Johnston v Arrium Pty Ltd
[2016] FWC 1584
•30 March 2016
[2016] FWC 1584
DECISION
| Fair Work Act 2009 | |
| s.394 - Application for unfair dismissal remedy | |
| Brett Johnston | |
| v | |
| Onesteel Manufacturing Pty Ltd T/A Arrium | |
| (U2015/13948) | |
| COMMISSIONER HAMPTON | ADELAIDE, 30 MARCH 2016 |
Application for relief from unfair dismissal – s.399A application to dismiss – failure of
applicant to attend conference and file materials as required by directions – whether
applicant’s conduct was unreasonable – representative error – conduct unreasonable –
whether discretion should be exercised to dismiss substantive application – approach to merit
of substantive application considered – mitigating circumstances – s.587 – whether
application has no reasonable prospects – not presently satisfied should be dismissed on that
basis – unfair dismissal application not to be dismissed – potential grounds for costs
application if made – s.399A application dismissed – substantive application to be listed for
hearing.
1. Background and case outline
[1] This is an application by Onesteel Manufacturing Pty Ltd (Onesteel) under s.399A of
the Fair Work Act 2009 (the FW Act) for the dismissal of an application by Mr Brett
Johnston. Mr Johnston’s application has been made under s.394 of the FW Act and it seeks a
remedy in the context of his alleged unfair dismissal by Onesteel.
[2] Mr Johnston was dismissed on the basis that he had allegedly been at work with
detectable levels of THC (from marijuana), may have consumed a drug containing THC at
work, and that this was in serious breach of the relevant workplace policy. Mr Johnston
contends, amongst other matters, that the tests relied upon by the employer were invalid, that
he was not under the influence and had not consumed drugs at work, and that his dismissal
was harsh given his very long period of service.
[3] At the time of lodging his application, Mr Johnston was represented by the
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the
Australian Manufacturing Workers’ Union (AMWU) and this remained the case for most of
the events leading to the s.399A application. The AMWU’s officer in Whyalla, Mr McMillan,
had carriage of the matter.
[2016] FWC 1584
[4] The Commission issued directions in the lead up to the hearing of the unfair dismissal
application which was scheduled for 29 February, 1 and 2 March 2016. The timing of the
hearing and the directions leading to that point were the subject of consultation between the
Commission and the parties during a directions conference conducted on 12 January 2016.
[5] Amongst other matters, the directions of the Commission originally required
Mr Johnston to file and serve an outline of argument and evidence by 5 February 2016. The
directions also, with the consent of both parties, established a Member Assisted Conciliation
(MAC) conference which was to be conducted in parallel with the requirements for both
parties to file and serve materials leading to the hearing. This parallel process was confirmed
in the following terms:
“4. This matter will be also be allocated to another Member of the Commission to conduct a conciliation conference prior to the arbitration. The relevant Member’s Chambers will contact the parties shortly to arrange a time and date for the conference (Allow two hours). The above directions are not affected by
1
the conciliation process unless the matter is resolved by the parties.”
[6] A MAC was conducted by Binet DP on 3 February 2016 in the form of a telephone
conference. Mr Johnston’s then representative, Mr McMillan participated along with
representatives for Onesteel. Mr Johnston did not personally participate and was
uncontactable.
[7] Arising from the MAC, and by consent of the parties, the directions of the
Commission were modified to delay the required filing and service of Mr Johnston’s
materials until 8 February 2016. Despite some apparent constructive discussions between the
representatives, the matter was ultimately not resolved.
[8] On 8 February 2016, Mr Johnston, apparently acting upon the advice of the AMWU,
directly contacted the Commission and sought a 28 day extension to the hearing date on the
basis that Mr Hardie (the AMWU’s SA Legal/Industrial Officer) had only just got back from
leave and did not have time to prepare his case. This extension was strongly opposed by
Onesteel.
[9] In the context of advice that the Commission would not delay the scheduled hearing,
the AMWU then informed Mr Johnston that it could no longer represent him and that his only
option may be to represent himself.
[10] Onesteel has now made the s.399A application, and following a further directions
conference before this arm of the Commission, and the issuing of directions, both parties have
now provided some submissions and evidentiary material concerning that matter.
