DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

United Voice
v
G8 Education Limited
(C2018/2924)

Appeal against decisions of Commissioner Booth at Brisbane on 15 and 22 May 2018 in matter number C2018/673.

Introduction and background

[1] United Voice has lodged an appeal, for which permission to appeal is required, against a number of interlocutory procedural decisions made by Commissioner Booth in the course of dealing with an application made by G8 Education Limited (G8 Education) pursuant to s 120 of the Fair Work Act 2009 (FW Act). The decisions the subject of the appeal were said by United Voice to consist of the following:

(1) A decision issued on 15 May 2018 1 in which the Commissioner among other things declined to require that United Voice be provided by G8 Education with a copy of the schedule to its s 120 application in unredacted form (First Decision).

(2) A decision made at a directions conference conducted on 22 May 2018 to refuse an application by United Voice that the proceedings be recorded (Second Decision).

(3) A decision also made during the 22 May 2018 directions conference not to make directions for the filing of evidence and submissions in relation to the matter, as sought by United Voice (Third Decision).

(4) A decision also made during the 22 May 2018 directions conference not to fix a further date for the hearing of the matter but to adjourn the matter sine die (Fourth Decision).

[2] The background to this matter requires brief explanation. G8 Education previously operated 16 child care centres which it progressively sold to Paisley Park Early Learning Centres (Paisley Park) during 2016. In the process G8 Education terminated the employment of some 183 employees who worked in these centres, who were subsequently offered and accepted casual employment with Paisley Park. No redundancy payment was made by G8 Education to any of these employees upon termination.

[3] Section 119 of the FW Act provides for a minimum scale of redundancy payment for employees with one year or more of continuous service. An entitlement to these payments arises under s 119(1)(a) where the termination of an employee’s employment is “at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour”. There are exceptions to the operation of the entitlement specified in ss 121, 122 and 123 of the FW Act. Where an employee has an entitlement under s 119, s 120 provides that this entitlement may be the subject of variation as follows:

120 Variation of redundancy pay for other employment or incapacity to pay

(1)  This section applies if:

(a)  an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b)  the employer:

(i)  obtains other acceptable employment for the employee; or

(ii)  cannot pay the amount.

(2)  On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3)  The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

[4] G8 Education filed its s 120 application with respect to the 183 employees on 9 February 2018, well over a year after the employees were terminated. It attributed this delay to bad legal advice. The application attached a schedule identifying the names and addresses of the 183 employees, as well as information concerning their length of service, base rate, average hours of work and redundancy entitlement. The application sought to reduce each employee’s redundancy entitlement to zero.

[5] Rule 41(1) and Schedule 1 of the Fair Work Commission Rules 2013 (FW Rules) require a s 120 application (made using prescribed form F45A) to be served on the respondents “As soon as practicable after lodgment with the Commission”. There could be no doubt that the proper respondents to the application are the employees whose redundancy entitlement G8 Education seeks to reduce. However G8 Education did not serve the employees with the application in accordance with the FW Rules; instead it posted a letter to each employee which informed them of the application. The letter to each employee stated (omitting formal parts):

“G8 Education has been in communication with United Voice, the union that represents Early Childhood Educators following the divestment of a number of centres throughout 2017. United Voice has asserted that despite educators accepting offers of employment made by Paisley Park, that G8 Education should have made severance payments to all educators.

To allow for an impartial assessment of this claim, G8 Education have made an application to the Fair Work Commission in accordance with section 120 of the Fair Work Act 2009 to determine the quantum of any redundancy entitlements owed to previous employees.

The matter number for this application is C2018/673 and a Notice of Listing has been issued to G8 Education and United Voice for a telephone Directions Conference before Commissioner Booth at 9:00am (AEST) on Monday 1 March.

You are not required to take any action at this time, however we are providing this notification to you as you as you are a party to this application. Please note that G8 Education is committed to working with the Fair Work Commission and United Voice to find a suitable resolution to this matter and will comply with the findings of the Commission.

Should you require any additional information please [name and email address removed].”

[6] G8 Education did however serve the application upon United Voice, but with the names and addresses of the employees in the schedule redacted.

