Mr Michael Baker v As Colour Pty Ltd Summary

[2023] FWC 140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Michael Baker
v

AS Colour Pty Ltd

(C2022/5722)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 19 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

Mr Michael Baker (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by the AS Colour Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

The application was received by the Commission on 16 August 2022. On 17 August 2022, the Commission telephoned the applicant and left a voicemail requesting a return call in relation to the non-payment of the filing fee. The Commission also sent a letter by email to the applicant with information on how to pay the filing fee and how to make a waiver application. The letter emphasised that a failure to pay the fee or seek a waiver will result in the application being dismissed.

Further telephone calls were made to the applicant on 19 August 2022 and 1 September 2022. Voicemails were left on both occasions in relation to the failure to pay the filing fee, and the applicant was put on notice the application may be dismissed.

On 5 September 2022, a further telephone call was made to the applicant and a voicemail was left. A letter was also sent to the applicant advising how to pay the application fee or make a waiver application. The letter stated:

“If we don’t hear from you by 12 September 2022 with the information we need, we may dismiss your application. This means we will close your case.”

(emphasis omitted)

On 14 September 2022, the Commission telephoned the applicant and left a further voicemail advising the application may be dismissed.

The Commission emailed the applicant again on 11 October 2022, advising the application would be dismissed if the filing fee was not paid, and attaching the previous correspondence explaining how to make payment. A voicemail was also left putting the applicant on notice that the application may be dismissed.

To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

Section 587 of the Act provides as follows:

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.

…

(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.

(emphasis added)

Consideration and conclusion

The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Mr Michael Baker v As Colour Pty Ltd, the applicant, Mr Michael Baker, brought an application under section 365 of the Fair Work Act 2009 (Cth), alleging that he was dismissed by As Colour Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act. The application was dismissed by the Fair Work Commission, as it was not accompanied by the required fee, nor had a waiver application been submitted. Despite multiple notifications from the Commission, the applicant did not address the fee deficiency, leading to the dismissal of the application.

The primary legal issue before the Deputy President was whether the application complied with the statutory requirements set out in section 367 of the Act, which mandates that an application under section 365 must be accompanied by the prescribed fee. The applicant did not pay the fee or apply for a waiver, despite being notified of the deficiency on several occasions. The Deputy President had to determine whether the failure to meet this requirement justified the dismissal of the application under section 587 of the Act.

The Deputy President found that the application did not comply with the legislative requirements, as it was not accompanied by the prescribed fee or a completed waiver application. The applicant's failure to respond to multiple notifications from the Commission about the fee deficiency led the Deputy President to exercise their discretion to dismiss the application under section 587(1)(a) of the Act. The dismissal was warranted because the application was not made in accordance with the Act, and the applicant had not taken any action to rectify the deficiency.

The Fair Work Commission dismissed the application brought by Mr Michael Baker against As Colour Pty Ltd. The dismissal was based on the applicant's failure to comply with the statutory requirement to pay the prescribed fee or apply for a fee waiver, despite being notified multiple times by the Commission. The Deputy President concluded that the application did not meet the criteria for acceptance and, therefore, exercised their discretion to dismiss the application under section 587(1)(a) of the Act.

Mr Michael Baker v As Colour Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established