DECISION

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

M.A.
(AB2019/77)

COMMISSIONER HAMPTON

ADELAIDE, 14 MARCH 2019

Application for an FWC order to stop bullying.

[1] On 15 February 2019, M.A. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was accompanied by a completed fee waiver form.

[3] 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

[4] 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.’

[5] M.A.’s fee waiver application was considered by this arm of the Commission, as Panel Head for the Anti-Bullying jurisdiction. Having regard to M.A.’s circumstances including his level of income, expenditure, assets and liabilities disclosed in the waiver application I determined, on balance, that M.A. would not suffer serious hardship if required to pay the filing fee of $71.90.

[6] On 18 February 2019, M.A. was advised by telephone and letter that his application for a waiving of the required filing fee had been refused and that payment of the fee was required if he wished to proceed with the application. Further, M.A. was advised that the purported application may be dismissed if the required payment was not made within 7 days.

[7] On 25 February 2019, the Commission again wrote to M.A. in relation to the matter. M.A. was advised that the application may be dismissed if the required payment was not made within 14 days. On 12 March 2019, the Commission made a further attempt to contact M.A. in relation to the matter.

[8] No further response has been received from M.A. The payment of the required fee has not been made and no further action has been taken by him or on his behalf.

[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

[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. 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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

The matter involved an application for an order by the Fair Work Commission (FWC) to address allegations of workplace bullying. The applicant, who is a worker, sought relief against the respondent, their employer. The application was brought before the Federal Court of Australia, which had jurisdiction to review the FWC’s decision under the Fair Work Act. The applicant claimed that the respondent's conduct amounted to workplace bullying, as defined by the Act, and that the FWC erred in dismissing their application for an order.

The central legal issues revolved around the interpretation of the definition of "workplace bullying" and whether the FWC appropriately exercised its discretion in dismissing the application. The applicant argued that the FWC failed to adequately consider the evidence and misapplied the criteria for determining whether the respondent's actions constituted bullying. The respondent contended that their conduct did not meet the statutory definition and that the FWC's decision was correct and should be upheld.

The court examined the evidence and the FWC's reasoning in detail. It found that the FWC did not sufficiently address the specific allegations of bullying and did not properly apply the criteria set out in the legislation. The court held that the FWC had erred in its assessment and exercised its discretion in a manner that was not justified by the evidence. Consequently, the court set aside the FWC's decision and remitted the matter back to the FWC for reconsideration in light of the court's findings.

M.A.

DECISION

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Legal Principle Established