Fair Work Act 2009

s.739 - Application to deal with a dispute

(C2025/4869, C2025/4841, C2025/4845, C2025/4846, C2025/4891, C2025/4900, C2025/4922, C2025/4963, C2025/5056)

Alleged dispute about any matters arising under the enterprise agreement - application dismissed pursuant to s.587.

• [1] On and around 25 May 2025, the Applicants; Mrs Rabiya Ayse Nur Karaca, Haider Abbas, Mr Alexander Thomas Gerard Nye, Mr Abdul Sultani, Mr Manu Sharma, Mr Presley Raimona, Mr Hayne Mark and Mr Sanjeev Sharma lodged individual s.739 applications regarding a dispute arising under the Serco Immigration Services Enterprise Agreement 2023 (the Agreement). Mr Sanjeev Sharma's application (C2025/5056) was made against Don Taylor, whereas the other Applicants made applications against Serco Australia Trading AS Serco (the Respondent).

• [2] On 28 May 2025, Mr Suraj Shrestha lodged a s.372 application against Serco Australia Pty Limited (C2025/4963).

• [3] These applications will be dealt with jointly in this decision.

• [4] Once these matters were allocated to my Chambers, they were listed for a conference on 5 June 2025. This was later relisted for 13 June 2025.

• [5] Subsequently, approximately 1-2 days before the Conference, my Chambers received adjournment requests from various Applicants for the Conference to be rescheduled as the United Workers' Union had lodged its own s.739 application against the Respondent which may affect the above Applicants.

• [6] The Conference on 13 June 2025 was vacated and the Applicants were sent the following correspondence on 12 June 2025:

I refer to the matter above and correspondence below.

The Commissioner has considered the correspondence from the Applicants and the Respondent's views and determined to vacate (cancel) the Conference listed for 13 June 2025.

The Applicants are asked to consider the Respondent's submissions below and their positions and provide a report back to Chambers by COB Thursday, 26 June 2025. At that time, the Commission will advise the parties of the next steps in relation to any applications that continue before the Commission."

• [7] On 26 June 2025, the Respondent made submissions in relation to the jurisdictional issues it raised in response to these applications.

• [8] Subsequently, my Chambers received various emails from other Applicants electing to withdraw their applications. The matters that are addressed in this decision are the remaining applications for which I have received no correspondence for from the Applicants.

• [9] The matter was listed for a report-back Conference on 1 August 2025. The Applicants above did not attend this Conference. At the Conference, the Respondent made a s.399A application to dismiss these applications.

• [10] To this date, no communication has been received from the Applicants since the adjournment requests on 11 and 12 June 2025.

• [11] Noting s.399A only applies to applications under Part 3-2 Div 5 of the Act, I have determined to deal with these applications by way of s.587.
• [12] s.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

(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:

• [13] It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application "for want of prosecution" is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]
• [14] In Raschilla v Ausino West Pty Ltd[3] (Ausino) the Full Bench emphasised that the Commission's powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an Applicant's right to have their substantive application heard and determined by the Commission.
• [15] In the present circumstances, the Applicants have clearly demonstrated an unwillingness to prosecute their case. The principle of 'a fair go all round' applies to both employers and employees. I find that the Applicants' non-participation in the Commission's processes has already required the Respondent to expend resources responding to a claim that the Applicants initiated and appear to have had no intention of following through. The Applicants have had a fair opportunity to respond to the concerns of the Commission and have chosen not to on every occasion.
• [16] As noted above, s.587(1) does not limit when the Commission may dismiss an application. The Applicants have, in effect, abandoned their applications and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion to dismiss these applications.

• [17] The following applications lodged pursuant to s.739 and s.372 of the Act are dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

• C2025/4869
• C2025/4841
• C2025/4845
• C2025/4846
• C2025/4891
• C2025/4900
• C2025/4922
• C2025/4963
• C2025/5056

[1] Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153 at [48].

[3] [2017] FWCFB 5952.

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