1
Fair Work Act 2009
s.604—Appeal of decision
Bradley William Lewer
v
Australian Postal Corporation
(C2022/7087)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BELL
COMMISSIONER YILMAZ
SYDNEY, 15 MARCH 2023
Appeal against decision [2022] FWC 2822 of Deputy President Anderson at Adelaide on 24
October 2022 in matter number C2022/2468 – dispute whether binding settlement –
permission to appeal refused.
Background
[1] Mr Bradley William Lewer (the Appellant) has lodged an appeal under s.604 of the Fair
Work Act 2009 (the Act) against a decision of Deputy President Anderson (Deputy President)
issued on 24 October 2022 (the Decision),1 for which permission to appeal is required. The
Decision concerned a finding that a binding settlement was reached between the parties and
accordingly, the Deputy President the application under s.587 of the Act.
[2] This matter was listed for permission to appeal only. On 1 November 2022, directions
were issued for the filing of material and the matter was listed for hearing on 7 December 2022.
Both parties filed written submissions and made further oral submissions at the hearing.
[3] On 19 April 2022 the Appellant filed in the Commission an application under s.365 of
the Act to deal with a general protection dismissal dispute in relation to an alleged dismissal on
25 March 2022 by Australian Postal Corporation (the Respondent). The Respondent objected
to the application on the basis that the Appellant was not dismissed. However, the Appellant
contends that he was constructively dismissed. Whether the Appellant was dismissed or
voluntarily resigned was the subject of the jurisdictional objection before the Deputy President.
[4] The parties attended a conciliation conference with a staff conciliator on 27 July 2022
where an offer to settle was made by the Respondent, but the matter did not settle.
[5] The Deputy President issued directions to deal with the jurisdictional objection soon
after the conciliation conference. Directions were issued for the filing of materials and a hearing
was scheduled for 21 September 2022.
[2023] FWCFB 56
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc2822.htm
[2023] FWCFB 56
2
[6] Prior to the hearing, the Deputy President received correspondence from the Appellant
and the Respondent that a settlement was reached. The last email from the Appellant was on 16
September 2022 confirming that an agreement had been reached. Consequently, the scheduled
hearing was vacated.
[7] On 26 September 2022, the Appellant advised the Deputy President that the email he
sent on 16 September 2022, that an agreement was reached, was sent in error. The Appellant
sent further emails advising that no agreement was reached. In response, the Deputy President
instructed the parties to advise the Commission whether a binding settlement agreement had
been reached. The parties remained in dispute as to whether a binding settlement agreement or
agreed Deed had been reached and whether the Commission had jurisdiction to conduct further
proceedings on the application.
[8] The Deputy President issued directions on 5 October 2022 for the determination of the
issues in dispute: whether a binding settlement agreement or Deed had been reached and
whether the Commission has jurisdiction to conduct further proceedings on the application.
The Decision under appeal
[9] The Deputy President set out the factual background which was not in dispute in
paragraphs [9] – [39] of the Decision. A summary follows:
• On 15 April 2022, the Appellant filed the application to a wrong address, and on sending
his application to the correct address, his application was accepted by the Commission
on 19 April 2022.
• On 27 July 2022, the Respondent filed a response and objection to the application stating
that the Appellant was not dismissed.
• On the same day, the parties attended a conciliation conference with a staff conciliator
and while the dispute was not resolved, the Respondent made a without prejudice offer
of settlement which remained open for acceptance until 5 August 2022. This offer was
confirmed in an email on 29 July 2022.
• On 29 July 2022, the Appellant rejected the offer to settle.
• On 30 August 2022, the parties filed materials in respect of the jurisdictional hearing
scheduled for 21 September 2022. Also on 30 August 2022, the Appellant wrote to the
Respondent with an offer to settle which was rejected.
• On 4 September 2022, the Appellant wrote to the Commission and the Respondent in
the following terms:
“4 sep 2022
As this process has now dragged on for many months and the amount of time required
is so substantial with such little money and the difficulty of accessing remedies available
I have decided to accept Josh Crooks prior offer.
I also do not have the health condition required to continue to submit documents and
attend hearings.
[2023] FWCFB 56
3
Therefore I have decided to accept Josh Crooks prior offer of $2000 and withdraw if
that can be reinstated.