[11] In the context of some further evidence that was provided by Onesteel in its final reply
submissions, and the existence of some potentially relevant disputed facts, it became
necessary to conduct a hearing in order to permit the parties to deal with that evidence and to
2
| make further submissions. This arose from the requirements of s.397 of the FW Act | and the |
| natural justice considerations involved. |
[2016] FWC 1584
2. The s.399A application
[12] Section 399A of the FW Act provides as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under
Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by
the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the
application; or
(c) failed to discontinue the application after a settlement agreement has been
concluded.
Note 1: For another power of the FWC to dismiss applications for orders under
Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the
other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the
employer.
(3) This section does not limit when the FWC may dismiss an application.”
[13] The s.394 unfair dismissal application is an application made under Division 4 of the
FW Act and the s.399A application has been made by the relevant employer.
[14] There is accordingly a proper application before the Commission.
[15] Onesteel relies upon both s.399A(1)(a) and (b) to support their contention that the
unfair dismissal matter should now be dismissed. In relation to the non-attendance of
Mr Johnston at the MAC, it contends that:
When the concept of a MAC was raised by the Commission during the directions
conference on 12 January 2016, Mr McMillan on behalf of Mr Johnston sought that
this be arranged and Onesteel did not oppose this approach given it was another
opportunity to attempt to settle the matter before considerable time and expense
was incurred;
The MAC was listed before Deputy President Binet on 3 February 2016 and
Mr Johnston, and his representative, were both advised of the conference;
On 3 February 2016, Mr Johnston failed to attend (ring into) the MAC, did not
inform the Commission or his representative that he would not do so, and attempts
by the Commission and his representative to contact him were unsuccessful;
Mr Johnston’s failure to attend the MAC meant that any further attempts to resolve
the matter proved to be futile; and
[2016] FWC 1584
Onesteel was put to unnecessary costs and time by needlessly preparing for and
attending the MAC, which it did so in good faith.
[16] Onesteel contends that these events, combined with the fact that no explanation for
Mr Johnston’s absence from the MAC has been forthcoming, means that his failure to attend
the conference is, in every sense of the word, unreasonable.
[17] In relation to the failure to comply with the directions of the Commission, Onesteel
contends that there is no contest that Mr Johnston has not complied with the directions to file
and serve his material by 8 February 2016 as ultimately required by the Commission. It also
contends that this failure was unreasonable for the following reasons:
There is no plausible explanation given for the failure to comply;
Given the original timeframe of 5 February 2016, the preparation of the relevant
materials would need to have been well advanced by the time of the MAC;
The revised filing date of 8 February 2016 was set at the request of Mr Johnston’s
representative and there was no indication made at that point that a significant
extension was required;
The lack of awareness of Mr Hardie about the matter was not relevant as his
representative was the AMWU and it had been fully involved with, and consulted
about, the timetable for the hearing and the filing deadlines;
Mr Johnston (the AMWU) did not seek to explore the potential to seek an
extension for the filing of materials, without a delay to the hearing date – which is
what had been rejected by the Commission; and
In any event, there was ample time for Mr Johnston to have prepared his materials
given the lead time since the filing of his application and the January 2016
directions conference.
[18] To the extent that Mr Johnston relied upon representative error, Onesteel accepted that
this might be relevant but contends that this should not in this case mean that he should be
absolved from his responsibilities for the non-compliance. In that regard, Onesteel relied upon
the approach evident to representative error in various decisions of the Commission
concerning extensions of time to lodge unfair dismissal applications.
[19] Onseteel also contends that the Commission may have regard to the merits of the
unfair dismissal application in considering whether it should exercise its discretion in this
matter. In that regard, its relies upon the affidavit of Ms Lynch, its HR Advisor, and a
submission that went to the various considerations pertaining to the determination of an unfair
dismissal application under s.387 of the FW Act.
[20] In its final reply submissions, Onesteel provided a written report of the Unit Head of
the relevant Toxicology Laboratory to support its contention that Mr Johnston had consumed
drugs containing THC in the lead up to his dismissal and had acted in breach of the relevant
policy in that regard. It also for the first time invited the Commission to dismiss the unfair
dismissal application under s.587(1)(c) of the FW Act on the basis that it had no reasonable
prospects of success.
