1
Fair Work Act 2009
s.604 - Appeal of decisions
Scott Tracey
v
BP Refinery (Kwinana) Pty Ltd
(C2020/8106)
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER BOOTH
SYDNEY, 27 NOVEMBER 2020
Appeal against decision of Deputy President Binet at Perth on 27 October 2020 in matter
number C2020/5255.
Introduction and background
[1] Mr Scott Tracey has lodged an appeal, for which permission to appeal is required,
against a decision of Deputy President Binet made on 27 October 2020 in which the Deputy
President granted BP Refinery (Kwinana) Pty Ltd (BP) permission to be legally represented
in a hearing to occur on 3 December 2020 pursuant to s 596(2)(a) of the Fair Work Act 2009
(FW Act). The decision was contained in a notice of listing for a hearing issued by the Deputy
President’s chambers on 27 October 2020 (decision). The Deputy President published reasons
for this decision on 11 November 2020.1 Mr Tracey contends in his appeal that the Deputy
President erred in a number of identified respects in granting BP permission for legal
representation, and that permission to appeal should be granted and the appeal upheld. Mr
Tracey also seeks a stay of the decision pending the determination of the appeal.
[2] In circumstances where the current COVID-19 pandemic limits the capacity of the
Commission from conducting in-person hearings, the Commission inquired of the parties to
the appeal as to whether they were prepared to have the appeal determined on the basis of
written submissions and without conducting a hearing. Both parties consented to this course.
It was considered that the appeal could be adequately determined without the parties making
oral submissions for consideration. Accordingly, the appeal has been conducted without
holding a hearing pursuant to s 607(1) of the Fair Work Act 2009 (FW Act).
[3] The basic facts of the matter are as follows. On 7 July 2020, Mr Tracey lodged an
application with the Commission pursuant to s 739 of the FW Act to deal with a dispute with
BP under the dispute settlement procedure in clause 23 of the BP Refinery (Kwinana) Pty Ltd
& AWU Operations & Laboratory Employees Agreement 2014 (2014 Agreement). It should
be noted that the 2014 Agreement ceased operation on 16 June 2020, when the BP Refinery
1 [2020] FWC 5787
[2020] FWCFB 6388
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 6388
2
(Kwinana) Pty Ltd & AWU Operations and Laboratory Employees Workplace Determination
2020 (2020 Determination) took effect. The dispute relates to whether BP failed to re-grade
Mr Tracey’s work classification under clauses 58.8 and 59 of the 2014 Agreement. The
factual and legal background to the dispute involves some complexity, and may be
summarised as follows:
(1) From 2017 through to early 2019, there was a long-running dispute at Mr
Tracey’s workplace concerning bargaining for a new enterprise agreement to
replace the 2014 Agreement.
(2) This disputation came to an end when the Commission terminated protected
industrial action at the worksite effective from 4 January 2019. The
Commission subsequently arbitrated the bargaining dispute pursuant to s 266
of the FW Act.
(3) Mr Tracey was dismissed from his employment with BP for misconduct
effective from 18 January 2019, and subsequently lodged an application for an
unfair dismissal remedy.
(4) In a decision issued on 2 September 2019,2 the Deputy President found that Mr
Tracey’s dismissal was not unfair and dismissed his application. Mr Tracey
appealed this decision.
(5) In a decision issued on 28 February 2020,3 a Full Bench constituted by the
same members as this Full Bench granted Mr Tracey permission to appeal,
upheld his appeal, and ordered his reinstatement within 14 days of the date of
the decision. The Full Bench directed further submissions to be filed
concerning any order for compensation for Mr Tracey’s lost earnings from the
date of his dismissal to the date of his reinstatement.
(6) BP applied for judicial review of the Full Bench decision, and consent
arrangements for the stay of the reinstatement order were entered into.
(7) In a decision issued on 22 May 2020,4 a Full Court of the Federal Court
dismissed BP’s application for judicial review.
(8) The same day, a separate Full Bench of the Commission issued its arbitral
decision concerning the bargaining dispute involving BP, and published a draft
determination to give effect to its decision.5
(9) Mr Tracey’s reinstatement took effect on 3 June 2020, although his first day
back at work was not until 8 June 2020.
