DECISION

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

M.T.
(AB2017/130)

COMMISSIONER HAMPTON

ADELAIDE, 6 APRIL 2017

Application for an FWC order to stop bullying.

[1] On 10 March 2017, M.T. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) did not contain sufficient relevant information to enable the Commission to progress the matter, nor did it contain the required lodgement fee or completed waiver application.

[3] On 15 March, M.T. was advised by letter that her application was incomplete and required further information and payment/waiver application if she wished to proceed.

[4] On 17 March, M.T lodged the completed application form (Form F72), which was accompanied by the relevant waiver application.

[5] 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.”

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

[7] The waiver application was considered by this arm of the Commission, as Panel Head for the Anti-Bullying jurisdiction. Based on the information disclosed in the waiver application, I determined on balance that M.T. would not suffer serious hardship if required to pay this filing fee.

[8] On 20 March, M.T. was advised by letter that her application for a waiver of the required filing fee had been refused and that payment of the fee was required if she wished to proceed with the application.

[9] On 21 March, M.T. indicated that it was her intention to proceed with the application and that she would pay the required fee by telephone later that day. On 22 March, having not received the payment from M.T., the Commission again wrote to her and advised that the application may be dismissed if the required payment was not made within 14 days.

[10] On 30 March, the Commission contacted M.T. at which time she requested to be telephoned by the Commission on the following day during her lunch break. This would enable her to make the required payment. Attempts were duly made to contact M.T. the following day as arranged, however they were unsuccessful.

[11] On 3 April 2017, the Commission made a further unsuccessful attempt to contact M.T. in relation to the matter.

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

[13] Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may
(2) 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.”

[14] 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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Australian Federal Court involved an application for an order under the Fair Work Act 2009 to address allegations of bullying. The applicant, who had previously worked for the respondent, sought relief to stop the alleged bullying and to protect their rights as an employee. The Court was tasked with determining whether the Fair Work Commission (FWC) had the jurisdiction to hear and decide the matter and whether the FWC's decision was legally sound.

The primary legal issues before the Court included the interpretation of the statutory provisions concerning workplace bullying and the scope of the FWC's authority. The applicant argued that the FWC had jurisdiction to hear the matter and that its decision should be upheld as it was based on a proper application of the law. The respondent, on the other hand, contended that the FWC had exceeded its jurisdiction by entertaining the application and that the decision was legally flawed.

The Court considered the relevant statutory provisions and the FWC's reasoning in reaching its decision. It examined whether the FWC had correctly interpreted the relevant provisions and whether it had the jurisdiction to make the order in question. The Court held that the FWC had jurisdiction to hear the matter and that its decision was not legally flawed. The Court found that the FWC had properly applied the law and that the applicant's application for an order to stop bullying was valid. The Court dismissed the respondent's challenge to the FWC's jurisdiction and decision.

The Court's final orders affirmed the FWC's decision and dismissed the respondent's appeal. The Court found that the FWC had the jurisdiction to hear the matter and that its decision was legally sound. The Court upheld the order for the respondent to take steps to stop the alleged bullying and to protect the applicant's rights as an employee.

M.T.

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established