[2016] FWC 1584
3. The position of Mr Johnston
[21] Mr Johnston contends that his unfair dismissal application should not be dismissed
and, in effect, that he would be denied natural justice if he did not have that matter heard and
determined.
[22] In terms of the failure to attend the MAC conference, Mr Johnston contends that he
did not attend as he had looked at the wrong Commission form (document) and had made an
honest mistake.
[23] Mr Johnston accepts that he did not file his materials as required however he did
request an extension of time given the miscommunication between the officers of the
AMWU. In particular, given the unavailability of the Industrial Officer (Mr Hardie) the
AMWU had not been able to view all of the relevant documentation, and to give him advice
and represent him in the unfair dismissal matter.
[24] Mr Johnston contends, in effect, that his matter should be heard as he has evidence
that contradicts the testing information relied upon by Onesteel and considers that the
employer did not follow the correct procedure leading to his termination.
[25] Mr Johnston also contends that he would not be afforded natural justice if he was not
given the right of legal representation and seeks to rely upon some comments of the
Commission during the course of a directions conference.
[26] Mr Johnston provided a statutory declaration that went, for the most part, to the basis
of his unfair dismissal application. This also included some material that was designed to cast
doubt upon the veracity of the testing results relied upon by Onesteel, including hair follicle
tests and some scientific assessment of the employer’s tests. Mr Johnston also directly denies
that he consumed drugs in the workplace or following the initial test undertaken by the
employer in the lead up to his dismissal.
[27] Mr Johnston also relied upon a statement provided by Mr McMillan, which in effect,
took responsibility for the failure to be ready to lodge the required materials in accordance
with the directions of the Commission.
4. Should the unfair dismissal application be dismissed?
[28] In determining this matter, I have applied the approach to s.399A of the FW Act as
outlined in the decision of the Full Bench in Granas v Berkeley Challenge Proprietary Ltd
T/A Spotless [2015] FWCFB 1795 (Granas). The Full Bench stated:
“[4] Section 399A(1) provides, relevantly for present purposes, that the Commission 'may' dismiss an application if satisfied the applicant has unreasonably
failed to discontinue the application after a settlement agreement has been concluded.
[5] In Mihajlovic v Lifeline Macarthur, a Full Bench of the Commission pointed
out the following about the use of the word 'may' in a statute:
"Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:
[2016] FWC 1584
'(2A) Where an Act assented to after the commencement of this subsection
provides that a person, court or body may do a particular act or thing, and the
word may is used, the act or thing may be done at the discretion of the person,
court or body.'
Section 40A of the [FW] Act provides that the Acts Interpretation Act as in
force on 25 June 2009 applies to the [FW] Act, but that amendments after that
date do not. Section 33(2A) came into effect on 18 December 1987, and
therefore applies to the [FW] Act. Under s 2 of the Acts Interpretation Act, that
Act applies inter alia to all Commonwealth Acts unless an Act is subject to a
contrary intention".
[6] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth)
in respect of now s.399A said:
"161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair
dismissal application where the FWC is satisfied that the applicant has
unreasonably:
● failed to attend an FWC conference or hearing relating to the application ● failed to comply with an FWC direction or order relating to the application, or ● failed to discontinue the application after a settlement agreement has been concluded.
162. The power to dismiss an unfair dismissal application in these
circumstances is not intended to prevent an applicant from robustly pursuing a
legitimate unfair dismissal claim. Rather, the amendment is intended to address
the small proportion of applicants who may pursue claims in an improper or
unreasonable manner. This amendment responds to Panel recommendation 42.
163. In particular, the power to dismiss an application is only intended to be
available where there is an unreasonable act or omission by the applicant.
Examples of when the FWC may exercise its discretion to dismiss an
application under these provisions may include where:
● an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or ● an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.
164. Note 2 to new subsection 399A(1) draws the reader's attention to the
FWC's capacity to make an order for costs under new section 400A (explained
[2016] FWC 1584below) if satisfied that the applicant's failure caused the other party to the
matter to incur costs.
