1
Fair Work Act 2009
s.604 - Appeal of decisions
Pearljit Singh
v
Metro Trains Melbourne
(C2015/3947)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS SYDNEY, 5 JUNE 2015
Appeal against decision made in chambers by Vice President Watson regarding permission to
appear on 11 May 2015 in matter number U2014/16160.
Introduction
[1] The appellant in this matter, Ms Pearljit Singh, lodged an application for an unfair
dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) on 24 December 2014.
The application concerned Ms Singh’s summary dismissal from her employment with Metro
Trains Melbourne (respondent) on the basis of allegations that she had engaged in serious
misconduct by attempting to conceal and misappropriate lost property and had failed to
comply with her employer’s Lost Property Procedure and Code of Conduct. Her application
was listed for a determinative conference before Vice President Watson on 22 May 2015.
[2] As a preliminary matter, Vice President Watson conducted a telephone conference on
11 May 2015 in which he heard and determined an application by the respondent for
permission to be legally represented at the determinative conference. His decision,
communicated ex tempore during the telephone conference, was that the permission sought
should be granted (Decision). It is apparent that reasons were given for the Decision, but the
telephone conference was not recorded and the reasons have not been published.
[3] On 13 May 2015 Ms Singh lodged a notice of appeal against the Decision. In that
notice of appeal Ms Singh applied for an expedited hearing on the basis that her unfair
dismissal remedy application was the subject of a determinative conference on 22 May 2015.
She also sought a stay of the decision the subject of the appeal. For those reasons her appeal
was set down for hearing on 21 May 2015 as part of the permission to appeal list previously
scheduled for that day.
[4] On 21 May 2015 this Full Bench, having heard the parties’ submissions, determined
that because the determinative conference before Vice President Watson was due to take place
the following day, it would issue its decision that day and give its reasons for that decision at
[2015] FWCFB 3502
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 3502
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a later time. Our decision, issued ex tempore, was that permission to appeal was refused. We
now provide reasons for that decision.
Consideration
[5] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.1 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.
[6] 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), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
[7] 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.
[8] 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. In Asciano Services
Pty Ltd v Hadfield2, which was an appeal from a decision to refuse permission for legal
representation under s.596, the Full Bench determined that it would approach the matter on
the basis that s.400(1) applied, but that it would also state the conclusion it would reach if
s.400(1) did not apply. In taking this approach, the Full Bench relied upon the decision of the
Federal Court (Besanko J) in Australian Postal Corporation v Gorman.3 In that matter,
judicial review was sought of an appeal decision of a Full Bench of this Commission which
quashed the decision of a single member to dismiss an unfair dismissal remedy application
under s.587 (which provision is likewise not located in Part 3-2 of the FW Act). In that
context, the question arose as to whether the Full Bench was required to apply s.400(1) to the
appeal. Besanko J said:
“[37] ... 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
1 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
2 [2015] FWCFB 2618
3 [2011] FCA 975
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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.”
[9] We have likewise taken the approach that s.400(1) applies to Ms Singh’s appeal.
However, we will also take the step of stating what conclusion we would reach if s.400(1) did
not apply.
[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400(1) as “a stringent one”.4 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline
Australia Pty Ltd v Makin a Full Bench of the Commission 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
[11] 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 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.8
[12] The appeal here is brought against an interlocutory decision. Courts and tribunals have
generally discouraged appeals against interlocutory decisions, and it will not commonly 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.9
[13] 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.
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.
[2015] FWCFB 3502
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(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.
…
[14] The granting of permission under s.596 involves a two-step process.10 The first is that
there must be satisfaction that at least one of the criteria in s.596(2) is satisfied. The
consideration required by this first step “involves the making of an evaluative judgment akin
to the exercise of a discretion”.11 The second is that the discretion conferred by s.596(2) must
be exercised in favour of the applicant for permission. Accordingly in respect of either step it
will not be sufficient for an appellant to invite the Full Bench simply to substitute its own
determination for that of the single member whose decision is the subject of the appeal. It is
necessary to demonstrate error of the type identified in House v The King.12
[15] The parties to the appeal both informed us that Vice President Watson granted
permission under s.596 on the basis that the criterion in s.596(2)(a) was satisfied. Ms Singh’s
appeal challenged his conclusion in this respect on five grounds which we summarise as
follows:
The respondent has a number of employed human resources (HR) managers,
specialists and advisors such that it is capable of representing itself.
