| [2015] FWCFB 3502 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
SYDNEY, 5 JUNE 2015 |
Appeal against decision made in chambers by Vice President Watson regarding permission to appear on 11 May 2015 in matter number U2014/16160.
Introduction
[1] The appellant in this matter, Ms Pearljit Singh, lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) on 24 December 2014. The application concerned Ms Singh’s summary dismissal from her employment with Metro Trains Melbourne (respondent) on the basis of allegations that she had engaged in serious misconduct by attempting to conceal and misappropriate lost property and had failed to comply with her employer’s Lost Property Procedure and Code of Conduct. Her application was listed for a determinative conference before Vice President Watson on 22 May 2015.
[2] As a preliminary matter, Vice President Watson conducted a telephone conference on 11 May 2015 in which he heard and determined an application by the respondent for permission to be legally represented at the determinative conference. His decision, communicated ex tempore during the telephone conference, was that the permission sought should be granted (Decision). It is apparent that reasons were given for the Decision, but the telephone conference was not recorded and the reasons have not been published.
[3] On 13 May 2015 Ms Singh lodged a notice of appeal against the Decision. In that notice of appeal Ms Singh applied for an expedited hearing on the basis that her unfair dismissal remedy application was the subject of a determinative conference on 22 May 2015. She also sought a stay of the decision the subject of the appeal. For those reasons her appeal was set down for hearing on 21 May 2015 as part of the permission to appeal list previously scheduled for that day.
[4] On 21 May 2015 this Full Bench, having heard the parties’ submissions, determined that because the determinative conference before Vice President Watson was due to take place the following day, it would issue its decision that day and give its reasons for that decision at a later time. Our decision, issued ex tempore, was that permission to appeal was refused. We now provide reasons for that decision.
Consideration
[5] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 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.
[6] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
[7] 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.
[8] 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. In Asciano Services Pty Ltd v Hadfield 2, which was an appeal from a decision to refuse permission for legal representation under s.596, the Full Bench determined that it would approach the matter on the basis that s.400(1) applied, but that it would also state the conclusion it would reach if s.400(1) did not apply. In taking this approach, the Full Bench relied upon the decision of the Federal Court (Besanko J) in Australian Postal Corporation v Gorman.3 In that matter, judicial review was sought of an appeal decision of a Full Bench of this Commission which quashed the decision of a single member to dismiss an unfair dismissal remedy application under s.587 (which provision is likewise not located in Part 3-2 of the FW Act). In that context, the question arose as to whether the Full Bench was required to apply s.400(1) to the appeal. Besanko J said:
“[37] ... It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first respondent’s application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.”
[9] We have likewise taken the approach that s.400(1) applies to Ms Singh’s appeal. However, we will also take the step of stating what conclusion we would reach if s.400(1) did not apply.
[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400(1) as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[11] 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. 7 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.8
[12] The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not commonly 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. 9
[13] Section 596 of the FW Act 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.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
…
[14] The granting of permission under s.596 involves a two-step process. 10 The first is that there must be satisfaction that at least one of the criteria in s.596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of a discretion”.11 The second is that the discretion conferred by s.596(2) must be exercised in favour of the applicant for permission. Accordingly in respect of either step it will not be sufficient for an appellant to invite the Full Bench simply to substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified in House v The King.12
[15] The parties to the appeal both informed us that Vice President Watson granted permission under s.596 on the basis that the criterion in s.596(2)(a) was satisfied. Ms Singh’s appeal challenged his conclusion in this respect on five grounds which we summarise as follows:
[16] Having considered those matters, and the elaboration upon them by Ms Singh in her oral submissions, we were not satisfied that it was in the public interest to grant permission to appeal for the following reasons:
(1) No issue of importance or general application was identified, nor do we consider that the Decision was disharmonious with other recent decisions made under s.596 or that there is a diversity of decisions at first instance concerning legal representation requiring guidance at the appellate level. The fact that, in different cases, different outcomes have prevailed is not of itself indicative of disharmony or diversity since the determination of whether any of the criteria in s.596(2) is satisfied will depend on the particular circumstances of each case.
(2) Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied. 13 But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.
(3) In any event, we do not consider that Ms Singh demonstrated any error in Vice President Watson’s consideration of the complexity of the matter. Having been allocated the matter and having the entire file before him, Vice President Watson was better placed than us to make the required assessment concerning complexity. We were not taken to the evidentiary material that has been filed in the matter, and consequently we were not in any position to conclude that there was a lack of complexity about the matter which forbade the conclusion that s.596(2)(a) was satisfied.
(4) We do not consider that any manifest injustice or unfairness arises from the Decision. Having seen and heard Ms Singh during the appeal hearing, it is apparent to us that she is a person capable of articulating her case. We do not consider there is any basis for the proposition that the respondent’s legal representative would take any unfair advantage of the situation. In any event were that to occur, or if Ms Singh had any difficulty in understanding any legal question which arose, there would no doubt be an appropriate intervention from the bench. Further, Ms Singh’s unfair dismissal remedy application was to be dealt with at a determinative conference rather than a formal hearing. The greater procedural informality of such a conference would significantly ameliorate any disadvantage perceived by Ms Singh.
(5) We reject as without foundation the suggestion that the respondent’s legal representative misled Vice President Watson about any factual matter such as to vitiate the Decision.
[17] If s.400(1) did not apply to the appeal, we would nonetheless have refused permission to appeal for the same reasons.
Conclusion
[18] We refused Ms Singh permission to appeal for the reasons set out above.
VICE PRESIDENT
Appearances:
P. Singh on her own behalf.
C. Broadbent solicitor for Metro Trains Melbourne.
Hearing details:
2015.
Sydney:
21 May.
1 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 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.
10 Warrell v Walton (2013) 223 IR 335 at [24]
11 Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]
12 (1936) 55 CLR 499 at 505
13 See Edwards v Giudice (1999) 94 FCR 561 at [5] per Moore J; King v Freshmore (Vic) Pty Ltd Print S4213 at [19]-[23].
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