1
Fair Work Act 2009
s.604 - Appeal of decisions
Md Ziaur Rahman
v
Owna Corp Pty Ltd
(C2023/2764)
DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT BELL
COMMISSIONER LEE
MELBOURNE, 18 JULY 2023
Application to appeal a decision in matter number C2023/1280 – permission to appeal required
– where settlement reached at conciliation – no decision – jurisdictional prerequisites for an
application pursuant to s 604 of the Fair Work Act 2009 (Cth) not satisfied – permission to
appeal refused.
[1] On 19 May 2023, Mr Md Ziaur Rahman lodged a Form F7 – Notice of Appeal pursuant
to s 604 of the Fair Work Act 2009 (Cth) (Act). The Notice of Appeal makes it clear that Mr
Rahman seeks to appeal terms of settlement which were agreed to at a conciliation conference
convened by the Commission on 5 April 2023. The terms of settlement concerned Mr Rahman’s
dismissal from the respondent, Owna Corp Pty Ltd, on 20 February 2023.
[2] For the reasons that follow, no “decision” of the Commission exists and accordingly,
the jurisdictional prerequisites for an application to appeal a decision pursuant to s 604 of the
Act are not satisfied. Further, permission to appeal is refused.
Context
[3] On 8 March 2023, Mr Rahman applied to the Commission pursuant to s 365 of the Act.
Mr Rahman alleged that he was dismissed by the respondent in contravention of the general
protections provisions in Part 3-1 of the Act.
[4] Consistent with the Commission’s power and obligation to deal with disputes (other
than by arbitration) where an application is made under 365,1 a conference was convened on 5
April 2023. The notice of listing provided a hyperlink to the Commission website which (a)
identifies that the conference will be administered by an “independent staff conciliator,” (b)
details the role of a conciliator, and (c) identifies the possible outcomes of a “general protections
dismissal,” including identifying that where the parties agree to a settlement it “creates a legal
contract between the parties.”
[2023] FWCFB 128
DECISION
AUSTRALIA FairWork Commission
[2023] FWCFB 128
2
[5] The respondent filed a response to Mr Rahman’s application on 3 April 2023 in which
it denied the allegations.
[6] The conciliation proceeded on 5 April 2023. Following the conciliation, the
Commission emailed the parties a letter dated 5 April 2023 and titled “Conference outcome.”
The letter identified the matter, and stated relevantly as follows:
“Thank you for your involvement in the conciliation conference for this case. I confirm
that the matter has settled with the substantive elements of the agreement being:
• payment of a gross amount of $4,576.00 (representing 2 weeks’ pay), taxed according
to applicable law
A draft agreement reflecting the agreed terms and containing the standard terms for such
agreements is attached.”
[7] Terms of settlement were attached to the email. Relevantly, the agreement contained a
counterparts clause to the effect that the agreement was capable of being executed when each
party holds a copy of the terms of settlement signed by the other party, even though the
signatures of both parties do not appear on the same document.
[8] Mr Rahman responded to the Commission later on 5 April 2023, stating relevantly as
follows:
“Received with thanks
I will sign the paper and send back to you as soon as possible”
[9] On 6 April 2023, Mr Rahman emailed the Commission attaching a signed copy of the
terms of settlement, and stating as follows:
“Here goes my signed copy
thanks for your mediating role”
[10] Mr Rahman did not copy the respondent into this email.
[11] Later on 6 April 2023, the respondent’s representative emailed Mr Rahman requesting
a signed copy of the terms of settlement. Mr Rahman responded advising that he had provided
his signed terms of settlement to the Commission. The respondent’s representative replied,
advising Mr Rahman to send all correspondence to the representative as the Commission matter
was now closed. Mr Rahman directed his reply email to the Commission, copying in the
respondent’s representative, stating relevantly as follows:
“Can you pls take care of this email as well as onward ones ?
[2023] FWCFB 128
3
I do a practicing & performing job like you - guys.
In addition, I like to save my time & energy avoiding any unnecessary contact.”
[12] On 12 April 2023, the respondent’s representative emailed the Commission seeking a
copy of Mr Rahman’s signed terms of settlement. The email noted that Mr Rahman had not
provided the respondent with a copy, but indicated he had emailed signed terms to the
Commission. The Commission provided all parties with a copy of Mr Rahman’s signed terms
of settlement. Mr Rahman replied to that email stating relevantly as follows:
“I signed the resolution paper mistakenly - sorry for that.
I found the Fairwork Commission's resolution is not lawful at all.
However, I want to take my case to Court for Lawful Remedy
Pls arrange that.”