If this cannot be paid I am going to withdraw my complaint and start a new one with a
different jurisdiction
Regards
Bradley”
• On 6 September 2022, the Respondent confirmed with the Appellant, by email, that it
was agreeable to resolving the matter even though the time limit for the offer made on
27 July 2022 had lapsed. In the response, the Respondent stated that the offer to settle
included the terms that “Australia Post will agree to pay you the sum of $2,000 (subject
to applicable taxation)” and invited the Appellant to seek legal advice before accepting
the offer.2
• On 6 September 2022, the Appellant accepted the offer by email directly to the
Respondent stating, “I confirm I accept this offer and agree to your terms and conditions
in relation to a $2,000 payment”.3
• On 8 September 2022, the Respondent forwarded to the Appellant a Deed reflecting the
terms of the agreement and the cover email stated that “you may wish to seek
independent legal advice regarding the nature, effect and extent” of the Deed.4
• On 15 September 2022 the Appellant returned to the Respondent an executed copy of
the Deed by email, signed and witnessed on the same date.
• On 16 September 2022, in response to a request from Chambers regarding the status of
the settlement, the Respondent advised that an agreement had been reached, that the
Appellant who was copied into the correspondence would file a notice of discontinuance
in due course and that the jurisdictional hearing may be vacated.
• Also on 16 September, the Appellant advised the Deputy President by email:
“I can confirm an agreement has been reached and when I receive the total payment(s) by
electronic transfer I can file the notice of discontinuance.”
• On 23 September 2022, the Respondent countersigned the Deed and on 26 September
2022, the Respondent’s Payroll team was advised by email to arrange for payment in
accordance with the Deed.
• On 26 September 2022, the Appellant sent to the Commission two emails advising that
his earlier email which stated that an agreement was reached was in error and that before
filing a discontinuance, the Deed required that he receive a copy of the signed Deed by
the Respondent and the settlement sum must have been paid.
• On 27 September 2022, the Respondent’s Payroll team made payment of the settlement
sum less taxation and a payslip was issued to the Appellant.
• On 28 September 2022, the Deputy President wrote to the parties referring to earlier
correspondence advising that:
“Any dispute between the parties over the terms of a private settlement agreement are a
matter for the parties, not a matter within the Commission’s jurisdiction or in respect of
which the Commission can make a ruling.”5
[2023] FWCFB 56
4
• Also on 28 September 2022, the Appellant stated via email that the agreement did not
occur privately, and that it was done under mediation as part of the Commission’s
process. He further makes reference to having a disability and requests that the
mediator’s offer be reflected in the Deed otherwise he reserves his right to continue his
complaint as he asserts the Deed is invalid until the full payment is received.
• On 29 September 2022, the Deputy President advised the parties of his provisional view
and issued directions regarding hearing of the dispute.
[10] The Deputy President subsequently considered the principles governing the
Commission in relation to the effect of binding settlement agreements and in doing so
referenced Masters v Cameron6 and Baulkham Hills Private Hospital v C R Securities.7 At
paragraphs [55] – [58], the Deputy President found that the existence of a binding settlement
agreement needs to be established as a matter of fact.
[11] At paragraphs [60] – [61] the Deputy President then proceeded to refer to the evidence
tendered. The signed agreement provided the terms including the discontinuance of and release
from the proceedings in matter number C2022/2468. In relation to the Appellant’s submissions
that the agreement was not binding because the Respondent signed it five days after he had
done so, the Deputy President found the submission had no force, determining that “it is clear
that at least from 23 September 2022 when Australia Post countersigned the Deed that a formal
agreement of that character existed on and from that date.” Further, at paragraph [62] the
Deputy President determined that were it necessary that he consider whether a binding
settlement agreement existed prior to that date, he found it did, consistent with the first category
in Masters v Cameron.
[12] At paragraph [63], in considering the Appellant’s submission that the agreement was
not private but made under mediation, the Deputy President determined that it was wrong as a
matter of fact and had no force. The Deputy President continued that the agreement is private
between the parties and the evidence was clear that the offer by the Respondent expired but was
renewed “in private correspondence with Mr Lewer on 6 September 2022. In any event, that an
agreement between parties may be facilitated by the Commission process does not alter its
character as a private agreement.”