(10) On 16 June 2020, the 2020 Determination was published and took effect.
2 [2019] FWC 4113
3 [2020] FWCFB 820, 293 IR 170
4 [2020] FCAFC 89, 378 ALR 120
5 [2020] FWCFB 2693
[2020] FWCFB 6388
3
(11) On 7 July 2020, Mr Tracey lodged the dispute application the subject of these
proceedings. In his application, as amended, he identified the subject matter of
the dispute as follows: “This dispute centres around the proposition that BP
failed in their duty to re-grade my work classification from OT5 to CT1A in
accordance with the 2014 EA1 and the “Operations Training - Certification
and Recertification” procedure, in 2018”.
(12) On 10 August 2020, the Full Bench in Mr Tracey’s appeal against the unfair
dismissal matter issued its decision concerning the amount of compensation to
be paid to him consequent upon his reinstatement.6 The decision included the
following (footnote omitted):
“[27] There is a dispute about the classification and rate of pay which
would have applied to Mr Tracey if he had not been dismissed. We are
satisfied that BP had made a decision, prior to Mr Tracey’s suspension on
31 October 2018, that he would be promoted to the classification of
CT1A effective from 19 November 2018. However it does not therefore
follow that Mr Tracey should be compensated at the rate of pay for the
CT1A classification. In the first decision, while we determined that there
was no valid reason for Mr Tracey’s dismissal and that his dismissal was
unfair, we also found that Mr Tracey misconducted himself by using a
work computer to show the video to another employee during working
hours. While this misconduct was not sufficiently serious to merit
dismissal, a reasonable and lawful disciplinary response might have
included the revocation of Mr Tracey’s promotion to the CT1A
classification. Accordingly we will assess compensation by reference to
Mr Tracey’s pre-existing classification of OT5.”
[4] The Deputy President held a conciliation conference in relation to Mr Tracey’s dispute
application on 31 July 2020. Parties were invited to file submissions as to whether permission
should be granted to the parties to be legally represented at the conference. BP sought leave to
be represented at the conference and filed submissions to this effect on 27 July 2020. Mr
Tracey filed submissions opposing leave being granted to BP on the same day. On 30 July
2020, the Deputy President determined that it was appropriate to grant leave to BP to be
legally represented at the conference on the basis that it would enable the matter to be dealt
with more efficiently in accordance with section 596(2)(a) of the FW Act and informed the
parties of this decision via email. In this email, the Deputy President noted that the parties
would need to re-apply for leave to be represented if the matter ultimately proceeds to
hearing.
[5] On 31 July 2020, Mr Tracey filed further submissions objecting to the Deputy
President’s decision to grant leave to BP to be legally represented at the conference. BP filed
submissions in reply later that day. The Deputy President then informed the parties the same
day that she considered it was not appropriate to disturb her earlier decision of 30 July 2020.
[6] The matter proceeded to conciliation however the dispute was not resolved. The
matter was subsequently listed for a hearing on 3 December 2020 (hearing) to determine a
6 [2020] FWCFB 4206
[2020] FWCFB 6388
4
number of jurisdictional objections raised by BP, which were formulated by BP as the
following five questions:
“1. Do the matters set out in section 2.1 of the Form F10 dated 31 August 2020 (Form
F10) give rise to a dispute under clause 16 of the BP Refinery (Kwinana) Pty Ltd &
AWU Operations and Laboratory Employees Workplace Determination 2020?
2. Do the matters set out in section 2.1 of the Form F10 give rise to a dispute that can
be dealt with by the Commission under s 739 of the Fair Work Act 2009 (Cth) (FW
Act) in circumstances where the BP Refinery (Kwinana) Pty Ltd & AWU Operations
& Laboratory Agreement 2014 (2014 Agreement) is no longer in operation?
3. Further or in the alternative, do the matters set out in section 2.1 of the Form F10
dated 31 August 2020 (Form F10) give rise to a dispute under clause 23.1 of the 2014
Agreement?
4. Further or in the alternative, does clause 23.2 of the 2014 Agreement limit the
powers that may be exercised by the FWC in dealing with the matters set out in the
Form F10 having regard to ss 739(3) and 739(4) of the FW Act?
