Bradley Kelly v Sydney Cricket and Sports Ground Trust

[2020] FWC 6225

[2020] FWC 6225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Bradley Kelly
v
Sydney Cricket and Sports Ground Trust
(RE2020/981)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 NOVEMBER 2020

Application to deal with right of entry dispute – application dismissed.

[1] On 5 November 2020, Mr Bradley Kelly made an application for the Fair Work Commission (Commission) to deal with a right of entry dispute.

[2] Mr Kelly did not answer question 1.3 of the Form F12, which asks the Applicant whether they are making the application because they are a permit holder, a permit holder’s organisation, an employer or an occupier of premises.

[3] In answer to question 3.1 of the Form F12, which asks the Applicant to specify the orders sought from the Commission, Mr Kelly states:

“The SCG trust have reserve there right to let me into the ground banning me for 24 months for an elleged (sic) offence that is currently before the courts. In this case I cannot continue my job and my employer is thinking of terminating my employment for this reason.

I would like the band (sic) lifted and put on hold until my court appearence (sic) on the 26th February 2021 As this has taken a toll and strain on me over the last 8 months without my job and mad (sic) to look guilty even before the courts have delt (sic) with this matter.

I will attache (sic) the banning notice that I received from Micheal Precott who is saying I have commited (sic) this offence thats (sic) before the court. I have also attached a letter from my employer as well.”

[4] On 5 November 2020, a staff member of the Commission unsuccessfully attempted to contact Mr Kelly by telephone. The relevant staff member left a voice message advising that Mr Kelly did not appear to be a permit holder and therefore the incorrect application may have been lodged. Mr Kelly was asked to contact the Commission to discuss the application.

[5] The matter was allocated to me on 5 November 2020. My Associate attempted to contact Mr Kelly via telephone on 6 and 9 November 2020 but received no answer. On both occasions my Associate left a voice message requesting the Applicant return the call. When a further attempt to contact Mr Kelly via telephone on 10 November 2020 was unsuccessful, my Associate wrote to Mr Kelly via email and indicated that it does not appear that Mr Kelly is entitled to lodge an application under s.505 of the Fair Work Act 2009 (Act) as he is not a permit holder, a permit holder’s organisation, an employer or an occupier of premises. The Applicant was invited to contact my Chambers via telephone to discuss the application or, in the alternative, to discontinue the application.

[6] The application was not discontinued and on 13 November 2020, in the ongoing absence of any response, my Associate again wrote to Mr Kelly indicating that on the face of the application it does not appear that the Commission has jurisdiction to deal with the matter pursuant to s.505 of the Act. Mr Kelly was invited to make submissions in relation to this issue by 5:00 pm on Wednesday, 18 November 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.

[7] On 13 November 2020, Mr Kelly responded to the email dated 10 November 2020 as follows:

“Hi, 

If you can't help could you let me know who I can contact please.

I want to dispute a 24 moths (sic) banning noticed put on my (sic) for a (sic) alleged offence. 

Thanks 

Brad”

[8] My Associate attempted to contact the Applicant via telephone to discuss his email of 13 November 2020, but the call went unanswered.

[9] At the time of this Decision, the Applicant has not responded to the email of 13 November 2020 and has not engaged with the flaw in his application identified above.

[10] In the circumstances, I have decided to dismiss Mr Kelly’s application pursuant to s.587 of the Act.

[11] 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.”

[12] By his application Mr Kelly seeks relief under s.505 of the Act. Section 505 of the Act relevantly states:

“505 FWC may deal with a dispute about the operation of this Part

…

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.”

[13] As mentioned above, Mr Kelly did not answer question 1.3 of the Form F12, which asks the Applicant whether they are making the application because they are a permit holder, a permit holder’s organisation, an employer or an occupier of premises.

[14] A search of the Commission’s data base reveals that Mr Kelly does not currently hold a right of entry permit. The Applicant is plainly not a permit holder’s organisation, an employer or an occupier of premises.

[15] Based on the above, I am satisfied that at the time the application was made the Applicant was neither a permit holder, a permit holder’s organisation, an employer or an occupier of premises and was therefore not entitled to bring an application under s.505 of the Act. In the circumstances, I find that the Applicant does not have standing to make an application to the Commission to deal with a right of entry dispute. In any event it is plain on the face of the application that the “dispute” about which Mr Kelly complains is not about the operation of Part 3-4 of the Act.

[16] In deciding to dismiss Mr Kelly’s 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 Kelly and discuss his application and the issue mentioned above. Despite these attempts, the Applicant has failed to engage with the application. In circumstances where Mr Kelly has been notified of a preliminary view that he does not have standing to make the application 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. The application was not made in accordance with s.505(3)(b) of the Act. The application is, for that reason, dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724717>

 1 (1964) 112 CLR 125 at 128-9