DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Sarabjeet Pal
v
Commonwealth of Australia represented by the Department of Home Affairs
(C2019/5608)

Appeal against decision [2019] FWC 5821 of Deputy President Clancy at Melbourne on 21 August 2019 in matter number U2019/2397.

[1] Mr Sarabjeet Pal has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Clancy issued on 21 August 2019 1 (decision). The decision concerned Mr Pal’s application for an unfair dismissal remedy against the Commonwealth of Australia, for which Mr Pal performed work as an interpreter in the Department of Home Affairs. The Deputy President dismissed the application on the basis that Mr Pal was not a person protected from unfair dismissal because he had not been an employee of the Commonwealth.

[2] Section 390(1)(a) of the Fair Work Act 2009 (FW Act) requires that the Commission must be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy. The definition in s 382 of when a person is “protected from unfair dismissal” includes (in paragraph (a)) a requirement that the person be “an employee”. “Employee” in that provision means a “a national system employee” (s 380), which expression is defined by s 13 to mean, relevantly “…an individual so far as he or she is employed, or usually employed … by a national system employer…”. Section 14 defines “national system employee”, and the definition includes (in paragraph (1)(a)) “the Commonwealth, so far as it employs, or usually employs, an individual.”

[3] The employment of persons by the Commonwealth of Australia is governed by the Public Service Act 1999 (Cth) (PS Act). Section 6(1) of the PS Act provides:

6 Engagement of employees in Department or Executive Agency

(1) All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.

(2) Subsection (1) does not apply to persons engaged on an honorary basis.

(3) This section does not, by implication, affect any power that an Agency Head might otherwise have to engage persons as independent contractors.

[4] Section 22 of the PS Act, in general terms, authorises “Agency Heads” (i.e. Departmental Secretaries or Heads of Executive or Statutory Agencies 2) on behalf of the Commonwealth to engage persons as employees for the purposes of the agency either as an ongoing “APS employee”, for a specified term or for the duration of a specified task, or for duties that are irregular or intermittent.

[5] Mr Pal has provided interpreting services to the Department of Home Affairs or its departmental predecessors since 1991. He gave evidence before the Deputy President that when he performed telephone interpreting services, he was paid $10.00 for each block of 15 minutes, and for on-site jobs he was paid $79 for a standard 1.5 hour period inclusive of travel time and parking. He was also paid superannuation. He was not required to provide an Australian Business Number (ABN), but in fact had one. He did not have to charge and remit GST because he was below the income threshold.

[6] Mr Pal’s engagement terminated effective from 18 February 2019 following an allegation that he had misconducted himself in the course of providing his services. Before and after the termination, Mr Pal was performing interpreting work for other non-Commonwealth agencies. Immediately before the time of the cessation of his engagement as an interpreter, Mr Pal was engaged pursuant to a “Deed of Standing Offer” (Deed). The Deed was executed on 11 May 2015. It had an initial expiry date of 31 December, but the Department exercised its option in the Deed to extend the term by letter on a number of occasions, most recently until 30 June 2020. The Deed (in Recital D and clause 7) provides in substance that Mr Pal was not an employee by virtue of the Deed and had no entitlement to payment for annual leave, public holidays, sick leave, long service leave, redundancy or any other entitlements afforded to employees either by statute, award or common law. The Deed also provides that Mr Pal (the “Service Provider”) acknowledges that there is no guarantee or assurance of any or any particular volume of services to be performed (Recital B) and that Mr Pal must maintain public liability, professional indemnity, workers’ compensation and travel insurance unless the Department, at its discretion, arranges for it and meets its expense (clause 11.2).

[7] Mr Pal contended in his unfair dismissal remedy application that he had been forced to resign from his employment with the Commonwealth as a result of an unfounded allegation of misconduct, and that this constituted an unfair dismissal. The Commonwealth contended in response that the application was not within the Commission’s jurisdiction under Pt 3-2 of the FW Act because, firstly, Mr Pal was not a person protected from unfair dismissal because he had never been an employee of the Commonwealth and, secondly, he had not in any event been dismissed.

[8] Pursuant to directions made by the Deputy President, written submissions and statements of evidence were filed by Mr Pal and the Commonwealth both in relation to the jurisdictional objections and the merits of the matter. The Deputy President conducted a hearing in relation to the Commonwealth’s jurisdictional objections on 17 June 2019. The following day, Mr Pal sent an email to the Deputy President’s chambers stating that the process leading up to the hearing had caused him stress and he was subject to medications for a range of ailments, and that he requested the opportunity to “clarify and elaborate a few points”. The Deputy President thereupon allowed Mr Pal to file a further written submission on or before 28 June 2019, and Mr Pal accordingly filed a further written submission on 24 June 2019.

