Mr Steven Rouessart v Nestle Australia T/A Nestle Purina Petcare
[2025] FWC 630
•3 MARCH 2025
| [2025] FWC 630 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Steven Rouessart
v
Nestle Australia T/A Nestle Purina Petcare
(C2024/8855)
| COMMISSIONER REDFORD | MELBOURNE, 3 MARCH 2025 |
Alleged dispute about any matters arising under the modern award and the NES; failure to file material in accordance with directions; dismissal of application pursuant to s 587 of the Act
On 10 December 2024 Mr Rouessart made an application pursuant to s 739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute concerning the Commercial Sales Award 2020 (the Award). The alleged dispute concerns Nestle Australia (Nestle).
The application was allocated to my chambers on 12 December 2024.
The Award provides at clause 28 that a dispute about a matter under the Award or in relation to the National Employment Standards that is unable to be resolved at the workplace may be referred to the Fair Work Commission after several steps are taken. The Commission may use any method of dispute resolution permitted by the Act to use it considers appropriate for resolving the dispute.
Pursuant to s 739 of the Act, I listed the matter for a conference to occur on 13 January 2025. The Notice of Listing issued outlined a procedure to be followed in the event of a request for the conference to be rescheduled.
Nestle requested that the conference date be adjourned and Mr Rouessart agreed. I granted the adjournment request and re-listed the matter to 13 February 2025 via video to commence at 10:00AM.
On 13 February 2025 Mr Rouessart emailed my chambers at 8:32AM to advise as follows:
“Good morning Commissioner and parties
Unfortunately due to staff shortages I am unable to attend today’s hearing.
I apologise for the last minute notification but only just found out myself and I do have to full commit to my current employers requirements and needs as a Senior Manager.
If you are unable to reschedule I understand if the matter has to be withdrawn …”
In circumstances where this advice was received at such short notice, and not in accordance with the procedure outlined dealing with requests to re-schedule, I refused to vacate the conference and advised the parties accordingly.
Nestle attended the conference, but Mr Rouessart did not.
During the conference, Nestle requested that the Commission dismiss the application. I am prepared to treat this request as an application made by the Nestle pursuant to s 587(3)(b) of the Act.
On 13 February 2025 I issued Directions in relation to Nestle’s application for the dismissal of Mr Rouessart’s application. In those Directions I set out some short background to the matter, indicating that Nestle sought that the application be dismissed pursuant to s 587, a section of the Act that is frequently the basis upon which the Commission will dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance.
The parties were directed to file and serve submissions as to why the application should or should not be dismissed and provide any other material it wished the Commission to have regard to. This was to occur in Nestle’s case by 4:00PM on 20 February 2025 and in Mr Rouessart’s case, by 4:00PM on 25 February 2025.
On 20 February 2025, I received from Nestle’s Representative an email which contained an Outline of submissions as to why the application should be dismissed.
By 4:00PM on 25 February 2025 Mr Rouessart had not filed any material in relation to the matter, despite being directed to do so. Consequently, on 28 February 2025 an email was sent to him by my chambers which said:
“Dear Mr Rouessart
On 13 February 2025 the Commissioner provided the parties with a brief summary and Directions in relation to this matter.
The summary noted the application made by the Respondent for this application to be dismissed.
The Directions provided the Respondent with the opportunity to file any further submissions and material in support of its application that the matter be dismissed, to occur by 20 February 2025.
The Respondent filed and served further submissions, and those submissions are again attached for the particular attention of Mr Roussart.
Mr Roussart was to file and serve any material in response, such as an argument opposing the proposition that the application be dismissed, by 4:00PM on Tuesday 25 February 2025.
No material has been filed by the Mr Roussart.
While the summary provided by the Commissioner indicated that if there was no material filed by Mr Roussart, the question as to whether the application will be dismissed will be determined on the basis of the material as filed, out of an abundance of caution, Mr Roussart is afforded one more opportunity to file and serve any material he may wish to on the question of whether his application should be dismissed.
This must be filed by 4:00PM Monday 3 March 2025 after which time the Commissioner will determine the matter based on the papers.”
There was no response from Mr Rouessart to this email, and he has not filed any material in relation to the application that the matter be dismissed.
Consideration
Section 587 of the Act provides:
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 32, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
An application made where the Commission has no jurisdiction to deal with the matter may be dismissed pursuant to s 587(1)[1]. Frequently, this section of the Act is the basis upon which the Commission may dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance[2]. The words “without limiting when the FWC may dismiss an application” in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).
Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge[3]. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording applicant’s procedural fairness (although without necessitating a hearing). A Full Bench of the Commission recently reiterated these admonitions in Matthew Priestly and Mika Tyson v Blackfisch Films Pty Ltd[4], a decision to which I have paid careful regard in this matter.
In its Outline, Nestle submitted that the dispute alleged to have occurred by Mr Rouessart may be characterised as relating to two matters: first, whether the Mr Rouessart was covered by a workers’ compensation policy in respect of travel between his residence and his first and last place of work, and second, whether he was entitled to be paid when commuting from his place of residence to first place of work and when commuting from his last place of work to his place of residence.
In respect of these matters, Nestle submitted that they fall outside the scope of the Award and do not concern entitlements conferred by the Award.
This seems plainly to be the case, on the face of the application. I have afforded Mr Rouessart several opportunities to provide more information about his application, including opportunities to address the contentions levelled by Nestle – that the dispute falls outside the scope of the Award and do not concern entitlements conferred by the Award. In the absence of any such further information or submission having been provided by Mr Rouessart I accept the submission made by Nestle, and find the dispute, as characterised in the application, is not about a matter under the Award or in relation to the NES.
I therefore conclude that the application lacks a proper basis and is thus not made in accordance with the Act, nor does it have a reasonable prospect of success.
It is also apparent that Mr Rouessart has not properly participated in his application since January 2025 does not appear to intend to do so. In particular, since the application was filed, he has not participated in a proceeding, only intermittently responded to email correspondence and has otherwise failed to comply with the Directions of the Commission without explanation.
The Respondent on the other hand has responded to all correspondence and attended the conference in the matter and will suffer ongoing prejudice should it be asked to continue to participate in the proceeding when Mr Rouessart is not.
Taking into account the recent comments made by a Full Bench of this Commission, that the “ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed”[5], I consider that the balance weighs in favour of the dismissal of the application.
I consider that Mr Rouessart has been provided with procedural fairness, having been provided with the submissions made by the Respondent, been given several days to provide a response, and, without requesting it, a further opportunity to provide that response when he initially failed to do so. He has not responded at all. At all times he has been made aware of the possibility his application may be dismissed for his failure to participate in it and failure to follow Directions.
Mr Rouessart’s application is dismissed, and an order[6] will issue to that effect with this decision.
COMMISSIONER
Appearances:
No appearance for the Applicant
T Lawrence for the Respondent
Matter determined on the papers
[1] Josh Thiyagarajah v JND Holdings Pty Ltd[2020] FWC 5540
[2] see for example Viavattene v Health Care Australia [2013] FWCFB 2532 [39]; Rebecca Tomas v Symbian Health[2011] FWA 5458 [57]; Brock Auguston v Castleross Construction Pty Ltd[2024] FWC 1460
[3] [2024] FWC 1302
[4] [2025] FWCFB 40
[5] Ibid [33]
[6] PR784894
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