Alexander Forbes v Plumbfirst Pty Ltd

[2020] FWC 1691

[2020] FWC 1691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.587—Application dismissed

Alexander Forbes
v
Plumbfirst Pty Ltd
(C2020/912)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 30 MARCH 2020

Dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 16 February 2020 Mr Alexander Forbes made an application to the Fair Work Commission (Commission) using the Form F1, the form used to make an application to the Commission where there is no specific form provided.

[2] In answer to question 1.1 of the Form F1, which asks the Applicant to set out the provision of the Fair Work Act 2009 (Act) under which they are making their application, Mr Forbes stated:

“I am an Apprentice Plumber seeking Trade School fees reimbursement for the Blocks completed while I was employed by Plumbfirst.

I have sent them requests, including a letter of demand.”

[3] In answer to question 2.1 of the Form F1, which asks the Applicant to set out the order or relief sought, the Applicant stated:

“1. Order Plumbfirst to reimburse me for the Trade School completed while I was employed by them.”

[4] In answer to question 2.2 of the Form F1, which asks the Applicant to set out the grounds for the order or relief sought, Mr Forbes stated:

“I completed 6 Trade School Blocks under my employment with Plumbfirst at RMIT.

Plumbfirst has access to the grades, they know I was satisfactory.”

[5] In answer to question 4.1 of the Form F1, Mr Forbes nominated the Plumbing and Fire Sprinklers Award 2010 as the modern award relevant to the application.

[6] On 17 February 2020 my Associate contacted Mr Forbes via telephone indicating, among other things, that the correct application appears to be an application for the Commission to deal with a dispute under s.739 of the Act. When Mr Forbes confirmed that he was no longer employed by the Respondent, he was informed that the Commission lacks jurisdiction to deal with the matter and was invited to discontinue the application.

[7] The application was not discontinued and on 24 February 2020 my Associate tried to contact the Applicant via telephone but received no answer. On even date my Associate emailed Mr Forbes again indicating that it appears the most appropriate application in the circumstances would have been an application pursuant to s.739 of the Act, however as the Applicant’s employment with the Respondent has ended the Commission does not appear to have jurisdiction to deal with the dispute. The email attached a blank Form F50 – Notice of discontinuance.

[8] My Associate attempted to contact Mr Forbes unsuccessfully via telephone on 3 March 2020 and 10 March 2020. When a further attempt to contact Mr Forbes via telephone on 16 March 2020 was unsuccessful, a further email was sent to Mr Forbes requesting that if his intention was to discontinue the application, he file a Form F50 – Notice of discontinuance.

[9] On 23 March 2020, in the ongoing absence of any response, my Associate emailed Mr Forbes stating that on the face of the application it does not appear that the Commission has jurisdiction to deal with the matter and indicating that if Mr Forbes wished to make submissions in relation to this issue, he should do so by 5pm, 27 March 2020. It was made plain that if no submissions were received, the matter would be determined on the basis of the material filed to date and would likely be dismissed.  

[10] At the time of this Decision, the Applicant has not responded to the email of 23 March 2020.

[11] I have decided to dismiss Mr Forbes’ application pursuant to s.587 of the Act.

[12] Section 587 of the 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.”

[13] Mr Forbes’ application fails to identify the relevant provisions of the Act under which his application is made and fails to set out the legislative grounds for the relief sought. It may be the case that Mr Forbes seeks relief under s.739 of the Act. If by his application Mr Forbes seeks relief under s.739 of the Act, it does not appear that the Commission has jurisdiction to deal with the matter.

[14] Section 739 of the Act states relevantly that:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

…

[15] Section 738 of the Act states relevantly that:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

…”

[16] In his application Mr Forbes indicates that he “was employed by Plumbfirst” (emphasis added). In a telephone conversation with my Associate on 17 February 2020, Mr Forbes confirmed that his employment with the Respondent had ceased.

[17] Based on the above, I am satisfied that at the time the application was made the Applicant’s employment relationship with the Respondent had ended. The relevant reference instrument which might engage s.739 of the Act, the Plumbing and Sprinkler Fitters Award 2010, would not have applied to Mr Forbes at the time the application was made.

[18] In the circumstances, I find that the Commission has no jurisdiction to deal with the matter as an application to deal with a dispute in accordance with a dispute settlement procedure.

[19] Further, if by his application Mr Forbes seeks relief under s.739 of the Act, then it does not appear that his application is made in accordance with the Act.

[20] Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind.

[21] Rule 8 of the Fair Work Commission Rules 2013 (FWC Rules) provides, inter alia, that if the President approves a form for a particular purpose then subject to the FWC Rules, the approved form must be used for that purpose.

[22] The approved form for an application under s.739 of the Act is the Form F10. Mr Forbes application was made using the Form F1.

[23] Mr Forbes has not engaged with this flaw in his application nor has he requested that any deficiencies be corrected or waived. As Mr Forbes failed to lodge an application by completing the approved form, were it necessary to do so, I find that the application is not made in accordance with the Act.

[24] In deciding to dismiss Mr Forbes’ application I have had regard to the observation in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others that the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution. 1 Numerous attempts have been made to contact Mr Forbes and discuss his application and the issues mentioned above. Despite these attempts, the Applicant has failed to engage with the application. In circumstances where Mr Forbes has been notified of a preliminary view that the Commission lacks jurisdiction to deal with the matter and has been invited to make submissions addressing this issue, but has chosen not to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

Order

The Application in C2020/912 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 (1964) 112 CLR 125 at 128-9