Rhys Harty v ATF a & a Piperno Family Trust T/A A&A Piperno Painters and Decoraters Pty Ltd

[2016] FWC 2241

[2016] FWC 2241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rhys Harty
v
ATF A & A Piperno Family Trust T/A A&A Piperno Painters and Decoraters Pty Ltd
(C2016/2681)

DEPUTY PRESIDENT KOVACIC CANBERRA, 8 APRIL 2016

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Mr Rhys Harty (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 18 February 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by ATF A & A Piperno Family Trust T/A A&A Piperno Painters and Decoraters Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Hartys’s application was incomplete in that no payment of the application fee accompanied his application, nor did Mr Harty seek to have the application fee waived.

[2] On 25 February 2016, the Commission contacted Mr Harty via email asking him to provide the Commission with either a completed waiver form or the lodgment fee within 14 days or the application may be dismissed.

[3] The Commission subsequently attempted to contact Mr Harty on a number of occasions, i.e. 1, 18, 27 and 29 March by telephone, letter and email regarding his application and incomplete payment. On each occasion it was foreshadowed that Mr Harty’s application may be dismissed unless he completed the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Harty the Commission has received no completed waiver or payment of application fee.

[4] 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.”

[5] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; 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.”

[6] Mr Harty has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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