J.Y.

[2018] FWC 1928

[2018] FWC 1928

FAIR WORK COMMISSION

DECISION

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

J.Y.
(AB2018/119)

COMMISSIONER HAMPTON ADELAIDE, 6 APRIL 2018

Application for an FWC order to stop bullying.

[1] On 1 March 2018, J.Y. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was incomplete to some degree. However, more importantly for present purposes, the purported application was not accompanied by the required filing fee or completed waiver application.

[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 for stop bullying applications and Regulation 6.07A(7) provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

[5] On 2 March 2018, J.Y. was advised by letter, that her application required payment of the filing fee, or a completed waiver form if she wished to proceed. Further, she was advised that the application should be on the correct form (Form F72) and be signed and dated.

[6] On 9 March, the Commission again wrote to J.Y. in relation to the matter. J.Y. was advised that the purported application may be dismissed if the completed form and required payment was not made within 14 days.

[7] No further response has been received from J.Y. The payment of the required fee has not been made and no further action has been taken by her or on her 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 form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission 1 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 purported application.

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

COMMISSIONER

<PR601698>

 1   Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

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