Application by Kelly-Anne Benning Summary

[2025] FWC 854

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.372—General protections

Application by Kelly-Anne Benning

(C2025/1262)

DEPUTY PRESIDENT EASTON

SYDNEY, 27 MARCH 2025

Application to deal with contraventions not involving dismissal – application fee not paid or waived – application not made in accordance with the Act – application dismissed.

On 17 February 2025 Ms Kelly-Anne Benning made a general protections application under s.372 of the Fair Work Act 2009 (Cth).

Ms Benning’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.373) has not been paid or waived. Section 587(1)(a) allows the Commission to dismiss Ms Benning’s application without conducting a hearing, so long as the applicant has been afforded procedural fairness.

Ms Benning has had ample opportunity to rectify the deficiency in the application and also ample opportunity to show why her application should not be dismissed under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I have decided to dismiss Ms Benning’s general protections claim using the power available under s.587(1)(a) and make the following order:

The application under s.372 of the Fair Work Act 2009 (Cth) made by Ms Kelly-Anne Benning on 17 February 2025 is dismissed.

DEPUTY PRESIDENT
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CaseChat Overview and Summary

In the Fair Work Commission, Ms Kelly-Anne Benning filed a general protections application under section 372 of the Fair Work Act 2009. The application, dated 17 February 2025, was dismissed by Deputy President Easton on 27 March 2025, as it was not made in accordance with the Act due to the absence of payment or waiver of the prescribed application fee. The Deputy President concluded that the application could be dismissed without a hearing, provided that Ms Benning was afforded procedural fairness.

The central legal issue for the Deputy President to resolve was whether the application could be dismissed for non-compliance with the Act's procedural requirements. Section 587(1)(a) of the Act allows the Commission to dismiss an application if it has not been made in accordance with the Act. This includes situations where the prescribed fee has not been paid or waived. The Deputy President also had to consider whether procedural fairness was observed in dismissing the application.

Deputy President Easton held that Ms Benning had been given sufficient opportunity to pay the application fee or seek a waiver and to demonstrate why her application should not be dismissed. The Deputy President referred to Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 and relevant authorities to support the conclusion that procedural fairness was observed. Accordingly, the Deputy President decided to dismiss the application under section 587(1)(a) of the Act.

The Deputy President made the following order: The application under section 372 of the Fair Work Act 2009 (Cth) made by Ms Kelly-Anne Benning on 17 February 2025 is dismissed.

Application by Kelly-Anne Benning

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established