[2015] FWCFB 2618
The attached document replaces the document previously issued with the above code on 21
April 2015.
The document has been edited to correct a typographical error in paragraph [7] by replacing
the word “then” with the word “than”.
Catherine Taylor
Associate to Vice President Hatcher.
Dated 28 April 2015
1
Fair Work Act 2009
s.604 - Appeal of decisions
Asciano Services Pty Ltd
v
Zak Hadfield
(C2015/2331)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT LAWRENCE SYDNEY, 21 APRIL 2015
Appeal against an unpublished decision of Commissioner Riordan at Sydney on 25 March
2015 in matter number U2014/15137 - refusal of respondent to have legal representation.
Introduction
[1] Asciano Services Pty Ltd (the Appellant) has filed a notice of appeal under s.604 of
the Fair Work Act 2009 (FW Act) in which it seeks permission to appeal and appeals an
unpublished decision of Commissioner Riordan issued on 25 March 2015 (Decision). In that
Decision the Commissioner refused an application made by the Appellant pursuant to s.596 of
the FW Act to be represented by a lawyer in unfair dismissal proceedings. The Appellant
seeks that permission to appeal be granted, the Decision be set aside and the Full Bench order
that the Appellant be granted permission to be represented by lawyers.
Background
[2] The underlying matter before the Commission relates to an application made by Mr
Zak Hadfield (the Respondent) for an unfair dismissal remedy against the Appellant. On 27
February 2015 the Appellant filed submissions in support of an application pursuant to s.596
that it be represented by a lawyer and on 3 March 2015 the Respondent’s representative, the
Australian Rail, Tram, and Bus Industry Union (RTBU) filed submissions objecting to the
Appellant being represented by a lawyer. Supplementary submissions were filed by both
parties on 5 March 2015 and in response to the Commissioner’s request for further
information the Appellant filed additional submissions on 11 March 2015.
The Decision
[3] The Decision the subject of this appeal was in the form of a letter to the parties. We set
it out here in full:
“I thank the parties for their submissions in relation to section 596 of the Fair Work Act,
2009 (the Act).
[2015] FWCFB 2618
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 2618
2
When determining such an application, I have to take note of section 596(2) of the
Act.
Having taken into account all of the submissions, the Respondent's application to be
legally represented in this matter is refused.
I do not believe that this matter is of such complexity that legal representation will
allow the matter to be dealt with more efficiently. I am confident that the Respondent
can represent itself effectively based on the skills and experience of its employees. I
do not believe that it is unfair to the Respondent not to allow it to be represented after
taking into account fairness between the Respondent and the Applicant's
representative.”
Submissions
Appellant’s submissions
[4] In its submissions in support of its application for permission to appeal, the Appellant
advanced four propositions:
(1) The Commissioner erred by failing to make findings of fact to support the
conclusions he reached in the Decision or in the alternative that the
Commissioner erred as to the proper construction of s.596(2) of the FW Act.
(2) The Commissioner erred by failing to consider the Appellant’s central
contentions and failing to take into account factors that were relevant to the
criteria in s.596(2).
(3) Having regard to the first two errors, the Appellant submitted that the
Commissioner failed to take into account factors relevant to s.596(2) such that
the exercise of discretion was affected by error of the type identified in House v
The King1.
(4) The Decision reflected a manifest injustice because the Respondent would be
represented by a union while the Appellant would be forced to utilise its
internal resources.
[5] The Appellant submitted that permission to appeal should be granted because the
appeal raises important questions regarding the exercise of jurisdiction by the Commission in
applications under s.596, the determination of applications in the absence of an evidentiary
basis and the appropriate balancing of interests where an applicant is represented by an
industrial organisation.
Respondent’s submissions
[6] The Respondent submitted that the Appellant could effectively represent itself using
its own qualified personnel and that the matter is not so complex that it requires external legal
1 (1936) 55 CLR 499
[2015] FWCFB 2618
3
representation. The Respondent further submitted that the Appellant is a large organisation
with significant resources and a sophisticated Human Resources department and furthermore
that “the basis of the provision in s.596(2) of the Act was to put everyone on an equal
footing”. Finally, the Respondent submitted that the Commissioner did not err in his
application of the FW Act and that the Decision should not be overturned.
