B.T.

[2018] FWC 70

[2018] FWC 70

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

B.T.
(AB2017/648)

COMMISSIONER HAMPTON ADELAIDE, 5 JANUARY 2018

Application for an FWC order to stop bullying.

[1] On 6 December 2017, B.T. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application form (Form F72) was incomplete in that it remained unsigned and was not accompanied by the required filing fee or waiver application. When initially contacted by the Fair Work Commission (FWC) during the triage process, a jurisdictional issue was also raised with B.T. regarding whether the workplace concerned was conducted by a constitutional corporation. B.T. undertook to seek legal advice on this issue and links to resource material on the FWC website were provided to assist him further. B.T was advised if it was his intention to proceed, a signed application (with the required fee or waiver application) would also need to be provided.

[3] Sections 789FC(3) and (4) of the Act deal with application fees and state as follows:

“789FC Application for an FWC order to stop bullying

...

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

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; 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.”

[4] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[5] On 6 December 2017, B.T. was advised by letter, that his application required payment of the filing fee, or a completed waiver form if he wished to proceed. Further, he was advised that the application should be signed and dated.

[6] On 13 December 2017, the Commission telephoned and wrote to B.T. and advised that the application may be dismissed if the required payment (or waiver application) was not received within 14 days. This was followed up by the Commission on 28 December 2017.

[7] No further response has been received from B.T. and no action has been taken by him or on his behalf.

[8] Section 587(1) of the Act provides:

“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.”

[9] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee and has not been made in accordance with the Act. On one view there is not a proper application before the Commission and no further action is required. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the application.

[10] Accordingly, the application is dismissed under s.587(1)(a) of the Act.

COMMISSIONER

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