5. Further or in the alternative, does the relief sought in section 3.1 of the Form F10, as
to what conditions represent ‘Company Appointment’, invite a decision that is
inconsistent with a term of a fair work instrument and therefore, in accordance with s
739(5) of the FW Act, a decision that cannot be made by the Commission?”
[7] The Deputy President issued directions which provided the parties with an opportunity
to file submissions should they wish to seek permission to be legally represented at the
hearing and any objections to such a request, if made. BP filed submissions seeking
permission to be legally represented at the hearing on 17 September 2020 and Mr Tracey filed
submissions objecting to BP’s application for leave to be represented on 5 October 2020.
The decision
[8] The Deputy President’s decision to grant permission for BP to be legally represented
is contained in a notice of listing issued on 27 October 2020 for the hearing (omitting listing
information):
“On the basis that it would enable the matter to be dealt with more efficiently in
accordance with s 596(2)(a) of the Fair Work Act 2009 (Cth), the Deputy President has
granted the Respondent leave to be represented at the Hearing.”
[9] Mr Tracey lodged his notice of appeal on 29 October 2020, at which point the Deputy
President had not yet provided reasons for her decision.
[10] On 11 November 2020, the Deputy President issued an “interim decision”7, noting the
following:
7 [2020] FWC 5787
[2020] FWCFB 6388
5
“I had intended to include my reasons for my determination with respect to
representation in my written reasons for my decision with respect to the Jurisdictional
Objection. However, on Thursday 29 October 2020, Mr Tracey filed an appeal against
my decision to grant leave to BP Refinery to be represented at the Jurisdictional
Hearing. I therefore provide my written reasons for my determination with respect to
representation in this interim decision.”8
[11] The Deputy President then set out the parties’ submissions in respect of legal
representation and the relevant section of the FW Act. The Deputy President then turned to
the question of whether granting BP permission to be legally represented at the hearing met
any of the relevant considerations prescribed in s 596(2) (footnotes omitted):
“[30] I do not accept that the issues to be determined at the Jurisdictional Hearing are
simple or straightforward. The Jurisdictional Hearing requires the determination of a
number of different jurisdictional objections requiring consideration of a variety of
different legal principles and reference to an array of case law.
[31] The submissions of the parties make reference to an assortment of statutory
provisions and authorities. Mr Tracey has, subsequently, sought and been granted
leave to file additional authorities. Mr Tracey’s own submissions run to twenty-seven
pages. He has also filed a witness statement of thirteen pages.
[32] Mr Tracey, in fact, concedes in his own submissions that the issues to be
determined at the Jurisdictional Hearing “may not be characterised as straight
forward” and admits that at least one of the issues “may be considered complex”.
[33] I do not agree with Mr Tracey’s assertion that the Jurisdictional Objections raised
by BP Refinery are on their face entirely devoid of merit. Nor do I accept that the
balance of the Jurisdictional Objections are uncomplex or easily disposed of.
[34] BP Refinery’s lawyers represented BP Refinery in his related unfair dismissal
application, U2019/1141, and in the subsequent appeal filed by Mr Tracey, in
C2019/5255. They represented BP Refinery in the conferences held to as an attempt to
resolve this Application. They have liaised with Mr Tracey to prepare a summary of
the issues to be determined and a statement of agreed facts for these proceedings. They
have also prepared concise submissions in response to Mr Tracey’s multiple
interlocutory applications, and are likely to be well placed to assist the FWC with any
procedural issues arising at the Jurisdictional Hearing.
[35] As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty
Ltd:
‘[23] It appears to me that where the Respondent (in this case) seeks to agitate a
jurisdictional issue then it would follow that representation by a lawyer would
be a reasonable course. Jurisdictional issues by their nature are prospectively
complex in their own right, and/or else may require a degree of familiarity with
court and tribunal jurisprudence or authorities.
8 Ibid at [17]
[2020] FWCFB 6388
6
[24] In the situation currently before me, permission to appear for purposes of
any jurisdictional considerations appears to me to be justified. That is, by
granting permission for Mr Copeland to appear the efficiency with which the
jurisdictional issue is dealt with would be assisted.
