Fenghao Service Pty Ltd
[2025] FWC 55
•7 JANUARY 2025
| [2025] FWC 55 |
| FAIR WORK COMMISSION |
| DECISION AND ORDER |
Fair Work Act 2009
s.365—General protections
Fenghao Service Pty Ltd
(C2024/8183)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 7 JANUARY 2025 |
Application to deal with contraventions involving dismissal – application dismissed under s.587(1).
On 18 November 2024, Fenghao Service Pty Ltd (the Applicant) made a general protections application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act). Ms Xiao Xu Wu, a purported director of the Applicant, lodged the application on behalf of the Applicant.
For the reasons that follow, I am satisfied that the Applicant’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.
Section 587 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.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances, the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).
Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when the FWC may dismiss an application” in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).
On 11 December 2024, an email was sent to Ms Wu advising that the Commission was considering dismissing the application pursuant to s 587(1) of the Act on the basis that the application for general protections involving dismissal was not properly made as the Applicant is a company, and it is not open for a company to bring an application under s 365 of the Act. The Applicant was invited to provide submissions by 13 December 2024 as to why the matter should not be dismissed.
To date, there has been no response received from Ms Wu or the Applicant.
I have decided to dismiss the Applicant’s general protections claim using the power available under s 587(1)(a) and make the following order:
The application under s 365 of the Fair Work Act 2009 (Cth) made by Fenghao Service Pty Ltd on 18 November 2024 is dismissed.
DEPUTY PRESIDENT
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