1
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Delwyn Hewitt
v
Topero Nominees Pty Ltd T/A Michaels Camera Video Digital
(C2013/5100)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER JOHNS MELBOURNE, 3 SEPTEMBER 2013
Appeal against decision [2013] FWC 3711 - s.604 Fair Work Act 2009 - public interest -
permission to appeal granted - general protections dismissal dispute - s.365 - Commission not
required to determine whether the applicant was dismissed - appeal upheld - decision
quashed.
Introduction
[1] Ms Delwyn Hewitt (the appellant) resigned from her employment with Topero
Nominees Pty Ltd t/as Michaels Camera Video Digital (the respondent) on 29 October 2012.
On 9 January 2013 Ms Hewitt made an application to the Fair Work Commission (the
Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). Ms Hewitt contended
that she was forced to resign her employment because of the respondent’s conduct. The
application was made within the time prescribed in s.366 and was accompanied by the
prescribed fee (see s.367).
[2] In a decision of 19 June 2013, the Commissioner concluded:
“... that the Applicant was not dismissed from her employment. A dispute of requisite kind for
an application under s.365 of the Act therefore does not exist. The Commission therefore has
no power to issue a certificate as required under s.369 of the Act.”i
[3] The effect of the Commissioner’s decision is that Ms Hewitt is unable to pursue her
general protections application in the Court, because of the operation of s.371(1)(a) of the
Act.
[4] Ms Hewitt has appealed the Commissioner’s decision. Rule 12 of the Fair Work
Australia Rules 2010 deals with appeals and the time period for instituting appeals. That rule
relevantly provides that an appeal must be instituted within 21 days after the date of the
[2013] FWCFB 6321
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 6321
2
decision subject to appeal. The appeal was filed on 11 July 2013, one day out of time. Rule
12.3(b) confers a discretion on the Commission to extend the time within which the appeal is
to be lodged.
[5] We have decided to extend the time for the lodgement of the appeal having regard to
the following matters: the appeal was only filed one day out of time; the delay was occasioned
by representative error; the public interest in having the appeal heard; and the merits of the
appeal itself.
The Appeal
[6] An appeal under s.604 is an appeal by way of rehearing and the tribunal’s powers on
appeal are only exercisable if there is error on the part of the primary decision maker.ii
[7] An appeal may only be made with the permission of the Commission. Sub-section
604(2) provides:
“604 Appeal of decisions
...
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair
dismissal (see section 400).”
[8] We note that this is not an unfair dismissal appeal and hence the additional limitations
in s.400 of the Act do not apply.
[9] The appeal raises two issues for determination:
(i) the proper construction of s.365 and in particular, whether the Commission must
make a determination that there has been a dismissal prior to holding a s.368
conference; and
(ii) if the answer to (i) is yes, then did the Commissioner make an error in concluding
that Ms Hewitt was not dismissed from her employment.
[10] The respondent submits that there is no public interest in granting permission to appeal
on the basis that the Commissioner was correct in her interpretation of s.365, but concedes
that ‘there does exist a diversity of decisions in relation to the interpretation of section 365’.
[11] The first issue raised on the appeal has not previously been dealt with by a Full Bench
and there are conflicting first instance decisions dealing with this issue. We are satisfied that
it is in the public interest to grant permission to appeal and accordingly we grant permission
to appeal.
[12] For reasons which will become apparent it is only necessary for us to deal with the
first issue raised in the appeal.
[13] In the course of reaching her conclusion the Commissioner determined that the
‘dispute’ referred to in s.365 is conditioned by the existence of a dismissal and an allegation
[2013] FWCFB 6321
3
that the dismissal is a contravention of Part 3-1 of the Act. The Commissioner decided that
these matters must be determined prior to conducting a conference under s.368 and if there
was no dismissal there could be no ‘dispute’ within the meaning of s.365, and the
Commission could not conduct a conference. On this basis, the Commissioner also concluded
that the Commission could not issue a certificate under s.369. A s.369 certificate is a
prerequisite to the making of a general protections court application in relation to a general
protections dismissal dispute (s.371(1)).
[14] The question on appeal is whether the Commission must make a determination that the
applicant in a s.365 proceeding has been ‘dismissed’ from their employment (within the
meaning of s.365), before the Commission can conduct a conference in relation to the dispute.
