Southern Cemeteries P/L

[2016] FWCA 7295

[2016] FWCA 7295

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Southern Cemeteries P/L
(AG2014/3643)

Tasmania
COMMISSIONER LEE	MELBOURNE, 18 OCTOBER 2016

Application for termination of the Southern Regional Cemetery Trust Enterprise Agreement (Indoor Staff) 2005.

[1] Southern Cemeteries Pty Ltd (the Applicant) made application to terminate the Southern Regional Cemetery Trust Enterprise Agreement (Indoor Staff) 2005 (the Agreement) pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 at Item 16 of Schedule 3 states:

“16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) contains sections 225 to 227.

[4] Section 225 of the FW Act provide 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 following may 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;

(c) an employee organisation covered by the agreement.”

[5] Section 226 of the FW Act provides as follows:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[6] On 17 March 2014 my chambers wrote to the Applicant setting out the requirements of the legislation and directed the Applicant to take the following action to enable me to obtain information on the views and circumstances of employees.

“The views and circumstances of employees are to be obtained by the employer immediately forwarding or handing to employees and posting on relevant notice boards the following notice;

“An application has been made by Southern Cemeteries P/L to terminate the Southern Regional Cemetery Trust Enterprise Agreement (Indoor Staff) 2005.

The matter has been allocated to Commissioner Lee of the Fair Work Commission for determination.

If the application to terminate the Southern Regional Cemetery Trust Enterprise Agreement (Indoor Staff) 2005 is successful, your minimum employment entitlements will be regulated by the applicable modern award. This will have an effect on your terms and conditions of employment.

Commissioner Lee, when determining whether to terminate the agreement, is required to take into account the views of employees covered by the agreement.

If you have any views about the application to terminate the agreement, please advise the Commissioner by email at [email protected] or by calling [phone]. Views are to be provided to the Fair Work Commission by close of business Friday 28 March 2014.”

[7] Once this course of action was followed, I directed the Applicant to provide a statutory declaration, as soon as possible after Friday 28 March 2014 containing advice as to how and when the notice was distributed to employees. Further, I directed that the Applicant provide a statutory declaration setting out the employers views as to the termination and the likely effect the termination will have on the employer.

[8] On 11 August 2014 I wrote to the Applicant and advised that as he had not provided any documents in response to my request I sought his urgent advice as to whether he wished to proceed with the application.

[9] On 13 August 2014 the Applicant advised that a substantive response would be provided by 22 August 2014. On 25 August 2014 the Applicant requested an extension for filing and I granted an extension to 5 September 2014.

[10] On 5 September 2014 the Applicant filed documentation with the Fair Work Commission however, the Applicant did not file all of the requested documentation to satisfy me in relation to each of the matters contained in s.226 of the Act.

[11] On 18 July 2016 my chambers contacted the Applicant by telephone in relation to the application and correspondence was sent to the Applicant on 20 July 2016. The correspondence set out the requirements of the legislation and directed the Applicant to take action to enable me to obtain information on the views and circumstances of employees. Further, I directed that the Applicant provide a statutory declaration setting out the employers views as to the termination and the likely effect the termination will have on the employer.

[12] Follow up correspondence was sent to the Applicant on 26 August 2016 and on 3 October 2016 advising that if a response was not provided by close of business 10 October 2016 the application will be dismissed.

[13] On 10 October 2016 my associate contacted the Applicant by telephone and was advised that they had received the correspondence and had not taken any action in relation to the application. Further, they were aware that the application would be dismissed if a response is not received by 10 October 2016.

[14] No response has been received from the Applicant.

[15] Section 587 of the FW Act states:

“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.”

[16] The Applicant has failed to provide the Fair Work Commission with the relevant material in support of his application, despite several opportunities to do so. As such, I find the application has no reasonable prospects of success, and the application is dismissed pursuant to s.587(1)(c) of the FW Act.

COMMISSIONER

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