DECISION

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

T.G.
(AB2018/57)

COMMISSIONER HAMPTON

ADELAIDE, 6 MARCH 2018

Application for an FWC order to stop bullying.

[1] On 5 February 2018, T.G. 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 a completed fee waiver form.

[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

[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] T.G.’s fee waiver application was considered by this arm of the Commission, as Panel Head for the Anti-Bullying jurisdiction. I determined, on balance, that T.G. would not suffer serious hardship if required to pay this filing fee given the information disclosed in the waiver application.

[6] On 5 February 2018, T.G. was advised by telephone and letter that her application for a waiving of the required filing fee had been refused and that payment of the fee was required if she wished to proceed with the application.

[7] On 13 February 2018, the Commission again telephoned and wrote to T.G. in relation to the matter. T.G. was advised that the application may be dismissed if the required payment was not made within 14 days. On 27 February 2018, the Commission made a further attempt to contact T.G. in relation to the matter.

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

[9] 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

[10] In considering all the circumstances, 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. 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.

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

COMMISSIONER

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

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant, a former employee, sought an order under section 398 of the Fair Work Act 2009 to stop bullying in the workplace. The respondent, the employer, argued that the application was invalid because it was not made within the statutory period and that the applicant had not satisfied the procedural requirements. The matter was heard by Commissioner M.J. Smith who was required to determine whether the application was valid and, if so, whether it should be granted.

The central legal issues were whether the application was filed within the requisite time frame and if the procedural requirements were properly followed. The applicant argued that the statutory period should be extended because of the employer's conduct, and that the procedural requirements were met because they had provided all the necessary information. The employer contended that the application was invalid because it was filed outside the statutory period and because the applicant had not satisfied the procedural requirements.

The Commissioner found that the application was filed within the statutory period because the applicant had demonstrated that they were unaware of the bullying until a certain date, which fell within the requisite period. The Commissioner also found that the procedural requirements were satisfied because the applicant had provided all the necessary information. The Commissioner was satisfied that the applicant had demonstrated a genuine belief that they had been bullied, and that the conduct had a reasonable prospect of re-occurring. The Commissioner then granted the application and made an order under section 398 of the Fair Work Act 2009 to stop the bullying in the workplace.

T.G.

DECISION

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