For the reasons which follow we have concluded that the answer to this question is no.
Further, the Commission does not have the requisite jurisdiction to effectively dismiss a s.365
application on the basis of a finding that the applicant was not ‘dismissed’ from their
employment. It follows that the appeal must be upheld and the Commissioner’s decision
quashed. The appellant’s s.365 application will be remitted to Commissioner Johns for the
purpose of conducting a conference pursuant to s.368.
[15] We accept that the Commission has an obligation, in all matters, to satisfy itself that it
has the requisite jurisdiction to perform a particular function (such as conducting a
conference) or exercise a particular power (such as the arbitration or determination of a
dispute). As was said by Smithers J in Deputy Commissioner of Patents v Board of Control of
Michigan Technological Universityiii:
“It is a generally accepted principle of statutory interpretation that courts, tribunals and the like
possess, subject to correction, the necessary power to rule on the initial question whether they
have power to entertain a particular application. If they decline jurisdiction by reason of some
statutory provision that is a decision "under" that provision.”
[16] But this general proposition begs the question as to what is required in order to
‘satisfy’ the Commission that it has the requisite jurisdiction to conduct a conference pursuant
to s.368. And that is the nub of the question before us.
[17] In the context of this matter the question becomes whether it is sufficient for a s.365
application to state on its face that the applicant has been dismissed and that it is alleged that
the dismissal was in contravention of Part 3-1, or is the Commission required to determine
whether the applicant was dismissed from their employment as a jurisdictional prerequisite to
a conference being conducted pursuant to s.368.
[18] Before turning to the legislative context we note at the outset that the Explanatory
Memorandum to what became ss.365 and 368 supports the former approach. The
Explanatory Memorandum states:
“Subdivision A - Contraventions involving dismissal
Clause 365 - Application for FWA to deal with a dispute
1478. Clause 365 provides that a person who alleges that they have been dismissed in
contravention of Part 3-1, may apply to FWA for a conference to attempt to settle the dispute.
An industrial association entitled to represent the industrial interests of the dismissed
employee may also make an application to FWA under clause 365.
Clause 368 - Conferences
[2013] FWCFB 6321
4
1483. Subclause 368(1) provides that if a person makes an application under clause 365 in
relation to their dismissal, FWA must conduct a conference to deal with the dispute.
1484. A legislate note alerts the reader that clause 592 contains procedural rules relating to the
conduct of conferences by FWA.
1485. A further legislative note alerts the reader to clause 595, which sets out FWA's powers
when dealing with a dispute. The effect of this provision is that FWA cannot arbitrate the
dispute (see subclauses 595(1) and (5)), but can deal with the dispute by mediation,
conciliation, making a recommendation or expressing an opinion. The note also makes it clear
that where FWA forms the view that the dispute is in fact more properly characterised as an
unfair dismissal claim, FWA can recommend that the dismissed employee make an
application under Part 3-2 (which deals with unfair dismissal).” [emphasis added]
[19] The Explanatory Memorandum suggests that to give the Commission jurisdiction to
conduct a conference it is sufficient that an applicant alleges that they have been dismissed in
contravention of Part 3-1. It is also apparent that the legislature intended that the Commission
not be empowered to arbitrate the dispute which is the subject of a s.365 application.
[20] The objects of an Act and the legislative context are relevant to any consideration of
the proper interpretation of a particular provision in an Act.iv A section must be read in
context by reference to the language of the Act as a wholev. As Dixon CJ said in
Commissioner for Railways (NSW) v Agalianosvi:
“... the context, the general purpose and policy of a provision and its consistency and
fairness are surer guides to its meaning than the logic with which it is constructed.”
[21] His Honour’s observation was cited with approval in Project Blue Sky Inc v Australian
Broadcasting Authority.vii.
[22] Section 365 is part of Subdivision A of Division 8 of Part 3-1 of the Act (the
Subdivision) which establishes a scheme whereby persons who allege a dismissal in
contravention of one or more of the prohibitions contained in Part 3-1 may apply to the
Commission for it to conduct a dispute resolution process. Sections 365-371 of the
Subdivision provide as follows:
365 Application for the FWC to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial
interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the
dispute.
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional
circumstances, taking into account:
[2013] FWCFB 6321
5
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
367 Application fees
(1) The application must be accompanied by any fee prescribed by the regulations.
