Fair Work Commission|2024-09-25

The applicant is at liberty to apply to vary the above direction by emailing my chambers.

[5] Mr Martinez did not file any material by the deadline. Nor did he email my chambers to apply for an extension of time to do so. At 2:20 pm on 26 April 2024, my chambers emailed the applicant directing him to provide any advice as to why I should not dismiss his application under s 587(1)(c) of the FW Act by 3 May 2024.

[6] At 2:31 pm that day, Mr Martinez responded by email to my chambers. The entirety of his email (omitting formal parts) was as follows:

... here is attached the reason why my request to change the award should not be dismissed.

The reason for this adjustment in our payment rate is the physical demand is like going to the gym 4 or 5 days a week to do cardio for 4 to 6 hours.
Work rarely 5 days mostly 4 days

And not 8 hours but only 6 hours besides that is because is physically impossible to work more than that.

a room in the hotel per night is between 600 a night to 1200 we get 11.5 because we only have 30 minutes to get the room done.
the Rent for one bedroom apartment in Australia nowadays is minimum 500 a WEEK most of us take home 1000 a FORTNIGHT
No body complains because there is many people from overseas or students so they don't want to get involved as they will leave the country within months.
If we work all year full time hours our wage is roughly 45k after tax 38k after super 33k and 50% of that is for rent what's left for living expenses is 15k
4 hours max weekend loadings mean if you don't work any weekend because you want to spend time with your family you don't make the money so compulsory you must work weekends.

BUT WEEKENDS WE ARE SENT HOME TO FINISH EVERYTHING ON MONDAY WHEN THE RATE IS LOW

[7] Mr Martinez has clearly failed to comply with the directions of 28 February 2024. He has not at any stage properly identified the variation to the Award which he seeks, which places in question whether he has in fact made a valid application 'for the making of a determination varying ... a modern award' under s 158(1) of the FW Act. In any event, he has not filed anything by way of evidence or submissions which addresses the statutory criteria necessary for the variation of a modern award. In particular, he has not filed anything which raises a reasonably arguable case that any variation to the Award is necessary to meet the modern awards objective or the minimum wages objective in ss 134(1) and 284(1) respectively, or that there are any work value reasons justifying an adjustment to wages as required by s 157(2)(a). This matter is yet another illustration of 'the deficiency in an approach whereby a single employer or employee seeks an industry-wide variation to an industry award by reference only to their own circumstances and interests'.[2]

(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.

[9] For the above reasons, I consider that the application has no reasonable prospects of success. Pursuant to s 587(1)(c) of the FW Act, the application is dismissed.

[1]MA000009.
[2]Application by Woolworths Group Limited [2023] FWCFB 139 [39]; see also Application by Emma Treves [2023] FWCFB 98 [70], [72]-[74] and Application by The Allison and Phil Family Trust t/a my OSHC [2024] FWCFB 144 [18]-[20].

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Application by Alberto Contreras Martinez [2024] FWC 2648 (25 September 2024)

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