[2014] FWCFB 4822
The attached document replaces the document previously issued with the above code on 17
July 2014.
Amending footnote 2.
Annastasia Kyriakidis
Associate to Justice Ross, President
Dated 18 July 2014
1
Fair Work Act 2009
s.604 - Appeal of decisions
Jobs Australia
v
Mrs Donna Eland
(C2014/4646)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER BISSETT
MELBOURNE, 17 JULY 2014
Appeal against decision [[2014] FWC 3051] of Vice President Catanzariti at Sydney on
8 May 2014 in matter number U2013/16116 - application to extend time for institution of
appeal dismissed.
[1] On 2 April 2014 Vice President Catanzariti refused an application by Mr Keith
Godfrey, an industrial relations advisor employed by Jobs Australia Limited (Jobs Australia),
for permission to represent Childrenfirst Inc t/as Childrenfirst (Childrenfirst) in an unfair
dismissal proceeding in which Childrenfirst was the respondent.1 The Vice President’s
reasons for that decision were issued on 8 May 2014.2 In essence the Vice President rejected
Mr Godfrey’s contention that as an employee of Jobs Australia he was not required to seek
the leave of the Commission to represent the members of Jobs Australia in any matter before
the Commission. In support of that contention Mr Godfrey relied on s.596(4) of the Fair
Work Act 1996 (the Act).
[2] Section 596 relevantly provides:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in
a matter before the FWC (including by making an application or submission to the FWC on
behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
...
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid
agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
1 [2014] FWC 2178
2 [2014] FWC 3051
[2014] FWCFB 4822
DECISION
E AUSTRALIA FairWork Commission
2
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered
Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
[3] At the heart of Mr Godfrey’s contention was the proposition that Jobs Australia was
‘an association of employers’ within the meaning of s.596(4)(b)(ii). The Vice President
rejected that proposition and Jobs Australia has appealed that decision.
[4] The appeal was filed on 29 May 2014. Rule 56 of the Fair Work Commission Rules
2013 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 decision
appealed against. The appeal was instituted some six weeks out of time. Rule 56(2)(c) confers
a discretion on the Commission to extend the time within which the appeal is to be lodged.
[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of
course. There are sound administrative and industrial reasons for setting a limit to the time for
bringing an appeal and it should only be extended where there are good reasons for doing so.
The authorities3 indicate that the following matters are relevant to the exercise of the
Tribunal’s discretion under Rule 56(2)(c):
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those
grounds being upheld if time was extended; and
any prejudice to the respondent if time were extended.
[6] In broad terms the issue for the Commission is whether, in all the circumstances and
having regard to the matters set out above, the interests of justice favour an extension of the
time within which to lodge the appeal.
[7] In support of its application to extend time Jobs Australia advanced three broad points.
[8] First, it is submitted that Jobs Australia was not in a position to formulate the grounds
of appeal until the reasons for the Vice President’s decision were published on 8 May 2014.
We find this argument unconvincing.
[9] The decision subject to appeal is about the meaning of the expression ‘association of
employers’ in s.596(4)(b)(ii) and the application of that construction to Jobs Australia. In
other words the decision subject to appeal dealt with a question of law and on appeal the issue
3 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C;
Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona
Operations Ltd v Esam and Organ (2005) 141 IR 338
[2014] FWCFB 4822
3
is whether or not the Vice President was correct. Having regard to the nature of the decision
subject to appeal we fail to see why it was necessary for Jobs Australia to await the reasons
for decision before instituting the appeal. There was nothing to prevent Jobs Australia
instituting the appeal, noting that the reasons had not yet been delivered, and subsequently
seeking leave to amend the grounds of appeal. We note that different considerations arise
where the decision subject to appeal involves the exercise of a discretion. In such a case the
reasons may themselves provide the basis for an appeal, for example where the reasons
disclose that the Member has had regard to an irrelevant consideration.
[10] The second point advanced is that the interpretation of s.596(4)(b)(ii) and its
application has been the subject of inconsistent first instance decisions and accordingly the
matter should be determined by a Full Bench. In this regard Jobs Australia points to what is
asserted to be an inconsistency between the decision subject to appeal and a decision of
Commission Bull in Joshua Smith v Housing Plus.
[11] We are not persuaded by this submission. The asserted inconsistency is more apparent
than real. In Joshua Smith, Commissioner Bull decided that Jobs Australia did not need to
seek permission to represent the respondent because it was an association of employers and
hence fell within the scope of the example in s.596(4)(b)(ii). But, importantly, the
Commissioner reached this view on the basis of a concession by the other party in the
proceedings4. Specifically, the applicant conceded that Jobs Australia was an ‘association of
employers’. The issues ventilated in the proceedings before the Vice President were not the
subject of debate in the matter before Commissioner Bull.
[12] The third point advanced in support of extending time goes to the merit of the appeal
itself. In this context it is submitted that the appeal raises important issues for Jobs Australia
in particular and employer associations in general. It is submitted that if the Vice President’s
decision stands it will act as precedent and will impair the capacity of Jobs Australia to
represent its members in matters before the Commission.
[13] An appeal under s 604 of the Fair Work Act 2009 (the Act) is an appeal by way of
rehearing and the Commission’s powers on appeal are only exercisable if there is error on the
part of the primary decision maker.5 There is no right to appeal, rather an appeal may only be
made with the permission of the tribunal. In the context of this case it is unlikely that
permission to appeal would be granted, having regard to the manner in which the proceedings
were conducted at first instance. Two points may be made in this regard.