[13] The Deputy President then turned to the Appellant’s submissions in paragraphs [64] –
[68] that the agreement was reached by mistake, or as a consequence of his disability or that
the Deed was not valid as it did not reflect in his opinion all of the terms agreed upon (payment
of full sum without taxation deduction) and that he did not receive the agreed sum. The Deputy
President concluded that there was no evidence before the Commission to make such findings,
but rather the Deed was evidence of an express provision for the deduction of taxation at clauses
2.3 (a) and (c) and that the Appellant was given the opportunity to obtain legal advice before
signing the Deed. He also concluded that only a court has power to order that the Deed is invalid
or unenforceable on the ground of mistake, unconscionability or other such basis, and the
argument that no binding agreement was reached because the Appellant did not receive the full
payment (without deduction of tax) was a reformulation of the argument relating to the
deduction of taxation. Consequently, it was found that the binding settlement was a barrier to
further proceedings on the Appellant’s application.
[2023] FWCFB 56
5
[14] Lastly, the Deputy President considered in paragraphs [69] – [72] the effect of clauses
4 and 5 of the Deed concerning discontinuance of the proceedings and bar to proceedings. He
found the clauses “evince an express intention that these proceedings be brought to a close upon
the settlement sum (‘Total Settlement Payment’) being paid.” He also found that the Deed binds
the parties to give effect to the terms of the agreement and thereby extinguishes the Appellant’s
application before the Commission. As the Deputy President concluded that the application has
no reasonable prospect of success, he dismissed the application under s.587 of the Act.
Appellant’s appeal grounds and submissions
[15] The grounds of appeal are set out in the Form F7 - Notice of Appeal and in submissions
received by email on 6 and 7 November 2022. The Appellant’s written and oral submissions
contend that the decision of the Deputy President contained errors of law, and he presents a
number of grounds which are summarised as follows:
1. The Deputy President did not consider the Appellant's belief and understanding was
different to what was drafted in the Deed, nor considered the Appellant’s rights
including his “common law right to unilateral mistake.”
2. The Deputy President provided no reasons why the Respondent’s witness statements
were favoured.
3. As a person with a disability and self-represented, the Appellant alleges that he was not
afforded procedural fairness or natural justice.
4. The Deputy President did not take into account “evidence” whether the Appellant as a
casual employee in receipt of an ex-gratia payment affected the application of taxation.
5. The Appellant had a belief that the terms meant something else but actually meant
another, and the disadvantage was contributed by the Respondent’s drafted Deed which
suited them.
6. The Deputy President did not consider relevant High Court cases in relation to
satisfaction of common law contracts. The terms were uncertain and the Deed is invalid.
7. The Appellant asserts that he did not consent, and it was against his will to give up his
rights in the Deed. Further, he asserts that as a result of not receiving what was
negotiated is a violation of his birth right, is unlawful discrimination and contrary to the
Disability Discrimination Act 1992.
[16] As to why the appeal is in the public interest the Appellant submits in his F7 – Notice
of Appeal:
1. People with a disability have a right to be free from discrimination and bullying in the
workplace.
2. Contracts and agreements must be clear and fair for people with a disability.
3. Employers must take active steps to minimise workplace discrimination and bulling
and implement a robust complaint process that respects people with a disability.
4. A meeting of the minds or elements of a common law contract must be satisfied when
a Deed is developed, and this should occur with the assistance of the Commission to
ensure impartiality.
5. The Commission supports the rights of Applicants with a disability to participate in its
processes so that remedies are obtained where there are breaches of the Act.
Respondent’s submissions
[2023] FWCFB 56
6
[17] The Respondent submits that there is no public interest in granting permission to appeal
and the Commission should exercise its powers to refuse permission to appeal.
[18] In the alternative, the Respondent submits that if the Commission grants permission to
appeal on the basis of appealable error in the exercise of s.587(1) of the Act and it is in the
public interest, the Deputy President’s reasoning should be confirmed and the decision be
replaced with reference s.368(3)(a) of the Act (i.e. that the Commission has no basis to issue a
certificate under s.368(3)(a) of the Act and the file should be closed).
[19] On the matter of public interest, the Respondent submits the Appellant has failed to
point to any evidence or parts of the decision that is in error. It submits that the Appellant’s
submissions are an expression of dissatisfaction with the outcome of the decision and is an
attempt to reagitate his case. In addition, it submits that there is no wider importance of this
matter there is no injustice, and the result is not counterintuitive.
