[2015] FWCFB 2618

The attached document replaces the document previously issued with the above code on 21 April 2015.

The document has been edited to correct a typographical error in paragraph [7] by replacing the word “then” with the word “than”.

Catherine Taylor

Associate to Vice President Hatcher.

Dated 28 April 2015

[2015] FWCFB 2618
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.604 - Appeal of decisions

Asciano Services Pty Ltd
v
Zak Hadfield
(C2015/2331)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT LAWRENCE



SYDNEY, 21 APRIL 2015

Appeal against an unpublished decision of Commissioner Riordan at Sydney on 25 March 2015 in matter number U2014/15137 - refusal of respondent to have legal representation.

Introduction

[1] Asciano Services Pty Ltd (the Appellant) has filed a notice of appeal under s.604 of the Fair Work Act 2009 (FW Act) in which it seeks permission to appeal and appeals an unpublished decision of Commissioner Riordan issued on 25 March 2015 (Decision). In that Decision the Commissioner refused an application made by the Appellant pursuant to s.596 of the FW Act to be represented by a lawyer in unfair dismissal proceedings. The Appellant seeks that permission to appeal be granted, the Decision be set aside and the Full Bench order that the Appellant be granted permission to be represented by lawyers.

Background

[2] The underlying matter before the Commission relates to an application made by Mr Zak Hadfield (the Respondent) for an unfair dismissal remedy against the Appellant. On 27 February 2015 the Appellant filed submissions in support of an application pursuant to s.596 that it be represented by a lawyer and on 3 March 2015 the Respondent’s representative, the Australian Rail, Tram, and Bus Industry Union (RTBU) filed submissions objecting to the Appellant being represented by a lawyer. Supplementary submissions were filed by both parties on 5 March 2015 and in response to the Commissioner’s request for further information the Appellant filed additional submissions on 11 March 2015.

The Decision

[3] The Decision the subject of this appeal was in the form of a letter to the parties. We set it out here in full:

Submissions

Appellant’s submissions

[4] In its submissions in support of its application for permission to appeal, the Appellant advanced four propositions:

[5] The Appellant submitted that permission to appeal should be granted because the appeal raises important questions regarding the exercise of jurisdiction by the Commission in applications under s.596, the determination of applications in the absence of an evidentiary basis and the appropriate balancing of interests where an applicant is represented by an industrial organisation.

Respondent’s submissions

[6] The Respondent submitted that the Appellant could effectively represent itself using its own qualified personnel and that the matter is not so complex that it requires external legal representation. The Respondent further submitted that the Appellant is a large organisation with significant resources and a sophisticated Human Resources department and furthermore that “the basis of the provision in s.596(2) of the Act was to put everyone on an equal footing”. Finally, the Respondent submitted that the Commissioner did not err in his application of the FW Act and that the Decision should not be overturned.

Application for intervention

[7] The New South Wales Bar Association sought leave to intervene in these proceedings submitting that it has an interest beyond that of an ordinary member of the public in ensuring that the requirements imposed by s.596(2) are properly taken into account. We have decided to refuse the application because we are not satisfied that the appeal gives rise to any issue of principle or general application in which the Bar Association has a legitimate interest. The submissions the Bar Association intended to advance did no more than agitate for an outcome based on the particular facts of the case and in that respect essentially did no more than echo the case of the Appellant.

Consideration

[8] 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. 2 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.

[9] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act:

[10] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.

[11] The Decision here was one made under s.596, which is not located in Part 3-2, but in relation to an unfair dismissal remedy application made under Part 3-2. A question arose whether in that circumstance s.400(1) applies. In Australian Postal Corporation v Gorman 3 the Federal Court (Besanko J) gave consideration as to whether, in an appeal from an order dismissing an unfair dismissal application under s.587 of the FW Act, s.400(1) applied. The Court said:

[12] The Court’s conclusion above suggests that s.400(1) also applies to this appeal. We shall approach the appeal on that basis. However we will also state the conclusion we would reach if s.400(1) did not apply.

[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 The public interest is not satisfied simply by the identification of error, or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

[14] 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. 7

[15] 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. 8 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9

[16] The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies. 10

[17] Section 596 of the FW Act provides:

[18] The interpretation of s.596 was the subject of consideration in the decision of the Federal Court (Flick J) of Warrell v Walton 11:

[19] We are not satisfied that it is in the public interest that permission to appeal be granted. Nor do we consider that, if s.400(1) does not apply, there are discretionary grounds justifying the grant of permission. We have reached this conclusion for the following reasons:

[20] Two other relevant observations may be made. The first is that it is unclear whether Mr Hadfield’s unfair dismissal remedy application is to be dealt with in a determinative conference under s.398 or a formal hearing under s.399. The more informal procedures of a determinative conference may be more appropriate for a self-represented litigant such as the Appellant, and it remains open for the Appellant to apply to the Commissioner to have the matter dealt with in this way. The second is that, in the event that there is some relevant change in the circumstances of the case that might affect the applicability of the s.596(2) criteria - for example, some complex legal issue arises, or there remains a problem with the availability of relevant internal personnel - then the Appellant is not barred from making a fresh application for permission to be represented by lawyers.

Conclusion

[21] Permission to appeal is refused.

al of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT

Appearances:

Y. Shariff of counsel with P. Almond solicitor for Asciano Services Pty Ltd.

K. Pryor, J. Epps and J. Curley from the Australian Rail, Tram, and Bus Industry Union for Z. Hadfield.

R. Kenzie QC and D. Mahendra of counsel for the New South Wales Bar Association.

Hearing details:

2015.

Sydney:

April 17.

 1   (1936) 55 CLR 499

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

 3   [2011] FCA 975

 4   O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44]-[46]

 5   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388, affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663

 6   [2010] FWAFB 5343 at [27], (2010) 197 IR 266

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

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

 9   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 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 [2014] FWCFB 1663 at [28]

 10   See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.

 11   [2013] FCA 291

 12   [2014] FWCFB 1663

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