William Mach Summary | CaseChat AU

[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

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

William Mach applied for a take home pay order, which was heard and determined by the Federal Circuit Court. The applicant was a former employee of the respondent, who sought the order as a means of enforcing a judgment debt owed to him by the respondent. The primary dispute was whether the court should grant the order to enforce the judgment debt, considering the financial circumstances of both parties.

The central legal issue for the court to determine was whether the conditions for the grant of a take home pay order, as outlined in the Federal Circuit Court (Costs) Regulations 1991, were satisfied. Specifically, the court needed to assess whether the judgment debt was still outstanding, whether the applicant had not already taken reasonable steps to recover the debt, and whether the respondent's financial position justified the making of the order. The court also had to consider the respondent's submissions against the making of the order, including the respondent's contention that the applicant had not taken reasonable steps to recover the debt.

In reaching its decision, the court carefully examined the evidence presented by both parties. It found that the judgment debt was indeed still outstanding and that the applicant had taken reasonable steps to enforce the debt. The court also considered the respondent's financial situation and determined that it warranted the making of the order. The court concluded that all the necessary conditions for the grant of the take home pay order were satisfied and, accordingly, made the order in favour of the applicant. This decision allowed the applicant to enforce the judgment debt through the respondent's wages.

William Mach

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established