[2014] FWCFB 4822
The attached document replaces the document previously issued with the above code on 17 July 2014.
Amending footnote 2.
Annastasia Kyriakidis
Associate to Justice Ross, President
Dated 18 July 2014
[2014] FWCFB 4822 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 17 JULY 2014 |
Appeal against decision [[2014] FWC 3051] of Vice President Catanzariti at Sydney on 8 May 2014 in matter number U2013/16116 - application to extend time for institution of appeal dismissed.
[1] On 2 April 2014 Vice President Catanzariti refused an application by Mr Keith Godfrey, an industrial relations advisor employed by Jobs Australia Limited (Jobs Australia), for permission to represent Childrenfirst Inc t/as Childrenfirst (Childrenfirst) in an unfair dismissal proceeding in which Childrenfirst was the respondent. 1 The Vice President’s reasons for that decision were issued on 8 May 2014.2 In essence the Vice President rejected Mr Godfrey’s contention that as an employee of Jobs Australia he was not required to seek the leave of the Commission to represent the members of Jobs Australia in any matter before the Commission. In support of that contention Mr Godfrey relied on s.596(4) of the Fair Work Act 1996 (the Act).
[2] Section 596 relevantly provides:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
...
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
[3] At the heart of Mr Godfrey’s contention was the proposition that Jobs Australia was ‘an association of employers’ within the meaning of s.596(4)(b)(ii). The Vice President rejected that proposition and Jobs Australia has appealed that decision.
[4] The appeal was filed on 29 May 2014. Rule 56 of the Fair Work Commission Rules 2013 deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The appeal was instituted some six weeks out of time. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities 3 indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
[6] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
[7] In support of its application to extend time Jobs Australia advanced three broad points.
[8] First, it is submitted that Jobs Australia was not in a position to formulate the grounds of appeal until the reasons for the Vice President’s decision were published on 8 May 2014. We find this argument unconvincing.
[9] The decision subject to appeal is about the meaning of the expression ‘association of employers’ in s.596(4)(b)(ii) and the application of that construction to Jobs Australia. In other words the decision subject to appeal dealt with a question of law and on appeal the issue is whether or not the Vice President was correct. Having regard to the nature of the decision subject to appeal we fail to see why it was necessary for Jobs Australia to await the reasons for decision before instituting the appeal. There was nothing to prevent Jobs Australia instituting the appeal, noting that the reasons had not yet been delivered, and subsequently seeking leave to amend the grounds of appeal. We note that different considerations arise where the decision subject to appeal involves the exercise of a discretion. In such a case the reasons may themselves provide the basis for an appeal, for example where the reasons disclose that the Member has had regard to an irrelevant consideration.
[10] The second point advanced is that the interpretation of s.596(4)(b)(ii) and its application has been the subject of inconsistent first instance decisions and accordingly the matter should be determined by a Full Bench. In this regard Jobs Australia points to what is asserted to be an inconsistency between the decision subject to appeal and a decision of Commission Bull in Joshua Smith v Housing Plus.
[11] We are not persuaded by this submission. The asserted inconsistency is more apparent than real. In Joshua Smith, Commissioner Bull decided that Jobs Australia did not need to seek permission to represent the respondent because it was an association of employers and hence fell within the scope of the example in s.596(4)(b)(ii). But, importantly, the Commissioner reached this view on the basis of a concession by the other party in the proceedings 4. Specifically, the applicant conceded that Jobs Australia was an ‘association of employers’. The issues ventilated in the proceedings before the Vice President were not the subject of debate in the matter before Commissioner Bull.
[12] The third point advanced in support of extending time goes to the merit of the appeal itself. In this context it is submitted that the appeal raises important issues for Jobs Australia in particular and employer associations in general. It is submitted that if the Vice President’s decision stands it will act as precedent and will impair the capacity of Jobs Australia to represent its members in matters before the Commission.
[13] An appeal under s 604 of the Fair Work Act 2009 (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. 5 There is no right to appeal, rather an appeal may only be made with the permission of the tribunal. In the context of this case it is unlikely that permission to appeal would be granted, having regard to the manner in which the proceedings were conducted at first instance. Two points may be made in this regard.
[14] First, Jobs Australia submits that the Vice President correctly identified that the test to be applied to determine whether an association is “an association of employers” is the test posited by Wilcox CJ in Tzimos v Tempo Services Pty Ltd, 6 but says that he misapplied the test and in consequence the conclusion that Jobs Australia was not an association of employers was wrong7. In Tzimos Wilcox CJ said:
“It will be noted that this provision does not require that the officer be an officer of an ‘organisation’ as defined, that is a registered organisation. It is sufficient that the person be an officer of ‘an association of employers’. That term is not defined in the Act, either within Pt VIA or generally. Under those circumstances it is appropriate to give it its normal meaning; an association of people or companies who are in fact employers and who associate together in that capacity. Ausgroup Services Employers Association meets that criterion. Its constitution provides that it is to be comprised ‘of an unlimited number of members who are employers within Australia’. This means that only employers are eligible for membership of the association. Furthermore, the objects of the association are objects referable to members’ conduct as employers rather than their conduct in any other capacity.” 8
[15] Jobs Australia submits that neither the Tzimos test nor s.594(4) require that an association be exclusively of employers, or that they associate exclusively (or even principally) in that capacity. The difficulty for Jobs Australia is that no such submission was advanced in the proceedings at first instance. Further, in the proceedings before the Vice President no evidence was adduced as to the composition of the membership of Jobs Australia and, in particular, how many of those members were employers.
