DECISION

Fair Work Act 2009
s.365—General protections

Kellie MacFarlane
v
AECOM Australia Pty Ltd
(C2020/4546)

Direction by the President under ss.582 & 615 of the Fair Work Act 2009 (Cth) – whether a certificate must issue under s.368(3).

[1] Kellie MacFarlane was employed as a Transport Engineer by AECOM Australia Pty Ltd (AECOM) from 25 November 2019 until her dismissal on 21 May 2020. On 11 June 2020, Ms MacFarlane applied under s.365 of the Fair Work Act 2009 (Cth) (the Act) to the Commission for it to deal with a dispute. The dispute was about whether Ms MacFarlane’s dismissal was adverse action taken by AECOM against Ms MacFarlane in contravention of s.340 of the Act. Ms MacFarlane alleged that her dismissal by AECOM was because of her exercise of workplace rights.

[2] Following an earlier conference conducted by a Commission staff conciliator, the Commission conducted a conference between the parties on 14 October 2020. 1 After the conference, the parties signed and exchanged terms of settlement.2 Subsequently AECOM complied with its payment obligations under the terms of settlement.3

[3] On 20 October 2020, Ms MacFarlane wrote to the Commission and AECOM advising that she was “withdrawing” her “agreement to settle” and was “filing a court application” due to “multiple issues with the entire process”. 4 On 27 October 2020, Ms MacFarlane wrote to the Commission “requesting consideration for issuance of a certificate, so the matter can proceed to court”.5 The parties are now in dispute about what should happen next.

[4] Section 368(3)(a) of the Act requires the Commission, if so satisfied, to certify that all reasonable attempts to resolve a dispute under s.368 (other than by arbitration) have been, or are likely to be, unsuccessful.

[5] We have decided not to issue a certificate under s.368 of the Act in this case. This is because we are not satisfied that all reasonable attempts to resolve the dispute under s.368 have been, or are likely to be, unsuccessful. The evidence points to the contrary conclusion – that reasonable attempts to resolve the dispute have been successful.

[6] It is not necessary to dismiss the application made by Ms MacFarlane under s.365 of the Act. This is because the absence of a certificate operates as an effective bar to a general protections court application under s.370, subject of course to any further decision of the court.

[7] We now set out our reasons for these conclusions.

Relevant law

Dismissal dispute applications

[8] Section 368(1) of the Act provides that if an application is made under s.365, the Commission must deal with the dispute (other than by arbitration). Under s.368(2), any conference conducted for the purposes of dealing with the dispute must be conducted in private.

[9] Section 368(3)(a) deals with the issue of certificates. Section 368(3)(b) requires the Commission to advise the parties if it considers that consent arbitration of a dispute under s.369 or a general protections court application in relation to the dispute would not have reasonable prospects of success.

[10] Section 369 permits the Commission to undertake consent arbitration of disputes about an allegation that a person was dismissed in contravention of Part 3-1. Consent arbitration can only occur once a certificate has been issued under s.368(3)(a) and if certain conditions are met.

[11] Section 370 provides that a person who is entitled to apply under s.365 for the Commission to deal with a dispute must not make a general protections court application in relation to the dispute unless the Commission has issued a certificate under s.368(3)(a) in relation to the dispute. General protections court applications must be made within 14 days after the day the certificate is issued or such further period as the court allows. These conditions do not apply to applications that include an application for an interim injunction.

[12] Section 587 of the Act deals with the dismissal of applications by the Commission. The power to dismiss can be exercised in circumstances including where an application is not made in accordance with the Act, where an application is frivolous or vexatious and where an application has no reasonable prospects of success. However, the Commission must not dismiss an application made under ss.365 or 773 of the Act on the grounds that the application is frivolous or vexatious or has no reasonable prospects of success.