[25] It also appears to me that permission to appear in the substantive
considerations should be granted to Mr Copeland for other reasons. Where
jurisdiction is in question, it is important in any subsequent considerations to
give close regard to the boundaries of the matters subject to the dispute and any
proposed remedy. In such circumstances, a lawyer familiar with jurisdictional
argument would ensure the matter would be dealt with more efficiently than
would otherwise be the case.””
[12] The Deputy President concluded by setting out her reasons for her decision to grant
BP permission to be legally represented at the hearing pursuant to s 596(2)(a):
“[36] I am satisfied that given the complexity of the issues to be determined at Hearing,
their advocacy skill set and their intimate knowledge of the Application (and the
events leading to it) that the involvement BP Refinery’s legal representatives will
enable the matter to be dealt with more efficiently than if BP Refinery relied on its
employees to conduct the Jurisdictional Hearing.
[37] Notwithstanding that Mr Tracey does not have legal training, he has prepared
detailed submissions both in relation to the Jurisdictional Objection and in support of
his multiple applications for Orders for Production, an Order to Attend and an
application for ‘summary judgement’. My observations of Mr Tracey to date have
been that he is more than capable of researching and distilling legal principles, and
articulating and responding to complex legal arguments. At the conference and in
correspondence with Mr Tracey, BP Refinery’s legal representatives appear to be
conscious and accommodating of the fact that Mr Tracey is unrepresented. I am
therefore, not of the view that granting leave to BP Refinery in circumstances where
Mr Tracey is unrepresented will make the Jurisdictional Hearing more complex or
lengthier because he is unable to understand the language they use.
[38] Having considered the submissions of the parties and being satisfied that the
requirements in sub section 596(2)(a) of the FW Act have been met I consider it
appropriate in all the circumstances to exercise my discretion to grant leave to BP
Refinery to be represented by a lawyer because I am satisfied that it would enable the
matter to be dealt with more efficiently, taking into account the complexity of the
matter.”
Mr Tracey’s appeal grounds and submissions
[13] Mr Tracey’s grounds of appeal as stated in his amended notice of appeal are, in full, as
follows:
1. The Deputy President erred by granting the Respondent leave to be represented
at the 3 December 2020 Jurisdictional Hearing on the basis that it would enable
the matter to be dealt with more efficiently, taking into account the complexity
[2020] FWCFB 6388
7
of the matter and therefore made a number of errors of the type identified in
House v The King and Buck v Bavone.
2. The Appellant submits that there are 6 grounds of appeal as the Deputy
President erred in exercising her discretion to grant BP permission to be
represented having regard to the objects of the Act and the proper construction
and application of s.596(€2) of the FW Act.
3. Appeal Ground 1 - The Deputy President erred by making a determination
that was not reasonably available to her on the asserted facts.
4. Appeal Ground 2 - The Deputy President erred by failing to provide adequate
reasons to support the conclusions she reached in her decision.
5. Appeal Ground 3 - The Deputy President erred by incorrectly relying on
principles outlined in authorities whose circumstances were disparate to this
matter.
6. Appeal Ground 4 - The Deputy President erred by allowing extraneous or
irrelevant matters to guide or affect her decision.
7. Appeal Ground 5 - The Deputy President erred by failing to correctly evaluate
and give the appropriate weight to the conditions relevant to the criteria in
s.596(2).
8. Appeal Ground 6 - The Deputy President erred by failing to properly and duly
consider, and correctly apply the principles outlined in authorities whose
circumstances were apposite to this matter.
