Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Application for consent arbitration of a general protections dispute - application dismissed under s.587.

[1] On 10 April 2019, Ms Jodie McLachlan (the Applicant) filed an application for consent arbitration of a general protections dispute, under s.369 of the Fair Work Act 2009 (the Act). Hopper Farms Pty Ltd (the Respondent) consented to the matter being arbitrated before the Fair Work Commission (the Commission).

[2] A conference was listed before me on 9 May 2019, however the matter did not resolve. The parties undertook private negotiations further to the conference.

[3] On 21 June 2019, my Chambers wrote to the parties seeking an update as to the status of the matter. On 26 June 2019, the Applicant responded seeking further time to seek advice in relation to the matter. She confirmed she intended to continue to progress her application, and that her correspondence seeking further time had also been sent to the Respondent.

[4] On 9 August 2019, my Chambers again wrote to the parties seeking a further update on the matter by 12 August 2019. On 9 August 2019, the Applicant responded by email that the matter remained unresolved. She sought further time to seek advice, noting she was out of the country until 25 August 2019.

[5] On 12 August 2019, the matter was listed for a further conference by telephone to be held on 29 August 2019 in order to progress the application.

[6] Further to the notice of listing issuing to the parties, also on 12 August 2019, the Respondent wrote to my Chambers seeking that the matter be closed due to delays on the part of the Applicant. A reply was provided to the effect that these matters could be raised at the conference on 29 August 2019.

[7] The Respondent was unable to attend the 29 August conference due to ill health and the matter was re-listed for conference on 10 September 2019.

[8] On 10 September 2019, the conference was unable to proceed due to the Applicant being uncontactable. My Associate attempted to call the Applicant on two separate occasions prior to the commencement of the conference, and voice messages were left seeking an urgent return call. A further attempt was also made 30 minutes after the scheduled conference, however the Applicant remained uncontactable. The Applicant made no attempt to contact my Chambers explaining her failure to attend the conference to date.

[9] On 11 September 2019, a letter by email was sent to the Applicant explaining that she had failed to attend the scheduled conference on 10 September 2019. Furthermore, the letter advised the Applicant that she must contact chambers by 18 September 2019 should she wish to continue with her application. The Applicant was also advised to file a Notice of Discontinuance should she wish to no longer proceed with the application.

[10] On 23 September 2019, the Respondent contacted my Chambers requesting that the matter be dismissed due to the Applicant's failure to respond to the letter as directed.

[11] On 24 September 2019, the Applicant was directed to provide reasons why her application should not be dismissed. The Applicant has not provided a response to date.

[12] Section 587 of the Act provides as follows:

(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] As the Applicant did not file any material in opposition to the Respondent's request that the application be dismissed, I will determine the matter on the papers.

[14] It has been long held by the Courts, Commissions and Tribunals that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] This is because such a decision results in the extinguishment of a party's application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant had failed to respond to numerous attempts made by the Commission to contact her. She has demonstrated a persistent unwillingness to properly engage with the Commission by failing to attend a conference in the matter and not responding to correspondence with the Commission in respect to her application and in explaining her absence.

[16] In McLeod v Kulgera Trading Company Pty Ltd,[3] Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant. I adopt the approach taken by Vice President Catanzariti and find that "fairness, justice, equity and good conscience"[4] warrants the exercise of the discretion under s.587 of the Act for the dismissal of this application for want of prosecution.

[17] An Order to this effect will issue accordingly.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2014] FWC 2112.

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