K.R.

[2021] FWC 2904

[2021] FWC 2904

FAIR WORK COMMISSION

DECISION

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

K.R.
(AB2021/217)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 MAY 2021

Application for an FWC order to stop bullying.

[1] On 19 April 2021, K.R. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The application was accompanied by a completed waiver application.

[2] On 19 April, 20 April and 21 April 2021 the Commission attempted to contact K.R. by telephone to discuss her application but was unable to speak with her. On 19 and 20 April 2021 voice messages were left requesting K.R. telephone the Commission. On 21 April 2021 a text message and an email were sent to K.R. requesting she contact the Commission.

[3] On 22 April 2021 the Commission again attempted to contact K.R. by telephone but was unable to speak with her. A voice message was left requesting K.R. telephone the Commission. A text message was also sent to K.R. requesting she contact the Commission.

[4] On 23 April 2021 the Commission wrote to K.R. advising her that her application for the application fee to be waived was declined and she was therefore required to pay the $74.50 application fee. K.R. was advised that if she did not pay the application fee by 30 April 2021 it was likely her application would be dismissed.

[5] On 14 May 2021 the Commission attempted to contact K.R. by telephone but was unable to speak with her. A voice message was left requesting she contact the Commission.

[6] To date, the application fee has not been paid by K.R. and no further action has been taken by her or on her behalf.

[7] 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.”

[8] 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.’

[9] 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.”

[10] 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.2 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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

 2   The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.