Swinburne Student Union (SSU) Incorporated

[2024] FWC 2068

[2024] FWC 2068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Swinburne Student Union (SSU) Incorporated

(AG2024/1971)

SWINBURNE STUDENT UNION (SSU) INCORPORATED ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER P RYAN	SYDNEY, 2 AUGUST 2024

Application for variation of the Swinburne Student Union (SSU) Incorporated Enterprise Agreement 2022

Introduction and Background

1. Swinburne Student Union (SSU) Incorporated (Applicant) has made an application for approval of a variation of the Swinburne Student Union (SSU) Incorporated Enterprise Agreement 2022 pursuant to s.210 of the Fair Work Act 2009 (FW Act) (Application).

1. On 5 July 2024, correspondence was sent to the Applicant raising initial issues or concerns with the Application (Initial Issues). The Applicant was directed to provide a response to the Initial Issues by no later than 4:00pm on 11 July 2024.

1. On 10 July 2024, the Applicant requested, and was granted, an extension of time to provide its response to the Initial Issues by 5:00pm on 18 July 2024. The Applicant did not provide any response by that time.

1. On 24 July 2024, correspondence was sent to the Applicant advising that a response to the Initial Issues has not been received and that if no response was received by 4:00pm on 25 July 2024, the Application may be dismissed without further notice. The Applicant did not provide any response.

1. On 29 July 2024, correspondence was sent to the Applicant advising that a response to the Initial Issues has not been received and that if no response was received by 4:00pm on 31 July 2024, it is likely the Application will be dismissed pursuant to s.587(3) of the FW Act. The Applicant did not provide any response.

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. The Applicant has shown no willingness to advance the Application and has taken no steps to do so. Furthermore, the Applicant has not provided any explanation for its failure to respond to the Initial Issues. In these circumstances, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

Disposition

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

COMMISSIONER

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