The decision in Coles Supply Chain Pty Ltd v Milford 6

[13] In Coles Supply Chain Pty Ltd v Milford, a Full Court of the Federal Court considered the Commission’s power to deal with applications under s.365 of the Act. In summary the Full Court observed that:

1.Section 365 defines who is entitled to make a general protections application to the Commission involving dismissal.

2. For an application to be “made under” s.365, it must:

a) be made by or on behalf of a person who has been dismissed,

b) allege that the dismissal contravened Part 3-1 of the Act, and

c) be made within the time prescribed or allowed under s.366(1).

3. Section 368 confers non-determinative powers on the Commission to deal with a dispute agitated by the allegation that a person was dismissed in contravention of Part 3-1.

4. The Commission can only deal with a dispute under s.368 (by exercising conciliation powers and issuing a certificate in relation to the dispute) if the application can be “made under” s.365.

5. Disputes about whether an application can be made under s.365 are disputes under s.365. These are matters going to the Commission’s jurisdiction to deal with the dispute under s.368. They must be resolved before the non-determinative powers conferred by s.368 can be exercised at all.

6. Whether a person has been dismissed, and when the dismissal took effect, are questions of fact.

7. The time to make an application under s.365 runs from the date the dismissal takes effect.

8. When considering whether to extend time for an application to be made under s.365, the “merits of the application” in s.366(2)(d) means the merits of the allegation that the person was dismissed in contravention of Part 3-1.

9. The power to determine a person’s entitlement to make an application to the Commission under s.365 is not “deferred” exclusively to the Federal Court and the Federal Circuit Court.

10. The Commission can make decisions about the limits of its own powers in cases where there is a genuine challenge to those limits, although not conclusively. This includes the question of a person’s entitlement to make an application to the Commission under s.365.

11. A court may decline to recognise an “application” or resulting certificate as valid when determining an objection to the competency of a legal proceeding under s.370 of the Act.

Consideration

[14] In this case, there is no dispute that Ms MacFarlane was entitled to make an application to the Commission under s.365. She was dismissed by AECOM. The dismissal took effect on 21 May 2020 and her application to the Commission was lodged 21 days later. The application form alleged that AECOM dismissed Ms MacFarlane in contravention of s.340. Specifically, Ms MacFarlane alleged that she was dismissed because she exercised workplace rights by making complaints and inquiries in relation to her employment.

[15] The Commission dealt with the dispute under s.368 by conducting two conferences between the parties. After the second conference, Ms MacFarlane and AECOM signed and exchanged terms of settlement.

[16] The signed terms of settlement are persuasive evidence that the dispute dealt with under s.368 was successfully resolved. The witness statement of Adam Scott, 7 AECOM’s Chief Counsel, attests to the parties reaching an “in-principle settlement” on 14 October 2020 and signing settlement terms that day. Ms MacFarlane’s email to the Commission on 14 October 2020, enclosing signed terms of settlement, corroborates this evidence. There is no evidence that tends to contradict it. Even Ms MacFarlane’s email to the Commission on 20 October 2020 speaks of her “withdrawing” from the “agreement to settle”.

[17] The reasons given by Ms MacFarlane for seeking to withdraw from the settlement agreement are:

1. The Commission has not bothered to increase the amount of time required to lodge an “unfair dismissal case” (sic) at a time of one of the lowest employment rates in Australian history.

2. Difficulty securing legal representation meant having to choose a lawyer from another state and later being forced to represent herself at the second conciliation conference.

3. Ms MacFarlane was denied a phone call with the Commission’s Workplace Advice Service because they were too busy.

4. There should be more public lawyers available in this situation.

5. Advice given by Ms MacFarlane’s lawyer in the conciliation conference was not genuine and resulted in her accepting a “mockingly low offer.”

6. The merits of the claim were not addressed properly during conciliation.

[18] None of these reasons provide a proper basis for concluding that the dispute dealt with under s.368 was not resolved.

