DECISION 

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Application by Mr Jeffrey Vassallo
(C2020/6254)

Application to vary or revoke a FWC decision – objection to jurisdiction of Fair Work Commission to hear application – proceedings alleged to be frivolous, vexatious and abuse of process – proceedings vexatious, groundless and an abuse of process – section 587 enlivened – application dismissed.

[1] On 10 August 2020, Mr Jeffrey Vassallo (Applicant) made an application pursuant to section 603 of the Fair Work Act 2009 (Act) to vary or revoke the decision of the Fair Work Commission (Commission) as presently constituted in Jeffery Vassallo v Easitag Pty Ltd t/a Easitag [2017] FWC 5961 (Original Decision).

[2] On 12 August 2020, the Applicant filed an amended application (Application). For completeness, I have set out both the relief sought and the grounds identified in the application below:

“Decision and order [2017] FWC 5961 relevant to C2017/227 and C2017/6484 be revoked and /or extinguished . In the alternative, a re hearing granted”.

…

“1. s 47 of the Fair Work Act 2009 (Cth)

The Respondent is a manufacturer and /or vendor of electronic products (EAS systems)

The Respondent (and the Applicant) were not covered under the EECCIA 2010 modern award.

Clause 4.2 (b) , 4.3 of the Award expressly excludes coverage of the Respondent and the Applicant from this Award.

AIRCFB 345 Decision titled “Award Modernisation” Point 92, provides for the exclusion of the Respondent and the Applicant from the EECCIA 2010 modern Award.

The Respondent and the Applicant were covered under the modern award being the Manufacturing and Associated Industries and Occupations Award 2010.

The Applicant was classified under the incorrect award.

2. The Respondent contravened s 678 of the Fair Work Act 2009(Cth).

The Respondent’s sworn witness statement made under the Oaths Act, knowingly, intentionally and deliberately annexed documents that were fabricated (never existed), and documents that were altered from their original state with the sole purpose of misleading and deceiving the FWC.

The Respondent, orally under oath affirmed such fabricated documents.

The proceedings was not fair and not just.

The above contraventions “tainted” the hearing and as such the Decision and order ought be revoked and/or extinguished.

3. The particulars of the above to be provided in due course.”

[3] On 27 August 2020, at the mention hearing before me Easitag Pty Ltd (Respondent) raised a jurisdictional objection. Following the mention hearing, directions were issued by my chambers for the filling of material and was set down for a hearing on 22 October 2020.

[4] On 22 October 2020, the parties agreed that the objections advanced by the Respondent, pursuant to section 587, were linked to the merits of the Application and that both matters should be dealt with together. Directions were issued later that day providing parties with a further opportunity to make written submissions and for the Applicant to provide additional evidence.

[5] On 3 December 2020, a further hearing was held.

[6] Set out below are the reasons for my decision.

Permission to be represented

[7] The Respondent sought permission to be represented by a lawyer pursuant to section 596 of the Act. The Applicant opposed permission being granted. I invited both parties to make submissions on this matter.

[8] Section 596(2) of the Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter;

(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.

[9] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the Act. 1 The decision to grant permission is a two-step process. First, it must be determined if one (or more) of the requirements in section 596(2) of the Act have been met, being the circumstances in which the Commission may grant permission. Secondly, if one (or more) of the requirements have been met, it is a question of discretion as to whether permission is granted.2

[10] On the question of representation, the Respondent submitted:

•  the proceedings raise issues of law, in particular jurisdictional questions, and the interaction of various sections of the Act;

•  it would be of assistance to the Commission for legal representation to participate in the proceedings, particularly given the involvement of Counsel in related proceedings in the Federal Court of Australia; and

•  legal representation would enable the matter to be dealt with more efficiently, having regard to its complexity.

[11] On the question of representation, the Applicant submitted:

•  the matters in the proceedings are “not complex”;

•  the involvement of lawyers would cause “more complexity”;

•  most questions can be answered “yes and no” or with reference to the Act;

•  the Respondent has indicated it intends to seek orders for costs in the event that it is successful in the case which is “not in the best interests of the parties”;

•  it would be a disadvantage to the Applicant to allow the Respondent to be represented and would cause an “imbalance” in the proceedings; and

•  the Respondent has been involved in the previous proceedings and is capable of being self-represented.

[12] Having considered those matters, I determined at the mention on 27 August 2020 that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, including legal, factual and procedural background, as per section 596(2)(a) of the Act.

