DECISION

Fair Work Act 2009
s.615 – the President may direct a Full Bench to perform function etc.

Pablo Emanuel Hirigoyen
v
Adventist Healthcare Limited
(C2021/7156)

Application to refer a matter to a Full Bench – s.615 Fair Work Act 2009 (Cth) – application refused

1 Introduction

[1] Mr Hirigoyen (the Applicant) lodged a general protections application involving dismissal on 22 October 2021 under s.365 of the Fair Work Act 2009 (FW Act).

[2] On 7 January 2021, the Applicant through his representative lodged a Form F48 Application for directions on procedure about how to refer a question of law or fact (the Question) to a Full Bench of the Fair Work Commission (Commission). Form F48 is prescribed for use where a person wishes to make an application for directions on procedure pursuant to rule 7 of the Fair Work Commission Rules 2013 (FWC Rules).

[3] In response to the Form F48 application, the Respondent contended that the application did not, in substance, go to the matter and purpose of rule 7 of the FWC Rules, and that it sought to have matters pertaining to asserted facts and contentions in the general protections application, including the lawfulness of New South Wales public health orders, addressed by a Full Bench. The Respondent said that it did not consider it appropriate that the matter be referred to the President for consideration.

[4] On 19 January 2022, Commissioner Ryan conducted a conference following which he issued a certificate under s.368(3)(a) of the FW Act. The same day, the Applicant applied to have the Questions referred to a Full Bench (the Referral Application).

[5] In the Referral Application, the Applicant seeks a ruling that that the Respondent’s chief executive officer ‘committed an Unlawful AND Unreasonable act by ‘DEMAND-DIRECTING’ non-negotiable Covid-INJECTIONS upon me that I CANNOT ACTUALY, LAWFULLY and REASONBLY COMPLY WITH and which CANNOT lawfully be imposed on anybody and/or enforced or executed by ANY Injecting Practitioner anywhere…’ (emphasis in the original).

[6] The Referral Application identifies the Question to be determined by the Full Bench as follows (emphasis in the original):

‘…the Question of fact or Law requiring to be ruled upon by the FWC Full Bench therefore, is: That any employer therefore, consequently, committed an Unlawful and Unreasonable act by ‘DEMAND-DIRECTING’ non-negotiable Covid-INJECTIONS upon ANY employee that the employee CANNOT ACTUALLY, LAWFULLY and REASONABLY COMPLY WITH; and which CANNOT lawfully be imposed on anybody and/or enforced or executed by ANY Injecting Practitioner anywhere; under the following prevailing and lawfully binding conditions:

c. Forced leave and threatened non-negotiable employment termination by an employer (unless accepting Covid Injections), are DIRECT extreme draconian threat acts of undue pressure, coercion or manipulation which are clearly prohibited by and breach the ‘Australian Immunisation Handbook Criteria for Valid Consent Criterion 2.’ Lawfully binding guideline and,

d. Under ‘The Australian Immunisation Handbook Criteria for Valid Consent Criterion 2.’, no Injecting Practitioner MAY COVID-INJECT ‘ANYBODY’ when they present for Covid-Injections under ANY threats of undue pressure, coercion or manipulation, and specifically threats of forced leave and/or employment termination, whereby such non-negotiable threats were DIRECTLY made by any employer.’

[7] Section 615 of the FW Act states:

‘The President may direct a Full Bench to perform function etc.

(1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.
(2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.
(3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

Note: For the constitution of a Full Bench, see section 618.’

[8] It is well settled that s.615 confers a broad discretion upon the President to direct that a function or power be exercised by a Full Bench. However, while that power is broad, it does not mean that the President can direct a Full Bench to perform a function or exercise a power outside the Commission’s jurisdiction. For the reason set out below, I have concluded that the Commission does not have the jurisdiction to determine the Question posed.

The Commission’s role in dealing with general protections disputes involving dismissal

[9] The FW Act limits how the Commission may deal with general protections applications involving dismissal. Section 368 of the FW Act confers non-determinative powers on the Commission to deal with general protections dismissal disputes. Section 368(1) provides that if an application is made to the Commission under s.365, the Commission must deal with the dispute, other than by arbitration. The note to s.368(1) says that the Commission may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.

[10] The Commission has no general power to determine issues in relation to a general protections dispute. It does have jurisdiction to arbitrate, that is, to hear and make a binding determination, if the preconditions in s.369(1) are satisfied. These require that:

● the Commission has issued a certificate pursuant to s.368(3) of the FW Act (FW Act, s.369(1)(a)). The issue of such a certificate is also a precondition to the applicant making a general protections court application (FW Act, s.370),
● the parties to the dispute must have notified the Commission that they agree to the Commission arbitrating the dispute (FW Act, s.369(1)(b)). This requires both the applicant and respondent’s consent,
● the notification must comply with the Commission’s procedural rules and be given to the Commission within 14 days after the day the certificate was issued, or within such period as the Commission allows (FW Act, s.369(1)(c)), and
● the provisions in the FW Act preventing multiple applications must not apply (FW Act, s.369(1)(d)).

[11] In this matter, the Respondent has not notified the Commission that it agrees to it arbitrating the dispute. In the absence of both parties’ consent to arbitration, the Commission has no jurisdiction to continue dealing with the application.

Conclusion

[12] For the reasons given I am not persuaded that it is appropriate to refer the Question to a Full Bench. Accordingly, I dismiss the Referral Application.

[13] There is one final matter. In the Referral Application, the Applicant’s representative stated:

‘We presume, (and require your guidance here), that this application before you, keeps the unresolved matter lawfully enlivened, and that your decision to refer the matter to the FWC Full Bench if exceeding the 14 day limit to make a general protections court application to the Federal Court of Australia for a civil remedy order; then this delay as a matter of Procedural Fairness: does NOT remove our right to the Federal Court civil remedy if your decision extends beyond the 14 day limit’.

[14] The Applicant should make no such assumption. It is a matter for the Court to determine whether it will allow a general protections court application outside the 14-day time limit specified in s.370 of the FW Act.

PRESIDENT

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