The matter was not a complex one, being factually simple in nature and not
involving any legal issues.
10 Warrell v Walton (2013) 223 IR 335 at [24]
11 Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]
12 (1936) 55 CLR 499 at 505
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The respondent’s legal representatives have not to date been able to deal with the
matter efficiently, as demonstrated by the need to twice request extensions of time
to file materials.
The respondent’s legal representative had misled the Commission concerning the
HR experience of one particular employee of the respondent and the extent of the
respondent’s qualified HR personnel.
It would be manifestly unjust for Ms Singh, who was self-represented, to be pitted
against a lawyer “who may want to only confuse the employee by using legal
language”.
[16] Having considered those matters, and the elaboration upon them by Ms Singh in her
oral submissions, we were not satisfied that it was in the public interest to grant permission to
appeal for the following reasons:
(1) No issue of importance or general application was identified, nor do we
consider that the Decision was disharmonious with other recent decisions made
under s.596 or that there is a diversity of decisions at first instance concerning
legal representation requiring guidance at the appellate level. The fact that, in
different cases, different outcomes have prevailed is not of itself indicative of
disharmony or diversity since the determination of whether any of the criteria
in s.596(2) is satisfied will depend on the particular circumstances of each case.
(2) Ms Singh’s contention that her case was not complex implicitly involved the
proposition that a finding of complexity was necessary in order for the criterion
in s.596(2)(a) to be satisfied. This is not the case. Certainly the provision
requires the complexity of the matter to be taken into account. That means the
consideration of complexity must be treated as a matter of significance in the
process of determining whether the criterion is satisfied.13 But ultimately the
issue under s.596(2)(a) is whether the grant of permission would enable the
matter to be dealt with more efficiently. There will be circumstances where
permission for legal representation may enable a matter to be dealt with more
efficiently even though it is not particularly complex; for example, an appeal
may be dealt with more efficiently by granting permission to allow the legal
representatives who appeared in the matter at first instance to also appear in the
appeal. Therefore the characterisation of a matter as not being complex does
not itself necessarily mean that the s.596(2)(a) consideration is incapable of
satisfaction.
(3) In any event, we do not consider that Ms Singh demonstrated any error in Vice
President Watson’s consideration of the complexity of the matter. Having been
allocated the matter and having the entire file before him, Vice President
Watson was better placed than us to make the required assessment concerning
complexity. We were not taken to the evidentiary material that has been filed in
the matter, and consequently we were not in any position to conclude that there
was a lack of complexity about the matter which forbade the conclusion that
s.596(2)(a) was satisfied.
13 See Edwards v Giudice (1999) 94 FCR 561 at [5] per Moore J; King v Freshmore (Vic) Pty Ltd Print S4213 at [19]-[23].
[2015] FWCFB 3502
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(4) We do not consider that any manifest injustice or unfairness arises from the
Decision. Having seen and heard Ms Singh during the appeal hearing, it is
apparent to us that she is a person capable of articulating her case. We do not
consider there is any basis for the proposition that the respondent’s legal
representative would take any unfair advantage of the situation. In any event
were that to occur, or if Ms Singh had any difficulty in understanding any legal
question which arose, there would no doubt be an appropriate intervention
from the bench. Further, Ms Singh’s unfair dismissal remedy application was
to be dealt with at a determinative conference rather than a formal hearing. The
greater procedural informality of such a conference would significantly
ameliorate any disadvantage perceived by Ms Singh.
(5) We reject as without foundation the suggestion that the respondent’s legal
representative misled Vice President Watson about any factual matter such as
to vitiate the Decision.
[17] If s.400(1) did not apply to the appeal, we would nonetheless have refused permission
to appeal for the same reasons.
Conclusion
[18] We refused Ms Singh permission to appeal for the reasons set out above.
VICE PRESIDENT
Appearances:
P. Singh on her own behalf.
C. Broadbent solicitor for Metro Trains Melbourne.
Hearing details:
2015.
Sydney:
21 May.
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Price code C, PR567655
OF THE FAIR WORK MISSION THE