[14] First, Jobs Australia submits that the Vice President correctly identified that the test to
be applied to determine whether an association is “an association of employers” is the test
posited by Wilcox CJ in Tzimos v Tempo Services Pty Ltd,6 but says that he misapplied the
test and in consequence the conclusion that Jobs Australia was not an association of
employers was wrong7. In Tzimos Wilcox CJ said:
4 See Transcript of proceedings at PN26-PN27 and PN30-40
4 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 (1995) 64 IR 43
7 Outline of oral submissions at [1] – [5]
4
“It will be noted that this provision does not require that the officer be an officer of an
‘organisation’ as defined, that is a registered organisation. It is sufficient that the person be an
officer of ‘an association of employers’. That term is not defined in the Act, either within Pt
VIA or generally. Under those circumstances it is appropriate to give it its normal meaning; an
association of people or companies who are in fact employers and who associate together in
that capacity. Ausgroup Services Employers Association meets that criterion. Its constitution
provides that it is to be comprised ‘of an unlimited number of members who are employers
within Australia’. This means that only employers are eligible for membership of the
association. Furthermore, the objects of the association are objects referable to members’
conduct as employers rather than their conduct in any other capacity.”8
[15] Jobs Australia submits that neither the Tzimos test nor s.594(4) require that an
association be exclusively of employers, or that they associate exclusively (or even
principally) in that capacity. The difficulty for Jobs Australia is that no such submission was
advanced in the proceedings at first instance. Further, in the proceedings before the Vice
President no evidence was adduced as to the composition of the membership of Jobs Australia
and, in particular, how many of those members were employers.
[16] Appeal proceedings are not the occasion to redress deficiencies in the case presented
at first instance. The absence of relevant evidence and the limited nature of the submissions
advanced at first instance also mean that the decision sought to be appealed should be treated
with some caution and its precedent value is limited. In any case, in the event the question
agitated in appeal arises in a subsequent proceeding it would be open to Jobs Australia to
make an application to refer the matter to a Full Bench pursuant to s.615A of the Act.
[17] The second point also concerns the limited nature of the issues ventilated at first
instance. In this regard it is important to appreciate that s.596 is not concerned with rights of
representation per se. It is concerned with limiting the right of a person to be represented in a
matter before the Commission by a lawyer or paid agent. Section 596(4) does not confer a
right of representation of a person in a matter before the Commission by, relevantly, an
employee or officer of an association of employers that is representing the person9. Rather
s.596(4) provides an exception to the general rule that permission is required before a person
may be represented by a lawyer or paid agent in a matter before the commission.
[18] On one view s.596(4) is concerned with the status of a person who seeks to represent
another person in a matter before the Commission. If that person is a lawyer or paid agent
who is an officer or employee of an association, the enquiry then shifts to whether that
association is, for present purposes, an association of employers. If the person who seeks to
represent another person in a matter before the Commission is not a lawyer and is not a paid
agent, then on one view, s.596(4) is not engaged and the question whether that person is an
employee or officer of an association of employers does not arise.
[19] We have found it unnecessary to form a concluded view on the correctness of this
construction. It is sufficient that we make the observation that Mr Godfrey, who is an
employee of Jobs Australia, is neither a lawyer nor himself a paid agent of Childrenfirst. This
raises for consideration whether Mr Godfrey required permission under s.596 (1) and whether
s.596(4) was engaged at all. This issue was not raised nor argued before the Vice President. It
8 Tzimos v Tempo Services Pty Ltd (1995) 64 IR 43, 44-5
9 c/f s. 100 of the Workplace Relations Act 1996, which by section 100 (11) provided for a right of a party, other than an
organisation employing authority, to be represented by a particular class of person.
[2014] FWCFB 4822
5
seems to us that consideration of the question of whether Jobs Australia is an association of
employers within the meaning of s.596(4)(b)(ii) does not arise for determination without first
determining whether s.596(4) was engaged at all in relation to the application by Childrenfirst
that it be represented by Mr Godfrey.
[20] Given that the issue was not agitated before the Vice President, and as it was not
raised by Jobs Australia in its notice of appeal, or in its submissions filed in respect of the
appeal, we do not think that this appeal is an appropriate vehicle to consider and determine
that issue. Furthermore we are not persuaded by the submission advanced by Jobs Australia
that the question of its status as an association of employers should be determined without
first considering whether permission was required at all pursuant to s.596(1).
[21] There is a further reason for refusing to allow the appeal to be instituted outside of the
time prescribed in Rule 56. Childrenfirst, the respondent to the substantive application for
relief from unfair dismissal before the Vice President, and the body that sought to be
represented by Mr Godfrey did not lodge an appeal against the Vice President’s decision not
to grant it permission to be represented by Mr Godfrey, nor did it seek to be heard in the
appeal before us. The substantive application was determined by the Vice President in 8 May
201410 and the question of the appropriate remedy was determined by the Vice President in 13
June 201411. Neither the merits decision nor the remedy decision is the subject of appeal by
Childrenfirst. The time for instituting an appeal in respect of those decisions has passed.
There is no suggestion that Childrenfirst was prejudiced in the conduct of the case before the
Vice President by reason of his refusal to grant it permission to be represented by Mr
Godfrey. As Jobs Australia properly conceded before us, for the parties to the substantive
application, there is no practical utility that would be achieved in proceeding to determine the
appeal.
[22] After considering all of the circumstances we are not persuaded that it is in the
interests of justice to extend time to institute the appeal. Accordingly, we dismiss the
application to extend the time for the institution of the appeal.
PRESIDENT
Appearances:
T. Lange, Solicitor for Jobs Australia Ltd
Mrs D Eland was not present or represented.
Hearing details:
2014;
Melbourne;
July, 16
10 Eland v Childrenfirst Inc [2014] FWC 3055
11 Eland v Childrenfirst Inc [2014] FWC 3961
6
Printed by authority of the Commonwealth Government Printer
Price code C, PR553274
