Martin Holloway v Made Establishment Pty Ltd

[2020] FWC 755

[2020] FWC 755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.587—Application dismissed

Martin Holloway
v
Made Establishment Pty Ltd
(C2019/6124)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 14 FEBRUARY 2020

Dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 7 October 2019 Mr Martin Holloway made an application to the Fair Work Commission (Commission) using the Form F1, the form used to make an application to the Commission where there is no specific form provided.

[2] In answer to question 1.1 of the Form F1, which asks the Applicant to set out the provision of the Fair Work Act 2009 (Act) under which they are making their application, Mr Holloway stated:

“To be compensated for working overtime

Signed a CDP contract, reimbursed as a 3 year apprentice

Training people and not payed for this.”

[3] In answer to question 2.1 of the Form F1, which asks the Applicant to set out the order or relief sought, the Applicant stated:

“I would like to be paid for all my overtime and my first compensation be evaluated and to be paid properly for my training.”

[4] In answer to question 2.2 of the Form F1, which asks the Applicant to set out the grounds for the order or relief sought, Mr Holloway stated:

“Money to be payed into my bank account.”

[5] On 7 October 2019 a staff member of the Commission wrote to Mr Holloway indicating, among other things, that the dispute the subject of the application appears to fall within the functions of the Fair Work Ombudsman rather than the Commission. The email directed Mr Holloway to the website of the Fair Work Ombudsman and informed Mr Holloway how he could discontinue the present application.

[6] In the absence of any response, on 17 October 2019 a staff member of the Commission wrote to Mr Holloway in similar terms to the email of 7 October 2019.

[7] On 28 November 2019 Mr Holloway wrote to the Commission as follows:

“Hello Tara,

         My name is Martin Holloway I worked in Gazi restaurant for a few years. My contract was started as a cdp and then later finished my schooling on the job training. I was payed for a 38 hr work week but constantly worked more than 50 hrs a week. Made establishment paid some of the hrs back when they were found to be under paying workers. I know they under paid the overtime.

I am currently living in Italy it is hard to phone as the time difference and the cost. Can we work something out?

 Hope to hear from you soon.”

[8] On 3 December 2019 my Associate wrote to Mr Holloway and, referring to the email of 17 October 2019, again invited him to discontinue the application. No response was received.

[9] On 16 January 2020 my Associate wrote again to Mr Holloway indicating that in the absence of any advice from him, the application may be dismissed. On even date Mr Holloway replied:

‘I want you to go after gazi for underpaying me!’

[10] On 4 February 2020 my Associate wrote to Mr Holloway indicating that on the face of the application it does not appear that the Commission has jurisdiction to deal with the matter and if no further submissions are received the matter may be determined on the basis of the material filed to date.

[11] At the time of this Decision, the Applicant has not responded to the email dated 4 February 2020.

[12] I have decided to dismiss Mr Holloway’s application pursuant to s.587 of the Act.

[13] Section 587 of the Act states:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[14] Mr Holloway’s application fails to identify the relevant provisions of the Act under which his application is made and fails to set out the legislative grounds for the relief sought. It may be the case that Mr Holloway seeks relief under s.739 of the Act. If by his application Mr Holloway seeks relief under s.739 of the Act, then I find his application is not made in accordance with the Act.

[15] Section 585 of the Act provides that an application to the Commission must be in

accordance with the procedural rules (if any) relating to applications of that kind.

[16] Rule 8 of the Fair Work Commission Rules 2013 (FWC Rules) provides, inter alia,

that if the President approves a form for a particular purpose then subject to the FWC Rules,

the approved form must be used for that purpose.

[17] The approved form for an application under s.739 of the Act is the Form F10.

[18] Rule 36(3) of the FWC Rules provides that such an application must be accompanied

by the term referred to in s.738 of the Act under which the Commission is required or allowed

to deal with the dispute. Mr Holloway’s application was not accompanied by the term referred to in s.738 of the Act.

[19] As Mr Holloway failed to lodge an application by completing the approved form and by complying with Rule 36(3) of the FWC Rules, I find that the application is not made in accordance with the Act. Despite repeated requests, Mr Holloway has not engaged with the flaw in his application nor has he requested that any deficiencies be corrected or waived. Accordingly, and absent any material matter which would persuade me to act otherwise, I have decided to exercise the discretion under s.587(1)(a) of the Act to dismiss the application.

[20] Further, it does not appear that the Commission has jurisdiction to deal with a dispute under s.739 of the Act. Although there is no evidence as to when Mr Holloway ceased to be employed by the Respondent, his application form provides an address in Italy as his postal address. Additionally, Mr Holloway’s email of 28 November 2019 indicated that he “worked” for the Respondent. I infer from the above that at the time the application was made his employment relationship with the Respondent had ended. This inference is made in the absence of any information militating against such a conclusion. The relevant reference instrument which might engaged s.739 of the Act (but which is not identified in the application) would not have applied to Mr Holloway at the time the application was made

[21] Were it necessary to do so, I find that the Commission has no jurisdiction to deal with the matter as an application to deal with a dispute in accordance with a dispute settlement procedure.

Order

The application in C2019/6124 is dismissed.

DEPUTY PRESIDENT

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