T.M.

[2020] FWC 3716

[2020] FWC 3716

FAIR WORK COMMISSION

DECISION

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

T.M.
(AB2020/404)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 JULY 2020

Application for an FWC order to stop bullying.

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

[2] The application was incomplete and was not accompanied by the required filing fee or a 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 22 June 2020, the Commission telephoned T.M. to discuss her incomplete application. During the telephone conversation, T.M. sought to amend her application and also accepted a Workplace Advice Service (WAS) referral. Shortly after the telephone call, the Commission emailed T.M. with information about the WAS followed by a letter noting that the application was incomplete, required amendment by T.M. and was made without payment of the lodgment fee or fee waiver application. The letter noted that in the absence of any advice from T.M. 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.

[6] On 29 June 2020, the Commission attempted to telephone T.M. and left a voicemail message advising that a reminder letter would be issued. Accordingly, a further letter was emailed to T.M. advising that if the information previously sought 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 the Commission may decide to exercise its power under subsection 587(1)(a) of the Act to dismiss T.M.’s application without further notice to her.

[7] On 13 July 2020, the Commission made a final attempt to telephone T.M. and left a voicemail message noting that the matter remained incomplete and unpaid, and that the matter may be dismissed as a result.

[8] No further response has been received from T.M., 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.

[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

(c) the application has no reasonable prospects of success.”

[10] 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.

[11] Accordingly, the application is dismissed under s.587(1)(a) of the Act. Of course, should T.M. 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

<PR721012>