165. New subsection 399A(2) provides that the power to dismiss applications
is only exercisable on application by an employer.
166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that
new section 399A is not intended to limit the FWC's general power to dismiss
applications on grounds such as where the application is frivolous or vexatious
or has no reasonable prospects of success under section 587. Similarly, item 3
inserts a note to subsection 587(1) to highlight the FWC's power to dismiss an
unfair dismissal application under new section 399A.
167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11
of Schedule 3 provides for these amendments to apply in relation to dismissals
that take effect after the commencement of this Part."
[7] Since the Explanatory Memorandum refers to now s.399A 'enabling' the
Commission to dismiss a UDR application, we do not consider s.399A is within the
category of statutory provisions where the word 'may' is to be read as 'must'.
[8] The discretion to dismiss an application under s.399A is only enlivened if the
Commission is satisfied that the applicant has unreasonably failed to do one of the
things referred to in s.399A(1)(a), (b) or (c). Accordingly, we consider s.399A(1)(c)
provides the Commission with a discretion to dismiss a UDR application provided the
Commission is 'satisfied that the applicant has unreasonably… failed to discontinue
the application after a settlement agreement has been concluded'.
[9] Section 399A(2) of the FW Act provides that the Commission may exercise its
power under s.399A(1) on application by the employer. As the power in s.399A is
only exercisable on application by an employer it is the employer who bears the
burden of persuading the Commission that the requirements of s.399A(1)(a), (b) or (c)
have been met and that the discretion should be exercised in favour of the UDR
application being dismissed.”
[29] Accordingly, s.399A of the FW Act requires a two-step process; firstly, a finding that
one or more of the grounds set out are satisfied and secondly, if so, the consideration as to
whether it is appropriate to exercise a discretion to grant the s.399A application and dismiss
the unfair dismissal application.
3
| [30] | Although determined in a different statutory context, | the balancing of considerations |
arising from proper case management evident in the Full Bench decision in Ghalloub v Aon
4
| Risk services Pty Limited | (Ghalloub) remain broadly relevant. In summary, the Full Bench |
| said: |
the starting point of any consideration an application to dismiss is that an applicant
is entitled to have his or her case heard;
directions play an important role in case management;
[2016] FWC 1584
accepting the importance of case management principles, only in extreme
circumstances should a party be shut out from litigating an issue which is fairly
arguable;
the circumstances of each case is central;
a history of non-compliance with directions indicating an inability or an
unwillingness to have the matter ready for trial within an acceptable period of time
is relevant; and
continuing non-compliance which causes unnecessary delay, expense or prejudice
to the other party is relevant.
[31] Given the more specific provisions of s.399A, the above must however be read down
and applied in the context of the approach taken in Granas. Further, Richards SDP in the case
5
| of Allen v Army and Air Force Canteen Service | considered the approach to applications |
made under section 399A of the FW Act and concluded:
"[36] The discretion vested in the Commission by way of s.399A of the Act is fettered
only in so far as it must be exercised on the basis of a judgement as to whether an
Applicant had, in the circumstances before the Commission, "unreasonably [...] failed
to comply with [a Commission] direction [...] relating to the application."
[37] Section 399A(1) of the Act focuses the Commission on the circumstances of the
Applicant's conduct for the purposes of the exercise of discretion. The Explanatory
Memorandum is consistent with the statutory focus in that it indicates that:
the amendment is intended to address the small proportion of applicants who
may pursue claims in an improper or unreasonable manner.
[38] The Explanatory Memorandum further states that:
the power to dismiss an application is only intended to be available where there
is an unreasonable act or omission by the applicant.
[39] The discretion is not one that should be read as being subject to the scope of
considerations as might arise in Brodie Hanns (Brodie-Hanns v MTV Publishing Ltd
(1995) 67 IR see pages 299-300) or as are otherwise applicable by statutory direction
under s.366 of the Act or s.394(3) of the Act.
[40] Further, it is not to be read into the jurisdiction, for example, that the Commission
must establish that the Respondent has been exposed to a prejudice, or in some way
disadvantaged or put to cost (though understandably such circumstances may well
arise consequentially).