[13] Later on 12 April 2023, the Commission acknowledged Mr Rahman’s email and advised
that a response would be provided in due course.
[14] On 20 April 2023, the respondent’s representative emailed the Commission attaching
Mr Rahman’s signed terms of settlement (dated 6 April 2023) and the respondent’s signed terms
of settlement (dated 19 April 2023), and stated relevantly as follows:
“We confirm that the parties attended a conciliation conference on 5 April 2023, where a
binding agreement was reached. Subsequently, the agreement was put into writing and
both parties have signed Fair Work Commission Terms of Settlement. We have attached
a copy of the signed Terms of Settlement for your reference.
It is the Respondent’s intention to comply with the executed Terms of Settlement and
we expect that the Applicant will do the same.
We understand that the Applicant has raised concerns about signing the deed 'by
mistake.' It is our position that an agreement was made on 5 April 2023 at the
conciliation, the written deed was signed by the Applicant on 6 April 2023 and [then]
sent a subsequent email to the Commission/Respondent indicating he had 'signed by
mistake' on 12 April 2023 (6 days later). The agreement was entered into voluntarily by
both parties during the conference, and it is binding from 5 April 2023. The Respondent
will now act on the agreement made on 5 April 2023.”
[15] At the hearing, the respondent’s representative advised that, on 28 April 2023, Mr
Rahman received payment, in full, from the respondent in accordance with the terms of
settlement.
[16] Also on 28 April 2023, Mr Rahman sent three emails to the Commission and the
respondent’s representative.
[2023] FWCFB 128
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[17] The first email stated relevantly as follows:
“As I confirmed - I did not agree to the resolution - managed by [conciliator] as well as
it should not be revealed by Fairwork to my respondents - representative
Rather it is my unprofessional mistake because of scenarios. I expected lawful remedies
which were rejected before [conciliator] who was clearly sided with my employer - out
of blue !
I find - contract should be compensated
# one year employment at least or equivalent - Full time, high income annual rate
# 2009 act says - Employer can not void contract at all at any time without valid reasons
- which didn't happen in my scenarios as well as employer- owna's scenario.
I like to verify my law understanding by court - when I see fair-work panel member has
insufficient knowledge of Law as well as not sufficiently neutral.
Please take initiatives”
[18] The second email stated in full as follows:
“To be clear, I mean it by " my signature by mistake on resolution paper " - should
not be revealed by Fairwork to my respondents - representative - when I am not agreed
to.”
[19] In the third email, Mr Rahman sent a partial copy of his terms of settlement,
commencing with the counterparts clause and concluding with the section wherein his signature
was placed.
[20] The Commission emailed the parties on 2 May 2023, stating relevantly as follows:
“I refer to the above matter and below correspondence
As both parties have signed the terms of settlement in this matter, the Commission is
unable to issue a certificate.
The matter remains closed and no further action will be taken.
Any disputes in relation to a signed agreement, can only be disputed in a court of
competent authority.”
[2023] FWCFB 128
5
[21] Mr Rahman replied on 5 May 2023, advising, relevantly, as follows:
“Thank you for your conclusive official email I was looking for - The matter remains
closed and no further action will be taken.
That's okay.
However, I repeat - I did not agree as well as I signed wrongly based on my scenarios
as I mentioned a couple of times.
I find it - serious unauthorized action done by Fair-work commission staff members who
have no clear knowledge about their actions & related laws.
As I know - fair-work is limited - cannot abuse/force any resolution. In addition - I can
correct my mistakes , withdraw signed or unsigned resolutions any-time.
I want to explain further in Court. I find now - Fairwork's entire team who are informed
, is part of corrupting benefits with Owna - key people.”
[22] On 19 May 2023, Mr Rahman filed his Form F7 Notice of Appeal.
Statutory framework
[23] Sections 604(1) and (3) of the Act are, in full, as follows:
604 Appeal of decisions
(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
(b) made under the Registered Organisations Act by the General Manager
(including a delegate of the General Manager);
may appeal the decision, with the permission of the FWC.
…
(3) A person may appeal the decision by applying to the FWC.
[24] It is a jurisdictional prerequisite to the Commission granting permission to appeal, and
to the competency of an application to appeal, that the putative appellant appeal a “decision” of
the kind prescribed by s 604(1).
