s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the modern award and the NES; failure to file material in accordance with directions; dismissal of application pursuant to s 587 of the Act

• [1] On 18 March 2025 Mr David Mathieson made an application pursuant to s 739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute concerning the National Employment Standards (NES). The alleged dispute concerns Mornisupa Pty Ltd (Mornisupa).
• [2] The application was allocated to my chambers on 19 March 2025.
• [3] I conducted a conference in relation to the matter on 31 March 2025. Mr Mathieson attended on his own behalf, and Mr Dawson attended for Mornisupa.

• [4] The application descries the clause of the industrial instrument or other written agreement the dispute relates to as "NES section 88.2". I take this to be a reference to s 88(2) of the Act which provides:

(1) Paid annual leave may be taken for a period agreed between an employee and his or her employer.

(2) The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave."

• [5] Under the heading "What is the dispute about" the application states as follows:

"Applied for Long service leave on 28/2, for the period 10/6 to 11/7 inclusive.

Application approved for all dates except for 23/6 to 30/6

Reason given for declining leave (23/6 to 30/6) cited as business grounds."

• [6] Under the heading "What relief are you seeking by making this application to the Commission" the application stated, "Long service leave approved in full".
• [7] Under the heading "What kind of industrial instrument (e.g. an award or agreement) or other written agreement covers the employment relationship and contains the dispute resolution procedure relevant to this application" the application states "General retail industry award" which I take to be a reference to the General Retail Industry Award 2020 (the GRIA Award).

• [8] Based on the materials filed by the parties, I formed a provisional concern that Mr Mathieson's application may be without merit, because he was seeking to agitate a dispute about long service leave of a kind which is not a matter dealt with by s 88(2) of the Act, or any other part of the NES, or any part of the GRIA Award.
• [9] In particular, the clause of the relevant industrial instrument referred to - s 88(2) of the Act (part of the NES) deals with annual leave, not long service leave.
• [10] Nothing said during the conference by Mr Mathieson diminished my concerns.
• [11] I made Directions in relation to the proposition that the application be dismissed pursuant to s 587 of the Act. Those Directions stated, among other things:

"[4] During the conference, I sought to clarify with the Applicant the basis upon which it is said that the application relates to a dispute about a modern award or enterprise agreement (within the meaning of s 738 of the Act).

[5] The Applicant was not able to provide this clarity. While the application refers to s 88(2) of the Act and also the General Retail Industry Award 2020 (the award) it is plainly about long service leave which is not dealt with by s 88(2) of the Act or the award.

[6] In the circumstances, it is appropriate I consider whether the application should be dismissed, noting that it is within my power to dismiss an application pursuant to s 587 of the Act on my own motion."

• [12] The Directions required parties to file and serve a submission, and any other material they wished the Commission to have regard to, in relation to the proposition the application be dismissed.

The failure to comply with Directions by the Applicant.

• [13] The Directions inadvertently stated Mr Mathieson was to file his material on Tuesday 2 April 2025. 2 April 2025 was a Wednesday, not a Tuesday.
• [14] On 1 April 2025, Mr Mathieson sent an email to my chambers in reply to the email he was sent containing Directions, which said:

• [15] At 2:51PM on Wednesday 2 April 2025 my chambers sent the parties an email stating the following:

"I confirm that no submissions have yet been received from the Applicant. I do however note that there was a typographical error in the directions.

Taking into account the typographical error which has the wrong date written next to the date, the Applicant will be afforded until 4pm today to file.

The Respondent's material remains due by 4pm tomorrow, notwithstanding the directions inadvertently referring to Thursday 4 April rather than Thursday 3 April."

• [16] When nothing was received from Mr Mathieson by 4:00PM on Wednesday 2 April 2025, my chambers sent another email stating:

"On 31 March 2025 you were directed to file and serve a submission and any other material relating to why your application, made against Mornisupa, should not be dismissed.

You confirmed receipt of these directions on 1 April 2025 stating, "received and understood".

You were required to file and serve your material by 4:00PM "Tuesday 2 April 2025",

Because there was a typographical error in the written directions you were issued, inadvertently referring to "2 April 2025" you were afforded additional time to comply with this direction. In an email sent to you at 2:51PM today you were advised that your material should be filed by 4:00PM today.