[13] Later on 27 August 2020, the Applicant sent an email to my chambers making further submissions in opposition to the Respondent being granted permission.

[14] On 28 August 2020, my chambers wrote to the Applicant advising him that I had considered his further submissions and my decision on permission had not changed.

Background

[15] It is of assistance at this juncture to briefly set out the history of this matter.

[16] It is uncontroversial to say that the facts relating to this matter have been the subject of extensive legal proceedings. In addition to the Application there has been:

•  a proceeding before the Commission in 2017 (C2017/227);

•  the subsequent Full Bench appeal (C2017/6484);

•  a recent application before the Commission under section 608 of the Act; and

•  proceedings in the Federal Court of Australia which, I am informed by the parties, are ongoing.

Original Decision

[17] On or around 6 May 2008, the Applicant commenced his employment with the Respondent as a Victorian Technician. 3

[18] On 13 January 2017, the Applicant made an application under section 739 of the Act to deal with a dispute under the Electronic Communications and Contracting Award 2010 (Modern Award) and its predecessor the National Electronic Communications Contracting Industry Award 1998 (Pre-modern Award).

[19] During the course of this proceeding, both parties were legally represented by Counsel and instructing solicitors.

[20] As part of these proceedings, the following matters were agreed between the parties:   

•  the matter would be resolved via consent arbitration;

•  the role of the Commission was to resolve the dispute between the parties as to whether the Applicant was a Grade 4 under the Modern Award or a Grade 10 under the Modern Award;  4

•  the Applicant’s position was initially covered by the Pre-modern Award;  5 and

•  the Applicant’s position was, at the time of the proceedings, covered by the Modern Award.  6

[21] In the Original Decision, the dispute between the parties was resolved as follows:

“In summary, when all the evidence regarding the functions and responsibilities of the role of Victorian technician have been considered and assessed against the relevant terms of the Award the answer to the issue in dispute between the parties is that the correct classification of the Applicant’s position is Electrical Worker Grade 4.”. 7

Appeal of Original Decision

[22] On 24 November 2017, the Applicant lodged a notice of appeal with respect the Original Decision pursuant to section 604 of the Act.

[23] On 24 January 2018, the Full Bench of the Commission (Gostencnik DP, Colman DP and Bissett C) dismissed the Applicant’s appeal, concluding that:

“The Commissioner’s approach to the interpretation of the Award was correct. She determined the dispute referred to her under the disputes procedure in the Award, in accordance with that term and within the scope of the parties’ consent to arbitration. We do not identify any error on the part of the Commissioner in the conduct of the proceeding or her analysis and determination of the dispute before her.” 8

Applicant’s proceedings in the Federal Court of Australia

[24] On 28 May 2018, the Applicant commenced proceedings in the Federal Court of Australia by way of application and statement of claim. Alleged in the pleadings for this matter was that, amongst other things, the Applicant had been underpaid under the Modern Award by not receiving pay rates consistent with, alternatively, an Electrical worker level 10, 7, 6, 5 or 4. 9

[25] The Respondent denied the alleged underpayments and posited that, by virtue of the Original Decision, the Applicant was estopped from pursuing these proceedings.

[26] On 23 June 2020, Kerr J handed down his judgment in Vassallo v Easitag Pty Ltd [2020] FCA 875 (Federal Court Judgment) in which he stated at [28] – [30]:

“28. Permission to appeal having been refused by the Full Bench, the outcome of the arbitration created a cause of action estoppel. Consistently with the principles articulated in Guba and TCL the Respondent was entitled, there being nothing asserted by the Applicant as to a relevant change of circumstances, to plead that estoppel to prevent the same question being re-agitated in these proceedings. In my view the Respondent is correct that permitting the same issue to be revisited is impermissible for the reasons the Chief Justice identified in Guba. The doctrine as reaffirmed in TCL exists to prevent the same issue being re-agitated in a court once finally determined in an arbitration.

29. For completeness, lest I be in error in my principal conclusion, I should record that had I not been satisfied to the requisite degree that the arbitrator did make an actual finding that the correct classification of the Applicant was Electrical Worker Grade 4, I would have concluded that there was no abuse of process in Mr Vassallo seeking to have this Court determine whether his correct classification was Electrical Worker Grade 5,6, or 7.