[25] The relevant authorities with respect to what constitutes a “decision” for the purposes
of s 604 of the Act were recently considered by a Full Bench of the Commission in CPSU v
ABC.2 The Full Bench identified that “a decision is the operative exercise of a power, with legal
force or effect.”3 A decision is to have such force and effect, or legal consequences, as is given
to the decision by the law pursuant to which it was made.4
[2023] FWCFB 128
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Consideration
[26] In his Notice of Appeal, Mr Rahman identifies a conciliator of the Commission as the
relevant decision maker and identifies the date of the “decision” as 5 April 2023.5 Mr Rahman
describes the decision as he is appealing in the following terms:6
Terms of Settlement
Payment
3.1. The Respondent will pay to the Applicant the amount of $4,576.00 gross
(representing 2 weeks’ pay), taxed as per applicable law, within 7 days of the
Applicant and the Respondent signing these terms of settlement.
3.2. The dollar amount specified in these terms of settlement will be paid by the
Respondent by electronic funds transfer into the Applicant’s nominated financial
account.
[27] At the hearing, Mr Rahman said he intended not to appeal the terms of settlement, but
rather that he was seeking a lawful remedy, or rightful verdict, or rightful outcome. Further, Mr
Rahman submits that the law had not been applied, and that he was not happy with what had
transpired. Mr Rahman also said that he wanted to verify his understanding of the law with the
Commission before going to a court.
[28] We do not consider Mr Rahman has appealed a decision, nor do we consider any
decision to have been made with respect to his application pursuant to s 365 of the Act.
[29] An application pursuant to s 365 of the Act concerns a general protections dispute
involving a dismissal. The Commission must deal with the dispute (other than by arbitration).7
This may be by mediation or conciliation, or by making a recommendation or expressing an
opinion.8 Upon satisfaction that all reasonable attempts to resolve the dispute (other than by
arbitration) have been, or are likely to be, unsuccessful, the Commission must issue a certificate
to that effect.9 Further, the Commission must advise the parties if it considers that arbitration
under s 369, or a general protections court application in relation to the dispute would not have
a reasonable prospect of success. The issuance of a certificate is, in most cases, a necessary
antecedent to the making of a general protections court application.10
[30] With the exception of disputes going to the Commission’s jurisdiction, procedural
matters and the general powers and obligations of the Commission, this represents the scope of
the authority which the Act confers on the Commission where an application under s 365 is
made.11 It is only the issuance of a certificate pursuant to s 368(3)(a) upon which legal
consequences are attached, and so represents the only relevant “decision” the Commission will
make in this context. The validity of a certificate may be challenged in a court,12 though
unsurprisingly, no occasion has arisen for a Full Bench of the Commission to consider such a
challenge.
[31] A failure to act, or a wrongful denial of, or failure to exercise, jurisdiction can be a
jurisdictional error.13 It follows that a failure to issue a certificate pursuant to s 368(3)(a) may
[2023] FWCFB 128
7
amount to an error going to the Commission’s jurisdiction and may, in the right circumstances
(discussed below at [37]-[38]), be appealable pursuant to s 604 the Act. But that is not what has
occurred here.
[32] Having received a competent application made pursuant to s 365 of the Act, the
Commission in this matter held a conference where the dispute was conciliated or mediated in
accordance with ss 368(1), 592 and 595(2). In so doing, the Commission acted in accordance
with the Act.
[33] The parties reached an agreement during this conference. The terms of the agreement
were sent to the parties, together with a letter identifying the substantive elements of the
settlement. The existence, validity and performance of the settlement agreement are not the
subject of this decision.
[34] Where a settlement is reached by way of a private agreement between parties to a
dispute, the recognition by the Commission that the matter is finalised is not immediately a
“decision.” It is a mere administrative step bearing more similarity to the receipt of a notice of
discontinuance than the operative exercise of a power, with legal force or effect.
[35] In the circumstances of this matter, as per the email set out above at [20], a staff member
of the Commission (as opposed to a statutorily appointed Member)14 emailed the parties on 2
May 2023. The email advised that each party had signed the terms of settlement, and so the
Commission was unable to issue a certificate.
[36] The “FWC” for the purposes of the Act does not consist of persons who do not hold
office. It follows that persons who do not hold office cannot make decisions that may be the
subject of an appeal pursuant to s 604(1)(a) of the Act,15 unless a delegation is made. The power
to issue, or refuse to issue, a certificate under s 368(3)(a) cannot be delegated.16 In this respect,
the 2 May 2023 email amounts to no more than a statement of the Commission’s view that the
matter was finalised in circumstances where an executed agreement was received.
