[2015] FWCFB 523
The attached document replaces the document previously issued with the above code on 29
January 2015.
De-identifying the appellant
Mirella Franceschini
Associate to Justice Ross, President
Dated 15 May 2015
1
Fair Work Act 2009
s.604 - Appeal of decisions
AB
v
Tabcorp Holdings Limited
(C2014/8323)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL
MELBOURNE, 29 JANUARY 2015
Appeal against decision [[2014] FWC 8831] of Deputy President Gooley at Melbourne on 8
December 2014 in matter number C2014/6310 - permission to appeal refused.
[1] AB (the appellant) lodged an application for an unfair dismissal remedy pursuant to
s.394 of the Fair Work Act 2009 (Cth) (the FW Act) on 18 January 2014 and on 14 May 2014
he discontinued that application by filing a notice of discontinuance. AB subsequently made
an application to have the notice of discontinuance set aside and to have his unfair dismissal
application reinstated. In a decision issued on 8 December 2014,1 Deputy President Gooley
dismissed AB’s application to have his notice of discontinuation set aside. AB seeks
permission to appeal the Deputy President’s decision and that is the matter before us.
[2] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair
Work Commission’s (FWC) 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 FWC. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager)
under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(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).
(3) A person may appeal the decision by applying to the FWC.
[2015] FWCFB 523
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 523
2
[3] Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is
‘in the public interest to do so’. The task of assessing whether the public interest test is met is
a discretionary one involving a broad value judgment.3 The public interest is not satisfied
simply by the identification of error, or a preference for a different result.4 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...”5
[4] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been adopted in granting leave and
which would therefore usually be 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.6 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 of appealable error.7
[5] We note that the respondent contended that s.400(1) applied to AB’s application for
permission to appeal as the decision subject to appeal was said to be ‘a matter arising’ under
Part 3-2. We are not persuaded that s.400(1) applies to this matter. Section 400(1) provides as
follows:
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision
made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(emphasis added)
[6] The decision which is the subject of the application for permission to appeal was made
by reference to s.589 (which is in Part 5-1 of the FW Act) and was not ‘made by FWC under
[Part 3-2 of the FW Act]’, accordingly s.400(1) does not apply.
[7] The gravamen of the Deputy President’s reasons are set out at paragraphs [18]-[27] of
her decision. After referring to the Full Bench decision in Chandra Gupta Narayan v MW
Engineers Pty Ltd8 (Narayan) the Deputy President deals with the substance of the
application before her, in these terms:
"[20] I am unable to conclude that AB’s notice of discontinuance was a nullity. These are my
reasons. AB submits that permitting Tabcorp to be represented by lawyers at the conciliation
and in the preparation of its material placed him under such duress that he discontinued his
unfair dismissal application.
[21] I accept that AB felt strongly about Tabcorp being represented and considered that he was
at a disadvantage because Tabcorp was represented by lawyers particularly in light of his
disability. I also accept that he wished to deal directly with Tabcorp’s HR representative. AB
had been advised that the question of whether Tabcorp would be permitted to have a lawyer
represent it at the hearing would be determined by the presiding member prior to the hearing.
[2015] FWCFB 523
3
At the time AB discontinued his application, the matter which was listed for hearing on 4 and
5 June 2014, had not been allocated to a member.
[22] Tabcorp was entitled to have legal representation in the preparation of its material and it
was entitled to be represented in the conciliation before a member of staff of the Commission.
[23] It cannot be said that by exercising its lawful rights Tabcorp was applying duress to AB
to discontinue his application.
[24] There is no evidence of any communication between Tabcorp and AB about the
discontinuance of the application. As Tabcorp submitted, at the time AB discontinued his
application the matter was ready to be heard.
[25] Further it cannot be said that AB had no choice but to discontinue his application.
Tabcorp were entitled to make an application to be represented and that application would
need to be heard and determined. AB could have waited until that application had been
determined. Even if permission had been granted AB had a right of appeal against that
decision.
[26] It is not suggested that AB was mistaken in filing his notice of discontinuance. Nor is
there any evidence on which I could conclude that AB was legally incapable of making a
decision to discontinue.
[27] Accordingly, I dismiss AB’s application to have his notice of discontinuance set aside.”9
[8] AB has filed a written submission in support of his application for permission to
appeal but did not attend the hearing. Commission staff attempted to contact AB without
success. It is apparent from an email sent by AB on 15 January 2015 (and copied to the
presiding Member’s chambers) that he was aware of the hearing, but evidently decided not to
attend. In the circumstances we were satisfied that AB had been notified of the hearing but
chose not to avail himself of the opportunity to make oral submissions in support of his
application. On that basis we proceeded with the hearing and provided the respondent with an
opportunity to advance submissions opposing the grant of permission to appeal.
[9] It is unnecessary to refer to the respondent’s submissions as the matter can be
determined on the basis of the written submissions filed by AB. Those submissions do not
establish an arguable case of error in the decision subject to appeal and nor do they persuade
us that it would be in the public interest to grant permission to appeal.
[10] We note that the Deputy President’s decision is predicated on the assumption that the
Commission has the power to set aside a notice of discontinuation if the notice was filed by
mistake or under duress. In that regard the Deputy President relied on an obiter comment in
Narayan to that effect. However the ratio in Narayan is set out at paragraph 6 of that
decision,:
“... s.586 provides a power to correct or amend an application, or to waive an irregularity in
the form or manner in which an application is made. It is not a power to revoke or set aside an
application. Once filed a notice of discontinuance is self executing and it brings the
application to an end.” (footnotes omitted)
[11] We agree with the proposition that in certain circumstances a notice of discontinuance
can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that
[2015] FWCFB 523
4
such a power may be exercised by the Commission. It seems to us that any such application
would have to be made to a court - for a declaration that the notice was a nullity. As an
arbitral body the Commission cannot grant declaratory relief. The issue does not arise in this
case because the Deputy President dismissed the application before her.
[12] Of course, as was observed in Narayan, filing a notice of discontinuance does not
preclude the filing of a further unfair dismissal application (see Narayan at [15]-[30]), though
such an application will be subject to the time periods specified in s.394(3). In deciding
whether to extend the time for the filing of such an application it would be open to the
Commission to consider the circumstances surrounding the filing of the earlier notice of
discontinuance, including whether it was filed by mistake or under duress.
[13] We are not persuaded that AB has established that it is in the public interest to grant
permission to appeal. Nor are we persuaded that he has established an arguable case of error
in relation to the decision subject to appeal or that there are any other considerations that
warrant the grant of permission to appeal. Accordingly permission to appeal is refused.
PRESIDENT
Appearances:
The Appellant: No appearance
The Respondent: Mr Crow of Counsel
Hearing details:
Sydney
21 January 2015
Printed by authority of the Commonwealth Government Printer
Price code C, PR560278
1 [2014] FWC 8831
2 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 [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]-[46].
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], 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
5 (2010) 197 IR 266 at [27]
6 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
7 Wan v AIRC [2001] FCA 1803 at [30]
[2015] FWCFB 523
5
8 [2013] FWCFB 2530
9 [2014] FWC 8831
