[2018] FWCFB 94 [Note: An application relating to this matter has been filed in the Federal Court - Refer to the Federal Court decision of 21 December 2018 for the result of this matter.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.604—Appeal of decision

Nick Belan
v
National Union of Workers-New South Wales Branch
(C2017/6091)

DEPUTY PRESIDENT GOOLEY
DEPUTY PRESIDENT ANDERSON
COMMISSIONER BOOTH

MELBOURNE, 5 JANUARY 2018

Appeal against [2016] FWC 8538 & [2017] FWC 5027 of Deputy President Dean at Sydney on 29 November 2016 and 19 October 2017 and of Justice Ross on 11 November 2016 in matter number U2016/7463- whether Commission is a court for purposes of Royal Commissions Act 1902 – permission to appeal granted on that question - Commission not a court – admission of evidence not in error – non-referral of question to full bench not in error – exercise of discretion did not miscarry – appeal dismissed

[1] This is an appeal by Mr Nick Belan against a decision by Deputy President Dean of the Fair Work Commission on 19 October 2017 to dismiss his application for an unfair dismissal remedy (the Merits Decision)1.

[2] The grounds of appeal2 include grounds which assert error in the Merits Decision and in two related decisions of the Commission made in the course of determining the substantive application:

1. An interlocutory decision by Deputy President Dean on 18 November 2016 during Mr Belan’s proceedings for an unfair dismissal remedy to permit the Respondent employer, the National Union of Workers (the NUW), to rely on evidence given by Mr Belan to a Royal Commission (the Admissibility Decision)3; and

2. A decision by the Commission President (Justice Ross) on 11 November 2016 to not refer to a Full Bench the question whether evidence given to a Royal Commission is admissible in proceedings before the Commission (the Non-Referral Decision)4.

[3] Rules made under the Fair Work Act 2009 (the FW Act) require appeals against decisions of the Commission to be lodged within 21 days.5 The appeal against the Merits Decision (which includes the earlier related decisions) was lodged within the time allowed by the FW Act. In practice, this is an appeal which calls into question three related decisions of the Commission. We are satisfied that both the Admissibility Decision and the Non-Referral Decision were decisions of a procedural nature made in the overall determination of Mr Belan’s application for an unfair dismissal remedy so as to enable a challenge to them to be included in the grounds of a competent appeal following the Merits Decision. It follows from the well-established principle that appeals from interlocutory decisions are usually discouraged as they may unnecessarily delay the efficient determination of a matter, 6 such that once a final decision on a matter is delivered then an appeal from that decision may also include grounds relating to interlocutory decisions made in the course of those proceedings.

[4] Sections 604 and 400 of the FW Act apply to this appeal.

[5] An appeal under section 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.7 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[6] Section 400 of the FW Act provides as follows:

“(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[7] We are satisfied that section 400 applies to all three decisions the subject of this appeal. The Merits Decision self-evidently is a decision made under Part 3-2 of the FW Act. The Admissibility Decision was the exercise of a discretion to not exclude certain material from the body of evidence before the Deputy President. The discretion to admit or not admit evidence or material in proceedings under Part 3-2 is a power provided for in Part 5-1 of the FW Act, and in particular sections 590 and 591. The Non-Referral Decision was a decision by the President to not exercise a discretion to issue directions under sections 582 and 615A of the FW Act to refer a matter to a Full Bench. Those provisions also fall within Part 5-1 of the FW Act. Both of these were decisions of a procedural nature in proceedings under part 3-2 exercising the general powers of the Commission in Part 5-1. Such decisions are decisions in matters under Chapter 3 Part 3-2 and thus decisions “under this Part” within the meaning of section 400(1). 8

[8] The task of assessing whether the public interest requirement referred to in section 400(1) has been met is a discretionary one, which has been held to involve a broad value judgement.9 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:10

“…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 ...” 

[9] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under section 400 of the Act as “a stringent one”.11

[10] 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.12 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.13 

[11] Where permission is granted, a decision which is discretionary in nature can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. It is not open for a full bench sitting on an appeal to substitute its view on matters that fell for determination before the Member in the absence of error of an appealable nature in the Member’s original decision. As the High Court said in House v The King:14 

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[12] A hearing of the request for permission to appeal and of the appeal was conducted concurrently on 1 December 2017.

[13] At the hearing we granted permission under section 596 of the FW Act for both Mr Belan and the NUW to be represented by a lawyer on the grounds of efficiency and complexity having regard to the long history of the matter and the issues of law raised by the appeal.