30. In my view had the arbitration not expressly so concluded, no issue of a wider Henderson ((1843) 3 Hare 100; 67 ER 313) or Anshun ([1981] FCA 45; 147 CLR 589) estoppel would have prevented that course. The burden of establishing that the Applicant would have been entitled to, but unreasonably had refrained from, putting those questions in issue would have been on the Respondent. Where a submission to arbitration requires a mutual rather than a unilateral act, it cannot be inferred from the mere absence of a submission that the failure to raise a particular issue for determination was the responsibility of the other party. The Respondent led no evidence, and none appears in the materials, that would enable the Court to conclude that it was Mr Vassallo who had insisted that no reference to any intermediate classifications would be included in their mutual submission to arbitration in the FWC.”

Application under section 608 of the Act

[27] For completeness, I note that on 24 September 2020, the Applicant wrote to the chambers of Ross J, President of the Commission, seeking for two questions of law to be referred to the Federal Court of Australia pursuant to section 608 of the Act. On 15 October 2020, a hearing was held at which Ross J delivered his decision on transcript dismissing the application.

Relevant Legislation

[28] The following legislation is of relevance to the current matter:

“FAIR WORK ACT 2009 - SECT 587

Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

…

FAIR WORK ACT 2009 - SECT 603

Varying and revoking the FWC's decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(c) a decision under Part 2-5 (which deals with workplace determinations);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”

[29] This decision, and my comments below, are confined to the Applicant’s Application made under section 603 and do not relate to any of the other proceedings instituted by the Applicant.

Evidence

[30] The Applicant relied on a witness statement from himself as well as the statutory declarations of Mr Mark Coleman, former National Technical Manager for the Respondent, and Mr Ziggy Plaza, former NSW and ACT Technician for the Respondent.

[31] The Respondent did not rely on any witness statements but made submissions as to the relevance and appropriate weight to be afforded to the witness statement and declarations relied on by the Applicant. I have dealt with these submissions later in my decision.

[32] No witnesses were cross-examined.

Submissions of the parties

[33] The Respondent in opposing the Application, in essence, advances the following three propositions:

(1) that the Application is frivolous, vexatious, an abuse of process and/or deficient to such an extent that it ought be dismissed;

(2) if the Commission does not agree that the Application ought be dismissed, that there are no grounds upon which it is appropriate to exercise its discretion under section 603; and

(3) in any event, while the Applicant has foreshadowed his intention to have this dispute dealt with by the Commission in relation to the Manufacturing and Associated Industries and Occupations Award 2010, the Applicant no longer has standing to make an application under section 739 of the Act to deal with this dispute as:

a. he is no longer employed by the Respondent; and

b. he has not previously filed a dispute in relation to the Manufacturing and Associated Industries and Occupations Award 2010.

As such, there is no utility in revoking the Original Decision

[34] In support of these propositions, the Respondent advances the following:

(1) the powers of the Commission are limited to “revocation and variation” and the Commission has no jurisdiction to “re-hear” the Applicant’s classification dispute under the Modern Award and Pre-modern Award. 10 If the Applicant’s application to revoke fails, the Commission is functus officio as the review process is complete and there no relief available by way of hearing;11

(2) the Applicant’s current Federal Court proceedings allege underpayment under the Modern Award which is inconsistent with:

a. the allegations made by the Applicant in the Original Decision; 12 and

b. the consent positions previously put before both the Court and the Commission.

As such, the present application is vexatious, groundless and consequently an abuse of process; 13

(1) the “only” conclusion available to the Commission is that the Application is a “collateral attack upon” the Federal Court Judgment, which has not been appealed, and as such is vexatious and an abuse of process. The Commission should not permit the Applicant to misuse its process and prejudice the Respondent by causing unnecessary cost and requiring it to litigate in numerous forums over issues that have been determined; 14

(2) the grounds set out at paragraph 1 of the Application are without substance. The Applicant has been legally advised from 2017 (in the Commission at first instance and in the Federal Court). The decision from the Award Modernisation process is not new material and existed at the time of the Original Decision and when the proceedings were instituted in the Federal Court; 15

(3) the Applicant cannot point to any new material or a mistake of fact or law in its grounds which would give rise to the Commission exercising its discretion to revoke its decisions. All this material was available to him at the time of the hearings for the Original Decision and Full Bench Decision. As a result, the Application has no reasonable prospects of success; 16