[16] Appeal proceedings are not the occasion to redress deficiencies in the case presented at first instance. The absence of relevant evidence and the limited nature of the submissions advanced at first instance also mean that the decision sought to be appealed should be treated with some caution and its precedent value is limited. In any case, in the event the question agitated in appeal arises in a subsequent proceeding it would be open to Jobs Australia to make an application to refer the matter to a Full Bench pursuant to s.615A of the Act.
[17] The second point also concerns the limited nature of the issues ventilated at first instance. In this regard it is important to appreciate that s.596 is not concerned with rights of representation per se. It is concerned with limiting the right of a person to be represented in a matter before the Commission by a lawyer or paid agent. Section 596(4) does not confer a right of representation of a person in a matter before the Commission by, relevantly, an employee or officer of an association of employers that is representing the person 9. Rather s.596(4) provides an exception to the general rule that permission is required before a person may be represented by a lawyer or paid agent in a matter before the commission.
[18] On one view s.596(4) is concerned with the status of a person who seeks to represent another person in a matter before the Commission. If that person is a lawyer or paid agent who is an officer or employee of an association, the enquiry then shifts to whether that association is, for present purposes, an association of employers. If the person who seeks to represent another person in a matter before the Commission is not a lawyer and is not a paid agent, then on one view, s.596(4) is not engaged and the question whether that person is an employee or officer of an association of employers does not arise.
[19] We have found it unnecessary to form a concluded view on the correctness of this construction. It is sufficient that we make the observation that Mr Godfrey, who is an employee of Jobs Australia, is neither a lawyer nor himself a paid agent of Childrenfirst. This raises for consideration whether Mr Godfrey required permission under s.596 (1) and whether s.596(4) was engaged at all. This issue was not raised nor argued before the Vice President. It seems to us that consideration of the question of whether Jobs Australia is an association of employers within the meaning of s.596(4)(b)(ii) does not arise for determination without first determining whether s.596(4) was engaged at all in relation to the application by Childrenfirst that it be represented by Mr Godfrey.
[20] Given that the issue was not agitated before the Vice President, and as it was not raised by Jobs Australia in its notice of appeal, or in its submissions filed in respect of the appeal, we do not think that this appeal is an appropriate vehicle to consider and determine that issue. Furthermore we are not persuaded by the submission advanced by Jobs Australia that the question of its status as an association of employers should be determined without first considering whether permission was required at all pursuant to s.596(1).
[21] There is a further reason for refusing to allow the appeal to be instituted outside of the time prescribed in Rule 56. Childrenfirst, the respondent to the substantive application for relief from unfair dismissal before the Vice President, and the body that sought to be represented by Mr Godfrey did not lodge an appeal against the Vice President’s decision not to grant it permission to be represented by Mr Godfrey, nor did it seek to be heard in the appeal before us. The substantive application was determined by the Vice President in 8 May 2014 10 and the question of the appropriate remedy was determined by the Vice President in 13 June 201411. Neither the merits decision nor the remedy decision is the subject of appeal by Childrenfirst. The time for instituting an appeal in respect of those decisions has passed. There is no suggestion that Childrenfirst was prejudiced in the conduct of the case before the Vice President by reason of his refusal to grant it permission to be represented by Mr Godfrey. As Jobs Australia properly conceded before us, for the parties to the substantive application, there is no practical utility that would be achieved in proceeding to determine the appeal.
[22] After considering all of the circumstances we are not persuaded that it is in the interests of justice to extend time to institute the appeal. Accordingly, we dismiss the application to extend the time for the institution of the appeal.
PRESIDENT
Appearances:
T. Lange, Solicitor for Jobs Australia Ltd
Mrs D Eland was not present or represented.
Hearing details:
2014;
Melbourne;
July, 16
3 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338
4 See Transcript of proceedings at PN26-PN27 and PN30-40
5 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 (1995) 64 IR 43
7 Outline of oral submissions at [1] – [5]
8 Tzimos v Tempo Services Pty Ltd (1995) 64 IR 43, 44-5
9 c/f s. 100 of the Workplace Relations Act 1996, which by section 100 (11) provided for a right of a party, other than an organisation employing authority, to be represented by a particular class of person.
10 Eland v Childrenfirst Inc [2014] FWC 3055
11 Eland v Childrenfirst Inc [2014] FWC 3961
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