[7] The Commissioner conducted a directions conference by telephone in relation to the matter on 1 March 2018, and a further telephone directions conference occurred on 8 March 2018. It appears that neither was recorded. On 8 March 2018 the Commissioner issued a direction that G8 Education file and serve upon United Voice (but not the employee respondents to the application) its submissions on the question of whether it had obtained alternative employment for the employees. It appears that this reflected agreement, at least between G8 Education and United Voice, that this issue should be determined as a threshold question by the Commission.

[8] On 5 April 2018 United Voice sought that an order for production be issued requiring G8 Education to produce, among other things, an unredacted copy of the schedule attached to its application and the sale agreement with Paisley Park. G8 Education opposed this order for production being issued. There was another telephone conference before the Commissioner on 5 April 2018, but again there was no recording of the proceedings. On 6 April 2018 the Commissioner issued directions requiring United Voice to provide its submissions in support of the order for production which it sought by 11 April 2018, with G8 Education to provide its submissions by 18 April 2018 and United Voice to reply by 20 April 2018. The parties were then to advise by 23 April 2018 whether the issue of the order for production could be dealt with on the papers. Submissions were filed in accordance with these directions, and the Commissioner was advised that the matter could be determined on the papers.

[9] On 15 May 2018, the First Decision was issued. In relation to United Voice’s application for an order requiring production of the schedule to the application in unredacted form, which was refused, the Commissioner’s reasoning and conclusion were as follows (footnotes omitted):

“[22] The principle of open justice urged by United Voice, and the Full Bench in Southon, does not preclude consideration of the significant privacy concerns: Southon applies, but it is not to be applied, as noted in Bowker v DP World, in a limited and narrow nature so as to preclude proper consideration of whether the material is confidential.

[23] I am not satisfied that either the disclosure of personal information of the 186 [sic] employees would not be a breach of privacy, nor that withholding this information would breach the principle of open justice. In these particular circumstances, it is appropriate that the Application be made available with the personal information redacted.

[24] United Voice should be aware who their members are and their contact details. It is not the responsibility of either this Commission or G8 to provide those details.

Conclusion

[25] The information contained in the un-redacted spreadsheet contains private information, and should not be provided to United Voice.”

[10] In relation to the production of the sale agreement, the First Decision stated:

“[29] United Voice gave a solicitor’s undertaking about confidentiality of the Agreement transferring the business to Paisley Park.

[30] G8 is prepared to produce what it says is the relevant clause (clause 11) but is prepared to give a full copy to the Commission if so directed. It seems inherent in this matter that the full Agreement should be before the Commission to satisfy itself as to the terms of transfer, and as to whether a particular clause is the only one relevant.

Conclusion

[31] The entire Agreement must be provided to the Commission.

[32] After viewing the Agreement I do not rule out the possibility of providing United Voice with a copy of the Agreement or part of the Agreement including clause 11. Any decision to provide the Agreement will take into consideration privacy and commercial in confidence matters.”

[11] The question of service of the application upon the affected employees was also dealt with in the First Decision, although it is not clear when this issue emerged. The Commissioner concluded:

“[36] Prior to a conference being held on 1 March 2018, G8 provided a letter advising each of the employees that the Application had been filed. No copy of the Application was provided to the employees. United Voice has properly raised this matter.

[37] I direct that a copy of the originating Application be served on all employees the subject of this application. Each individual respondent should be provided with the Application but not the spreadsheet containing other respondents’ details.”

[12] On 22 May 2018 the Commissioner conducted a further telephone conference. This conference was not recorded. In the appeal we admitted into evidence a witness statement made by Mr Stephen Bull on 7 June 2018 concerning what occurred at this conference. Mr Bull, who participated in the conference as the representative of United Voice, is a legal practitioner who is employed as United Voice’s industrial co-ordinator. His statement, which was not the subject of any evidentiary contest, disclosed the following:

● He requested that the proceedings be recorded, but this was refused by the Commission on the basis that it was an informal conference.

● He requested that the matter be programmed for hearing, but the Commissioner ruled: “No, that is not the way I intend to proceed.”

● He applied for the matter to be “adjourned to a date”, but the Commissioner responded: “No, I intend to consider the material that the Applicant is going to send me and then will make a decision about relisting the matter”.

[13] These rulings constitute the Second Decision, Third Decision and Fourth Decision respectively.

