S.S.

[2020] FWC 3720

[2020] FWC 3720

FAIR WORK COMMISSION

DECISION

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

S.S.
(AB2020/411)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 JULY 2020

Application for an FWC order to stop bullying.

[1] On 22 June 2020, S.S. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was unsigned and was not accompanied by the required filing fee or completed waiver application.

[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 23 June 2020, the Commission telephoned S.S. to discuss her application. The Commission’s records indicate that S.S. advised that she was no longer employed. The Commission’s jurisdiction was therefore discussed and S.S. was advised to seek legal advice as well as to complete the anti-bullying eligibility quiz on the Commission’s website. S.S. was further advised that if she wished to proceed with her application, she would be required to sign the application form as well as pay the required filing fee.

[6] Following the telephone call, the Commission issued correspondence to S.S. noting that the application was unsigned and was made without payment of the lodgment fee or fee waiver application. The letter noted that in the absence of any advice from S.S. within 7 days from the date of the letter, the application may be closed without further notice. A fee waiver application form was also attached to the letter. A further email was subsequently sent to S.S. providing information about the Commission’s Workplace Advice Service (WAS) and a URL link to the Commission’s anti-bullying eligibility quiz.

[7] On 30 June 2020, the Commission attempted to telephone S.S. and left a voicemail message advising that the application remained incomplete and seeking her advice as to whether or not she wished to pursue her application. A further letter was then emailed to S.S. advising that if the application was not signed and the lodgment fee or fee waiver application was not provided to the Commission within 14 days, the application would be referred to the Panel Head for anti-bullying matters and that the Commission may decide to exercise its power under subsection 587(1)(a) of the Act to dismiss S.S.’s application without further notice to her.

[8] On 14 July 2020, the Commission made a final attempt to telephone S.S. and left a voicemail message requesting a return call to confirm whether she was proceeding with or discontinuing her application.

[9] No further response has been received from S.S., no signed application has been provided, payment or a fee waiver application have not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the incomplete application has not been served upon any apparent respondent parties.

[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 form was incomplete and was not accompanied by the prescribed fee, and therefore the application has not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

[12] Accordingly, the application is dismissed under s.587(1)(a) of the Act. Of course, should S.S. wish to file a new application that is made in accordance with the Act in the future, she is not precluded from doing so.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721016>