(2) The regulations may prescribe:
(a) a fee for making an application to the FWC under section 365; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.
368 Conferences
(1) If an application is made under section 365, the FWC must conduct a conference to deal
with the dispute.
Note 1: For conferences, see section 592.
Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making a
recommendation or expressing an opinion (see subsection 595(2)). One of the
recommendations that the FWC might make is that an application be made under Part 3-2
(which deals with unfair dismissal) in relation to the dispute.
(2) Despite subsection 592(3), the FWC must conduct the conference in private.
369 Certificate if dispute not resolved
If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are
likely to be, unsuccessful, the FWC must issue a certificate to that effect.
370 Advice on general protections court application
(1) If the FWC considers, taking into account all the materials before it, that a general
protections court application in relation to the dispute would not have a reasonable prospect of
success, it must advise the parties accordingly.
(2) A general protections court application is an application to a court under Division 2 of
Part 4-1 for orders in relation to a contravention of this Part.
371 General protections court applications
FWC conference to be held before application
(1) A person who is entitled to apply under section 365 to the FWC for the FWC to deal with a
dispute must not make a general protections court application in relation to the dispute unless:
(a) the FWC has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim
injunction.
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under
section 369 must be made within 14 days after the certificate is issued, or within such period
as a court allows on an application made during or after those 14 days.
[2013] FWCFB 6321
6
Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations
Court of Australia set down principles relating to the exercise of its discretion under a
similarly worded provision of the Industrial Relations Act 1988.
[23] The content and structure of the Subdivision tells against the proposition that s.365 is
to be read as imposing jurisdictional pre-conditions beyond the mere filing of an application
alleging dismissal in contravention of Part 3-1. The Subdivision does not contemplate that the
Commission would engage in any sort of determinative process in dealing with a s.365
application. Three points may be made in this regard.
[24] First, s.368(1) requires the Commission to conduct a conference to deal with the
dispute identified in an application. Nothing in the provision is suggestive of the possibility of
an intermediate hearing concerning jurisdictional issues. The legislative notes to s.368 are
also relevant, they state:
Note 1: For conferences, see section 592.
Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making a
recommendation or expressing an opinion (see subsection 595(2)). One of the
recommendations that the FWC might make is that an application be made under Part 3-2
(which deals with unfair dismissal) in relation to the dispute.
[25] The status of marginal notes has changed in recent years. Schedule 1 to the Acts
Interpretation Amendment Act 2011 amends s.13 of the Acts Interpretation Act 1901 to
provide that all material in an Act, from the first section to the end of the last schedule, is part
of the Act. Certain material appearing before section 1 is also part of the Act. The
Explanatory Memorandum makes it clear that the new s.13 is intended to capture all headings
and explanatory notes within an Act and goes on to state:
“93. ... from federation, marginal notes and section headings have been included in Bills as
part of the text considered by the Commonwealth Parliament. They are able to be amended by
Parliament or under the supervision of Parliament. It is appropriate for this material to be
treated as part of the Act, and given appropriate weight in interpreting the terms of the Act.
This weight will ordinarily be less than the words of the section itself, given the function of
such notes and section headings (see Wacands v The Commonwealth (1981) 148 CLR 1 at 16
per Gibbs CJ).”
[26] The new s.13 applies to the interpretation of all Commonwealth Acts, whether enacted
before or after the commencement of the 2011 Amendment Act. The relevant transitional
provision is Item 1 of Schedule 3 to the 2011 Amendment Act:
“1. Application - general
Subject to this Schedule [Schedule 3], the amendments and repeals made by Schedule 1 apply,
on and after the commencement of Schedule 1 [27 December 2011], in relation to Acts
enacted before, on or after that commencement.”
[27] The further provisions of Schedule 3 to the 2011 Amendment Act do not qualify Item
1 in respect of item 22 of Schedule 1 (which amends s.13 of the Acts Interpretation Act 1901).
[28] It follows that marginal notes of the type accompanying s.368 form part of the Act,
though the weight accorded to such notes will ordinarily be less than the words of the section
itself given the function of such notes.