[14] In respect of the first appeal ground, Mr Tracey submits that it was not reasonably
available to the Deputy President on the facts that the matter would be dealt with more
efficiently through the grant of permission for legal representation to BP. Mr Tracey submits
that the Deputy President had mischaracterised the matter as complex, failed to accurately
identify the jurisdictional issues which render it complex and recognise that a matter is not
complex merely because it involves jurisdictional issues. In summary, Mr Tracey submits that
in her decision the Deputy President has:
selectively quoted and misrepresented his submissions in regards to the complexity
of the matter and identified the wrong jurisdictional issues on the misapprehension
Mr Tracey is pursuing his dispute application under the 2014 Agreement – which
is no longer in effect - rather than the 2020 Workplace Determination;
failed to consider or acknowledge relevant authorities provided by Mr Tracey such
as Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd;9
ignored the way in which Mr Tracey’s submissions address BP’s submissions;
9 [2012] FWA 5219
[2020] FWCFB 6388
8
failed to identify the jurisdictional issues rendering the matter complex or
acknowledge BP’s in-house capacity, rendering it impossible for permission under
s 596(2)(a) to be granted;
disregarded that there was a lack of evidence before the Deputy President that
established BP could not represent itself efficiently without the assistance of
external lawyers;
disregarded that the Commission routinely deals with the jurisdictional matters
that are in issue;
failed to evaluate the ability of BP to represent themselves, considered the wrong
principles in doing this or relied on unsupported and contested evidence of BP in
making her decision;
took into account the irrelevant consideration that BP has been legally represented
in Mr Tracey’s previous applications;
based her decision on convenience rather than efficiency, contrary to established
principles and the Fair Work Commission Rules 2013; and
erred in considering submissions for the purpose of s 596(2)(b) when considering s
596(2)(a), as they are separate and independent criteria.
[15] In regards to the second appeal ground, Mr Tracey submits that the Deputy President
did not provide adequate reasons for the conclusions reached in her decision in failing to
articulate what issues were being determined, what “tipped the balance” in BP’s favour and
reasons for the rejection of his submissions. Mr Tracey submits that it may be inferred that
because the Deputy President reduced her decision to writing after the appeal was lodged on
29 October 2020, she had the capacity to “mould” or formulate her reasons for the decision in
response to the notice of appeal, and that this amounts to a significant denial of procedural
fairness. Mr Tracey submits that a number of inconsistencies and errors in the Deputy
President’s decision support this, such as the reference to “efficiency due to the complexity of
the matter” in the written decision whereas there was no mention of this in the unpublished
decision, the Deputy President’s reference to the unpublished decision as a “proposed
decision” in the written decision where it was first expressed as a final decision, and her
failure to mention the binding settlement agreement reached by the parties or their
correspondence in the written decision. Mr Tracey also submits that the Deputy President’s
failure to identify the correct jurisdictional matters in issue, acknowledge his submissions
with regards to the skill and experience of BP’s lawyers or respond to his submissions in
respect of specific authorities suggest she had not read his submissions and thus affects the
ability to discern if she has based her decision on the matters at hand.
[16] In regards to the third ground of appeal, Mr Tracey submits that the Deputy President
erred by incorrectly relying on CEPU v UGL Resources Pty Ltd (Project Aurora)10 in the
decision, as this case turned on its own facts none of which are analogous to the facts at hand.
Mr Tracey further submits that lawyers and members of the Commission alike have
erroneously treated CEPU v UGL Resources as a “universal authority” for granting legal
10 [2012] FWA 2966
[2020] FWCFB 6388
9
representation whenever jurisdictional issues are agitated, and that this is an incorrect
interpretation of the ratio decidendi in the decision.
[17] In regards to the fourth appeal ground, Mr Tracey submits that the Deputy President
relied on extraneous or irrelevant matters in reaching her decision, such as considering BP’s
previous experience and familiarity with the litigation in determining “efficiency”, Mr
Tracey’s “voluminous submissions”, his capacity to represent himself and his conduct during
the proceedings. On the other hand, Mr Tracey also submits that the Deputy President in
focusing on these matters failed to acknowledge “the nature of the ‘efficiency’” relevant to
her discretion to grant legal representation.
[18] In regards to the fifth appeal ground, Mr Tracey submits that the Deputy President
erred in misevaluating and failing to give appropriate weight to the conditions relevant to the
criteria in s 596(2) of the FW Act, in particular her failure to take into account relevant
considerations in the sense discussed by the High Court in Minister for Aboriginal Affairs v
Peko-Wallsend Ltd.11 Mr Tracey submits that this includes the Deputy President’s failure to
give appropriate weight to his clarification concerning the relevant jurisdictional issues, the
fact BP is a large multi-national organisation with in-house capacity and expertise to represent
themselves and his submission that BP have on occasion been obstructionist and thus
impaired the ability for the matter to be dealt with efficiently.
