Jan Arreaza v The Trustee for the Kamekun Trust No 1

[2024] FWC 1239

[2024] FWC 1239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jan Arreaza
v

The Trustee For The Kamekun Trust No 1

(C2024/1504)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2024

Application to deal with contraventions involving dismissal – application dismissed.

1. On 7 March 2024, Mr Jan Arreaza made an application under s365 of the Fair Work Act 2009 (Cth) (Act). Mr Arreaza alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. Mr Arreaza’s application was not accompanied by the application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.

1. On 13 March 2024, the Commission emailed correspondence to Mr Arreaza’s nominated email address advising him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with his application. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

…

If you don’t make payment within 7 days your application may be dismissed.”

1. An SMS notification was also sent to Mr Arreaza’s nominated telephone number on 14 March 2024. The SMS advised Mr Arreaza’s to take action in compliance with the email from the Commission regarding payment of the application fee.

1. On 18 March 2024, the Commission emailed correspondence to Mr Arreaza’s nominated email address reminding him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with his application. The correspondence instructed Mr Arreaza on how to pay the application fee or complete a Form F80 and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

1. On 4 April 2024, the Commission tried to contact Mr Arreaza on his nominated telephone. The call was not answered, and a voicemail message was left requesting that Mr Arreaza contact the Commission. A final attempt to contact Mr Arreaza on his nominated telephone number was made by the Commission on the 12 April 2024. The call was not answered, and a voicemail message was left advising Mr Arreaza that payment of the required fee was still outstanding. The voicemail also advised Mr Arreaza that his application may be dismissed if payment was not received by close of business on 15 April 2024. To date, Mr Arreaza has not paid the lodgement fee or filed a completed Form F80.

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 $83.30. 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.

Consideration and conclusion

1. In considering all the circumstances, I am satisfied that the application form in question 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. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite the numerous attempts by the Commission to contact Mr Arreaza, the reminders, and multiple requests, Mr Arreaza has not responded. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

1. The application is dismissed. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

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

[2] PR774919

Printed by authority of the Commonwealth Government Printer

<PR774918>