[37] Upon recognition that the dispute the subject of the s 365 application has been resolved,
the Commission’s jurisdiction to deal with the matter is ostensibly at an end. This is so because
the conditions in s 368(3)(a) could never be satisfied and a certificate could never issue.17
Further, the common law concept of accord and satisfaction may arise whereby the current
cause of action is “extinguished” and replaced with a new cause of action based on the
agreement.18 In both cases, an interrogation of the existence of the settlement agreement19 and
the satisfaction of a claim by the provision of the consideration set out in the accord will often
be necessary.20
[38] In any event, having considered its jurisdiction to be at an end on the basis of a fact in
existence (i.e., an effective settlement agreement), and not the exercise of a statutory power, the
Commission retains jurisdiction to decide on a challenge to that conclusion. The ordinary course
to be adopted where a party challenges the validity of a settlement would be for a Member of
the Commission to decide on the challenge in writing,21 whether that decision is expressed in a
formal publication or otherwise.22 Unless and until a decision is made to resolve that challenge,
there is no “decision” to appeal.
[2023] FWCFB 128
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Conclusion
[39] For the reasons given, no “decision” of the Commission exists. Accordingly, the
jurisdictional prerequisites for an application to appeal a decision pursuant to s 604 of the Act
are not satisfied.
[2023] FWCFB 128
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[40] We have also considered whether Mr Rahman’s Notice of Appeal seeks, in effect, for
the Commission to continue to deal with his general protections dispute under s 368 and that
the “decision” he seeks to appeal is the Commission’s purported failure to do so. If that is Mr
Rahman’s intention, permission to appeal is refused. Mr Rahman’s Notice of Appeal discloses
no matter we consider is in the public interest,23 nor is there any other reason we consider it
would be appropriate to grant leave in all the circumstances. Permission to appeal in those
circumstances is refused.
DEPUTY PRESIDENT
Appearances:
Mr Md Ziaur Rahman on his own behalf
Ms Nour Salama on behalf of the respondent
Hearing details:
2023.
Melbourne (by video via Microsoft Teams):
July 4
Printed by authority of the Commonwealth Government Printer
PR764318
1 Fair Work Act 2009 (Cth) s 368(1)
2 CPSU, the Community and Public Sector Union (090V) v Australian Broadcasting Corporation T/A ABC [2023] FWCFB 91
3 Ibid at [29] citing Shop, Distributive and Allied Employees Association v Australian Industry Group (2017) 253 FCR 401;
[2017] FCAFC 161 at [75]-[76]; Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union (2015)
230 FCR 565; [2015] FCAFC 11 at [33]-[40]
4 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23] citing Minister for Immigration and
Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [46]
5 Form F7 at 1.1
6 Ibid at 1.2
7 Fair Work Act 2009 (Cth) s 368(1)
8 Fair Work Act 2009 (Cth) s 595(2)
WORK COMMISSION THE SEALLBE THE
[2023] FWCFB 128
10
9 Fair Work Act 2009 (Cth) s 368(3)(a)
10 Fair Work Act 2009 (Cth) s 370; Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [32]
11 See, Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]
12 Bridges v Norling (t/as iTravel Forster) [2016] FCCA 212 at [35]-[57]; Knight v Visionstream Australia Pty Ltd [2017] FCA
1513; see also, Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [75] citing Forbes v Petbarn Pty Ltd [2018]
FCA 256 at [65]-[66]
13 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [11]; Ming v Director of Public Prosecutions (NSW) [2022]
NSWCA 209 at [12]; see also, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at
[80] citing Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420
14 Fair Work Act 2009 (Cth) Pt 5-1 Div-5
15 Fair Work Act 2009 (Cth) ss 12 (“Fair Work Commission” and “FWC”), 575 and 598(1)
16 Fair Work Act 2009 (Cth) s 625
17 See, eg, MacFarlane v AECOM Australia Pty Ltd [2021] FWCFB 1343; Mccaffrey v Transdev Melbourne [2015] FWC
3400; Naorin v Nationwide News Pty Ltd [2018] FWC 6996
18 Australia Postal Corporation v Gorman & anor (2011) 196 FCR 126 at [31]-[33]; see also, Lewer v Australian Postal
Corporation [2023] FWCFB 56; Kelly Thomas v Western Scaffold Pty Ltd [2020] FWC 2051
19 See generally, Subeg Singh v Sydney Trains [2017] FWCFB 4562
20 See generally, Zivkovic v Parke [2022] VSCA 43 at [77] citing Osborn v McDermott [1998] 3 VR 1, VR 7-8 and 10
21 Fair Work Act 2009 (Cth) s 601(1)(a) and Pt 3-1
22 Fair Work Act 2009 (Cth) s 601(4), (5)(a) and (6), noting, however, that a decision may also be produced dismissing the
application pursuant to s 587 of the Act engaging publication requirements; see, Lewer v Australian Postal Corporation
[2023] FWCFB 56 at [56]-[57]
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc3400.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc3400.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc6996.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc2051.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4562.htm