The Substantive Application

[14] The substantive application before the Deputy President was an application by Mr Belan under section 394 of the FW Act for a remedy in respect of his dismissal by the NUW on 16 May 2016. He claimed that his dismissal was harsh, unjust and unreasonable. He sought reinstatement to the position of Organiser.

[15] The NUW opposed the application. It claimed it had dismissed Mr Belan for serious misconduct being alleged misappropriation of funds of the Union by misuse of a union credit card. It considered this to be a valid reason for dismissal. It argued the dismissal was neither harsh, unjust nor unreasonable.

The Merits Decision

[16] In determining whether the dismissal was harsh, unjust or unreasonable the Deputy President considered the matters specified in section 387 of the FW Act.15 She found the reason for dismissal advanced by the NUW (serious misconduct) to have been established, that it constituted a valid reason for dismissal,16 that procedural fairness had been afforded to Mr Belan17 and that factors he claimed in mitigation did not render the dismissal harsh, unjust or unreasonable.18

[17] The evidence on which the Deputy President found serious misconduct was an admission made by Mr Belan in evidence given on 5 November 2015 to the Royal Commission into Trade Union Governance and Corruption (the Royal Commission). Based on the findings of the Royal Commission, the Deputy President found that the admission was that he (Mr Belan) had made personal purchases using his union credit card for which he did not reimburse the NUW.19 The Deputy President characterised this admission as misconduct in the form of financial impropriety.20

[18] The Deputy President concluded that it was reasonable for the NUW to act on the admission particularly in light of Mr Belan’s non-engagement for medical reasons with a ‘show-cause’ disciplinary process.21 She rejected Mr Belan’s evidence which sought to ‘correct’ his evidence to the Royal Commission.22 She also rejected the assertion that Mr Belan had been unfit to give evidence before the Royal Commission or that the admission was untrue23 or that his admission should not be relied upon because it was said to be ‘vague’.24

[19] In making these findings and drawing these conclusions the Deputy President relied, in part, on the evidence and findings of the Royal Commission and also, in part, on the direct evidence before her. This included evidence from Mr Belan and from his brother (Mr Derrick Belan) who had formerly been NSW State Secretary of the NUW. It also included NUW witnesses Mr Cartwright (the NSW State Secretary) and Mr Mendonca (the NSW Assistant Secretary). She preferred the evidence of the NUW witnesses to that of Mr Belan or his brother.25 In making findings on credibility the Deputy President relied, in part, on the Royal Commission findings including adverse findings of the Royal Commission concerning the credibility of Mr Belan and Mr Derrick Belan.

[20] It is apparent from this summary of the Deputy President’s decision that it relied heavily upon the evidence and findings of the Royal Commission and in particular the admission made by Mr Belan in his evidence to the Royal Commission. It is to be noted that the NUW’s decision to dismiss Mr Belan also relied in part on those admissions.26

[21] During proceedings before the Deputy President Mr Belan sought to exclude the use of evidence given before the Royal Commission and any documents that derived from that evidence. The grounds asserted were that the Commission is a “court” and that section 6DD of the Royal Commissions Act 1902 (the Royal Commissions Act) precludes evidence before a Royal Commission from being admitted in civil or criminal proceedings in a court. It was also argued that in the exercise of the Deputy President’s discretion the evidence should not be admitted. On 29 November 2016, the Deputy President delivered a decision on these questions.27 In the Admissibility Decision, she dismissed the application to exclude the evidence. She concluded that the Commission is not a “court” within the meaning of the Royal Commissions Act. In the exercise of her discretion she concluded that the admission of the evidence would not be unfairly prejudicial.

[22] Mr Belan also sought to have the question of whether the Commission is a “court” for the purposes of the Royal Commissions Act referred to a full bench of the Commission under section 615A of the FW Act. On 11 November 2016 the President of the Commission, Justice Ross, declined to grant the referral concluding that he was not satisfied that it was in the public interest to do so.28

The Grounds of Appeal

[23] Multiple grounds are advanced by Mr Belan for his request for permission to appeal and for the grant of his appeal.

