Eguia v CPB Contractors Pty Ltd

Introduction 1 The applicant applies for leave to proceed under s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act). The applicant was employed by the respondent between 8 April 2019 and 25 September 2019 as an ICT Projects Manager on one of the respondent's projects, the West Gate Tunnel Project. 2 Section 370 of the FW Act bars applicants from taking disputes under Part 3-1 unless two preconditions are satisfied. First, the Fair Work Commission must have issued a certificate under s 368(3)(a) of the FW Act: FW Act, s 370(a)(i). In this matter, such a certificate was issued by the Fair Work Commission on 19 June 2020. Second, s 370 requires the application to court to be made within 14 days after the certificate is issued, "or within such period as the court allows on an application made during or after those 14 days": FW Act, s 370(a)(ii). 3 It is the applicant's application under s 370(a)(ii) of the FW Act that is presently before the Court.

Principles 4 Leave under s 370(a)(ii) is discretionary. The principles as to the exercise of that discretion were usefully explained by White J in Clarke v Service to Youth Council Incorporated [2013] FCA 1018 and applied by O'Callaghan J in Molony v ATM Logistics Pty Ltd [2018] FCA 640 at [9]-[11]. Those principles are not in dispute on this application.

Application to the facts of this case 5 I will grant leave to commence this proceeding 20 days out of time, for the following reasons: (1) The applicant's application was filed on 23 July 2020, making the application 20 days late. The applicant has explained her delay as a result of various circumstances which it is not presently necessary to detail. I am satisfied that the applicant has provided a satisfactory explanation in her affidavit filed 9 October 2020 for the applicant's delay. (2) On the affidavit material, and having reviewed the applicant's application, I am satisfied that the applicant at least raises a prima facie case. The applicant has sworn to various matters in her affidavit. The respondent's affidavit material essentially denies those allegations. There is sufficient material to raise at least a prima facie case. (3) As to prejudice, I am not satisfied that the prejudice that the respondent points to warrants refusing the grant of leave. The prejudice contended by the respondent is, essentially, that two employees of the respondent are no longer employees of the respondent. It is not said that they are uncontactable or that they cannot give evidence or relevant instructions. The delay since the termination is some 13 months, which is not inordinate in these cases, and I am not satisfied that the prejudice which the respondents face - and there is some prejudice, I accept that - is such as to deny the applicant leave to make the general protections application essentially 20 days late, and after the 14 day period referred to in s 370(a)(ii) of the FW Act. 6 The Applicant will be granted leave to commence this proceeding. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.