued.

[7] On 8 April 2012, on my instructions, my associate emailed each of the Applicants advising that there has been no activity on the files or requests to have the matter listed since the hearing on 16 October 2012. Further the Applicants were each asked to advise if they wished to pursue the application or discontinue the application. No reply has been received from the Applicants to indicate if they wish to pursue the application or discontinue it.

The legislative provisions

[8] The Fair Work Act 2009 provides the Commission with power to dismiss an application:

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.

[9] Section 587 does not limit the grounds on which an application may be dismissed as s.587(1) says that ‘Without limiting when the FWC may dismiss an application...’ Further, s.587(3) allows the Commission to dismiss an application on its own initiative.

Conclusion

[10] The applications in this matter were made in September and October 2012 – some seven or more months ago. None of the Applicants has made any effort, or indicated that he or she intends to make any effort, to prosecute the application. In these circumstances I am satisfied that there is no intent to pursue any of the applications.

[11] In these circumstances I have decided, on my own initiative, to dismiss the applications for want of prosecution.

[12] Orders to this effect will be issued in conjunction with this decision.

COMMISSIONER

 1   The applications in AG2012/11889 and AG2012/11891 were received on 22 October 2012.

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