[2016] FWC 6710
The attached document replaces the document previously issued with the above code on 19
September 2016.
The references at endnote 3 and 7 have been corrected.
Jo Richardson
Associate to Justice Ross
Dated 20 September 2016
1
Fair Work Act 2009
s.615A(2) - Application for the President to direct a Full Bench to perform function
Warwick Gee
v
Tasmanian Ports Corporation Pty Ltd T/A Tasports
(U2015/11920)
JUSTICE ROSS, PRESIDENT MELBOURNE, 19 SEPTEMBER 2016
Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 394, 615A - application refused
[1] Mr Warwick Gee (the Applicant) has applied for a direction pursuant to s.615A of the
Fair Work Act 2009 (Cth) (the FW Act) that a matter be referred to a Full Bench of the
Commission. The referral application relates to an unfair dismissal application lodged on 21
September 2015 pursuant to s.394 of the FW Act. The relevant background may be shortly
stated.
[2] On 28 August 2015, the Applicant was notified that his employment with Tasmanian
Ports Corporation Pty Ltd (the Respondent) was terminated effective from 24 September
2015. The Applicant submits that the dismissal was unfair for the reasons set out in his
application and seeks reinstatement, as well as various other orders.
[3] In proceedings before Deputy President Wells on 6 July 2016 (the 6 July hearing), the
parties made oral submissions regarding the first instance decision in Pettifer v MODEC
Management Services Pty Ltd1 and that decision’s relevance to the substantive application.
The Applicant noted the decision was the subject of an appeal before a Full Bench.2 The
Applicant made oral submissions at the 6 July hearing that the Deputy President reserve her
decision until after the appeal was handed down.3
[4] On 26 August 2016, at the request of the parties, the Deputy President directed the
filing of further submissions in respect of the Appeal Bench decision in Pettifer v MODEC
Management Services Pty Ltd (Pettifer).4
[5] The Applicant filed supplementary submissions on 9 September 2016, requesting that
the substantive application be referred to a Full Bench, pursuant to s.615A(2). The
Respondent opposed the referral application in its submissions of 12 September 2016. A short
hearing in respect of the referral application took place on 16 September 2016.
[6] Section 615A of the FW Act states:
[2016] FWC 6710
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 6710
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‘615A When the President must direct a Full Bench to perform function etc.
(1) The President must direct a Full Bench to perform a function or exercise a power
in relation to a matter if:
(a) an application is made under subsection (2); and
(b) the President is satisfied that it is in the public interest to do so.
Note: The President gives directions under section 582.
(2) The following persons may apply to the FWC to have a Full Bench perform a
function or exercise a power in relation to a matter:
(a) a person who has made, or will make, submissions for consideration in the
matter;
(b) the Minister.
[7] In relation to the s.615A application, the issue for determination is whether I am
satisfied that it is in the public interest to refer the matter to a Full Bench. The expression ‘in
the public interest’, when used in a statute, imports a discretionary value judgment to be made
by reference to undefined factual matters and confined only by the subject matter, scope and
purpose of the relevant statute.5
[8] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s
powers under ss 394 and 615A.
[9] Section 577 of the FW Act provides as follows:
‘The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its
functions and exercises its powers efficiently etc. (see section 581).’
[10] Section 578 directs the Commission to take into account, among other things, the
objects of the FW Act and ‘equity, good conscience and the merits of the matter’. Section 581
is also apposite. It provides, relevantly, that the President is responsible for ensuring that the
Commission performs its functions and exercises its powers in an efficient manner.
[11] The Applicant submits that the likely impact of Pettifer on the Applicant’s case
warrants the application being referred to a Full Bench. Central to the submission in support
of the referral application is the proposition that the Full Bench decision in Pettifer was
[2016] FWC 6710
3
‘arguably wrong’, in that it focussed on the capacity of the employer rather than the capacity
of the employee, in determining whether there was a valid reason for the dismissal.
[12] There is no suggestion that there is a conflict in Full Bench authority on the point
decided in Pettifer, though reference was made to two first instance decisions which, it was
submitted, were inconsistent with Pettifer (Dalziel v Bilfinger Berger Services (Australia) Pty
Limited;6 Kool v Adecco Industrial Pty Ltd7 (Adecco)). I note that Adecco was expressly
considered, and distinguished, in Pettifer.8
[13] It seems to me that the referral application is little more than a device to reconsider
Pettifer, which the Applicant apprehends may be unfavourable to the substantive application.
Section 615A is not intended to provide a mechanism to review Full Bench decisions in order
to produce a favourable outcome for a party dissatisfied with a particular authority. It seems
to me that any challenge to the decision in Pettifer can be dealt with in any subsequent appeal
from the decision in the substantive application. Any such appeal would also have the benefit
of the Deputy President’s findings on the relevant facts. Counsel for the Applicant accepted
that his client’s rights would not be adversely affected in the event that the referral application
was rejected.9
[14] I do not propose to grant the application sought. I am not persuaded that the
submissions advanced on behalf of the Applicant sufficiently enliven the public interest. Any
issues raised with the Full Bench decision in Pettifer are more appropriately dealt with in any
subsequent appeal.
[15] As I am not satisfied that it is in the public interest to direct a Full Bench to hear and
determine the s.394 application, the s.615A application must be dismissed.
[16] The application to refer the dispute to a Full Bench is dismissed.
PRESIDENT
Appearances
T. Slevin for the Applicant
S. Masters for the Respondent
Hearing details
2016.
Melbourne, Sydney, Hobart (telephone hearing)
16 September.
Printed by authority of the Commonwealth Government Printer Price code A PR585539
[2016] FWC 6710
4
1 [2016] FWC 3194
2 [2016] FWCFB 5243
3 Transcript 6 July 2016 at para 2268
4 [2016] FWCFB 5243
5 O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ
6 [2010] FWA 1129
7 [2016] FWC 925
8 [2016] FWCFB 5243 at paras [40] – [41]
9 Transcript 16 September 2016 at paras [24] – [25]