[24] On the issue of permission, Mr Belan contends that it is the public interest to determine questions of importance being whether employers can rely on admissions made by employees in Royal Commissions when deciding matters of alleged misconduct, and for employees to know whether incriminating evidence given by them to Royal Commissions can be used to their detriment in proceedings before the Commission.29 More generally, it is said that important questions about different approaches by courts and tribunals to the right against self-incrimination should be resolved.30

[25] On the grounds of appeal it is contended that the Deputy President fell into multiple errors. Principal amongst them is the contention that it was error to admit and rely on evidence given to the Royal Commission; to construe Mr Belan’s admission as evidence of misconduct; to find a valid reason for dismissal; to not find that Mr Belan was authorised to use the credit card in the manner it was used; to find that procedural fairness was afforded to Mr Belan; and to not find that the dismissal was harsh.

Consideration

[26] The request for permission to appeal and the appeal itself rests heavily on whether the Deputy President was correct in admitting into evidence the admission Mr Belan made to the Royal Commission.

[27] It is that admission which was the principal basis on which the Deputy President found that serious misconduct had been committed and that a valid reason for dismissal existed.

[28] We consider the question whether oral or documentary evidence produced before a Royal Commission can be admitted into evidence in proceedings before the Commission and relied upon in making findings to be a question of importance that warrants the grant of permission to appeal. We grant permission with respect to those grounds of appeal (grounds 1, 1A and 2 of the Amended Notice of Appeal).

[29] For reasons set out below, we do not consider that an arguable case of error exists with respect to the remaining grounds of appeal (grounds 3 to 14) and the exercise of discretion by the Deputy President in relation to those matters so as to warrant permission.

[30] Nor do we consider the Non-Referral Decision by Justice Ross to not refer the admissibility issue to a full bench to be attended with an arguable case of error (ground 1B). We refuse permission to appeal with respect to that decision.

Is the Commission a “court”?

[31] The Deputy President dealt with this question in the Admissibility Decision of 29 November 2016.31 The Deputy President expressed her decision in the following terms (references omitted):32

“[4] In relation to the first argument, that being whether the Fair Work Commission is a court for the purposes of s6DD of the Royal Commissions Act, I find that this Commission is not a court for the following reasons. The first sentence of s6DD(1) is in the following terms:

“The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory.”

[emphasis added]

[5] The Royal Commissions Act does not define a court. There is acceptance by the Applicant that the Fair Work Commission is not a Chapter 3 court and the Boilermakers case which has been discussed today makes it clear that the Fair Work Commission does not, and cannot, exercise judicial power. The Fair Work Commission exercises arbitral power only.

[6] To the extent that the question of whether the Fair Work Commission is a court for the purposes of the Corporations Act has been considered, I prefer the decision of the Full Bench of the Fair Work Commission in Smith v Trollope Silverwood & Beck Pty Ltd. I note in particular at paragraph 142, which is referred to in the Respondent’s submissions, the court there said:

“If the legislature had intended to make proceedings in the Commission subject to the leave requirement, it would have done so by express provision. An example of this is a provision that may be found in section 2 of the Suitors’ Fund Act which defines ‘court’ in these words, ‘Includes such tribunals or other bodies as are prescribed.’”

[7] There is no reason, in my view, that the use of the word ‘court’ in s6DD should be given anything other than its ordinary meaning. I agree with the Respondent’s submissions that if it were the intention of the legislature to extend the protections of s6DD to proceedings before tribunals such as this Commission, it would have done so explicitly.

[8] The Applicant has referred to some State bodies such as the New South Wales Administrative Decisions Tribunal and argues that s6DD was clearly intended to cover proceedings in those tribunals. States, however, are not bound by the Boilermakers’ principle. Consequently, there are State bodies or tribunals that may be vested with judicial functions. This again is not the case here and so these decisions, in my view, can be distinguished.

[9] If follows then, and I so find, that s6DD will not operate to exclude the admission of the evidence in question.”

[32] On appeal Mr Belan contended that the privilege against self-incrimination is so fundamental as to warrant an interpretation of section 6DD of the Royal Commissions Act that would prevent such admissions made to a Royal Commission from being used by the Commission when deciding whether a valid reason for dismissal existed.

[33] Whatever the policy reasons for the privilege against self-incrimination, this question is to be decided by considering the relevant provisions of the Royal Commissions Act. As this is a question of construction, this full bench is in as good a position as the Deputy President to make a decision on that matter.