[19] In regards to the sixth ground of appeal, Mr Tracey submits that the Deputy
President’s decision was inconsistent with a number of decisions of the Commission
concerning s 596 of the FW Act, including in the following respects:
her approach to establishing if BP was unable to represent itself efficiently;
her consideration of complexity in taking into account the volume of the submissions
and extraneous and jurisdictional issues, in establishing that BP were unable to
represent themselves efficiently;
failing to identify the jurisdictional issues to be determined for the purposes of
establishing efficiency with regards to complexity over convenience;
failing to establish facts when matters were contested;
incorrectly according weight to the knowledge and work done by BP’s lawyers, rather
than the size and resources of BP, in her assessment of efficiency under s 596(2)(a);
and
failing to properly identify the correct jurisdictional issues at hand in the application.
[20] Mr Tracey contends that the grant of permission to appeal would be in the public
interest because:
the decision manifests an injustice or the result is counter-intuitive to the expected
outcome and existing Commission authorities on the matter, therefore manifesting an
injustice;
11 [1986] HCA 40, 162 CLR 24
[2020] FWCFB 6388
10
the appeal raises important questions of principle and general application concerning
when leave may be granted to appeal interim or interlocutory decisions in respect of
granting or denying a party permission to be represented, especially considering that
authorities across multiple jurisdictions are “not comprehensive”;
the Commission has an obligation to properly test unsupported or disputed claims that
employees do not have the level of knowledge, skill and experience to represent a
party as efficiently or effectively as when permission for representation is granted;
it raises the question of whether previous work done by a representative is a relevant
consideration to determining efficiency and effectiveness under s 596 of the FW Act
when the principles outlined in NSW Bar Association v McAuliffe12 are taken into
account;
the Commission has an obligation to properly identify, characterise and give weight to
circumstances that do not affect the capacity of a party to have its out-of-court
preparation work performed by lawyers and therefore, providing a basis to conclude
that parties’ in-house lawyers could just as efficiently and effectively respond to the
matter as when permission for legal representation is granted; and
the decision is attended with sufficient doubt to warrant its reconsideration, as it was
not reasonably open to the Deputy President to make a finding that granting BP leave
to be legally represented would enable the matter to be dealt with more efficiently in
accordance with s 596(2)(a) of the FW Act.
[21] In support of his stay application, Mr Tracey submits that irreversible prejudice to him
will be occasioned if a stay is not granted and that the grant of legal representation to BP at
the hearing will create a substantial imbalance to Mr Tracey as a self-represented litigant and
fundamentally change the dynamics of the hearing. If Mr Tracey is unsuccessful at the
hearing, his opportunity to have the dispute arbitrated is “essentially finished” whereas any
inconvenience caused to BP in the refusal to grant permission for legal representation would
be offset by BP’s right to appeal as well as their ability to prepare for the hearing with the
assistance of in-house lawyers or Human Resources personnel.
Consideration
[22] The Commission’s powers on appeal are only exercisable if there is error on the part
of the primary decision maker.13 There is no right to appeal and an appeal may only be made
with the permission of the Commission. 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
12 [2014] FWCFB 1663, 241 IR 177
13 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[2020] FWCFB 6388
11
(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). (2) A person may appeal the decision by applying to the FWC.
