1
Fair Work Act 2009
s.604—Appeal of decision
Brenton Mosca & Ors
v
DP World Sydney Limited & Ors
(C2023/385 & Ors)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT O’NEILL
COMMISSIONER SIMPSON
SYDNEY, 21 MARCH 2023
Appeals against decision [2023] FWC 65 of Deputy President Asbury at Brisbane on 10
January 2023 in matter number U2021/10323 & ors – appeals not competent – appeals
dismissed – matters remitted to Deputy President Asbury.
Background
[1] Mr Brenton Mosca and 23 others (the Appellants) have lodged appeals under s.604 of
the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision
of Deputy President Asbury (the Deputy President) issued on 10 January 2023 (the Decision).1
Of the 24 Appellants, Mr Brenton Mosca and 20 others are represented (the Represented
Appellants), and 3 are self-represented. The Decision concerned applications brought by the
Appellants for unfair dismissal remedies against DP World Sydney Limited and DP World
Brisbane Pty Ltd (the Respondents), under s.394 of the Act.
[2] The Deputy President did not dismiss nor grant any of the unfair dismissal applications
brought by the Appellants in the Decision. Rather, as agreed between the parties,2 she only dealt
with the question of whether the Respondents had a valid reason for dismissing the Appellants,
being that they were in breach of a lawful and reasonable workplace direction. Ultimately, she
found that they did.
[3] Directions were set for the filing of material by the Appellants and Respondents on 1
February 2023. The matter was listed for hearing, for permission to appeal and the merits of the
appeal, on 6 March 2023. Accordingly, both the Appellants and Respondents filed written
submissions, and the Represented Appellants and Respondents made further oral submissions
at the hearing. The scope of oral submissions at the hearing was restricted to the question of the
competency of the appeals only.
[4] For the reasons that follow, the appeals are not competent, and they are accordingly
dismissed.
[2023] FWCFB 62
DECISION
AUSTRALIA FairWork Commission
[2023] FWCFB 62
2
The Decision under appeal
[5] As we consider that these appeals are not competent, it is unnecessary to set out the
factual background and decision under appeal at great length. We briefly summarise the
relevant key details below.
[6] The Respondents are operators of stevedoring terminals in Sydney and Brisbane,
respectively, and the Appellants were employees of the Respondents. From 21 October 2021,
the Respondents introduced a workplace mandate that required employees to be vaccinated
against COVID-19 and provide evidence of their vaccination (the Mandate). The Appellants
employed at the Sydney location were dismissed on or around 25 October 2021 for being in
breach of the Mandate, while the Appellants employed at the Brisbane site were notified and
dismissed with effect from 17 November 2021.
[7] The primary question before the Deputy President in the Decision was whether the
Mandate constituted a lawful and reasonable direction by the Respondents, and therefore
whether the Appellants’ dismissal for being in breach of the Mandate was a valid reason for
dismissal for the purposes of s.387(a) of the Act. The Appellants submitted, amongst other
contentions, that the Respondents failed to comply with consultation requirements under the
relevant Work Health and Safety legislation of NSW and QLD and particular clauses of the
relevant Enterprise Agreements.3 The Respondents submitted, amongst other contentions, that
the Mandate was reasonable and lawful owing to the nature of the stevedoring business, the
critical place of stevedoring in the Australian supply chain, and the significant public interest
in protecting terminal operations from disruption.4
[8] The Deputy President comprehensively addressed the extensive material tendered by
both the Appellants and the Respondents, as well as the significance of the decision in
CFMMEU v Mt Arthur Coal5 and its application to the facts at hand. She ultimately found that:
“[517] After considering at length the evidence and submissions in this case, I have
concluded that the Mandate was objectively a valid, sound, and defensible response to
the circumstances confronting the Respondents in September 2021. I have also
concluded that any failure on the part of the Respondents to consult employees as
required by the WHS Acts and the terms of the relevant Enterprise Agreements, does
not of itself necessitate a conclusion that a failure on the part of employees to comply
with the Mandate was not a valid reason for the dismissal of the Applicants.”