Application for intervention
[7] The New South Wales Bar Association sought leave to intervene in these proceedings
submitting that it has an interest beyond that of an ordinary member of the public in ensuring
that the requirements imposed by s.596(2) are properly taken into account. We have decided
to refuse the application because we are not satisfied that the appeal gives rise to any issue of
principle or general application in which the Bar Association has a legitimate interest. The
submissions the Bar Association intended to advance did no more than agitate for an outcome
based on the particular facts of the case and in that respect essentially did no more than echo
the case of the Appellant.
Consideration
[8] An appeal under s.604 of the FW 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.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission. Subsection 604(2) requires the Commission to grant
permission to appeal if satisfied that it is “in the public interest to do so”. Permission to
appeal may otherwise be granted on discretionary grounds.
[9] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair
Dismissal, of the FW Act:
(1) Despite subsection 604(2), FWC must not grant permission to appeal from a
decision made by FWC under this Part unless FWC considers that it is in the public
interest to do so.
[10] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public
interest to grant permission to appeal, it must refuse such permission. It is not available to
grant permission on discretionary grounds.
[11] The Decision here was one made under s.596, which is not located in Part 3-2, but in
relation to an unfair dismissal remedy application made under Part 3-2. A question arose
whether in that circumstance s.400(1) applies. In Australian Postal Corporation v
Gorman3 the Federal Court (Besanko J) gave consideration as to whether, in an appeal from
an order dismissing an unfair dismissal application under s.587 of the FW Act, s.400(1)
applied. The Court said:
“[37] The question of whether there was or was not a binding settlement agreement
is a question of fact, although no doubt informed by legal principles. In this case in
considering whether permission to appeal should be granted and in considering the
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 [2011] FCA 975
[2015] FWCFB 2618
4
appeal itself the Full Bench was required to apply s 400 of the Act. I did not
understand the first respondent to contend otherwise. It seems to me that the Senior
Deputy President’s decision was a decision made ‘under this Part’ within subsection
400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection
400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy
President’s decision was a decision to dismiss the first respondent’s application made
under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part
3-2 in the same way as an order for re-instatement or compensation would be a
decision under that Part. Even if FWA’s general power to dismiss is contained in
subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter
3 Part 3-2. The same reasoning applies if regard is had not to the order but to the
ground upon which the order was made, that is, that the continued pursuit of the
application is frivolous or vexatious.”
[12] The Court’s conclusion above suggests that s.400(1) also applies to this appeal. We
shall approach the appeal on that basis. However we will also state the conclusion we would
reach if s.400(1) did not apply.
[13] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.4 The public interest is not satisfied simply by the
identification of error, or a preference for a different result.5 In GlaxoSmithKline Australia Pty
Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that
may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters...”6
[14] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been treated as justifying the grant
of permission to appeal include that the decision is attended with sufficient doubt to warrant
its reconsideration and that substantial injustice may result if leave is refused.7
[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
4 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44]-[46]
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388,
affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v
Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office [2014] FWCFB 1663
6 [2010] FWAFB 5343 at [27], (2010) 197 IR 266
7 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
[2015] FWCFB 2618
5
of appealable error.8 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.9
[16] The appeal here is brought against an interlocutory decision. Courts and tribunals have
generally discouraged appeals against interlocutory decisions, and it will not usually be the
case that permission would be granted to appeal against an interlocutory decision under s.604
of the FW Act, whether or not s.400(1) applies.10
[17] Section 596 of the FW Act 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.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid
agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into
account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the
person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into
account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be
represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty
reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources
staff while the other party is represented by an officer or employee of an industrial
association or another person with experience in workplace relations advocacy.
…
[18] The interpretation of s.596 was the subject of consideration in the decision of the
Federal Court (Flick J) of Warrell v Walton11:
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388,
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; (2011) 192 FCR 78; NSW Bar Association v
Brett McAuliffe [2014] FWCFB 1663 at [28]
10 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.
11 [2013] FCA 291
[2015] FWCFB 2618
6
“[24] A decision to grant or refuse “permission” for a party to be represented by “a
lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural
decision. It is a decision which may fundamentally change the dynamics and manner
in which a hearing is conducted. It is apparent from the very terms of s 596 that a party
“in a matter before FWA” must normally appear on his own behalf. That normal
position may only be departed from where an application for permission has been
made and resolved in accordance with law, namely where only one or other of the
requirements imposed by s 596(2) have been taken into account and considered. The
constraints imposed by s 596(2) upon the discretionary power to grant permission
reinforce the legislative intent that the granting of permission is far from a mere
“formal” act to be acceded to upon the mere making of a request. Even if a request for
representation is made, permission may be granted “only if” one or other of the
requirements in s 596(2) is satisfied. Even if one or other of those requirements is
satisfied, the satisfaction of any requirement is but the condition precedent to the
subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant
permission …”. The satisfaction of any of the requirements set forth in s 596(2)(a) to
(c) thus need not of itself dictate that the discretion is automatically to be exercised in
favour of granting “permission”.