[34] Section 6DD(1) of the Royal Commissions Act provides as follows:

“The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

[35] We accept, as a matter of principle, the proposition that where a statute abrogates the privilege against self-incrimination and confers compensatory protection, a technical or narrow approach to construction should not be adopted having regard to the importance of that privilege.33 However, in establishing a legislative framework for the conduct of Royal Commissions it is the legislature that ultimately decides the extent to which that privilege should or should not extend more broadly.

[36] Counsel for Mr Belan at first instance and on appeal relied on a decision of the Equity Division of the Supreme Court of New South Wales in Brian Rochford Ltd v Textile Clothing and Footwear Union (NSW)34 which found that the NSW Industrial Relations Commission was a court for the purposes of the Corporations Law. However, that case is not authority for a broad proposition that industrial tribunals are courts. As Austin J noted, there are no conclusive, generally-applicable criteria for classifying a body as a court, and the answer in each case depends on the particular statutory question to be decided and a close consideration of the statutory constitution and functions of the body in question.35 That decision turned on a construction of the Corporations Law (as it then was) and the then Industrial Relations Act 1996 (NSW). In contrast, this matter turns on the construction of different instruments, namely the Royal Commissions Act and the FW Act. Each legislative enactment has its own specific features. It would be unsafe to rely on the decision of Austin J for a broader proposition than that which it decided.

[37] The question of whether the Australian Industrial Relations Commission (the predecessor to the Fair Work Commission) was a court for the purposes of the Corporations Act 2001 was considered by a full bench of the Commission in GW Smith and Others v Trollope Silverwood & Beck Pty Ltd (In Liquidation).36 As Deputy President Dean noted, the full bench in that matter observed:37

“If the legislature had intended to make proceedings in the Commission subject to the leave requirement, it would have done so by express provision. An example of this is a provision that may be found in section 2 of the Suitors’ Fund Act which defines ‘court’ in these words, ‘Includes such tribunals or other bodies as are prescribed.’”

[38] That full bench of the Commission also noted the long line of authority since the Boilermakers Case38 that the predecessors to the Fair Work Commission do not and cannot exercise judicial power.

[39] We consider the decision in GW Smith and Others v Trollope Silverwood & Beck Pty Ltd (In Liquidation) to continue to be sound law in the context of the provisions of the FW Act. The Commission is primarily concerned with what rights there should be rather than what rights exist. It does not exercise judicial power. It does not have power to enforce its decisions or orders. It exercises powers (amongst others) of conciliation, of arbitration, of facilitation and of mediation with respect to a broad range of industrial and workplace matters.39 Its functions include a promotional function concerning co-operative and productive workplaces.40 It conducts hearings in multiple forms, including by conference.41 It is not bound by the rules of evidence,42 though as a matter of practice has regard to them. Aspects of its jurisdiction involve only the regulation of future conduct, not existing or past rights.43 Certain of its powers are able to be delegated to persons who are not statutory office holders.44 Others are exercisable only by an expert panel.45 Legal practitioners or paid agents can only appear with permission.46 It has mandatory research and review functions.47 None of its powers are those of a court and it is not referenced as a court in either the FW Act or in associated legislation.

[40] We recognise that there are a number of characteristics of the Commission which are compatible with the character of courts. These include its orders having legal effect,48 powers concerning the giving of evidence,49 offences for interfering in its proceedings,50 Members holding office until age 65 with only limited grounds for removal,51 remuneration of Members set independently,52 limits on outside employment by Members53 and the President having the status of a judge.54 However, merely possessing certain characteristics compatible with a court does not make a body a court if other characteristics exist which do not support such a conclusion when the overall nature, functions, powers and construct of the body is considered as a whole.

[41] Nor do we identify any particular feature of the Royal Commissions Act which would lend us to conclude that the Commission is a court.

[42] Taking into account these factors, in all the circumstances we do not consider the Commission to be a “court” within the meaning of section 6DD of the Royal Commissions Act.

[43] Given this conclusion it follows that no statutory bar is created by the Royal Commissions Act to the admission of evidence given before the Royal Commission in proceedings before the Commission. Grounds of appeal 1, 1A and 2 are not made out.

[44] The Deputy President proceeded to determine, in the exercise of her discretion, whether to admit the evidence given by Mr Belan to the Royal Commission. She observed as follows:

“In my view, evidence is not unfairly prejudicial merely because it tends to damage the case of one party or because it supports the case of their opponents.”55

[45] We agree with the Deputy President’s observation. The Deputy President took into account relevant facts and submissions concerning alleged prejudice and weighed them against countervailing considerations. She concluded that there was no compelling basis to exclude the evidence.56 Her decision was the exercise of a value judgment akin to the exercise of a discretion. It does not manifest an arguable case of appealable error.