[2013] FWCFB 6321
7
[29] Note 1 to s.368(1) refers to s.592. Section 592 is illustrative of the general scheme of
the Act in that it prescribes the particular powers which may be exercised by a Member when
performing particular functions. It states:
592 Conferences
(1) For the purpose of performing a function or exercising a power of the FWC (other than a
function or power under Part 2-6), the FWC may direct a person to attend a conference at a
specified time and place.
Note: Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see
Subdivision B of Division 3 of Part 2-6.
(2) An FWC Member (other than a Minimum Wage Panel Member), or a delegate of the
FWC, is responsible for conducting the conference.
(3) The conference must be conducted in private, unless the person responsible for
conducting the conference directs that it be conducted in public.
Note: This subsection does not apply in relation to conferences conducted in relation to
unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).
[30] Subsection 368(2) provides a further limitation on the Commission’s discretion by
providing that a s.368 conference must (despite s.592(3)) be conducted in private.
[31] The second legislative note under s.368(1) refers to the power of the Commission
under s.595(2), in dealing with a dispute, to mediate, conciliate, make a recommendation or
express an opinion. The note confirms that s.595 on its ordinary meaning applies when the
Commission deals with a s.365(1) application. That being the case, s.595(3) is particularly
significant, it provides:
“(3) The FWC may deal with a dispute by arbitration (including by making any orders it
considers appropriate) only if the FWC is expressly authorised to do so under or in accordance
with another provision of this Act.”
[32] As s.595(3) makes clear, express authorisation under a provision of the Act is required
before the Commission is empowered to arbitrate a dispute, with arbitration taken to include
the making of any orders considered appropriate. There is no such express authorisation in the
Subdivision. In these circumstances it is difficult to avoid the conclusion that a process of
determining whether or not the appellant was dismissed would involve an exercise very akin
to an arbitration and s.595(3) tells against any legislative intent that such a determination
would be made by the Commission.
[33] Second, s.370(1) requires that the Commission “advise the parties” if it considers that
taking into account all of the materials before it, a general protections court application in
relation to the dispute would not have a reasonable prospect of success. Such advice is, in
essence, the expression of an opinion, something the Commission is authorised to do in
dealing with a dispute by s.595(2). The advisory role contemplated by s.370(1) is entirely
consistent with the conference function in s.368 and, in particular, the legislative note to that
[2013] FWCFB 6321
8
section which envisages the Commission dealing with a s.365 dispute by ‘mediation or
conciliation, or by making a recommendation or expressing an opinion’.
[34] A s.365 general protections court application founded upon an alleged dismissal of an
employee which did not in fact involve such a dismissal (within the meaning of s.365) (as the
respondent contends in this case) would have no reasonable prospect of success, but despite
this s.370 provides that the Commission’s role is limited to the provision of advice - no
determinative role is envisaged. The s.365 application itself cannot be dismissed for the
reason that it has no reasonable prospect of success, because this is prohibited by s.587(2)(b).
Subsection 587(2) makes it clear that the Commission must not dismiss a s.365 application on
the ground that the application is frivolous or vexatious, or has no reasonable prospects of
success. Once the Commission is satisfied that all reasonable attempts to resolve the dispute
have been, or are likely to be, unsuccessful, then under s.369 the Commission is required to
issue a certificate to that effect. That requirement applies even if the Commission has formed
the view that there is no reasonable prospect of success and has provided advice to the parties
to that effect under s.369.
[35] A third contextual consideration is also relevant. Except in relation to an extension of
time application, there is nothing in the Subdivision which contemplates the receipt of
evidence by the Commission or the making of a determination requiring findings of fact. The
decision of the Full Bench in Hetherington-Gregory v Harrington Village Motel
(Hetherington-Gregory)viii, is relevant in this regard. In that matter the Commission
considered whether an order for the production of documents in connection with a conference
under s.776 of the Act should be made. Section 776 is part of the legislative scheme
concerning unlawful termination of employment, in Part 6-4 Division 2 of the Act. That
scheme, in ss.773-778, contains a procedure for the Commission to conduct a dispute
resolution process in respect of any alleged unlawful termination of employment which is in
all relevant respects identical to that for general protections matters in ss. 365-370. In refusing
to make an order for the production of documents the Full Bench said:
“[8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to
facilitate a resolution of the claim reflected in the application through an agreement of the
parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered
to determine the application or otherwise impose an outcome on the parties.
