Fair Work Commission|2025-09-02

The Applicant should advise Chambers immediately if he no longer wishes to proceed with the application.

[7] Mr Burns did not respond to this email and did not file any material as required by the Directions.

[8] On 22 August 2025, Serco made an application that Mr Burns' application be dismissed pursuant s.399A of the FW Act. The s.399A application was listed for hearing at 4:15pm on 1 September 2025.

[9] My Chambers attempted to call Mr Burns twice at the commencement of the hearing on the phone number provided in the application, however Mr Burns did not respond to the phone calls and did not appear at the hearing. Serco pressed its application for Mr Burns' application to be dismissed in accordance with s.399A of the FW Act. I dismissed the application at the hearing and now provide my reasons.

[10] Section 399A of the FW Act provides as follows:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[11] I am satisfied that the Commission has taken reasonable and appropriate steps to inform Mr Burns of the Directions and hearing date, contact Mr Burns on the date of the hearing and inform Mr Burns of the consequences of failing to comply with the Directions.

[12] In the circumstances, I am satisfied that Mr Burns has unreasonably:

(a) failed to attend a hearing held by the Commission, in relation to the application; and

(b) failed to comply with a direction of the Commission relating to the application.

[13] I have therefore decided to dismiss the application pursuant to s. 399A(1) of the FW Act.

Printed by authority of the Commonwealth Government Printer

Allan Burns v Serco Australia Pty Ltd [2025] FWC 2574 (2 September 2025)

Allan Burns v Serco Australia Pty Ltd [2025] FWC 2574

At a glance

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Judgment (20 paragraphs)

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Allan Burns v Serco Australia Pty Ltd [2025] FWC 2574 (2 September 2025)