Other grounds of appeal

[46] Counsel for Mr Belan advanced other grounds of appeal beyond the admissibility of the admission to the Royal Commission.

[47] It was contended that the Deputy President erred in construing Mr Belan’s admission as evidence of misconduct. The Deputy President dealt with this issue at [182] of the Merits Decision:

“[182] Further, I reject the interpretation of the admission in the way put forward by Mr Belan’s counsel, that being that the admission was not an admission to misappropriation of funds but rather a vague and uncertain admission regarding unauthorised personal use of the credit card that was contrary to other evidence given by Mr Belan elsewhere in the TURC transcript. Again, the admission in my view was clear. It was not ‘vague and uncertain’ as argued by Mr Belan.”

[48] The admission made by Mr Belan in his evidence before the Royal Commission was brought into evidence thorough the witness statement of Mr Cartwright. It was extracted by the Deputy President at [91] of the Merits Decision:

“[91] Mr Cartwright’s statement set out an extract of the evidence given by Mr Belan under oath before the TURC, as recorded in the transcript. The extract which is set out below contains what was referred to as the ‘admission(s)’ made by Mr Belan:

Q. Did you sometimes, sitting there today –

A. Yes.

Q. -- under oath or affirmation—

A. Yes.

Q. -- make personal purchases union using your Union credit card that you did not reimburse the Union for?

A. I’d say one or two, yes. A couple, yes.

Q. Why did you do that?

A. I have no - no reason for doing that.

Q. Are you able to identify which ones or can you recall which ones?

A. No.

Q. Was it more than a couple?

A. I would say it wouldn’t be too many, yes.

Q. It wouldn’t be too many?

A. No. It might be a couple, so a few may be. I couldn’t—

Q. A few?

A. At best.

Q. So more than 10, less than 10?

A. I would say no more than 10, no.

Q. It could be as many as 10?

A. No, I would say - I’d have said up to a few at best.” 

[49] Having regard to this evidence we do not consider that the Deputy President misconstrued the admission. It was not vague and uncertain. It related to specific conduct on which findings could be made. There is no arguable case of appealable error.

[50] The grounds of appeal also contend that the Deputy President erred in finding a valid reason for dismissal. Having admitted the admission into evidence, and having taken evidence on the matter and made findings concerning credibility, it was reasonably open to the Deputy President to conclude, as she did, that Mr Belan’s conduct was “incompatible with this duty and in my view was destructive of the necessary confidence between the NUW and Mr Belan, as discussed in Blyth Chemicals. His failure to meet his duty in this regard provides a further valid reason for Mr Belan’s dismissal.”57

[51] It was further contended on appeal that the Deputy President erred in not finding that Mr Belan was authorised to use the credit card in the manner it was used. The Deputy President considered this submission at first instance in the light of the evidence before her and her findings on that evidence and on the credibility of witnesses.58 She provided reasons for her findings on this question. There is no substantive basis on which it could be contended that the Deputy President had failed to take into account relevant evidence, had taken into account irrelevant evidence or had misconstrued relevant evidence. Appealable error on matters concerning the Deputy President’s fact-finding can only arise if a significant error of fact is established on appeal.59 The Deputy President made no such error in this regard.

[52] The Appellant also contended that the Deputy President erred in finding that procedural fairness was afforded Mr Belan. It was said that because the employer relied on the admission to the Royal Commission rather than conducting its own independent investigation into Mr Belan’s conduct it had failed to act fairly. Associated with this ground of appeal is the related contention that the Deputy President erred in not finding that his medical certificate provided a sufficient explanation for his non-attendance at the Show Cause meeting. These submissions fail to take into account the evidence as a whole concerning the employer’s conduct. The NUW gave Mr Belan an opportunity to respond to a Show Cause Notice prior to the decision to dismiss being made, including an initial deferral of a decision at his request based on a medical certificate. The Deputy President took these factors into account and made relevant findings of fact based on the conduct of the parties and the credibility of witnesses.60 We identify no error in the approach taken or the conclusion reached that the process undertaken by the NUW was “fair and reasonable”.61

[53] The Appellant further contended that the Deputy President erred in not finding, in all the circumstances, that the dismissal was harsh. We do not agree. This submission was made at first instance and taken into account by the Deputy President. She took into account mitigating circumstances such as the lack of appropriate financial controls by the NUW, that its systems were open to gross abuse, Mr Belan’s length of service, financial hardship caused by the dismissal and his evidence as to a repayment plan.62 She concluded that “none of these circumstances outweigh or excuse the seriousness of Mr Belan’s conduct”.63 This conclusion was reasonably open to the Deputy President. We find no error in this regard.

