P.S.

[2019] FWC 6266

[2019] FWC 6266

FAIR WORK COMMISSION

DECISION

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

P.S.
(AB2019/429)

COMMISSIONER HAMPTON ADELAIDE, 11 SEPTEMBER 2019

Application for an FWC order to stop bullying.

[1] On 12 August 2019, P.S. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was accompanied by an incomplete waiver form for consideration.

[3] 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.”

[4] The Fair Work Regulations 2009 prescribe a filing fee for stop bullying applications and Regulation 6.07A(7) provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

[5] On 14 and 24 August 2019, P.S. was advised by telephone and letter that her waiver remained incomplete and that payment of the fee or a completed waiver was required if she wished to proceed with the application. Further, P.S. was advised that the purported application may be dismissed if the required payment or completed waiver form was not received.

[6] On 2 September 2019, P.S. provided a completed fee waiver application that was considered by this arm of the Commission as National Practice Leader for the Anti-Bullying jurisdiction. I determined, on balance that P.S. would not suffer serious hardship if required to pay this filing fee given the information disclosed in the waiver application. P.S. was advised that the waiver was declined based on the existing information. P.S. was further advised that subject to the provision of any revised grounds for the waiver, payment of the fee was required if she wished to proceed with the Ant-Bullying application and that the file would shortly be considered by the National Practice Leader for potential dismissal.

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

[8] 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.”

[9] In considering all the circumstances, I am satisfied that the relevant Anti-Bullying 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 and no further action is required. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application

[10] Accordingly, the Anti-Bullying application is dismissed under s.587(1)(a) of the Act.

COMMISSIONER

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 1   Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].