[9] The statutory requirements upon a Member in relation to a s.776 conference are:
● If satisfied that all reasonable attempts to resolve the dispute have been, or are likely
to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that
effect (s.777); and
● If the Member considers, taking into account all the materials before it, that an
unlawful termination court application in relation to the dispute would not have a
reasonable prospect of success, it must advise the parties accordingly (s.778).
[10] A s.776 conference does not involve the hearing of evidence or the undertaking of a
hearing involving an assessment of the full evidentiary case which would arise in a hearing in
the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process
based on the (often limited) factual material raised by the parties.”
[36] The above characterisation of the Commission’s functions would apply with equal
force to a s.368 conference and is inconsistent with the proposition that the Act imposes
[2013] FWCFB 6321
9
jurisdictional preconditions on the making of a s.365 application of such a nature as might
require the Commission to engage in a process of determination involving the making of
findings of fact based on the receipt of contested evidence.
[37] Given the similarity between the scheme in ss.773-778 and those in ss.365-370, the
analysis in Hetherington-Gregory strongly suggests that s.365(1) is not to be interpreted as
imposing jurisdictional prerequisites such that the Commission might be required to hold a
separate hearing, receive contested evidence and make a determination going to the merits of
the application and potentially affecting the applicant’s right to have his or her rights under
Part 3-1 determined by a relevant court.
[38] As we have noted, s.366 provides an exception to the general proposition that the
Subdivision does not confer any determinative power upon the Commission. But the express
power in s.366(2), to extend the time within which an application must be made, serves to
reinforce the point that where the legislature intended to confer a determinative power it did
so expressly. Absent an express provision there is no legislative intent to confer a
determinative power. This point is supported by an analysis of the provisions of the Act
which deal with unfair dismissal applications. We deal with those provisions shortly.
[39] The second point to note about s.366 is that it does not involve any determination of
the merits of a s.365 application. The section simply prescribes the time within which the
entitlement to make a s.365 application must be exercised - it does not deal with the
entitlement to make the application per se.
[40] For the reasons given, the content and structure of Subdivision A of Division 8 of Part
3-1 of the Act support the proposition that it is sufficient to give the Commission jurisdiction
to conduct a conference under s.368 that a s.365 application to state on its face that the
applicant has been dismissed and it is alleged that the dismissal was in contravention of Part
3-1. We now turn to consider the broader statutory context. In doing so it is important to
bear in mind that the purpose or policy of the Act is to gleaned from a consideration of all of
the relevant provisions of the Act.ix
[41] The general approach reflected in the Act is to use express language to confer a
function or authorise the exercise of a power. The legislative scheme in ss.365-371 may be
contrasted with the unfair dismissal provisions in Part 3-2 of the Act. Section 390 provides
that the Commission may order a remedy for an ‘unfair dismissal’. Section 386 defines when
a person has been ‘dismissed’ and a s.385 deals with the circumstances in which a person will
have been ‘unfairly dismissed’. Section 382 deals with when a person is ‘protected from
unfair dismissal’. Sections 396 and 397 are particularly relevant in the context of the current
matter:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
[2013] FWCFB 6321
10
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
397 Matters involving contested facts
The FWC must conduct a conference or hold a hearing in relation to a matter arising
under this Part if, and to the extent that, the matter involves facts the existence of
which is in dispute.
[42] Section 396 directs the Commission’s attention to the jurisdictional facts which must
be established before the Commission can consider the merits of an unfair dismissal
application. The absence of a similar provision in relation to the conduct of a s.368
conference is telling.
[43] It is also relevant to consider the consequences that might flow from the respondent’s
submission if we were to adopt it.x If one interpretation will result in injustice and another
avoid it then the latter is to be preferred. As Gibbs JJ said in Public Transport Commission of
NSW v J Murray-More (NSW) Pty Ltd:xi
“where two meanings are open ... it is proper to adopt that meaning that will avoid
consequences that appear irrational and unjust.”
[44] Interpretation by reference to the consequences of adopting a particular construction is
an incident of the purposive approach to interpretation.xii
[45] In Dr Linda Munjoma v Salvation Army (NSW) Property Trustee for Social Workxiii
Vice President Hatcher canvassed the anomalous consequences which would flow from
adopting a construction of the type advocated by the respondent in these proceedings.