Conclusion

[54] Having granted permission to appeal on grounds 1, 1A and 2 of the Amended Notice of Appeal concerning the Admissibility Decision we conclude that the Deputy President was not in error in finding that the Commission is not a court for the purposes of the Royal Commissions Act.

[55] Nor do we conclude that the Deputy President erred in exercising her discretion to admit evidence and documents of a Royal Commission into proceedings before her.

[56] We refuse permission to appeal with respect to ground 1B of the Amended Notice of Appeal having concluded that there is no arguable case of error in the decision of Justice Ross to not refer the question of admissibility to a full bench of the Commission.

[57] We refuse permission to appeal with respect to grounds 3 to 14 of the Amended Notice of Appeal having identified no arguable case of error with respect to the Merits Decision.

[58] The appeal is dismissed.

DEPUTY PRESIDENT

Appearances:

P. Lowson of Counsel for the Appellant

J. Nolan of Counsel for the Respondent

Hearing details:

2017.
Melbourne:

1 December.

Printed by authority of the Commonwealth Government Printer

<PR599292>

1 [2017] FWC 5027

2 Notice of Appeal 7 November 2017 and Amended Notice of Appeal 16 November 2017

3 [2016] FWC 8538

4 [2016] FWC 8125

5 Rule 56 Fair Work Commission Rules

 6   Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 citing Finance Sector Union of Australia v Comsec Trading Limited and others [PR945431] 6 April 2004

7 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 8   Asciano Services v Hadfield [2015] FWCFB 2618 and Australian Postal Corporation v Gorman [2011] FCA 975 cited with approval in King and Others v Patrick Projects Pty Ltd [2016] FWCFB 2069 at [37]

9 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Gaudron, Brennan, Dawson, Toohey JJ; applied in Hogan v Hinch (2011) 243 CLR 506, [69] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, [44]-[46]

10 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [27]

11 (2011) 192 FCR 78; 207 IR 177 at [43]

12 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]

13 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [27]; Lawrence v Coal & Allied Mining Services Pty Limited, T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28]

14 [1936] 55 CLR 499

15 Merits Decision at [165] – [224]

16 Ibid at [192]

17 Ibid at [214]

18 Ibid at [224] – [225]

19 Ibid at [175]

20 Ibid at [176]

21 Ibid at [177]

22 Ibid at [60] – [61], [178]

23 Ibid at [178] – [179]

24 Ibid at [182]

25 Ibid at [157] – [160]

26 Ibid at [24], [30], [32]

27 [2016] FWC 8538

28 [2016] FWC 8125

29 Amended Notice of Appeal 3.1 paragraphs 1, 1A and 2

30 Ibid paragraphs 3 and 4

31 [2016] FWC 8538

32 Ibid at [4] – [9]

33 R v Hood (1997) 91 A Crim R 526 per Smart J

34 (1998) 47 NSWLR 47 per Austin J

35 Ibid at page 62

36 (2004) 54 AILR 100-33 per Guidice P, Ross VP and Whelan C 17 November 2003

37 Admissibility Decision at [6]

38 (1957) 95 CLR 529

39 Section 576 FW Act

40 Section 576(2)(aa)

41 Section 592 and (for example, in relation to unfair dismissal matters) section 398

42 Section 591

43 For example, the anti-bullying jurisdiction (section 789FF)

44 Section 625

45 Section 620 (annual wage review)

46 Section 596

47 Section 653

48 Section 675

49 Sections 677, 678

50 Sections 674, 676

51 Section 629

52 Section 637

53 Section 637

54 Section 629A

55 Admissibility Decision at [10]

56 Ibid

57 Merits Decision at [192]. The reference to Blyth Chemicals in this passage is a reference to Blyth Chemicals Ltd v Bushnell (1993) 49 CLR 66 cited by the Deputy President at [167]

58 Ibid at [156], [193] – [195]

59 Section 400(2) FW Act

60 Merits Decision at [177], [187], [196] – [214]

61 Ibid at [201]

62 Ibid at [221] – [223]

63 Ibid at [224]