[20] The Respondent submits that should the Commission find in favour of appealable error,
that the Deputy President erred in exercising powers under s.587(1) of the Act and there is
public interest on the basis of importance, general application and/ or that legal principles are
applied are disharmoniously, the Commission should confirm the reasoning at first instance and
vary the decision in so far as it applies to s.587(1) of the Act.
Principles on Appeal
[21] An appeal under s.604 of the 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.8 There is no right to appeal. An appeal may only be made with the permission
of the Commission.
[22] Subsection 604(2) requires the Commission grant permission to appeal if it is 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.9 The public interest is not
satisfied simply by the identification of error,10 or a preference for a different result.11 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 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...”12
[23] 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.13 However, that the Member at first instance made an error is not necessarily
a sufficient basis for the grant of permission to appeal.14
[2023] FWCFB 56
7
[24] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.15
However, it is necessary to engage with the appeal grounds to consider whether they raise an
arguable case of appealable error.
Consideration
[25] As to the reasons for public interest in the Appellant’s application, they appear to be the
Appellant’s own expression of general principles rather than the reasons that the decision at
first instance falls within the required considerations that permit an appeal.
[26] In respect to the grounds and submissions for appeal, the Appellant has not
demonstrated an arguable case of appealable error. The Appellant does not provide evidence of
error in the decision, but rather the grounds and submissions restate the Appellant’s case that
there is no binding settlement agreement. Clearly the Appellant was dissatisfied with the
decision at first instance, however, a preference for a different result does not satisfy the public
interest to grant an appeal.
[27] Following is our response in relation to each ground for appeal and the reasons for our
decision.
Was there an agreement? – Common law contract, unilateral mistake, consent and release
[28] Grounds 1, 5, 6 and 7 can be grouped, and are a largely a restatement of the Appellant’s
submissions at first instance. The Appellant submits that the decision provides no reasons why
his arguments were not accepted, and on that basis the Deputy President did not consider that
his understanding of the agreement was different to what was in the Deed. He further submits
that there was a “unilateral mistake”, and that the difference in understanding of the terms of
the agreement benefitted the Respondent. The Appellant further submits that the Deputy
President did not consider relevant authorities on contract law from the High Court. These
grounds presuppose that the Appellant had a different view of what was agreed, and this
amounted to either a legal mistake and/ or that the Deed was consequently uncertain or invalid.
[29] The first observation in relation to these grounds is that the Deputy President evidently
accepted that there was a difference of view, which is why he issued directions for the filing of
materials in relation to the dispute. The Deputy President considered whether there was a
binding settlement agreement as the Appellant argued there was not, and the Respondent argued
that there was.
[30] The Appellant’s submissions rely on the “doctrine of mistake” and he states that the
Deed did not reflect the settlement between the parties.16 The Appellant relies on the email from
the Respondent’s Senior Employee Relations Partner of 29 July 2022 where denial of any
breach was repeated, the offer to settle was rejected and an express willingness to resolve the
matter on a commercial basis was made by offering $2,000 subject to a Deed. The email
contained no additional terms and conditions other than the sum and that the offer was open for
a set time.
[2023] FWCFB 56
8
[31] The uncontested evidence before the Deputy President was that on 29 July 2022, the
Appellant rejected the offer to settle, the offer expired on 5 August 2022 and the Senior
Employee Relations Partner that wrote the email ceased employment with the Respondent on
12 August 2022. On these facts there was no agreement between the Appellant and the
Respondent because the offer to settle was rejected and with the passing of the timeframe, the
offer was revoked. The Appellant submits the genesis of the “agreement” was the offer made
by the Respondent on 29 July 2022. The Deputy President in his decision does not reach this
conclusion and the outline of uncontested facts where the Appellant rejected the offer on the
same date and the offer expired on 5 August 2022 in our view is the correct summation of facts.
We have reviewed the submissions and evidence filed and conclude that there is no arguable
case that an agreement was reached. We further conclude that there is no evidence that the Deed
did not reflect something other than what was agreed or that there was a unilateral mistake, or
any mistake in law.
