DECISION

Fair Work Act 2009
s.615A - Application for the President to direct a Full Bench to perform a function

Saeid Khayam
v
Navitas English Pty Ltd t/a Navitas English
(U2016/8466)

Referral to a Full Bench - ss 394, 615A and 615 Fair Work Act 2009 (Cth) - application refused.

[1] The Independent Education Union (IEU), on behalf of Mr Khayam (the Applicant), has applied for a direction pursuant to s.615A of the Fair Work Act 2009 (Cth) (the ‘FW Act’) that a matter be referred to a Full Bench of the Commission. The matter to which the referral application relates is an unfair dismissal application lodged by the Applicant on 20 July 2016 pursuant to s.394 of the FW Act.

[2] The Applicant was a teacher employed with Navitas English Pty Ltd (the Respondent) since November 2005. The facts surrounding the alleged termination of employment are in dispute. The Applicant alleges he was employed as a casual teacher under a series of contracts described as ‘fixed term’ and that on 31 May 2016, he was verbally informed that his employment contract would not be renewed on the grounds of performance issues, inflexibility and a lack of interpersonal skills.

[3] The Respondent raised a jurisdictional objection and contends that the Applicant was not ‘terminated on the employer’s initiative’ within the meaning of s.386(1)(a), but rather his employment came to an end by reason of the expiration of his ‘outer limit’ or ‘fixed term’ employment contact. In support of the jurisdictional objection the Respondent relies on the Full Bench decisions in Department of Justice v Lunn 1 (‘Lunn’) and Drummond v Canberra Institute of Technology2(‘Drummond’).

[4] The Applicant seeks a direction, pursuant to s.615A, that a Full Bench hear and determine the Respondent’s jurisdictional objection.

[5] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

[6] In Collinsville Coal Operations Pty Limited, 3 I set out the considerations relevant to the determination of such applications, as follows:

‘[5] The issue for determination is whether I am satisfied that it is in the public interest to refer the agreement approval application to a Full Bench. The expression 'in the public interest', when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. [O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ]

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under s 615A.

[7] Section 577 provides as follows:

“The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’.

[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.’

[7] Similar observations were made in Lend Lease Building Pty Ltd and others 4 and Metropolitan Fire & Emergency Services Board.5

[8] In the present proceeding, the Applicant advanced four broad propositions in support of the contention that it is in the public interest to refer the jurisdictional objection to a Full Bench:

(i) The questions of law raised in the proceedings are of significance to proceedings brought under Part 3-2 of the FW Act, in particular, in relation to the proper approach to be adopted by the Commission in determining whether there has been a termination of employment on the employer's initiative in circumstances in which an employer has been employed on a series of fixed-term or outer limit contracts.

(ii) The issues raised by the jurisdictional objection will necessarily require consideration of the correctness and applicability of the decisions in Lunn and Drummond.

(iii) There is disagreement between members of the Commission in first instance decisions as to the proper application of s 386 of the FW Act in circumstances of an employee engaged under a series of fixed-term or outer limit contracts. Whilst a series of decisions have applied the approach in Lunn, the correctness of that approach has been doubted in at least two first instance decisions: Papalia v Co.As.lt. - Italian Assistance Association (‘Papalia’) 6 and Jin v Sydney Trains7 (‘Jin’).

(iv) The determination of the jurisdictional objection by a Full Bench will permit the expeditious ultimate determination of the unfair dismissal proceedings consistent with the Commission's obligations under s 577 of the FW Act and the best use of the resources of the parties and the Commission. The jurisdictional objection, if correct, is fatal to application and it is undesirable for proceedings to be subject of a hearing at first instance and on appeal where it is capable of being determined initially by the Full Bench.

[9] The Respondent opposes the referral of the jurisdictional objection to a Full Bench and submits that there is no public interest in granting the application.

[10] I accept that the jurisdictional objection in the substantive matter raises important questions as to the application of Lunn in the context of the current legislative framework. I note the observations of Vice President Hatcher in Jin and Commissioner Roe in Papalia, where both members have questioned the extent to which the principle in Lunn may accord with the current provisions of the FW Act. Such considerations tend to favour granting the referral application.

[11] Three matters tend against granting the referral. First, there is a factual dispute which is relevant to the determination of the jurisdictional objection – the scope of that factual dispute is itself a matter of contention between the parties. Efficiency considerations favour the determination of the disputed facts by a single Member at first instance. In any subsequent appeal the Full Bench will have the benefit of the Member’s determination of the factual matrix.

[12] Second, the referral application only relates to the Respondent’s jurisdictional objection. In the event that the objection was dismissed, the merits of the Applicant’s unfair dismissal application would then be referred to a single member for determination. Such a bifurcated process is likely to lead to delay and additional costs to the parties.

[13] Finally, this is not a case where there are inconsistent first instance or Full Bench decisions in relation to the central issue in dispute. As Vice President Hatcher observed in Jin, ‘Lunn is a Full Bench authority which has become well entrenched in the Commission’s jurisprudence under the FW Act’. 8 As I observed in Gee v Tasmanian Ports Corporation Pty Ltd,9 s.615A ‘is not intended to provide a mechanism to review Full Bench decisions in order to produce a favourable outcome for a party dissatisfied with a particular authority’.10

[14] I have considered all these matters and on balance have concluded that it is not in the public interest to refer the jurisdictional objection to a Full Bench. As I am not satisfied that it is in the public interest to refer the jurisdictional objection to a Full Bench, the s.615A application must be dismissed.

[15] In the alternative to the s.615A referral application, the Applicant submits that the Respondent’s jurisdictional objection should be referred to a Full Bench pursuant to s.615 of the FW Act. Section 615(1) provides that:

‘A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.’

[16] For the reasons given I am not persuaded that it is appropriate to refer the Respondent’s jurisdictional objection to a Full Bench. Accordingly, I dismiss the Applicant’s alternative application.

PRESIDENT

Appearances:

M. Gibian for the Applicant

D. Mahendra for the Respondent

Hearing details:

2016.

Melbourne.

December 1.

 1   (2006) 158 IR 410

 2   (2010) 197 IR 287

 3   [2014] FWC 3129

 4   [2014] FWC 5026 at paragraphs [5]-[8]

 5   [2014] FWC 2498 at paragraphs [8]-[13]

 6   [2013] FWC 7996

 7   [2015] FWC 4248

 8   [2015] FWC 4248 at paragraph [81]

 9   [2016] FWC 6710

 10   Ibid at paragraph [13]

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