Ethan Beckwith v Revetment Systems Australia (WA) Pty Ltd

[2023] FWC 144

[2023] FWC 144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ethan Beckwith
v

Revetment Systems Australia (WA) Pty Ltd

(C2022/6222)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 19 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Mr Ethan Beckwith (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Revetment Systems Australia (WA) Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 8 September 2022.

1. On 9 September 2022 the Commission emailed the applicant with information explaining how to pay the filing fee and how to make a waiver application. The email, together with a text message sent to the applicant on the same date, put the applicant on notice that the application may be dismissed if the filing fee was not paid. An email to the same effect was sent to the applicant’s representative on 12 September 2022.

1. Telephone calls were made to the applicant on 15 September and 27 September 2022. Voicemails were left on both occasions advising the applicant that the matter was at risk of being dismissed for failure to pay the filing fee.

1. On 28 October 2022, a further voicemail was left with the applicant advising that a failure to pay the filing fee would result in the matter being dismissed.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587 of the Act provides as follows:

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.

…

(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.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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