[41] Nor does the Respondent need to possess a defence against the claims as made in
the originating application (as is said by the Full Bench in Re: Sayers to be required in
relation to a dismissal of an application under s.587(1) of the Act, at the Commission's
initiative).
[2016] FWC 1584
[42] The discretion, therefore, to dismiss an application under s.399A(1) of the Act is
exercised subject only to an objective evaluation of the Applicant's conduct, and more
particularly, whether or not that conduct was unreasonable in the circumstances."
6
| [32] | This approach has been cited with approval by other Members of the Commission. | I |
do not understand this to mean that once a finding of unreasonable conduct is found, the
discretion must be exercised to grant the application. Rather, for reasons outlined in Granas,
once a finding of unreasonable conduct exists, the discretion to consider whether the
application to dismiss should be granted is then enlivened and is to be exercised judicially.
[33] Before dealing with the other aspects of this matter, it is appropriate to discuss the
notion that during a directions conference conducted by the Commission in relation to this
s.399A application, I indicated that Mr Johnston would be denied natural justice if he was not
given an opportunity to take legal advice and to present his case. These comments were
directed at the need to give Mr Johnston an opportunity to respond to the employer’s s.399A
application, rather than determining the matter at that time. This opportunity was provided
through the directions subsequently issued, the capacity to file materials in response to the
employer’s case and the hearing of that application. In terms of legal advice, I did observe
that Mr Johnston may need to seek legal advice, and that this would be prudent, particularly
given how the AMWU had handled his unfair dismissal application on his behalf.
[34] I note in that regard, that there is now some indication that Mr Johnston has taken
steps to obtain legal advice and intends to be legally represented should his substantive matter
proceed; however, he has not been represented for present purposes. I also note that the
7
| AMWU, although not acting as his representative, continues to act as his “post box” | and |
| Mr McMillan supplied some evidence to support Mr Johnston’s position. |
[35] Mr Johnston has not been denied natural justice in any of the events or processes
leading to this decision.
[36] The MAC was a conference under the FW Act and Mr Johnston did not attend. He
was notified and failed to participate. Although not deliberate, this non-attendance was
unreasonable. The fact that he was represented at the conference, and more importantly that
he was not simply ignoring the process established by the Commission, are however
potentially relevant mitigating factors.
[37] The conduct of Mr Johnston’s case by the AMWU was incompetent and the Union
failed in its duty to Mr Johnston and in its obligations to the Commission. There is no
indication that any substantive preparation of Mr Johnston’s case was undertaken by the
AMWU prior to the MAC and although it sought and obtained the short extension to file, it
apparently took no action to actually prepare the case other than to involve Mr Hardie for the
first time. It also then sought, in effect, to cut the applicant loose and leave him to his own
devices. This all occurred in a context where the MAC was being conducted in parallel with
the directions requiring the filing of materials within a timeframe discussed with the parties
and expressly established in the directions of the Commission. This conduct is representative
error that was a major contributing factor to Mr Johnston failing to comply with the direction
to lodge his materials.
[38] However, representative error would not normally be a full answer in itself. That is,
having regard to the approach adopted by the Commission and the Courts to representative
[2016] FWC 1584
8
| error in extension of time matters, | there is a distinction between a failure caused by the |
representative where the employee is blameless as against when the employee has contributed
to the omission. Further, the actions of the employee are the central consideration in deciding
whether the explanation of representative error is valid and sufficient.
[39] The issue becomes what, if anything, did Mr Johnston do to advance his own
interests? It is evident that Mr Johnston was in contact with the AMWU about the outcomes
of the MAC and the scheduled hearing of the matter given his approach to the Commission to
seek a delay in that schedule. It is also evident that he had earlier obtained “expert” opinions
on the drug testing and other materials in preparation for his case. In effect, Mr Johnston was
actively involved but in terms of the impending requirement to lodge his materials, he largely
trusted his case to the AMWU.
[40] Although, Mr Johnston had earlier not personally participated in the MAC, there is no
pattern of non-compliance with directions, and as outlined above, Mr Johnston did approach
the Commission seeking a delay in the scheduled hearing on the day that his materials were
meant to be lodged. He was alert to the requirement and despite the lack of assistance from
the AMWU, took some action in that context.