[32] The offer which was accepted by the Appellant was dated 6 September 2022. This offer
was made on the basis that “Australia Post will agree to pay you the sum of $2,000 (subject to
applicable taxation)”. In addition to the express terms in the email of 6 September 2022, the
Deed contained express terms.
[33] The Deputy President’s outline of uncontested facts in paragraphs [21] – [26] refers to
the Appellant’s attempts to recommence negotiation with a new representative of the
Respondent, this offer reflected the same sum originally offered to the Respondent. This offer
to settle was rejected by the Respondent. On 4 September 2022, the Appellant in email advised
the Respondent that he would withdraw his application and made a new offer to accept $2,000
as originally offered in July 2022. On 6 September 2022, the Respondent wrote advising that
the original offer had closed on 5 August 2022, but nevertheless, it was agreeable to resolve the
matter on terms including that “Australia Post will agree to pay you the sum of $2,000 (subject
to applicable taxation)” and invited the Appellant to seek legal advice. This offer of 6 September
2022 was a new offer which expressly stipulated that the sum was subject to taxation. The
uncontested evidence of 6 September 2022 also shows that the Appellant accepted the offer.
[34] The Deputy President further distilled the Appellant’s submissions in paragraphs [41] –
[45]. Those submissions are effectively the same as those in this appeal and are expressed in
similar terms.
[35] The Deputy President determined that the terms of settlement were agreed, and a
binding agreement made when the Appellant signed the Deed on 15 September 2022 and by
the Respondent when the same Deed was signed on 23 September 2022. In fact, the Deputy
President determined that a binding settlement was agreed earlier when the Appellant wrote to
the Respondent on 6 September 2022 accepting the offer.
[36] Having considered the uncontested facts and the email evidence together with the signed
Deed the Deputy President did not fall into error as submitted by the Appellant. There was no
mistake in law, the terms in dispute concern whether there was agreement that tax is payable
on the settlement sum, and both the email of 6 September 2022 and the Deed could not be
mistaken. Both the offer and the acceptance of the terms was unambiguous and unmistakeable.
There was plainly a binding settlement agreement.
[2023] FWCFB 56
9
[37] The Appellant in his submissions infers that the Deed is invalid because of a different
understanding. Again, the Deputy President considered the very fact that the parties had
different views and while there was no evidence before him that the settlement was reached by
mistake, or a consequence of a disability or that the Deed did not reflect the agreement on
taxation, he correctly determined in paragraph [64] that only a court has power to order that a
Deed is invalid or unenforceable. Ordinarily the onus lies with the party seeking rectification.
The Deputy President did not fall into error as he noted that there was no evidence before him
that the Deed was void and that disputes sit with a Court and not the Commission. Further we
do not consider that the Deputy President erroneously considered the authorities on this point.
[38] We reject the Appellant’s grounds 1, 5,6 and 7 as any basis for appeal.
Consideration of witness statements
[39] Ground 2 of the appeal states that the decision does not provide reasons why the
Respondent’s witness statements were favoured. This ground of appeal is misconceived, as the
Deputy President considered the evidence and uncontested facts before him, this is apparent in
his reasons for decision. The Appellant tendered submissions and not a witness statement. The
only witness statement was from the Respondent’s witness. In his reasons for decision, the
Deputy President refers to the email evidence attached to the submissions and while both parties
refer to the email evidence, the Deputy President references the Respondent’s version which
was an obvious and identifiable copy of the email. We observe that the Appellant’s email
references were embedded as extracts in his submissions. In this regard there is no concern
regarding how the Deputy President referenced the emails in his decision.
Self-represented and a person with a disability
[40] Ground 3 states that the Appellant as a self-represented person with a disability was not
afforded procedural fairness or natural justice. The Appellant submits that he was not given an
opportunity to articulate his issues. We find no evidence to support this ground. The Appellant
was given an opportunity to tender his submissions which he did, and no evidence was before
the Deputy President that the Appellant had a disability which impacted his capacity to either
represent himself or present his case. At paragraph [64] of the decision, the Deputy President
addresses the Appellant’s submission which differs from the ground for appeal. In the decision
the Deputy President refers to the Appellant’s submission that the settlement agreement was
not binding or was made by mistake as a consequence of a disability. The Deputy President
found no evidence to support this contention and nor have we on review of the materials filed
in the matter in first instance.
