Natalia Barbaccia v AC Laser Cutting Pty Ltd
[2023] FWC 1634
•5 JULY 2023
| [2023] FWC 1634 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Natalia Barbaccia
v
AC Laser Cutting Pty Ltd
(C2023/3162)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 5 JULY 2023 |
Application to deal with contraventions involving dismissal – s.587 – application dismissed.
On 31 May 2023, Ms Natalia Barbaccia made an application under s.365 of the Fair Work Act 2009 (Cth) alleging she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The application was not accompanied by either the prescribed application fee nor a completed application for a waiver of the fee.
On 5 June 2023, the Commission emailed Ms Barbaccia to her nominated address advising that her application required payment of the application fee or a completed fee waiver application if she wished to proceed with the application. The email also advised her that:
“If you don’t make payment within 7 days your application may be dismissed.”
An SMS notification was also sent to Ms Barbaccia on 6 June 2023 advising her to action the email regarding payment of the application fee.
On 8 June 2023 the Commission emailed Ms Barbaccia with a further reminder and that:
“You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.
On 14 June 2023 Ms Barbaccia did not answer a telephone call to her and there was no capacity to leave a voicemail message. An attempt to telephone Ms Barbaccia’s representative the same day was also not answered and a voicemail message was left requesting the Applicant contact the Commission.
On 26 June 2023 further unsuccessful attempts were made to telephone Ms Barbaccia and her representative and a further voicemail message left for her representative.
To date Ms Barbaccia has not paid the application fee nor filed a completed application for a waiver of the fee.
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.
Consideration and conclusion
I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission.[1]
The many unsuccessful attempts to contact Ms Barbaccia and her representative and the absence of any response leave me satisfied that it is appropriate in all the circumstances to dismiss the application.
The application is dismissed. An Order[2] to this effect will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR763944>
[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].
[2] PR763945.
Printed by authority of the Commonwealth Government Printer
<PR763944>
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