[14] On the same day the Commissioner issued an order 2 which required, further to the First Decision, that:

● copies of the employees’ termination letters and statements of termination payments were to be provided to the Commission by 1 June 2018;

● the sales agreements were to be provided to the Commission by 25 May 2018;

● the originating application was to be served on the affected employees by 8 June 2018 together with a covering letter which provided an update of progress, stated that employees might wish to contact and be represented by their employee organisation in relation to the application, and gave the relevant particulars of their former employment including their potential redundancy payment amount.

[15] United Voice lodged its appeal on 30 May 2018. There was a further directions hearing on 7 June 2018, which was recorded, at which the Commissioner made a decision concerning the extent to which United Voice would be given access to the sale agreements produced by G8 Education. On 13 June 2018 the Commissioner issued an order to give effect to that decision. 3 The requirements of that order have now been complied with. It does not appear that any further step has since been taken in relation to the matter.

Submissions

[16] United Voice submitted in relation to the First Decision that:

● it had the effect of suppressing the names of the respondents to G8 Education’s application generally, even though there was no articulation of this in the First Decision;

● it also had the effect of excluding United Voice from the proceedings, particularly as it was not in a position to identify which of its members were the subject of the application;

● it was made prior to the service of the substantive application on the employee respondents and therefore in the absence of any opportunity for the respondents to make submissions about whether they wanted to have their privacy protected;

● there was no power to make a confidentiality order under s 593(3) because the decision was not made “in relation to a hearing”;

● the Commissioner did not specify that the power to make confidentiality orders under s 594 was being utilised, and s 594 did not provide power to suppress the identity of parties to a matter; and

● the decision was contrary to the principles of open justice, protected no legitimate privacy interest, and was legally unreasonable.

[17] In relation to the Second Decision, United Voice submitted that the proceeding on 22 May 2018 could reasonably be characterised as a hearing, and should have been recorded since the creation of a record of the proceedings was part of maintaining the public and transparent character of the Commission’s processes and facilitated the capacity of parties to participate in the proceedings. In relation to the Third and Fourth Decisions, they ought not have been made in circumstances where it was clear that G8 Education’s application was contested and ought be dealt with in a timely manner. It was submitted that permission to appeal should be granted because the appeal raised major issues in relation to the conduct of hearings, the circumstances in which the identity of parties should be suppressed and the exercise of the Commission’s powers and functions under ss 577, 578, 593 and 594 of the FW Act.

[18] G8 Education submitted that:

● United Voice did not have standing to bring the appeal because it had failed to demonstrate that it or any of the persons it represented were aggrieved by the decisions the subject of the appeal as required by s 604;

● in relation to the First Decision, the Commissioner exercised the discretion conferred by s 594 in order to protect the privacy rights of the employees concerned;

● while the principle of open justice was an important consideration, it was not determinative of the outcome;

● in relation to the Second Decision, the Commissioner conducted an informal conference, and the decision not to record it was open to be made under s 589 of the FW Act;

● as to the Third and Fourth Decisions, they were made in the exercise of the broad discretionary powers conferred by s 589;

● permission to appeal should be refused, and the Commission should make a costs order in G8 Education’s favour pursuant to s 611(2)(b) of the FW Act.

Consideration

[19] An appeal under s 604 of the FW 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.⁴ There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[20] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁵ The public interest is not satisfied simply by the identification of error, or a preference for a different result.⁶ 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 issues 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...”7

[21] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been 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.⁸

[22] 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.⁹ However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[23] 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.¹⁰

[24] The four decisions the subject of the appeal are all discretionary interlocutory decisions dealing with procedural matters. Permission to appeal will not usually be granted in relation to such decisions, for the reasons stated in Hutton v Sykes Australia Pty Ltd 11 (footnote omitted):

“[3] The fact that this appeal challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged appeals from preliminary or procedural rulings.  Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties. There are other reasons why appellate intervention at an early stage may be undesirable. Procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such a case any earlier appeal in relation to a preliminary or procedural issue would be rendered futile.”

[25] We are not satisfied that permission to appeal should be granted in respect of any of the decisions the subject of United Voice’s appeal either in the public interest or on discretionary grounds, for the following reasons.

