Mr Vinh Tuan Tu v Sydney Trains T/A Sydney Trains
[2023] FWC 1772
•21 JULY 2023
| [2023] FWC 1772 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Vinh Tuan Tu
v
Sydney Trains T/A Sydney Trains
(C2022/5472)
| DEPUTY PRESIDENT CROSS | SYDNEY, 21 JULY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Background
On 4 August 2022, Mr Vinh Tuan Tu made an application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure pursuant to s.739 of the Fair Work Act 2009 (Act).
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.
On 8 December 2022, my Chambers issued the following email to the Parties:
Dear Parties,
I note that the Applicant did not respond to the Commission’s request for a submission in respect of the procedural future of the above matter. The Deputy President has considered the Respondent’s below request for adjournment and has granted an adjournment until that appeal has concluded.
No further action is yet required in the matter, and the matter will not be listed until such appeal is determined. The Parties are to advise Chambers via email, promptly following a decision being issued in the appeal matter, as to their position in respect of the matter’s timetabling.
On 22 June 2023, the Respondents Representative issued the following email, attempting to gain clarification on the status of the matter following the outcome of the Appeal that resulted in the matter being adjourned in the first place. The email relevantly stated:
Dear Associate to Deputy President Cross
We refer to your email below.
The parties have conferred about the status of this matter following the Full Bench decision in [2023] FWCFB 49 (matter numbers C2022/4039; C2022/4049; C2022/4061; C2022/4094; and C2022/4095).
The Respondent has sought confirmation from the Applicant as to whether or not he intends to continue with this application, given the Full Bench decision referred to above. As at the date of this email, the Applicant has not responded to the Respondent’s correspondence.
We respectfully invite the Commission to list the matter for mention so that next steps in the matter can be determined.
This email was provided to the Applicant in advance of sending it. The Applicant is copied to the email.
On the same day, 22 June 2023, my Chambers issued the following email to both Parties:
Dear Parties,
I refer to the matter above and correspondence below.
Prior to the matter being listed for a Mention, Chambers requests an update from the Applicant as to whether they wish to Discontinue the matter.
The Applicant is directed to respond by way of email by no later than 5:00PM on 30 June 2023, as to whether they wish to continue with their application.
If no response is filed, the dispute will be deemed resolved and the file will be closed.
On 7 July 2023, my Chambers issued another follow up email noting the non-compliance of the Applicant in the first instance. It relevantly stated:
Dear Parties,
I note the Applicant, has not complied with the below Direction issued on 22 June 2023 at 10:49AM. Please see below Direction:
1. The Applicant is directed to respond by way of email by no later than 5:00PM on 30 June 2023, as to whether they wish to continue with their application.
The Applicant is required to email Chambers by 4:00pm on 10 July 2023, as to whether they wish to continue with their application. If no response is received the matter will be deemed resolved and the file will be closed.
Please note that any materials must be filed with the Commission via email to this address, being [email protected].
On 17 July 2023, my Chambers issued the final warning email for the Applicants non-compliance, stating:
Dear Applicant,
I refer to the above matter, and in particular, to the Direction contained in the email dispatched to you on 22 June 2023, which requests whether you wish to continue with your Application (please see below).
Chambers has contacted you via email on 7 July 2023 in relation to your non-compliance with the Direction. Chambers has not received any other communication in reply to this correspondence.
Please be advised that, should you not respond to this communication, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.
You are required to:
· Respond to Chambers and inform whether you wish to maintain and continue with your Application.
by 4:00pm 18 July 2023.
I confirm that all correspondence with the Commission, including the filing of materials, is to be sent via email to [email protected].
To date, the Applicant has not responded to any of the correspondence issued.
Consideration
Section 587 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.
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.”
The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
Order
The application in C2022/7291is dismissed.
DEPUTY PRESIDENT
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