[2012] FWAFB 6832 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE |
SYDNEY, 15 AUGUST 2012 |
Appeal against decision refusing permission to appear - no public interest.
[1] This decision arises from an application for leave to appeal and an appeal from a decision of Deputy President Bartel 1 to refuse permission for a solicitor, Mr Martin, to appear in an application pursuant to s394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. That application is set down for hearing before Deputy President Bartel in Adelaide on 12, 13 and 14 September 2012. Mr Martin had sought to represent Carter Holt Harvey Wood Products Australia Proprietary Limited (Carter Holt Harvey).
[2] We heard the appeal in Melbourne by video link on Tuesday, 7 August 2012. Mr Short, solicitor of Minter Ellison solicitors, represented the appellant Carter Holt Harvey and Mr Hardie represented the Australian Manufacturing Workers’ Union (AMWU). We heard Mr Short, but did not call upon Mr Hardie. Following an adjournment at the conclusion of the hearing we announced our decision to refuse permission to appeal. Our reasons for that decision are set out below.
[3] The principles applicable to this appeal are:
“[13] An appeal under s.604 of the Act is an appeal by way of rehearing and the Tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from a decision made under Part 3.2 unless the Tribunal considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s.400(2)).
[14] Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally (compare s.604(2) and s.400).” 2
[4] Although the grounds of appeal were set out more expansively in the appeal documents and submissions, shortly summarised by Mr Short they were that Full Bench guidance was required concerning the operation of s.596 of the Act, that the application of the decision of Deputy President Bartel would result in an injustice, that the decision was counter intuitive and that the principles as applied were disharmonious with other decisions of the Tribunal. We did not consider that Mr Short’s submission that the Deputy President erred in finding that the matter could be dealt with efficiently by legally qualified officers of the appellant appearing, rather than that it could be dealt with more efficiently as contemplated by s.596(2)(a), to be persuasive.
[5] Various decisions of other Members of the Tribunal where a different conclusion had been reached in a variety of circumstances with some similarity to those before Deputy President Bartel were brought to the attention of the Full Bench. Those decisions were decided on the facts peculiar to each application and were not of any assistance to this Bench.
[6] We considered the submissions made by Mr Short. We were satisfied that Deputy President Bartel had considered all of those matters to which she was required to direct her attention by s.596 of the Act. We were not persuaded that there was any appellable error in the decision under appeal nor were we persuaded that there was any reason to grant permission to appeal in the public interest.
[7] For these reasons permission to appeal was refused.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr Short of Minter Ellison for Carter Holt Harvey
Mr Hardie for the Australian Manufacturing Workers’ Union
Hearing details:
2012
August 7
Melbourne/Adelaide by video link
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