The decision

[9] It is convenient to set out in full the reasoning and conclusion of the Deputy President as follows (footnotes omitted):

“[35] Applying the principle from Director-General of Education v Suttling ([1987] HCA 3, 162 CLR 427) for there to have been an engagement by the Department of Mr Pal as an employee, it had to have been consistent with s.6 of the PS Act. Section 6 provides that all persons engaged on behalf of the Commonwealth must be engaged either under the PS Act or under the authority of another Act. As far as the PS Act is concerned, there is nothing to suggest Mr Pal was an employee engaged by an Agency Head, on behalf of the Commonwealth, pursuant to s.22. Further, there is nothing before me to suggest the Department had authority under another Act to engage Mr Pal as an employee. In short, there was no evidence of Mr Pal having been engaged as an employee of the Commonwealth pursuant to a written contract of employment coming within the scope of s.6 of the PS Act. I am therefore satisfied that in this case, the Department did not exercise the statutory power of engagement pursuant to s.6 of the PS Act and note that Mr Pal acknowledged he does not have a document from the Commonwealth that describes him as an employee.

[36] Noting that s.6(3) of the PS Act also empowers the Department to engage persons as independent contractors, I am satisfied, having reviewed the terms of the Deed of Standing Offer, that this is what occurred in Mr Pal’s case despite his assertions to the contrary. The Deed of Standing Offer stated in express terms that the relationship between Mr Pal and the Commonwealth (through the Department) was not one of employment. Additionally, in executing the Deed of Standing Offer, Mr Pal specifically acknowledged that he was a Service Provider and not an employee. Further, Mr Pal agreed to the Department having the right to extend the Deed of Standing Offer at its discretion. I am satisfied that Mr Pal agreed to be bound by the terms of the Deed of Standing Offer, having signed it in the presence of a witness on 11 May 2015, and the Department’s right to extend it was validly exercised in the manner outlined above at [32]–[33]. Despite Mr Pal’s assertions, the Deed of Standing Offer did not require the parties to initial each of its pages and nor was there a requirement for it to be attached to any Notice of extension.

[37] I do not accept the proposition advanced by Mr Pal that the way in which the Deed of Standing Offer operated in practice made him an employee. Recognising in this case the Commonwealth does not concede that Mr Pal was an employee at common law, the following passage from Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth ([2005] FCAFC 204, 145 FCR 277) is nonetheless apposite:

‘The fact that subsequent "operational" factors such as the method of work and performance would have the hypothetical effect at common law that Mr Arends was an employee does not mean that he was in employment by authority of a law of the Commonwealth, particularly in circumstances where the instrument under which the contract was made was specific in stating that the contract did not effect employment.  His own belief as to his status is not relevant.’

[38] Consistent with the conclusion of the Full Court in Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth, having concluded that there is no evidence that Mr Pal was engaged as an employee either under the PS Act or the authority of another Act, and that he was instead engaged under a contract which specifically stated the relationship between him and the Department was not one of employment, it is not necessary for me to assess whether the terms of the Deed of Standing Offer did or did not meet the common law indicia of an employment relationship.

[39] As such, having been persuaded Mr Pal was not engaged as an employee under the PS Act, Mr Pal cannot have been an employee of the Department and therefore does not come within the definition of a national system employee. This being the case, Mr Pal was not an employee to whom Part 3-2 of Chapter 3 of the Act applies and was therefore not a person protected from unfair dismissal.”

Appeal grounds and submissions

[10] Mr Pal, who was self-represented, did not include any clearly formulated grounds of appeal in his notice of appeal; instead he appended a lengthy document which made a variety of complaints about both the conduct of the proceedings before the Deputy President and the decision. As best we can, we summarise the main propositions in this document as follows:

(1) It was not possible for Mr Pal, who did not have legal representation, to address the materials and give his prepared evidence in the time allowed.

(2) The Deputy President erred “in asking me to stand in the witness box to examine the respondent's lawyer instead of the key witnesses Ms Masri and Ms Fremme”. Mr Pal was denied the right to examine the key witnesses.

(3) The Deputy President was wrong in not asking Mr Pal to examine another of the Department’s witnesses, Ms Perova.

(4) The decision that Mr Pal was not an employee was “incomplete in the absence of any law (not the department's assertion) precisely stating that my true role has been correctly classified as an 'independent contractor”.

(5) The Deputy President erred in not referring the Federal Court Full Court decision in ACE Insurance Limited v Trifunovski. 3

(6) The evidence demonstrated that he was not allowed to solicit, share or delegate work, was not required to submit invoices, was paid a rate set by the Commonwealth which was not negotiable, was paid superannuation, had PAYG taxation deducted from his remuneration each fortnight, and had no control over the conduct of any particular job, and was provided with group certificates. He therefore could not be characterised as an independent contractor.

(7) The Deputy President erred in not examining whether the Deed was illegal in that it was “illegal as it was deceptively drawn to deprive me of my fundamental rights and entitlements and under pay me”.

(8) The Deputy President erred in not considering the merits of Mr Pal’s application.

(9) The Department was permitted to have a lawyer present at the conciliation of Mr Pal’s application.

(10) The Deputy President erred in restricting, controlling and directing Mr Pal’s cross-examination of witnesses.

