The applicant, a casual bus driver, sought a higher pay rate based on the “Evergreen Contract” between the South West Transit Group Pty Ltd as trustee for the South West Transit Group Unit Trust, trading as South West Coach Lines (SWCL) and the Public Transport Authority (PTA), which stipulated a specific hourly rate for bus drivers. The applicant argued that legal principles implied a higher pay rate, either through contract modification or as an implied term. However, it was later discovered that SWCL, her presumed employer, was not a party to the Evergreen contract, which was instead with a related entity, the Australian Transit Group Pty Ltd. Upon realising this, the applicant decided to withdraw her claim.

The applicant contended that she had the authority to withdraw her claim without SWCL’s consent due to SWCL’s failure to fulfill the obligation outlined in sub-regulation 16(4) of the Industrial Relations Commission Regulations 2005. Commissioner Kucera found that the Commission became functus officio after the Notice of Discontinuance was served on SWCL, as it had completed all judicial functions. Regulation 16(4) did not apply since SWCL did not file a counter-proposal. The applicant’s discontinuance did not require SWCL’s consent.

Commissioner Kucera also noted that costs were not awarded because it was functus officio, and a costs order was not justified. The findings emphasised that the respondent's foreshadowed application for costs was not a counter-claim and did not warrant an exception from the Commission’s customary ‘no costs’ approach.

The decision can be read here.