s.526 - Application to deal with a dispute involving stand down

Application to deal with a stand down dispute - application not made in accordance with the Fair Work Act - want of prosecution - application dismissed

[1] On 5 June 2025, Mr Paul Browne (Greenaway) filed an application for the Fair Work Commission to deal with a stand down dispute using the Commission's Form F13 (Application). The Application did not identify the Respondent to the Application, provide contact details for the Respondent or set out the relief that Mr Browne was seeking. It appears from the Application that Mr Browne may have worked at the Orana Juvenile Justice Centre.

[2] On 10 June 2025, Commission staff sent a letter to Mr Browne advising that the Application was incomplete. Mr Browne was requested to fix his application. To date, Mr Browne has not done so. There have been several attempts to contact Mr Browne, via email, text and telephone, to discuss the defects with the Application. On all bar one occasion, Mr Browne has not responded or engaged with those emails, texts or telephone calls.

[3] On 12 September 2025, my Associate sent an email to Mr Browne. The email was sent to the email address identified by Mr Browne in the Application as being his email address. The email is reproduced below:

The Commission sent you the attached letter via email on 10 June 2025 informing you that your application form is incomplete.

Client Services then spoke to you over the phone on 10.6.25 and informed you that your application was incomplete.

Client services attempted to contact you again on 16.6.25 and 17.6.25 without success.

The matter was then allocated to Chambers and you were sent the below correspondence requesting that you confirm who your employer is and provide us with an email contact for your employer.

Chambers have not received any response to the below email, and a completed application form has not been filed.

Please indicate If you still wish to pursue your application by 4:00pm Tuesday 16 September.

If Chambers do not receive a response by 4:00pm on Tuesday 16 September, the Commissioner may proceed to dismiss your application under s587 of the Fair Work Act.

[4] To date, Mr Browne has not responded to that email or otherwise contacted the Fair Work Commission.

[5] For the reasons explained below, I am satisfied that the Application should be dismissed because it has not been made in accordance with the Fair Work Act 2009 (FW Act) and for want of prosecution. I note that section 587(1)(a) of the FW Act provides that the Commission may dismiss an application if the application is not made in accordance with the FW Act.

[6] In the context of an unfair dismissal application being dismissed under section 399A of the FW Act, a Full Bench of the Commission in Meiyun Xue v Serco Australia Pty Ltd[1] held:

[19] Procedural fairness at least requires that a party be heard prior to the Commission taking a step to determine an application contrary to their interests. That includes a decision to dismiss a party's application at a preliminary stage without a hearing or determination on the merits. The capacity of a dismissed employee to apply for an unfair dismissal remedy is an important right conferred by the Act and a significant protection for employees. Dismissal of an application results in the extinguishment of an applicant's right to have their application for relief orders under beneficial legislation heard and determined according to law. The exercise of that right should not be lightly curtailed by proceedings being dismissed at a preliminary stage. A party must have a fair opportunity to put their case to the decision-maker for consideration on all matters material to the decision before the decision is made.

[7] A Full Bench of the Commission in Mathrew Priestly and Mika Tyson v Blackfisch Films Pty Ltd [2] and in Xue explained that dismissing an application on grounds of want of prosecution, under section 399A in the case of an unfair dismissal application or otherwise, involves a balancing exercise. The matters that are likely to require consideration as part of such a balancing exercise were explained by the Full Bench in Xue:[3]

(a) whether, on balancing the prejudice to the respective parties by making or not making such an order, the interests of justice demand that the application be dismissed;

(b) any explanation offered by the applicant who is in default of the directions for the delay in proceeding and the degree to which that party was personally to blame for any delay (as opposed to delay on the part of a representative);

(c) the prejudice to the applicant deprived of the opportunity to pursue an otherwise valid claim and to seek relief potentially available under the Act to that party in the Commission;

(d) whether the applicant's non-compliance with directions is suggestive of an unwillingness to, or lack of interest in, seriously pursuing the proceedings to their conclusion;

(e) the degree of prejudice caused to other parties to the proceedings and whether the other parties have taken steps to secure progress in the proceedings or, rather, sat on their hands in the face of non-compliance; and

(f) any inconvenience or disruption that has been caused to the operations of the Commission, including whether the non-compliance is likely to result in delay in the disposition of the proceedings or require hearing dates to be vacated.

[8] In deciding to dismiss the Application, I have applied the principles in Xue and Priestly.

[9] Section 585 of the FW Act provides that an application must be in accordance with the procedural rules relating to applications of that kind. Rule 9(2) of the Fair Work Commission Rules 2024 (Rules) provides that if the President approves a particular form for a particular purpose, then subject to the Rules, the approved form must be used for that purpose. The approved form for a stand down dispute of the kind commenced by Mr Browne is the Form F13. The form filed by Mr Browne is incomplete. Most obviously, the Respondent has not been identified and the contact details for the Respondent have not been provided. The omissions do not amount to substantial compliance (Rule 9(5) of the Rules). Mr Browne has been given multiple opportunities to fix the defects with the Application and has chosen not to do so. Mr Browne has been given an opportunity to be heard with respect to the dismissal of the Application, and has not sought to be heard. I am satisfied that the Application has not been made in accordance with the FW Act and should be dismissed.

[10] Taking into account the matters that the Full Bench referred to in Xue, I am satisfied that the Application should also be dismissed for want of prosecution. Very briefly: (a) the balance of prejudice is a neutral consideration because the Application has not identified a Respondent; (b) Mr Browne has been given ample opportunity to explain the delay caused by the defects with the Application. Mr Browne has not provided any such explanation; (c) the dismissal of the Application may result in prejudice to Mr Browne. If so, Mr Browne is responsible for that; (d) I am satisfied that Mr Browne's non-responsiveness to multiple attempts by the Commission to discuss the Application is suggestive of an unwillingness or lack of interest in pursuing the Application; (e) there is no prejudice to another party because the Application does not identify a Respondent. This a neutral consideration; (f) Mr Browne's non-responsiveness to multiple attempts made by the Fair Work Commission to contact him has resulted in inconvenience to the operations of the Commission. It is a waste of the Fair Work Commission's resources to spend any further time on an application that Mr Browne appears to have abandoned.

[11] I am satisfied that the Application should be dismissed because it has not been made in accordance with the FW Act and for want of prosecution. An order to that effect will be issued separately to this decision.

[1] [2025] FWCFB 75.

[2] [2025] FWCFB 40.

Printed by authority of the Commonwealth Government Printer