[2015] FWCFB 2679


Fair Work Act 2009

s.604 - Appeal of decisions

Patrick Projects Pty Ltd


SYDNEY, 4 MAY 2015

Appeal against decision [2015] FWC 1221 of Commissioner Williams at Perth on 20 February 2015 in matter number U2014/7097 - permission to appeal granted - appeal upheld.

[1] This is an appeal by Mr Daniel King (the Appellant) against a decision 1 (Decision) of Commissioner Williams in relation to the granting of permission for Patricks Project Pty Ltd (the Respondent) to be legally represented in an application that the Appellant made under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for what he contended was an unfair dismissal.


[2] On 4 March 2015, the Appellant made an application to the Fair Work Commission (FWC) pursuant to s.604 of the Act seeking a stay of the Decision of the Commissioner to grant the Respondent legal representation in the substantive proceedings before the parties.

[3] On 6 March 2015, the matter was listed for directions before Vice President Catanzariti in relation to the application for a stay only. During the directions hearing and by consent, the stay hearing due to take place the following week was vacated and the matter was relisted as an expedited appeal hearing before this Full Bench on the question of whether the Respondent should be granted legal representation pursuant to s.596 of the Act.

[4] At the directions hearing on 6 March 2015, Mr Fletcher of K&L Gates sought permission to appear on behalf of the Respondent. Having regard to s.596 of the Act, permission to appear was granted on the basis that it would enable to matter to be dealt with more efficiently. We note that the Appellant objected to this at the commencement of the appeal hearing. However, we find that there will be no prejudice to the parties if the Respondent is represented for the appeal on this narrow issue only.

Relevant Legislative Provisions

[5] Section 604 of the FW Act provides:

[6] Section 596 of the Act provides as follows:

Permission to Appeal

[7] Before turning the merits of the appeal, we must make a finding pursuant to s.604(1) of the Act which requires the permission of the Commission in order to appeal a decision made by the Commission. In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 2 In GlaxoSmithKline Australia Pty Ltd v Colin Makin3 a Full Bench of the Commission identified some of the considerations that may attract the public interest:

In all the circumstances of this matter, we consider that substantial injustice to the Appellant may result if leave is refused. We find that this enlivens the public interest and for that reason permission to appeal is granted.

Decision at first instance

[8] After considering s.596(2) of the act, the Commissioner made the following findings on the issue of the Respondent’s request to be represented:

[9] And further:

The Appeal

[10] The sole issue on appeal is whether the Commissioner made an error in exercising his discretion pursuant to s.596 to grant the Respondent the ability to be represented by a lawyer.

[11] The Respondent submitted that no error was made as the grant of permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)). The Respondent submitted that the matter has been made complex through the actions of the Appellant which have resulted in volumes of documents and the agitation of multiple legal issues which do not go to the question that needs to be determined in an unfair dismissal hearing.

[12] The Appellant objected to permission being granted on the grounds that there are no unduly complex issues raised in the application and that having regard to the size and resources of the Respondent, it would unfair if the Respondent were granted permission in circumstances where the Appellant is unrepresented.


[13] It is well established that in order to exercise the discretion available to the Commission to grant permission to be represented, one of the conditions in s.596(2) must be met. Such conditions having been met does not make representation automatic but still requires the exercise of discretion on the part of the Commission.

[14] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in In Warrell v Walton 4:


[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined. 5

[16] The Respondent seeks to assert that this matter is complex because of the high volume of documents and wide range of issues in the Appellant’s statement some of which are irrelevant to the issue of unfair dismissal.

[17] We do not find that this matter is one that can be characterised as complex. The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s.(596)(2)(a) of the Act.

Fairness to the parties

[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. 6 In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings. As such, the findings of the Commissioner were not open to him on the evidence.


[20] We find that the Commissioner erred in exercising his discretion to grant the Respondent legal representation, having regard to the objects of the Act and the proper application of s.596(2).

[21] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld in full.

(3) The Commissioner’s Decision in King v Patrick Projects Pty Ltd [2015] FWC 1221 is quashed.

(4) The Appellant’s unfair dismissal application in matter U2014/7097 is remitted to Senior Deputy President Drake who will make arrangements directly with the parties for the matter to be relisted for hearing.

al of the Fair Work Commission with Vice President Catanzariti's signature



P. King in Person.

D. Fletcher for the Respondent.

Hearing details:

Sydney via video-link to Perth.

31 March 2015.

 1   King v Patrick Projects Pty Ltd [2015] FWC 1221.

 2   Fair Work Act 2009, s.400(1).

 3   [2010] FWAFB 5343 at [27].

 4   [2013] FCA 291.

 5   [2012] FWA 1789 at [8]

 6   Asciano Services Pty Ltd v Zac Hadfield [2015] FWCFB 2618 at [19]; Oratis v Melbourne Business School [2014] FWC 2838; Decision upheld by the Full Bench in Oratis v Melbourne Business School [2014] FWCFB 3869.

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