Ms Abby Smith v United Petroleum Pty Ltd

[2020] FWC 212

[2020] FWC 212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Ms Abby Smith
v
United Petroleum Pty Ltd
(C2019/5367)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 4 FEBRUARY 2020

Application to deal with a dispute - dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 29 August 2019 Ms Smith 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).

[2] 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.

[3] 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.

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

[5] Rules 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.

[6] The application was made with a Form F10 but it was incomplete. For example, it did not list the applicant’s name, postal address, the industrial instrument or other written agreement covering the employment relationship and containing the dispute resolution procedure relevant to the application, and was not signed. It also did not comply with Rule 36(3) of the FWC Rules.

[7] On 30 August 2019 a staff member of the Commission wrote to Ms Smith advising that the application was incomplete and indicating that a complete application would need to be lodged to enable the Commission to deal with the dispute. No response was received.

[8] On 11 September 2019 my Associate wrote to Ms Smith asking her to advise whether she wished to press the application and if so, requesting that a complete application be lodged. My Associate further advised that if Ms Smith no longer wished to press the application, she could withdraw it. No response was received.

[9] On 2 October and 13 December 2019 my Associate again wrote to Ms Smith in similar terms to the correspondence sent on 11 September 2019. No response was received.

[10] On 24 December 2019 and 16 January 2020, in the ongoing absence of any response from Ms Smith, my Associate wrote to her indicating that her application would be dismissed if a complete application was not lodged.

[11] To date, Ms Smith has not responded to the Commission’s correspondence or made any contact with the Commission regarding this application. She has taken no measures to press her application despite numerous attempts by the Commission to obtain a complete application. Consequently, and as foreshadowed in the correspondence to Ms Smith on 24 December 2019 and 16 January 2020, I have decided to dismiss her application pursuant to s.587 of the Act.

[12] Section 587 of the Act states relevantly that:

“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

…

(3) The FWC may dismiss an application:

(a) on its own initiative

…”

[13] In deciding to dismiss Ms Smith’s application I have had regard to the views of the Full Bench of the Commission in Peter Viavattene v Health Care Australia. 1 The Full Bench of the Commission in that decision noted:

“[39] …There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative…”

[14] I have also had regard to the observation in Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association that the power to dismiss a substantive application should not be exercised hastily. 2 In circumstances where the Commission has written to Ms Smith on multiple occasions and given her every opportunity to press her application, and Ms Smith has failed to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

[15] As Ms Smith has failed to lodge an application by completing the approved form and by complying with Rules 36(3) of the FWC Rules, despite repeated requests to do so, I find that the application is not made in accordance with the Act. 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.

Order

The application in C2019/5367 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715931>

 1   [2013] FWCFB 2532 at [39]

 2   [2019] FWC 4399 at [12]