[19] First, the Commission does not have power to increase the time within which certain applications must be made to the Commission. The statutory timeframe is fixed by s.366 of the Act. Late lodgement may be permitted if there are exceptional circumstances. Legislative amendments are matters for the Federal Parliament. In any event, Ms MacFarlane’s application was lodged within time.

[20] Secondly, the Commission’s Workplace Advice Service is a mechanism through which participating firms voluntarily provide limited free legal assistance to eligible people and small business employers about dismissal, general protections and workplace bullying. It is one of many options available for parties to access information and advice about participating in Commission proceedings. Fluctuating levels of demand and the pro bono nature of the Service means that access cannot always be guaranteed in the timeframe needed in a particular case.

[21] Thirdly, if Ms MacFarlane is dissatisfied with the conduct of her legal representatives or their advice, that is a matter that can be pursued through the appropriate channels. On the material before us, we are not satisfied that the involvement of legal representatives meant that settlement did not actually occur.

[22] As to the merits of the claim having been overlooked, many of the matters identified by Ms MacFarlane appear to be new or different allegations to those contained in the application under s.365. It is not surprising then that these matters were not the subject of any in depth discussion between the parties. On their terms, they were not within the scope of the dispute to be dealt with under s.368. In any event, it is not uncommon for conciliation discussions to focus on matters other than the substantive merits of a dispute. The purpose of conciliation is to explore the possibility of compromise and whether an agreement can be reached. While the merits of a substantive claim are always relevant, they are rarely necessary to resolve in the context of conciliation. This is because the merits can and will be dealt with if the matter is unable to be resolved and so proceeds to hearing.

[23] Ms MacFarlane did not attend the scheduled hearing on 22 February 2021 before this Full Bench despite being notified. She did not file submissions in support of her contention that a certificate under s.368(3) must issue, despite being directed to do so. At the conclusion of the hearing, we advised AECOM that we intended to seek an explanation from Ms MacFarlane about her failure to comply with directions and the failure to attend the hearing. We also said that we would allow Ms MacFarlane a further opportunity to state her case in writing. This was communicated to Ms MacFarlane on 22 February 2021. The explanation and further materials were to be filed and served by no later than 5:00 pm on 26 February 2021.

[24] On 4 March 2021 Ms MacFarlane sent an email to the Chambers of the Presiding Member in the following terms:

I did not attend because your staff were refusing to acknowledge my views both during the previous phone call hearings, and in email correspondence since. My employer was favoured at every turn. Further, multiple people online have discussed how bias FWC is towards employers. So as it was clear that I would not be properly heard, I did not attend. I have reported the series of online reviews, and will not be corresponding with you further as this has been a total waste of time, and lack of justice.

[25] Ms MacFarlane does not engage with the substance of her contention that a certificate should issue.

[26] In the circumstances we are not satisfied that all reasonable attempts to resolve the dispute under s.368 have been, or are likely to be, unsuccessful. We consider that the attempts to settle the dispute were successful and resulted in the parties executing binding settlement terms.

Conclusion

[27] We decline to issue a certificate under s.368 in matter C2020/4546.

[28] The dispute is dealt with accordingly.

DEPUTY PRESIDENT

Appearances:

No appearance for the Appellant
W. Spargo for the Respondent

Hearing details:

2021.
Melbourne (via video):
February 22.

Printed by authority of the Commonwealth Government Printer

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 1   Exhibit 1 at [6]

 2   Exhibit 1 at [7] and Attachment A

 3   Exhibit 1 at [9]

 4   Exhibit 1 at [10]; Email (20 October 2020) from Ms MacFarlane to Adam Scott (AECOM) and CC to the Chambers of DP Millhouse

 5   Email (27 October 2020) from Ms MacFarlane to the Chambers of DP Millhouse and CC to Adam Scott (AECOM)

 6   [2020] FCAFC 152 per Rares, Collier and Charlesworth JJ (11 September 2020)

 7   Exhibit 1