John Sharpe v NSW Health T/A Tweed Hospital NSW Health Summary

[2024] FWC 3578

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.66M - Application to deal with a dispute about the right to request casual conversion

John Sharpe
v

NSW Health T/A Tweed Hospital NSW Health

(C2024/7623)

DEPUTY PRESIDENT EASTON

SYDNEY, 23 DECEMBER 2024

Application to deal with a dispute about the right to request casual conversion – application dismissed.

On 26 October 2025 Mr John Sharpe made an application for the Fair Work Commission to deal with a dispute about the right to request casual conversion under s.66M of the Fair Work Act 2009 (Cth).

For the reasons that follow I am satisfied that Mr Sharpe’s application should be dismissed for want of prosecution.

On 7 November 2024 Mr Sharpe was advised that it appeared the Commission did not have jurisdiction to deal with his matter as his employer, NSW Health is not a National System Employer. Mr Sharpe was asked to confirm by 11 November 2024 that he wished to discontinue his application.

On 19 November 2024 a follow up email was sent to Mr Sharpe advising that I was considering dismissing his application pursuant to s.587 of the Fair Work Act 2009 (Cth) (the Act). Mr Sharpe was invited to provide any submissions as to why his application should not be dismissed by 22 November 2024.

On the same day Mr Sharpe contacted the Commission confirming that he had received an email saying that his matter could not proceed and he “thought there was no point responding”. My associate advised him that a response was required and that I was considering dismissing the application pursuant to s.587 of the Act. Mr Sharpe said that he would send an email discontinuing the matter.

To date no response has been received by Mr Sharpe. Mr Sharpe has been advised of the likely consequences if he did not (1) discontinue his application or (2) file any submissions as to why his application should not be dismissed.

On 20 November 2024 a further email was sent asking him to confirm that he wished to discontinue his matter. No response was received.
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 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).

I have decided to dismiss Mr Sharpe’s application using the power available under s.587(1)(a) and make the following order:

The application under s.66M of the Fair Work Act 2009 (Cth) made by Mr John Sharpe on 26 October 2024 is dismissed.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant in this case, John Sharpe, sought the Fair Work Commission's intervention regarding a dispute about the right to request casual conversion under section 66M of the Fair Work Act 2009. The respondent, NSW Health trading as Tweed Hospital NSW Health, was the employer in question. The Commission, led by Deputy President Easton, dismissed the application for want of prosecution. This dismissal occurred on 23 December 2024, following a series of communications with Mr Sharpe indicating that the Commission did not have jurisdiction over the matter as his employer was not a National System Employer.

The primary legal issue before the court was whether Mr Sharpe's application should be dismissed due to a lack of prosecution. The Commission needed to determine if it had jurisdiction over the matter and if Mr Sharpe had ceased to pursue his application. The court also considered whether the application was frivolous or vexatious, and if it had reasonable prospects of success. Furthermore, the court examined whether Mr Sharpe had been afforded procedural fairness during the dismissal process.

Deputy President Easton found that Mr Sharpe's application should be dismissed for want of prosecution. The Commission communicated to Mr Sharpe that it appeared to lack jurisdiction, and Mr Sharpe was advised to discontinue his application. Despite multiple opportunities to respond and submit reasons against dismissal, Mr Sharpe did not provide any submissions. Section 587 of the Fair Work Act 2009 authorizes the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing the proceedings. Given that Mr Sharpe had effectively abandoned his application, the Commission concluded that it could dismiss the application on its own initiative, provided procedural fairness was maintained. The court dismissed the application and made an order to that effect.

The final order was that the application under section 66M of the Fair Work Act 2009 made by Mr John Sharpe on 26 October 2024 is dismissed.

John Sharpe v NSW Health T/A Tweed Hospital NSW Health

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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