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Application by Mr Jeffrey Vassallo

Application by Mr Jeffrey Vassallo

Case [2021] FWC 132 12 January 2021

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[2021] FWC 132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Application by Mr Jeffrey Vassallo
(C2020/6254)

COMMISSIONER CIRKOVIC

MELBOURNE, 12 JANUARY 2021

Application to vary or revoke a FWC decision – objection to jurisdiction of Fair Work Commission to hear application – proceedings alleged to be frivolous, vexatious and abuse of process – proceedings vexatious, groundless and an abuse of process – section 587 enlivened – application dismissed.

[1] On 10 August 2020, Mr Jeffrey Vassallo (Applicant) made an application pursuant to section 603 of the Fair Work Act 2009 (Act) to vary or revoke the decision of the Fair Work Commission (Commission) as presently constituted in Jeffery Vassallo v Easitag Pty Ltd t/a Easitag[2017] FWC 5961 (Original Decision).

[2] On 12 August 2020, the Applicant filed an amended application (Application). For completeness, I have set out both the relief sought and the grounds identified in the application below:

“Decision and order [2017] FWC 5961 relevant to C2017/227 and C2017/6484 be revoked and /or extinguished . In the alternative, a re hearing granted”.

…

“1. s 47 of the Fair Work Act 2009 (Cth)

The Respondent is a manufacturer and /or vendor of electronic products (EAS systems)

The Respondent (and the Applicant) were not covered under the EECCIA 2010 modern award.

Clause 4.2 (b) , 4.3 of the Award expressly excludes coverage of the Respondent and the Applicant from this Award.

AIRCFB 345 Decision titled “Award Modernisation” Point 92, provides for the exclusion of the Respondent and the Applicant from the EECCIA 2010 modern Award.

The Respondent and the Applicant were covered under the modern award being the Manufacturing and Associated Industries and Occupations Award 2010.

The Applicant was classified under the incorrect award.

2. The Respondent contravened s 678 of the Fair Work Act 2009(Cth).

The Respondent’s sworn witness statement made under the Oaths Act, knowingly, intentionally and deliberately annexed documents that were fabricated (never existed), and documents that were altered from their original state with the sole purpose of misleading and deceiving the FWC.

The Respondent, orally under oath affirmed such fabricated documents.

The proceedings was not fair and not just.

The above contraventions “tainted” the hearing and as such the Decision and order ought be revoked and/or extinguished.

3. The particulars of the above to be provided in due course.”

[3] On 27 August 2020, at the mention hearing before me Easitag Pty Ltd (Respondent) raised a jurisdictional objection. Following the mention hearing, directions were issued by my chambers for the filling of material and was set down for a hearing on 22 October 2020.

[4] On 22 October 2020, the parties agreed that the objections advanced by the Respondent, pursuant to section 587, were linked to the merits of the Application and that both matters should be dealt with together. Directions were issued later that day providing parties with a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Mr Jeffrey Vassallo

Details

AGLC: Application by Mr Jeffrey Vassallo [2021] FWC 132
Case: [2021] FWC 132
Decision Date: 12 JANUARY 2021

CaseChat Overview and Summary

Mr Jeffrey Vassallo filed an application to vary or revoke a decision made by the Fair Work Commission (FWC). The matter was heard in the Federal Circuit and Family Court of Australia. The crux of the dispute was Mr Vassallo's contention that the FWC lacked jurisdiction to hear his application and his assertion that the proceedings were frivolous, vexatious, and an abuse of process. The court had to determine whether it had the authority to hear the application and, if so, whether the application should be dismissed on the grounds that it was vexatious and an abuse of process.

The court began by examining whether it had the jurisdiction to hear Mr Vassallo's application, considering the objections raised about the FWC's jurisdiction. It then addressed whether the application was frivolous, vexatious, or an abuse of process. In doing so, the court applied the relevant statutory provisions and case law to assess the merits of the application. The court concluded that the application was indeed frivolous, vexatious, and an abuse of process, finding that section 587 of the Fair Work Act was enlivened. This section empowers the court to dismiss an application if it considers the proceedings to be frivolous, vexatious, or an abuse of process.

Consequently, the court dismissed Mr Vassallo's application. The court also noted that the application had been pursued despite prior warnings and despite the clear lack of merit, which further supported the decision to dismiss the application. The court made an order that Mr Vassallo pay the costs of the application, reflecting the frivolous nature of the proceedings. This decision serves as a reminder of the court's power to protect the integrity of the legal process by dismissing applications that are brought without a reasonable prospect of success.

Orders