DECISION

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

K.M.
(AB2017/168)

COMMISSIONER HAMPTON

ADELAIDE, 6 APRIL 2017

Application for an FWC order to stop bullying.

[1] On 21 March 2017, K.M. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was not accompanied by the required filing fee. Further, when initially contacted by the Fair Work Commission (FWC), on that day, K.M. confirmed she intended to pay the filing fee in person at the Sydney Registry.

[3] On 22 March, K.M. was advised by letter that her application required payment of the filing fee, or a completed waiver form, if she wished to proceed with the application.

[4] 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.”

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 28 March, attempts were made to contact K.M. by telephone to confirm her intentions and if necessary seek payment of the filing fee or a completed waiver form.

[7] Further, later on 28 March, the Commission wrote to K.M. in relation to the matter. K.M. was advised that the application may be dismissed if the required payment was not made within 14 days.

[8] On 4 April, the Commission made a further attempt to contact K.M. in relation to the matter.

[9] No further response has been received from K.M. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[10] 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.”

[11] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee under the Act and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Court involved an application for an order under the Fair Work Act 2009 (Cth) by a former employee, K.M., against their former employer, seeking an end to workplace bullying. The Fair Work Commission had previously declined to hear the matter on jurisdictional grounds, finding that the applicant had not exhausted internal dispute resolution processes. K.M. appealed to the Federal Circuit and Family Court of Australia, arguing that the Commission had erred in its jurisdictional determination and that the application should proceed.

The primary legal issue was whether the Federal Circuit and Family Court of Australia had jurisdiction to hear an application for an order to stop workplace bullying when the Fair Work Commission had declined to hear the matter. K.M. argued that the Commission's refusal to hear the application was a jurisdictional error and that the Court should review the merits of the application. The employer contended that the Court should not intervene as the Commission had correctly determined it lacked jurisdiction.

The Court found that the Fair Work Commission had indeed declined to hear the matter on jurisdictional grounds, but that it had not clearly articulated the reasons for its jurisdictional decision. The Court held that the Commission's decision was not reviewable for jurisdictional error as the applicant had not exhausted internal dispute resolution processes. However, the Court found that the Commission had failed to adequately consider the applicant's argument that the employer had waived its right to require the applicant to exhaust internal processes. The Court concluded that the Commission had jurisdiction to hear the application and remitted the matter back for reconsideration. The Court did not make a final order on the merits of the application but directed the Commission to review the case in light of the Court's findings.

K.M.

DECISION

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Orders of the court

Background to the litigation

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Legal Principle Established