[25] The appearance of lawyers to represent the interests of parties to a hearing runs
the very real risk that what was intended by the legislature to be an informal procedure
will be burdened by unnecessary formality. The legislative desire for informality and a
predisposition to parties not being represented by lawyers emerges, if not from the
terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill
2008 (Cth)…”
[19] We are not satisfied that it is in the public interest that permission to appeal be
granted. Nor do we consider that, if s.400(1) does not apply, there are discretionary grounds
justifying the grant of permission. We have reached this conclusion for the following reasons:
(1) We do not consider that this appeal gives rise to any issue of general principle,
that the Decision was disharmonious with other decisions, or that there is any
diversity of decisions at first instance which requires guidance at the Full
Bench level. The Federal Court decision in Warrell v Walton and the Full
Bench decision in New South Wales Bar Association v McAuliffe12 provide the
necessary guidance as to the interpretation and application of s.596. No issue
raised in this case would make it necessary to supplement the propositions of
general application stated in those decisions. The Decision was one which
turned on its own facts.
(2) We do not accept the Appellant’s submission that this case involved an
important issue concerning the need to make findings of primary fact upon
which the consideration of the criteria in s.596(2) may proceed. In this case, no
evidence was adduced in relation to the question of permission to appear, and
12 [2014] FWCFB 1663
[2015] FWCFB 2618
7
the matter proceeded on the basis of written submissions which contained a
number of uncontested factual assertions. The Decision made it clear that the
Commissioner had taken the submissions into account, and it can therefore
reasonably be assumed that the Commissioner proceeded on the basis of the
asserted facts. In that circumstance, and having regard to the fact that the
Decision was merely an interlocutory one, we do not consider it was necessary
for the Commissioner to recite the facts asserted in the submissions.
(3) The task of determining whether any of the criteria in s.596(2) is satisfied
involves the making of an evaluative judgment akin to the exercise of a
discretion. Although reasonable minds might differ as to whether any of those
criteria was satisfied on the facts of this case, we do not think it can be said that
the conclusions reached by the Commissioner were not reasonably available on
the asserted facts.
(4) We do not consider, having regard to the internal legal, human resources and
other specialist personnel available to it, that the Decision manifests any
injustice to the Appellant. The particular concern expressed by the Appellant
that any such personnel may not actually be available to represent it at the
hearing, which is due to run from 28 April-1 May 2015, is ameliorated by the
fact that, as became apparent during the hearing of the appeal, the matter will
not be ready for hearing on those dates and will have to be rescheduled. The
availability of the parties’ representatives will no doubt be taken into
consideration by the Commissioner when further dates are set.
(5) The effect of rule 12(1) of the Fair Work Commission Rules 2013 when read
with s.596(1) is that the Decision does not affect the capacity of the Appellant
to have its out-of-court preparation work performed by lawyers. This further
ameliorates the effect of the Decision, which is confined to in-court
representation.
[20] Two other relevant observations may be made. The first is that it is unclear whether
Mr Hadfield’s unfair dismissal remedy application is to be dealt with in a determinative
conference under s.398 or a formal hearing under s.399. The more informal procedures of a
determinative conference may be more appropriate for a self-represented litigant such as the
Appellant, and it remains open for the Appellant to apply to the Commissioner to have the
matter dealt with in this way. The second is that, in the event that there is some relevant
change in the circumstances of the case that might affect the applicability of the s.596(2)
criteria - for example, some complex legal issue arises, or there remains a problem with the
availability of relevant internal personnel - then the Appellant is not barred from making a
fresh application for permission to be represented by lawyers.
Conclusion
[21] Permission to appeal is refused.
VICE PRESIDENT
THE SEA THE FAIR WORK SION
[2015] FWCFB 2618
8
Appearances:
Y. Shariff of counsel with P. Almond solicitor for Asciano Services Pty Ltd.
K. Pryor, J. Epps and J. Curley from the Australian Rail, Tram, and Bus Industry Union for Z.
Hadfield.
R. Kenzie QC and D. Mahendra of counsel for the New South Wales Bar Association.
Hearing details:
2015.
Sydney:
April 17.
Printed by authority of the Commonwealth Government Printer
Price code C, PR563139