[23] Subsection 604(2) requires the Commission 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.14 The public interest is not
satisfied simply by the identification of error, or a preference for a different result.15 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 issue 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...”16
[24] 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.17 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.18 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.19
14 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4, 243 CLR 506, at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied
Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
15 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on
judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28]
16 [2010] FWAFB 5343, 197 IR 266 at [27]
17 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR
481 at [26]
18 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
19 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR
78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian
Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2020] FWCFB 6388
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[25] We are not satisfied in this case that the grant of permission to appeal would be in the
public interest such as to require the grant of permission in accordance with s 604(2), nor are
we satisfied that permission to appeal should be granted on discretionary grounds. The
decision made by the Deputy President was an interlocutory one concerning legal
representation at a hearing specifically concerned with the five jurisdictional questions raised
by BP, which we have set out above. Although the last issue is not in truth a preliminary
jurisdictional issue, the other issues raised clearly involve questions of legal complexity. The
first three questions are difficult ones involving the broader issue of how dispute resolution
mechanisms are to operate where a dispute arises under an enterprise agreement which ceases
to apply prior to the Commission being able to determine the dispute. This issue has been the
subject of three recent Commission Full Bench decisions which are arguably not consistent
with each other, namely BlueScope Steel (AIS) Port Kembla Pty Ltd v AWU and Ors,20 Battye
v John Holland Pty Ltd (JHPL) t/as Territoria Civil 21 and Simplot Australia Pty Ltd v
AMWU.22 Most recently, one aspect of the issue was the subject of analysis by the Federal
Court of Australia (Colvin J) in Maersk Crewing Australia Pty Ltd v CFMMEU (No 2).23 The
fourth question is whether clause 23 of the 2014 Agreement, on its proper construction,
authorises the Commission to arbitrate disputes brought to it under that clause once the
nominal expiry date of the agreement has passed. On a very preliminary basis, we can express
the view that clause 23 is not textually straightforward and requires proper analysis in
accordance with the principles of construction of industrial instruments.
[26] In these circumstances, we do not consider it to be reasonably arguable that it was not
reasonably open for the Deputy President to consider that the jurisdictional prerequisite for
the grant of permission for legal representation in s 596(2)(a) - namely that it would enable
the matter to be dealt with more efficiently, taking into account the complexity of the matter –
was made out or to exercise her discretion in favour of granting permission. The complexity
of the issues involved would clearly make available the conclusion that the legal
representation of a party seeking permission would likely assist her in the task of reaching a
legally correct determination of the jurisdictional issues.
[27] Having regard to these matters, we do not consider that Mr Tracey’s appeal grounds
have sufficient merit to justify the grant of permission to appeal. We have effectively dealt
with the first appeal ground, but two matters may be added:
(1) the criterion in s 596(2)(a) is whether the grant of permission for legal
representation would enable the matter to be dealt with more efficiently, not
whether it would enable the party seeking to be legally represented to be
represented efficiently; and
(2) we consider it to have been a relevant consideration that BP was legally
represented in the other proceedings involving Mr Tracey, given that they
interrelate with the current matter and that BP’s legal representatives would
likely be familiar with the relevant aspects of the earlier proceedings.
20 [2018] FWCFB 856, 273 IR 138
21 [2019] FWCFB 8678
22 [2020] FWCFB 5054
23 [2020] FCA 1694 at [106]-[110]
[2020] FWCFB 6388
13
[28] In relation to the second appeal ground, we consider that the Deputy President has, in
her reasons published on 11 November 2020, adequately set out the basis upon which she
determined to grant BP permission for legal representation. The assessment of the adequacy
of the reasons must necessarily proceed upon the basis that the decision was an interlocutory
one and that reasons were issued for the purpose of Mr Tracey being able to properly exercise
the facility of an appeal under s 604. In relation to the third ground of appeal, the decision in
CEPU v UGL Resources24 was relevant to, although not determinative of, the issue of whether
to grant permission for legal representation in this case, and was treated by the Deputy
President as such. We have effectively disposed of the fourth ground of appeal in paragraph
[27](2) above. As to the fifth ground of appeal, we do not consider that the matters identified
by Mr Tracey were necessarily relevant such that the Deputy President was required to
consider them in order for her exercise of the discretion not to miscarry. As to the sixth
ground of appeal, we consider that the Deputy President approached the exercise of the
discretion in an orthodox manner that was not contrary to established principle.
[29] We do not consider that Mr Tracey’s appeal raises any question of novelty or general
application concerning the interpretation or application of s 596(2). The principles applicable
to the grant of legal representation under the FW Act have been well established in decisions
of the Federal Court of Australia and Full Benches of this Commission and do not require
reiteration or reanalysis in this appeal.
[30] For the reasons given, we refuse permission to appeal.
VICE PRESIDENT
Determined on the basis of written submissions filed by the Appellant.
Printed by authority of the Commonwealth Government Printer
PR724944
24 [2012] FWA 2966
OF THE FAIR WORK MISSION THE
