M.N.

[2018] FWC 6514

[2018] FWC 6514

FAIR WORK COMMISSION

DECISION

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

M.N.
(AB2018/594)

COMMISSIONER HAMPTON ADELAIDE, 25 OCTOBER 2018

Application for an FWC order to stop bullying.

[1] On 25 September 2018, M.N. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was incomplete. The application was also not accompanied by the required filing fee or a completed waiver application.

[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

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[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] On 26 September 2018, the Commission telephoned and wrote to M.N. in relation to the matter. M.N. was advised in writing that her application required further information, including a signature, and would then be provided to the other parties. Further if she wished to proceed, payment of the filing fee, or a completed waiver form was required. M.N. requested more time in order to meet with her employer and undertook to provide an amended and signed application ready for service on the other parties if she then wished to proceed.

[6] On 3 October 2018, the Commission again wrote to M.N. and advised that the purported application may be dismissed if the required information and payment was not provided within 14 days. M.N. again indicated she was trying to resolve the matter with her employer.

[7] Further unsuccessful attempts were made to contact M.N. on 17 October 2018 to ascertain her intentions.

[8] 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.”

[9] 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.

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

[11] I note that this decision does not prevent M.N. from making a fresh application should the issues not be resolved as a result of her present endeavours.

COMMISSIONER

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.