Practice note: Discontinuing matters

The Discontinuing matters practice note provides a summary of the key points regarding the discontinuance of matters before the Commission and the effect of discontinuance.

On this page:

Commencement date

  1. This practice note commences on 29 June 2017.

Application

  1. This practice note applies to all applications lodged with the Fair Work Commission (the Commission).
  2. The purpose of this practice note is to provide a summary of the key points regarding the discontinuance of matters before the Commission and the effect of discontinuance.
  3. The processes and procedures set out in this practice note apply to proceedings in all States and Territories.

Definitions

  1. In this practice note:

    Act means the Fair Work Act 2009

    applicant means a person who has made an application

    Commission means the Fair Work Commission and consists of the President, 2 Vice Presidents, Deputy Presidents, Commissioners and 6 Expert Panel Members

    conference means a proceeding in relation to a matter before the Commission that is generally held in private, unless otherwise directed by the Commission, and is less formal than a hearing

    hearing means a proceeding before the Commission to allow the parties to present their evidence and submissions in relation to a matter

    matter means an application or other proceeding before the Commission

    Member means a Member of the Commission, such as the President, a Vice President, a Deputy President or a Commissioner

    respondent means the other party (or parties) to the proceedings

    Rules means the Fair Work Commission Rules 2013

    service of a document means giving a copy of the document to a person or organisation. A document can be served in a number of ways, including by email, fax, express or registered post, or in person. Parts 7 and 8 of the Rules deal with service.

  2. A word or term used in this practice note has the same meaning as defined in the Act or in the Acts Interpretation Act 1901.

Legislation

  1. The following extracts from the Act are relevant:

    588 Discontinuing applications

    A person who has applied to the FWC may discontinue the application:

    1. in accordance with the procedural rules (if any); and
    2. whether or not the matter has been settled.
  2. The following extracts from the Rules are relevant:

    10 Discontinuance

    1. An applicant in an application before the Commission may discontinue the application at any time.
    2. To discontinue the application, the applicant must notify the Commission by:
      1. lodging a notice of discontinuance; or
      2. advising the Commission or a member of the staff of the Commission, by letter, email, fax or telephone, or orally in person that the applicant:
        1. wishes to discontinue the application; or
        2. has settled the application; or
        3. wishes to withdraw the application; or
        4. no longer needs the Commission to deal with the application; or
      3. advising the Commission of the discontinuance during the course of a conference or hearing.

        Note 1: For paragraph (a), the notice of discontinuance must be in the approved form—see subrule 8(2).

        Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.

        Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.

    3. To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative

Form of a notice of discontinuance

  1. The Rules provide a number of methods for discontinuing applications.
  2. The Commission prefers for applicants who wish to discontinue their applications to file a notice of discontinuance using a Form F50-Notice of discontinuance (see attachment). The Form F50 should then be lodged with the Commission. The Form F50 can be lodged by post, by fax, by email or in person at the Commission's offices.
  3. Nonetheless, an applicant may also notify the Commission of a discontinuance by:
    • Telephoning the Commission, including a member of the staff of the Commission, the chambers of the Member dealing with the application or the Commission’s registry;
    • Writing to the Commission, or a member of the staff of the Commission, by letter, fax or email;
    • Advising the Commission, or a member of the staff of the Commission in person; or
    • Advising the Commission in the course of a conference or hearing.
  4. A record will be placed on the file if the discontinuance is made by telephone or during a conference or hearing.
  5. The applicant must communicate the discontinuance to the respondent as soon as practicable after discontinuing.
  6. There is no fee required to be paid to lodge a Form 50.

Effect of discontinuance

  1. When an applicant discontinues the matter, the matter is finished.
  2. A discontinuance is self-executing (meaning that no further steps need to be taken for it to operate) and brings the application to an end.[1]
  3. The Commission will not publish a decision or order confirming the discontinuance.
  4. The Commission has the power to correct or amend applications and documents in accordance with s.586 of the Act.

    586 Correcting and amending applications and documents etc.

    The FWC may:

    1. allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
    2. waive an irregularity in the form or manner in which an application is made to the FWC.

    However, it has been held that s.586 does not empower the Commission to determine an application to set aside a notice of discontinuance. [2]

  5. In the case of AB v Tabcorp Holdings [3], it was noted that in certain circumstances (such as mistake or duress) an application could be made to a court to set aside the discontinuance but that the Commission did not have a power to declare that the notice was of no effect. Accordingly, an application to set aside a notice of discontinuance needs to be made to a court, because the Commission cannot grant declaratory relief (such as a declaration that the notice was a nullity).[4]

References

[1]Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, at [6]; note that at the time of this decision there were no procedural rules of the Commission.

[2] Ibid, at [14].

[3] AB v Tabcorp Holdings [2015] FWCFB 523.

[4] Ibid, at [10]-[11].

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