You web browser may not be properly supported. To use this site and all its features we recommend using the latest versions of Chrome, Safari or Firefox


A recent decision of the Fair Work Commission highlights the dangers of being unfamiliar with the FWC Rules and specifically, the Rules about filing documents electronically with the Commission.

The Commission’s decision in Ms Deborah Davie v North Queensland Primary Health Network [2016] FWC 8979 (Davie’) is an example of the very strict approach the Commission has taken to the application of these Rules.

In this day and age it is common for industrial officers, lawyers and applicants to file applications and documentation with the Commission via email.

In Davie, the Applicant lived in a rural area with limited access to the internet.

She alleged that she was dismissed by her employer on 6 October 2016, and so the time for her to lodge her application under s 340 of the Fair Work Act expired on 27 October 2016.

On 27 October 2016, the applicant emailed the Fair Work Commission two documents. These documents were saved using ‘Pages’.

‘Pages’ is the default word processor used on Macintosh Apple computers and is an alternative program to the more commonly used Microsoft Word.

On 28 October 2016, upon receiving these documents, a staff member of the Commission replied to the applicant’s email advising her that they could not open the documents and directed her attention to Rule 14 of the Fair Work Commission Rules, relating to the lodgement of documents by email which reads:

14 Lodging documents by email

(3) If a document is lodged by email:

(a) the document must be attached to the email:

(i) for a statutory declaration — as a PDF or other image format approved by the General Manager; and

(ii) for any other document — as an attachment in Word, RTF or PDF format or another format approved by the General Manager; and

(iii) without any security restrictions

The email from the Commission advised that given they were unable to read the documents, if they contained her application it was not taken to have been lodged.

The applicant drove to find access to the internet, saved the files in PDF format and sent them to the Commission later that day on 28 October 2016.

However, the Commission took the view that the documents had not been lodged within the specified 21 day time limit because they had not been sent to the Commission within the period in accordance with Rule 14.

On this point, the Commissioner found that the principal reason the application was outside the time limit was

“because “Pages” is not an approved format under the Rules for documents lodged by email with the Commission and the applicant was not aware of that fact at the time she attempted to lodge her Application on 27 October 2016.

But for the attachments to the applicant’s email of 27 October 2016 to the Commission being in the “Pages” format, the Application would have been filed within the time prescribed by s.366(1)(a) of the Act.”

The Commission found that the applicant’s failure to comply with Rule 14 was a “out of the ordinary course, unusual, special and uncommon” factor which weighed in favour of her application for an extension of time being granted.

Despite this, however, the Commission ultimately held that the merits of her adverse action application outweighed this factor and declined to grant the extension of time.

Lessons for industrial officers and organisers

  1. If filing documents by email, all applications should be filed in Word, RTF or PDF format!
  2. The Commission has taken a strict approach to applying the Fair Work Commission Rules as they relate to procedural issues. Accordingly, it is important that union staff members responsible for filing documents with the Commission are aware and familiar with the Rules.
  3. Applications that are subject to the 21 day limitation date should be lodged ahead of time if possible to avoid the dangers of the Commission’s reluctance to grant extensions of time.

The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.

Thank you for your feedback.

Related blog posts

Employment Law
Starting a new job? What to look for in an employment contract

Starting a new job is an exciting time, whether it’s your first one or you’re moving on to greener pastures there’s a lot to consider – like how will you celebrate?! What will you wear on your first day? And what’s the commute going to be like? But before you start planning whether you’ll bike or train to work, you’ll need to review and sign your employment contract. This part can often feel daunting for new workers, but don’t worry – here’s a handy guide for what to look out for in an employment contract. This one might seem obvious, but it’s important – so worth mentioning first. It’s vital to ensure that the details contained in your employment contract...

Starting a new job contract review
Employment Law
Is “small scale” wage theft affecting you?

We’ve all heard the stories of large-scale wage theft, where millions of dollars are stolen from workers by paying employees well under award rates or failing to pay overtime. You may be a victim of wage theft if your employer has: However, did you know many Aussie workers are also victims of “small scale” wage theft? Most people aren’t even aware of what “small scale” wage theft is or how it can add up. Small scale wage theft occurs when workers are taken advantage of in small ways on a regular basis. Each instance may only be small – such as being required to work through breaks or being required to clock on after your shift begins or log off before your work is really...

Workers on break
Employment Law
Injured migrant food delivery workers can’t afford medical costs or time off to recover if inju …

Former Uber Eats rider Bruna Correa had only been in Australia for three months when she was car-doored by a driver getting out of a parked vehicle, while delivering food in Sydney last year. She required two surgeries, four months off work and three months’ worth of physiotherapy. When the driver’s door flung open, she fell off her bike and recalls seeing her arm hit the ground, breaking her wrist before the ambulance came. After realising she would no longer receive income to support herself, she sought legal support to lodge a Compulsory Third Party (CTP) claim. This meant she was supported by weekly payments to cover her lost income through her CTP claim which have now come to an...

Bruna prior to accident cropped

We're here to help

Start your online claim check now. Or, if you have a question, get in touch with our team.