[9] Subsequently, and despite the above finding, the Deputy President did not proceed to
dispose of the Appellants’ unfair dismissal applications. Rather, the Deputy President set out
the next steps for the matter to proceed, being that it would be “listed for a further mention to
program subsequent proceedings and issue any necessary directions.”6
Competency of the appeal
[10] On appeal, the Represented Appellants submit that,7 for the purposes of s 604(1)(a) of
the Act, a decision of the Commission includes “any decision of the FWC howsoever
described.”8 Moreover, citing Buksh v Ramsay Health Care (Buksh),9 the Represented
Appellants submit that the word ‘decision’ as it is used in s.598(1) of the Act is unconstrained
[2023] FWCFB 62
3
and intended to have a broad meaning.10 Contrastingly, the Respondents submit that the
Decision under appeal, though labelled as such, has no operative legal effect and only
constitutes the reasons given for an ultimate determination of the unfair dismissal applications
which has not yet occurred,11 citing Shop, Distributive and Allied Employees Association v
Australian Industry.12 As such, the Respondents submit that the appeals are not properly formed
insofar as they are premature.13
[11] We have considered both the written and oral submissions by the Appellants and
Respondents, and we have concluded that the Decision is not appealable pursuant to s.604 of
the Act. We disagree with the Represented Appellants’ contention that the meaning of decision
as it is used in s.598(1) of the Act is unconstrained, as this is an erroneous reading of the decision
in Buksh. At [17] of Buksh, the Full Bench sets out the following principles:
“[17] There is plainly a question requiring determination at the outset as to whether Mr
Buksh’s notice of appeal relates to any decision made by any member of the Commission
within the meaning of s 598 of the FW Act. Section 598 does not in terms define what a
“decision” is, but two interpretative conclusions of relevance may be drawn from the
provision:
(1) The first sentence of s 598, and the note which follows the subsection,
indicates that “decision” was intended to have a broad meaning and include both
substantive and procedural decisions.
(2) The second sentence of s 598(1) makes it clear that outcomes pertaining from
dispute resolution processes conducted pursuant to s 595(2) (that is, mediation,
conciliation, the making of a recommendation or the expression of an opinion,
but not arbitration) are not appealable.”
[12] Although we agree with the Represented Appellants that the meaning of ‘decision’ as it
appears in s.598(1) of the Act is broad, we do not consider that this extends to decisions, though
published as such, that do not have any operative legal effect. The Decision under appeal cannot
be properly described as either a substantive or a procedural decision with operative legal effect.
The Decision plainly contains only a finding from the Deputy President that the Respondents
had a valid reason for dismissing the Appellants. We note that this constitutes only a part of the
assessment of the factors listed in s.387 of the Act that the Deputy President must consider
before determining the Appellants’ unfair dismissal applications, and we reiterate that this has
not occurred to date.
[13] We therefore agree with the Respondents’ submission that the appeals are premature. In
line with the Full Bench decision in Grabovsky v Fair Work Commission, we consider that the
Decision under appeal does not determine any matters on an intermediate or final basis14 and
thus provides no appealable result.
Conclusion
[14] The Appellants advance no competent appeals capable of consideration under s.604 of
the Act.
[2023] FWCFB 62
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[15] Accordingly, the appeals are dismissed, and the matters will be remitted to Deputy
President Asbury for further determination.
VICE PRESIDENT
Appearances:
Mr L Saunders, of counsel for the Represented Appellants.
Mr Y Shariff, of counsel for the Respondents.
Hearing details:
2023.
Brisbane.
8 March.
Printed by authority of the Commonwealth Government Printer
PR760462
1 [2023] FWC 65 (the Decision).
2 Decision at [18].
3 Ibid at [66]-[70].
4 Ibid at [71].
5 [2021] FWCFB 6059.
6 Decision at [522].
7 Represented Appellants’ Written Outline of Submissions at [5].
8 Fair Work Act 2009 (Cth), s.598(1).
9 [2020] FWCFB 4352.
10 Represented Appellants’ Written Outline of Submissions at [7].
11 Respondents’ Written Outline of Submissions at [4]-[8].
12 [2017] FCAFC 161.
13 Respondents’ Written Outline of Submissions at [14].
14 [2020] FWCFB 5995 at [35].
THE FAIR WORK VOISSIN THE SEA
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr760462.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb6059.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb4352.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5995.htm