To date, you have not complied with this direction.

You will be afforded one final opportunity to comply with this direction. Your submission and any other material you wish the Commissioner to have regard to must be filed by 10:00AM tomorrow, Thursday 3 April 2025.

In the event you do not comply with this request, the Commissioner will determine the matter on the basis of the material that is before him, taking into account the Respondent is to file its material by 4:00PM tomorrow, Thursday 3 April 2025."

• [17] Mr Mathieson did not file any material by 10:00AM, Thursday 3 April 2025 nor has he filed anything since.

• [18] On 3 April 2025, a document was filed by Mornisupa. It largely replicated the document previously sent by Mornisupa. The document largely relates to the basis upon which Mornisupa refused part of Mr Mathieson's long service leave request. It notes Mr Mathieson's application refers to s 88(2) of the Act, which deals with annual leave, not long service leave.

• [19] Section 587 of the Act provides:

(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 32, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [20] Frequently, this section of the Act is the basis upon which the Commission may dismiss applications in circumstances where a party fails to comply with the Directions of the Commission[1] or whether the Commission has no jurisdiction to deal with the matter[2]. The words "without limiting when the FWC may dismiss an application" in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).

• [21] Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge[3]. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording applicant's procedural fairness (although without necessitating a hearing). A Full Bench of the Commission recently reiterated these cautions in Matthew Priestly and Mika Tyson v Blackfisch Films Pty Ltd[4], a decision to which I have paid careful regard in this matter.

1. Mr Mathieson's application is made pursuant to s 739 of the Act which, read in conjunction with s 738 of the Act, allows the Commission to deal with a dispute in accordance with a term of an industrial instrument providing for a procedure dealing with disputes. The relevant industrial instrument identified by Mr Mathieson is the GRIA Award. Clause 36 of the Award sets out a procedure to be followed if a dispute arises "under this award or in relation to the NES".

1. The dispute, as characterised by Mr Mathieson, does not arise under the GRIA Award or the NES. It is about long service leave and the refusal of Mornisupa to agree to part of Mr Mathieson's request to take long service leave.

1. The GRIA Award does not deal with long service leave at all.

1. The NES deals with long service leave at Division 9 of Part 2-2 of the Act, but not in respect to a refusal by an employer to agree to an employee request to take long service leave in the present circumstances.

1. Based on the material before me, the Commission does not have jurisdiction to deal with this dispute pursuant to s 739.

1. Further, and consequentially, Mr Mathieson's application has no reasonable prospect of success.

• [23] The conclusions I have reached above are based on the material before me, provided by the parties. In this regard I note:

1. Mr Mathieson was afforded the opportunity to make submissions about the proposition that his application be dismissed, and when he did not comply with Directions that he do so by a particular point in time, afforded a further opportunity to do so, which he did not take up, without providing any explanation as to his failure to do so.

1. Mr Mathieson was advised that if he failed to take the opportunity afforded to him to make submissions as to why his application not be dismissed, I would consider the question based on the materials before me.

• [24] I note further that Mornisupa has responded to all correspondence and complied with Directions made in the matter and will suffer ongoing prejudice should it be asked to continue to participate in the proceeding when Mr Mathieson no longer appears to be.

• [25] Taking into account the recent comments made by a Full Bench of this Commission, that the "ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed"[5], I consider that the balance weighs in favour of the dismissal of the application.

• [26] I consider that Mr Mathieson has been provided with procedural fairness, given several days to make submissions regarding this matter, and, without requesting it, a further opportunity to provide the submissions when he initially failed to do so. He has not responded at all. At all times he has been made aware of the possibility his application may be dismissed for his failure to participate in it and failure to follow Directions.
• [27] Mr Mathieson's application is dismissed, and an order[6] will issue to that effect with this decision.

[1] see for example Viavattene v Health Care Australia [2013] FWCFB 2532 [39]; Rebecca Tomas v Symbian Health [2011] FWA 5458 [57]; Brock Auguston v Castleross Construction Pty Ltd [2024] FWC 1460

[2] Josh Thiyagarajah v JND Holdings Pty Ltd [2020] FWC 5540

[3] [2024] FWC 1302

[4] [2025] FWCFB 40

[6] PR785859

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