s.739 - Application to deal with a dispute

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

• [1] On 6 May 2025, Ms Susan Anne Bate (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (Cth) (FW Act), seeking to raise an underpayment dispute under the Registered and Licensed Clubs Award 2020 (the Award). Burringbar District Sports Club Ltd is the Respondent to the Application.

• [2] The matter was listed for Telephone Conferences on:

• [3] Following the 21 May 2025 Conference, the file was held over until 4 June 2025 to allow the Respondent to proceed with an internal investigation.

• [4] At the Report Back Conference of 10 June 2025, the Commission was advised that a Show Cause process was on foot. On this basis, the file was held over for a further period with a request that the parties update my Chambers in due course.

• [5] On 24 June 2025, the Applicant advised my Chambers that she had been dismissed but wished to proceed with her s.739 underpayment claim. My Chambers wrote to the parties in response to this contact from the Applicant, to advise the Applicant that she may wish to contact the Fair Work Ombudsman (Ombudsman) to discuss the Ombudsman's processes for pursuing an underpayment claim. The Applicant was also advised that if she wished to lodge a dismissal application with the Commission, she would need to do so within the statutory timeframe.

• [6] Also on 24 June 2025, my Chambers referred the Applicant to the Commission's Workplace Advice Service to allow her to seek free legal advice in relation to her dispute and the correct avenue for seeking relief in relation to her underpayment claim.

• [7] After receiving confirmation from the Workplace Advice Service team that the Applicant had attended her appointment, my Chambers sent a follow up email to the Applicant 2 July 2025, seeking an update as to the status of her s.739 dispute and what she was intending as next steps.

• [8] The Applicant contacted my Chambers by telephone on 3 July 2025 and advised my Associate that she had struggled to understand what she was told during the Workplace Advice Service appointment. The Applicant was therefore granted a further period to consider her position in relation to this s.739 dispute.

• [9] By email to my Chambers on 7 July 2025, the Applicant advised that she wished to proceed with this s.739 dispute application. On this basis, a further Report Back Conference was scheduled for 11 July 2025.

• [10] At the Report Back Conference of 11 July 2025, I outlined to the Applicant the jurisdictions of the Commission and the Ombudsman, indicating that her underpayment claim should appropriately be progressed with the assistance of the Ombudsman and not the Commission. The Respondent also raised an objection to the Applicant's s.739 dispute on this basis, stating that there is no 'classification' issue before the Commission and that all matters raised by the Applicant in her application are underpayment matters appropriately dealt with before the Ombudsman. I reiterated to the Applicant that she should reach out to the Ombudsman and advised that this file would be held over for a period to allow the Applicant to make this contact.

• [11] At the end of August 2025, my Associate reached out to the Applicant to again seek an update as to the status of this matter.

• [12] On 27 August 2025, the Applicant contacted my Associate by telephone to advise that she had spoken with the Ombudsman but wished to proceed with her s.739 dispute application before the Commission.

(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:

• [14] 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]

• [15] I have taken into account the objection raised by the Respondent at the Conference of 11 July 2025.

• [16] I have taken into account that the Commission is not the appropriate jurisdiction for the Applicant to pursue her underpayment claim. The Applicant should instead pursue her underpayment claim with the assistance of the Ombudsman.

• [17] For the above reasons, I am satisfied that it is appropriate to dismiss Ms Bate's s.739 application on the grounds that it has no reasonable prospects of success.

• [18] 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].

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