William Mach

[2013] FWC 4244

[2013] FWC 4244

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 9 Sch. 5—Take-home pay

William Mach
(C2012/5242)

COMMISSIONER BISSETT MELBOURNE, 1 JULY 2013

Application for a take home pay order.

[1] Mr William Mach made an application to Fair Work Australia (now the Fair Work Commission) under Schedule 5 or Item 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 for an order remedying a reduction in take home pay resulting from a modern award.

[2] On 18 October 2012 the Applicant advised my chambers by phone that he no longer intended to pursue the application and would lodge a notice of discontinuance.

[3] On 3 January 2013 my associate wrote to Mr Mach advising that no notice of discontinuance had been received and asking that he complete the notice of discontinuance. He was advised that if he did not file a completed notice of discontinuance the application may be dismissed.

The Act

[4] Section 587 of the Act gives power to the Commission to dismiss an application. The basis for dismissing an application is not limited to those matters specified in s.587(1)(a)-(c).

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.

Conclusion

[5] Given the oral advice of the Applicant to my chambers that he did not intend to pursue his application I hereby dismiss the application. In doing so I have taken into account the advice to the Applicant that a failure to complete a notice of discontinuance would result in his application being dismissed.

[6] An order to this effect will be issued.

COMMISSIONER

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