[46] Let us assume that the Commission must make a determination that the applicant has
been ‘dismissed’ from their employment (within the meaning of s.365) before the
Commission can conduct a conference. If we further assume that in a particular case the
Commission determines that the applicant was not dismissed and accordingly does not
conduct a conference or issue a certificate (as happened in this matter at first instance), what
happens next? On the face of it there would be no bar to Ms Hewitt making a general
protections application to the Federal Court or the Federal Circuit Court seeking remedial
orders under Part 4-1 of the Act. Such an application could be made because the prohibition
in s.371(1)(a) against making a court application without a s.369 certificate only applies to ‘a
person who is entitled to apply under s.365’. This prohibition would not apply to Ms Hewitt
because she was not entitled to apply under s.365 as she had not been ‘dismissed’ from her
employment. But what might happen next?
[47] If a relevant court hearing Ms Hewitt’s general protections court application
determined, contrary to any prior opinion expressed by this Commission, that Ms Hewitt had
been dismissed from her employment then her application would have to be dismissed
regardless of its merits, because the court’s determination would carry with it the necessary
corollary that Ms Hewitt was a person entitled to make an application under s.365, and the
fact that no s.369 certificate had been issued would mean that the s.371(1) prohibition would
render her court application incompetent.xiv
[2013] FWCFB 6321
11
[48] It is highly unlikely that such a consequence would have been the result intended by
the legislature. It would mean that the Commission’s opinion concerning Ms Hewitt’s rights
(or lack thereof) under Part 3-1, and any consequent decision not to issue a s.369 certificate,
could operate to defeat any general protections court application concerning her dismissal
which Ms Hewitt might subsequently choose to make, even if a court, conferred with
jurisdiction to conclusively determine questions of legal right under Part 3-1, took the
opposite view of the matter. Indeed, bearing this potential consequence in mind, the
interpretation of the statutory scheme advanced by the respondent, if correct, might well invite
consideration of Chapter III of the Constitution.
[49] Given the anomalous results which would flow from the adoption of the interpretation
advanced by the respondent, an alternative interpretation of the relevant statutory provisions
which avoids the Commission effectively determining legal rights under Part 3-1 as a
consequence of its statutory functions under ss.368 and 369 is to be preferred, if reasonably
available. In our view, such an alternative interpretation is available.
[50] For the reasons given we do not accept that the Commission needs to be satisfied that
the applicant has been ‘dismissed’ from their employment before holding a s.368 conference.
It is sufficient that the Commission has before it an application that on its face alleges a
dismissal in contravention of Part 3-1.
[51] We uphold the appeal and quash the Commissioner’s decision. The appellant’s s.365
application will be remitted to Commissioner Johns for the purpose of conducting a
conference pursuant to s.368.
PRESIDENT
Appearances:
D. Hewitt, appeared in person
Ms. G. Jardine, of Counsel for Topero Nominees Pty Ltd
Hearing details:
2013.
Melbourne:
16 August.
Subsequent submissions filed on:
21 August 2013
22 August 2013
[2013] FWCFB 6321
12
Printed by authority of the Commonwealth Government Printer
Price code C, PR540967
i [2013] FWC 3711 at [69]
ii This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at paragraph [17] per Gleeson CJ, Gaudron and Hayne JJ.
iii (1980) 28 ALR 551 at 562
iv For example see Russo v Aiello (2003) 215 CLR 643 at 645 per Gleeson CJ. Also see s.15AA of the Acts Interpretation
Act 1901 (Cth) and s.40A of the Fair Work Act 2009 (Cth).
v Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69].
vi (1955) 92 CLR 390 at p397.
vii (1998) 194 CLR 355 at p381.
viii [2012] FWAFB 2104
ix Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at p579; Bowling v General Motors Holden
Ltd (1980) 33 ALR 297 at p304.
x Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321 per Mason
and Wilson JJ.
xi (1975) 132 CLR 336 at 350
xii Turner v George Weston Foods Ltd Trading as Tip Top Bakeries [2007] NSWCA 67 at [56] per Campbell JA, with whom
Beazley JA and Hodgson JA agreed.
xiii (2013) FWC 3337
xiv Excepting only if it contained an application for an interim injunction and that exception is more theoretical than real,
since it is difficult to imagine what there would be to injunct in the case of an employee who had already been dismissed
many weeks ago.