[26] In respect of the First Decision, the appeal is misconceived. The Commissioner did not make any order suppressing the names of the employee respondents pursuant to the discretionary powers to make confidentiality orders conferred by ss 593(3) or 594 of the FW Act. What occurred was that United Voice sought an order pursuant to s 590(2)(c) requiring G8 Education to produce a document identifying the names of the employees affected by the application, and the Commissioner declined in the First Decision to make such an order. That by itself has nothing to do with the principle affirmed in the Full Bench decision in CFMEU v Ron Southon Pty Ltd, 12 namely that in the interests of open justice the Commission will permit public access to its files in the absence of special circumstances justifying an order to the contrary.13 No such contrary order has been made by the Commissioner.

[27] We consider that the decision not to grant the order for production was reasonably open to the Commissioner. The order sought would have required G8 Education to disclose to United Voice private information concerning the names and addresses of the employees which it had acquired in its capacity as their former employer. It was available to the Commissioner to conclude that this might infringe the privacy rights of the employees concerned, particularly in circumstances where the employees had not at the time the First Decision was made been served with the originating application, as required by the FW Rules, and thus had not been given an opportunity to be heard on the question of disclosure of their details. As earlier set out, G8 Education had simply sent a letter to the employees informing them of the fact that the application had been made, but that letter was arguably misleading in that it did not fairly or accurately inform the employees of the true nature of the application or properly advise them that they had a right to be heard in relation to the application.

[28] It of course remains open for United Voice to make an application of the type dealt with in the Ron Southon decision, namely for access to the Commission’s file including the originating application as filed. If this occurs, the Commission will be in a position to inform the respondent employees of this application for access and to provide an appropriate opportunity for such employees to indicate whether they wish access to any personal information to be denied or restricted and, if so, to identify the basis for that position. In the absence of any such opposition, there would be no reason for access not to be granted, particularly as United Voice has a legitimate interest in identifying which of its members are actually the subject of the application. It would not seem to us legitimate for G8 Education in those circumstances to oppose access in a purported attempt to vindicate the privacy interests of the former employees whose redundancy entitlements it seeks to reduce.

[29] In relation to the Second Decision, the grant of permission to appeal would serve no practical utility because there is no order which can be made on appeal which can undo the fact that the conference on 22 May 2018 was not recorded. However we consider that, in circumstances where it was clear that G8 Education’s s 120 application was contested and not capable of settlement, any step in the proceedings involving a consideration of or adjudication upon contested procedural issues ought to have been recorded in the interests of open justice (even if conducted as a “conference”). That was particularly the case given that, as at 22 May 2018, the employee respondents to the application had not been served and thus were not in a position to participate in the “conference” on that day. We note that s 592(3) establishes the default position that a “conference” should be conducted in private unless directed otherwise, but to the extent that this provision bears at all upon the issue of whether the conference should be recorded, we consider that it should not have operated as an impediment to that occurring and that a contrary direction should have been made to the extent necessary to allow a publicly accessible recording to be made.

[30] In relation to the Third Decision and the Fourth Decision, these were decisions made in the exercise of the procedural discretion conferred by s 589(1), and no arguable case of appealable error is apparent. Now that the respondent employees have been served with the originating application and the issue of access to the sale agreements has been resolved, the matter will no doubt shortly be programmed for hearing at least in relation to the threshold issue of whether G8 Education obtained alternative employment for the relevant employees.

[31] G8 Education’s application for costs is rejected. At least in relation to the First and Second Decisions, the issues raised by the appeal were not unworthy of consideration.

Conclusion

[32] We order as follows:

(1) Permission to appeal is refused.

(2) The application for costs is refused.

VICE PRESIDENT

Appearances:

S. Bull on behalf of United Voice.

M. Cole, solicitor on behalf of G8 Education Limited

Hearing details:

2018.

Sydney

26 June.

Printed by authority of the Commonwealth Government Printer

<PR608504>

 1   [2018] FWC 2739

 2   PR607316

 3   PR608055

4 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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]

6 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) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

7 [2010] FWAFB 5343, 197 IR 266 at [27]

8 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481

9 Wan v AIRC (2001) 116 FCR 481 at [30]

10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 11   [2014] FWCFB 3384

 12   [2016] FWCFB 8413 

 13   Ibid at [19]-[28]