(11) The onus was on the Department to establish that Mr Pal was not an independent contractor.

(12) The Deed constituted an exercise in sham contracting.

(13) The above matters meant that the grant of permission to appeal would be in the public interest.

[11] Mr Pal did not make any written submissions in support of his appeal, although much of the document appended to his notice of appeal was in the nature of a submission. He made limited oral submissions at the hearing of his appeal, much of which was not pertinent to the jurisdictional issue the subject of the decision.

Consideration

[12] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:

(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.

(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.

[13] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁴ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 5

[14] 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.⁶ 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.⁷

[15] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 8 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[16] In this matter we are not satisfied that the grant of permission to appeal would be in the public interest because we do not consider that the document appended to Mr Pal’s notice of appeal (which constitutes the only material before us which articulates the basis of the appeal) discloses any reasonably arguable case of appealable error. The matters raised in that document, which we have attempted to summarise above, may be grouped into two categories: matters 1, 2, 3, 8, 9 and 10 may be characterised as complaints by Mr Pal that he was not afforded procedural fairness, while matters 4, 5, 6, 7, 11 and 12 pertain to the Deputy President’s substantive finding that Mr Pal was not an employee for the purpose of Pt 3-2 of the FW Act and thus was not a person protected from unfair dismissal.

[17] In relation to the procedural matters, we have perused the record of proceedings before the Deputy President, including the transcript of the hearing conducted on 17 June 2019. We cannot identify any arguable instance of procedural unfairness, as alleged by Mr Pal. The hearing was to a degree conducted in an inquisitorial fashion, but it is apparent that this was necessary because of Mr Pal’s understandable lack of knowledge concerning both legal and substantive matters. Mr Pal was not prevented from cross-examining any witness or improperly restricted in doing so. The only witness called by the Commonwealth was Ms Rhodora Masri, the Manager Interpreter Liaison, Translating and Interpreting Service in the Department. Mr Pal cross-examined her for a relatively short period, and the cross-examination ended when Mr Pal indicated that he had finished. The Deputy President intervened in the cross-examination only for the purpose of ensuring that Mr Pal confined himself to asking questions rather than arguing with the witness. Mr Pal gave evidence, and because he was self-represented it necessarily fell to the Deputy President to examine him. Mr Pal made an oral submission after the completion of the evidence, which to a significant degree diverted into the merits of his case or extraneous matters. Mr Pal’s submission ended when he stated that he was finished, and at no point during the hearing did he indicate that he had insufficient time to say what he wanted to say, nor did he ask to be given more time. As recounted earlier, Mr Pal requested an opportunity to make a further submission after the hearing ended, and he was afforded that opportunity. The procedural matters raised by Mr Pal simply have no substance.

[18] As to the substantive matters, we have earlier set out in full the Deputy President’s reasons for his conclusion that Mr Pal was not an employee. The first proposition stated in the decision was that there was no basis to conclude that Mr Pal was employed by the Department on behalf of the Commonwealth in exercise of the power contained in s 22 of the PS Act or that the Department had the power to engage Mr Pal under any other Act. The correctness of this proposition was not in terms challenged by Mr Pal, and in any event it is indubitably correct. The terms of the Deed contradict any notion that the Department had an intention to engage Mr Pal as an employee pursuant to s 22 of the PS Act. That being the case, the relevant effect of s 6(1) of the PS Act was that there was no lawful basis upon which Mr Pal could be an employee of the Commonwealth.

[19] The proposition that, notwithstanding the terms of the PS Act, a worker who is engaged by the Commonwealth on a basis which is consistent with the incidents of an employment relationship at common law may be an employee within the meaning of Pt 3-2 of the FW Act has a degree of superficial attraction. However, as stated in the decision, that proposition was effectively disposed of in the Federal Court Full Court decision in Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth 9 in the passage from that decision10 quoted by the Deputy President. To this might be added the following statement concerning public service employment made by Brennan J (with whom Mason ACJ and Deane J agreed) in Director-General of Education v Suttling:11 

“If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v. Commissioner for Railways (N.S.W.) [1951] HCA 50; (1951) 83 CLR 521, at p 527.”

[20] The matters raised by Mr Pal concerning the Deputy President’s conclusion that he was not an employee are incapable of altering the legal position as we have described it. There is no utility in considering them further.

[21] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the FW Act.

VICE PRESIDENT

Appearances:

S Pal on his own behalf.

P McNulty, solicitor, on behalf of the Department of Home Affairs.

Hearing details:

2019.
Sydney:
12 November.

Printed by authority of the Commonwealth Government Printer

<PR716445>

 1   [2019] FWC 5821

 2   As defined in s 7 of the PS Act

 3   [2013] FCAFC 3

4 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 5   [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

6 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

7 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 8   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 9   [2005] FCAFC 204, 145 FCR 277, 145 IR 418

 10   Ibid at [42]

 11   [1987] HCA 3, 162 CLR 427 at 437-438