Taxation
[41] Ground 4 raises a new matter not considered by the Deputy President. The Appellant
contends that the Deputy President did not consider whether a taxation liability was payable on
the ex-gratia payment to a recipient that was a casual employee. However, the Deputy President
need not have regard to the taxation question as the parties entered a binding agreement without
the Deputy President’s involvement. The Deputy President correctly found that an agreement
[2023] FWCFB 56
10
was made in fact, having considered the email exchanges between the parties and further, that
Chambers was informed of the agreement after the Appellant had considered and signed the
Deed. Secondly, any dispute in relation to the terms of the Deed is not a matter for this
Commission but rather for a Court. The Deputy President referred to the matter of taxation in
paragraph [64] as submitted by the Appellant at the time and we find no error in this regard.
However, we can say that while the Appellant’s grievance is due to the payment of taxation
through a deduction of the gross sum payable, it is not uncommon practice for settlement sums
in general protection matters to be ordinarily subject to taxation. Nonetheless, we reject ground
4 as a basis for appeal.
Dismissal of the application pursuant to s.587 of the Act
[42] While we do not consider that any of the grounds raised by the Appellant identify any
error or otherwise form a ground where public interest should be granted for appeal, we note
that the Respondent has raised one matter where it foreshadowed there might be potential error.
While it was not strictly necessary for the Respondent to have done so, it reflects well upon it
for having drawn the matter to our attention.
[43] The issue concerns the power to dismiss, under s.587(1) of the Act, where s.587(2)
provides that an application made under s.365 must not be dismissed on the basis that the
application has no reasonable prospects of success.
[44] Section 587 of the Act provides:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may
dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application
under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
[2023] FWCFB 56
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(b) on application.
[45] The words ‘[w]ithout limiting when FWC may dismiss an application’ at the
commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to
dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
However, in the context of s.365 applications, the Commission must not dismiss the application
for reasons as prescribed in s.587(2) of the Act. As is quite clear from the Act, s.365 applications
may be dismissed pursuant to s.587 except for reasons that the application is frivolous,
vexatious, or has no reasonable prospect of success.
[46] The Deputy President in his decision observed that the Appellant’s application has no
reasonable prospect of success. Dismissal of an application made under s.365 on the ground of
having no reasonable prospects of success is contrary to s.587(2), although we note that the
actual order made by the Deputy President referred simply to s.587.
[47] Having found that the parties reached a binding settlement agreement, the question
arises how the Deputy President might have dealt with the application. The Appellant’s
application was made subject to Part 3-1 – General Protections where the objects provide
protections, but also effective relief for persons adversely affected as a result of a general
protections contravention.17
[48] Section 365 of the Act applies to applications where a person had been dismissed, and
the person has an entitlement to a protection, and they allege that they were dismissed in
contravention to part 3-1 of the Act. Section 366 provides the timeframe for applications. The
Appellant’s application was made within the required timeframe, however, the matter whether
the Appellant was dismissed was subject to jurisdictional objection. This jurisdictional
objection was not resolved as the hearing was vacated due to the parties reaching a binding
settlement agreement.
[49] Had the Deputy President not found on the evidence and facts that a binding settlement
agreement had been reached, a certificate could not be issued without determining whether the
Appellant was in fact dismissed.18
[50] There is nothing in the Act that suggests a binding settlement agreement cannot be
reached in s.365 disputes. Section 368 provides that such disputes must be dealt with other than
by arbitration.19 The note of s.368(1) recognises that the Commission may deal with a dispute
by mediation or conciliation or by making a recommendation or expressing an opinion.
[51] It is not uncommon for disputes to be resolved either at private conference20 or outside
of the conference process. A settlement of the dispute is consistent with the objects of the Part.
It also follows that should the parties settle the dispute by agreement, then the application may
be extinguished, depending upon the terms and nature of the settlement agreement.
[52] As already indicated, we agree that there was a binding settlement agreement. Initially,
that agreement was constituted by the email exchange of the parties on 6 September 2022.
Those terms were immediately binding but were intended to be restated in a fuller and more
precise form, but to the same effect.21 A deed of release was produced. That document was
[2023] FWCFB 56
12
signed by the Appellant on 15 September 2022 and returned to the Respondent. On 23
September 2022, the Respondent signed the deed and, on 27 September 2022 it made payment
in accordance with it.
