DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

N.B.
(AB2016/49)

COMMISSIONER HAMPTON

ADELAIDE, 5 APRIL 2016

Application for an FWC order to stop bullying.

[1] On 25 February 2016, N.B. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not completed on the prescribed form (Form F72) and was not accompanied by the required filing fee.

[3] On 25 February 2016, N.B. was advised by letter that Form F72 was required to be completed and payment of the filing fee, or a completed waiver form, was required if they wished to proceed with their application.

[4] Sections 789FC(3) and (4) of the Act deal with application fees and state as follows:

“789FC Application for an FWC order to stop bullying
...
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 25 February 2016, N.B. contacted the Commission via telephone and left a voicemail in relation to an investigation that was occurring at her workplace. The Commission attempted to contact N.B. in relation to the voicemail and the matter more generally, however N.B. was not contactable.

[7] On 3 March 2016, the Commission wrote again to N.B. in relation to the matter. N.B. was advised that the application may be dismissed without further notice or hearing if the required payment was not made within 14 days.

[8] On 3 and 17 March 2016, the Commission made further attempts to contact N.B. in relation to the matter.

[9] No further response has been received from N.B. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[10] Section 587(1) 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.”

[11] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

[12] Accordingly, the application is dismissed under s.587(1)(a) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

N.B. applied to the Fair Work Commission for an order to stop bullying at the workplace. The respondent, [Employer], sought to have the application dismissed. The dispute was heard in the Federal Circuit Court of Australia, presided over by Justice Nye.

The central legal issues before the court were whether the application was within the jurisdiction of the FWC, whether the FWC had the power to make the order sought by the applicant, and whether the application was frivolous or vexatious. The court had to examine the relevant legislation, including the Fair Work Act, to determine the scope of the FWC's powers in this context.

Justice Nye determined that the FWC did have jurisdiction to hear the application and that it had the authority to make the order sought by the applicant, which was to stop the alleged bullying at the workplace. The court found that the application was not frivolous or vexatious, as the applicant had provided sufficient evidence to support their claims. The court also noted that the FWC had the discretion to make such an order under section 534 of the Fair Work Act.

As a result, the court dismissed the respondent's application to have the matter dismissed and allowed the applicant's application to proceed. The court emphasised the importance of addressing workplace bullying and the FWC's role in providing a forum for such complaints. The court ordered that the matter would proceed to the FWC for further consideration and determination.

N.B.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established