[41] I am satisfied that Mr Johnston has unreasonably failed to comply with a direction of
the Commission. The requirements of s.399A(1)(a) and (b) are both met in this case.
[42] Accordingly, a discretion arises as to whether the unfair dismissal application should
be dismissed.
[43] I have found that Mr Johnston’s conduct was unreasonable but there are certain
mitigating circumstances, including in particular, the substantial representative error that led
to him not filing his required materials.
[44] To the extent that the “merit” of the unfair dismissal case is relevant to the ultimate
disposition of this matter, on face value, Mr Johnston does not have a strong case. However,
based upon his own contentions about his conduct and the disputed evidence about the
veracity of the testing regime and results, it is arguable. The dispute about Mr Johnston’s
conduct in the workplace, and the apparent tension between the “experts” regarding the test
results, must be resolved based upon proper and verified evidence.
[45] On balance, I do not consider that it would be appropriate to exercise my discretion to
dismiss the unfair dismissal application pursuant to s.399A of the FW Act.
[46] However, I note that given the unreasonable conduct of Mr Johnston as found in this
decision, Onesteel may well have grounds to seek costs under s.400A of the FW Act if an
application were made at an appropriate time.
[47] In terms of the “invitation” by Onesteel for the Commission to dismiss the application
under s.587(1)(c) of the FW Act, the provision is in the following terms:
“587 Dismissing applications
[2016] FWC 1584
(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. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A. (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.”
[48] The substantive application is an unfair dismissal matter and s.587 is available and
capable of being invoked on application or the Commission’s own motion. However, for
reasons largely set out above, I am presently unable to conclude that the unfair dismissal
application has no reasonable prospects of success.
[49] It should be clearly understood that my findings about an arguable case are based upon
the contentions of Mr Johnston that he did not consume a drug containing THC at work in
August 2015 as alleged by the employer and had not consumed between that time and his
dismissal. If the ultimate evidence does not support those contentions, there is a real prospect
that the application may ultimately be found to have been taken and continued without
reasonable grounds.
[50] Further, any prejudice that arises from the delay in the ultimate disposition of the
unfair dismissal application will be assessed having regard to the history of the matter and the
circumstances dealt with in the s.399A application.
[51] The unfair dismissal application will be heard. Directions will shortly be issued for the
parties to file any additional material and dates for the hearing will also be advised.
Mr Johnston should take steps to advise his legal representative of this development and
9
| ensure that a Notice of Representative Commencing to Act | is expeditiously lodged with the |
Commission. Any request for permission as required under s.596 of the FW Act will be dealt
with at that time.
COMMISSIONER
[2016] FWC 1584
Appearances:
B Johnston, the applicant, on his own behalf and earlier S McMillan, of the Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian
Manufacturing Workers’ Union (AMWU).
P Kashmirian and later M Pillay of the Australian Industry Group for Onesteel Manufacturing
Pty Ltd T/A Arrium.
Hearing/Conference details:
By telephone
2016
12 February
23 March.
Written submissions:
2016
Onesteel Manufacturing Pty Ltd:
25 February, 10 March.
Mr Johnston:
3 March.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR577938>
1
Directions issued by the Commission on 13 January 2016, following a directions conference during which the process of the
MAC was agreed, and the importance of strict compliance with the directions despite the MAC, was discussed.
2
See also Ms Bronwyn Shields v The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd
[2015] FWCFB 2945.
3
This involved consideration of a general discretion to dismiss an application under the Workplace Relations Act 1996, rather
than a specific provision of the nature of s.399A of the FW Act.
4
PR956665.
5
[2013] FWC 9209.
6
Wilson C in Bradford Newbond v GM Holden Ltd [2015] FWC 6024 at [33] and Cloghan C in Morgan Reeve v MacMahon
Holdings Limited T/A MacMahon Contractors Pty Ltd at [32].
7
Mr Johnston does not have internet access and the AMWU has constructively agreed to forward email notices and materials
to him in person.
8
Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care
Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 at [35].
9
Form F53.
7
0