Application by Nadia Roggeri

[2024] FWC 3416

[2024] FWC 3416

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.365—General protections

Application by Nadia Roggeri

(C2024/7291)

DEPUTY PRESIDENT EASTON SYDNEY, 6 DECEMBER 2024

Application to deal with contraventions involving dismissal – application dismissed.

1. On 9 October 2024 Mrs Nadia Roggeri made a general protections application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Mrs Roggeri’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

1. Section 367 of the Act is in the following terms:

“367      Application fees

(1)    The application must be accompanied by any fee prescribed by the regulations.

(2)    The regulations may prescribe:

(a)a fee for making an application to the FWC under section 365; and

(b)a method for indexing the fee; and

(c)the circumstances in which all or part of the fee may be waived or refunded.”

1. Mrs Roggeri’s application was incomplete because she did not pay the required fee or file a completed request to waive the fee.

1. Commission staff contacted Mrs Roggeri on the following dates:

   ·   15 October 2024 by email;

   ·   16 October 2024 by SMS;

   ·   31 October 2024 by email; and

   ·   4 November 2024 by telephone.

1. Mrs Roggeri was advised that she must pay the filing fee or apply for a waiver if she wished to proceed with the application. Mrs Roggeri was also warned that the application could be dismissed if the filing fee was not paid within two days.

1. To date there has been no response from Mrs Roggeri, no fee paid and no completed waiver request received.

2. Section 587 of the Act includes the following provisions:

“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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.”

1. Mrs Roggeri’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.367) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mrs Roggeri’s application.

1. Mrs Roggeri has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

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

1. The application under s.365 of the Fair Work Act 2009 (Cth) made by Mrs Nadia Roggeri on 9 October 2024 is dismissed.

DEPUTY PRESIDENT
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