[53] Where, as here, the settlement agreement (as later restated in the deed) was made and
performed, there is “accord and satisfaction”. Simply put, the effect of accord and satisfaction
was that the Appellant’s original claim was extinguished and replaced with a new cause of
action (i.e. initially under the email settlement agreement and then under the deed).22
[54] On the basis that a binding settlement agreement had been reached for an application
made under s.365, an Applicant may file a Notice of Discontinuance (NOD), or in absence of
a NOD, there may be circumstances where the Commission may dismiss the application on its
own initiative pursuant to s.587 except for reasons that the application is frivolous or has no
reasonable prospect of success: s.587(2). Reasons for relying on s.587 need not be limited and
recognised examples for relying on s.587 of the Act include inexcusable and unreasonable
delays in the application by the Applicant or for want of prosecution by the Applicant.
[55] We consider that it is open for an application under s.365 to be dismissed under s.587(1)
because the cause of action underlying the dispute has been extinguished by a settlement
agreement after the application was made. While we note that a cause of action extinguished
by reason of a settlement agreement would also have no reasonable prospects of success, the
bases of dismissal are not identical (although there is practical overlap between the two). Simply
because an application under s.365 might not have no reasonable prospects of success, or is
frivolous or vexatious, within the meaning of s.587(2) does not preclude dismissal on other
grounds supported by s.587(1) that are available.
[56] Where there has been accord and satisfaction as a result of a settlement agreement
occurring before an application is made, we note by analogy the Full Court’s decision Coles
Supply Chain Pty Ltd v Milford and anor (2020) 279 FCR 591 at [69] that the “better view is
that it is not necessary to identify an express power in the FWC to decline to act upon an
application on the basis that it fails for want of jurisdiction”. This suggests such an application
might not be dismissed under s.587 but this is question for another day.
[57] The Deputy President’s order dismissing Mr Lewer’s application was expressed to be
made in accordance with s.587 of the Act, without recourse to subsections 587(1)(b) or (c). We
are satisfied that the order made in those terms was correct (and would have also been correct
were an order issued reflecting the implied power for the Commission to decline to act on an
application where it failed for want of jurisdiction). It appears manifestly clear that Mr Lewer’s
application under s.365 had been wholly subsumed by the settlement agreement.
[58] While the reference in the Deputy President’s decision to there being no “reasonable
prospects of success” may have introduced a source of confusion, even if that was an error (and
it is unnecessary for us to decide), the fact a Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.
Conclusion and Orders
[2023] FWCFB 56
13
[59] We have considered whether this appeal attracts the public interest, and we are not
satisfied, for the purposes of s.604(2) that:
• there is a diversity of decisions at first instance so that guidance from an appellate
body is required;
• the appeal raises issues of importance and/or general application;
• the Decision at first instance manifests an injustice, or the result is counter intuitive;
or
• the legal principles applied by the Deputy President were disharmonious when
compared with other decisions dealing with similar matters.
[60] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr B Lewer, Appellant.
Mr A Moulton, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
7 December.
Printed by authority of the Commonwealth Government Printer
PR760265
1 [2022] FWC 2822 (the Decision).
2 Annexure TB2 to witness statement of Taylor Burt.
3 Ibid.
4 Ibid.
THE FAIR WORK VOISSIN THE SEA
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[2023] FWCFB 56
14
5 Email from Chambers – Anderson DP 27 September 2022 at 5.16pm. and referenced in the Decision at first instance at [37].
6 (1954) 91 CLR 353.
7 (1986) 40 NSWR 622.
8 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and
Allied Operations Pty Ltd).
9 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v
Hinch (2011) 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) 192 FCR 78 at [44] – [46].
10 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
11 Ibid 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) 192 FCR 178; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28].
12 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
13 Wan v AIRC (2001) 116 FCR 481 at [30].
14 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 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014]
FWCFB 1663 at [28].
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
16 Written outline of the Applicant’s position dated 11 October 2022.
17 Section 336 Fair Work Act 2009.
18 Coles v Milford 279 FCR 592 at [51] [54][63]-[64] and [67].
19 Except for s.369.
20 Section 368(2).
21 The ‘first’ category identified in Masters v Cameron (1954) 91 CLR 353 at 360.
22 Australia Postal Corporation v Gorman & anor (2011) 196 FCR 126 at [31].
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