s.739 - Application to deal with a dispute

Millair Climate Control and Electrical Northern Territory Pty Ltd T/A Johnny Cool Darwin

Alleged dispute about any matters arising under the modern award and the NES; [s146]

• [1] On 26 September 2025, Ms Ly Tran (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (FW Act), being an application to deal with a dispute pursuant to the Clerks - Private Sector Award 2020 (the Award). The Respondent to the Application is Millair Climate Control and Electrical Northern Territory Pty Ltd T/A Johnny Cool Darwin (the Respondent).

• [2] The matter was listed for a Telephone Conference on 8 October 2025. The Notice of Listing asked that the parties write to my Chambers ahead of the Conference date to confirm their appearances.

• [3] The Respondent wrote to my Chambers on 7 October 2025 to confirm their appearances.

• [4] The Applicant failed to write to my Chambers to confirm her appearance.

• [5] Ahead of the commencement of the 8 October 2025 Conference, my Associate attempted to contact the Applicant by phone, however, the Applicant did not answer. My Associate also sent an email to the Applicant asking that she urgently make herself available to be connected to the Conference line.

• [6] Three further attempts were made to contact the Applicant by phone, however, the Applicant did not answer these calls and did not dial into the Conference line as required on the Notice of Listing. Accordingly, the Conference was vacated.

• [7] On that same date, a 'Non-Attendance Letter' was issued to the Applicant, requiring that she write to my Chambers within 7 days to provide an explanation for her non-attendance and reasons why her application should not be dismissed.

• [8] No communication, by telephone or email, has been received from the Applicant in response to the Non-Attendance Letter.

(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:

• [10] It has been held 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] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form of relief from a beneficial statutory provision.[2]

• [11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact her in relation to the Conference of 8 October 2025, and has failed to respond to the Non-Attendance Letter issued on that same date. The Applicant has shown no willingness to prosecute her case and has taken no steps to do so.

• [12] In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

• [13] After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Ms Tran's application for failure to prosecute her case.

• [14] Accordingly, the application is dismissed pursuant to section 587 of the FW Act.

[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] [2011] FWAFB 7498 at [19].

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