(4) upon the filing of the Applicant’s Federal Court proceedings and the Federal Court Judgment, the Commission became functus officio and the hearing of this Application is beyond jurisdiction and must be dismissed; 17

(5) the Applicant’s reliance on Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2015] FWC 5161 (Grabovsky) is misconceived; 18 and

(6) the Applicant’s submission in respect of purported misrepresentation and fabrication of evidence are “misconceived and vehemently rejected by the Respondent”. 19

[35] The Applicant advanced a number of positions in support of the Application. While I have attempted to distil and summarise these submissions below, I have had regard to the full range of the material filed in coming to my decision:

(1) with respect to the application of section 603 of the Act, the Applicant relies on Grabovsky and, in particular, the comments of Ross J that “The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise”; 20

(2) the Respondent represented in the employment contract dated 28 April 2008 that the Applicant was covered by the Pre-modern Award, which was a predecessor to the Modern Award; 21

(3) the Applicant lodged his original application pursuant to section 739 of the Act under the Modern Award by relying upon the contract of employment and the purported award coverage stemming from this document; 22

(4) the Respondent “at all times knew that it was not covered under the [Pre-Modern Award], yet continued this misrepresentation throughout the proceedings and beyond”; 23

(5) the Respondent was not covered by the Pre-modern Award as:

a. it was never an electrical contractor nor a member of the National Electrical Contractors Association pursuant to clause 7 and 7.1 of the Pre-Modern Award; 24

b. it did not have a registered office or depot in the State of Victoria pursuant to clause 7 and 7.1 of the Pre-Modern Award; 25 and

c. it was not identified in Schedule A of the Pre-Modern Award pursuant to clause 2.4 of the Pre-Modern Award; 26

(6) Mr Plaza was employed with the Respondent, approximately two weeks prior to the Applicant commencing employment, performing “an identical role to the Applicant under the same provisions of the NEECCIA 1998 Award” but was afforded higher annual salary and car allowance than the Applicant despite performing the same duties under the same standard provisions of the Pre-Modern Award; 27

(7) the Respondent’s witness statement in the initial proceedings identify the Respondent as “the manufacturer and supplier of the Easitag brand, a trademarked series of products and services related to the protection of retail shop goods from loss prevention by theft reduction. These product ranges include; Electronic Article Surveillance (EAS) systems and security tags and labels(which trigger door sensors if goods have not been paid for and processed at the point of sale), secure displays for digital mobile devices, mobile device mounting solutions, and other associated products”;

(8) the Original Decision and Full Bench Decision similarly note that the Respondent engaged in “manufacturing” and “supplies” electronic tags; 28

(9) during award modernisation, 29 the Australian Industrial Relations Commission noted the following:

“The Australian Industry Group (AiGroup) raised concerns about the possible overlap of the Electrical,Electronic and Communications Contracting Industry Award 2010 with the Manufacturing Modern Award. We think the distinction between contractors and employers in the manufacturing sector is reasonably clear. Nonetheless, we have included in cl 4.2 of the modern award and additional exclusion derived from the electrical contracting NAPSA in New South Wales. The exclusion reads:

“employers operating a business, the primary purpose of which is the manufacture and/or vending of plant and equipment in respect of those parts or divisions of the business which predominantly engage in the manufacture and/or vending of plant and equipment or the installation, assembly, refurbishment and maintenance of that plant and equipment or their employees engaged in that part or division”;

(10) the Occupational Health and Safety Act 2004 defines “plant” as including “any machinery, equipment, appliance, implement and tool… any component of any of those things; and…anything fitted, connected or related to any of those things”; 30

(11) clause 4.2(b) of the Modern Award states:

“Without limiting the generality of that exclusion, the award does not cover:

(a) employers who are manufacturers or vendors of plant or equipment in high or low tension power stations; and/or substations for the generation and/or transmission of electric power in respect of the manufacturing section of the business or their employees engaged in that section; or

(b) employers operating a business, the primary purpose of which is the manufacture and/or vending of plant and equipment or the installation, assembly, refurbishment and maintenance of that plant and equipment or their employees engaged in that part or division.”;

(12) the Applicant and Respondent were covered by the Manufacturing and Associated Industries and Occupations Award 2010; 31

(13) the Respondent has contravened section 678 of the Act in a number of ways, including through the contents of the statutory declaration of Warwick Debney (and the documents annexed to it) and evidence given by Mr Debney in the original proceedings; 32

(14) the Respondent was “not entitled to request, nor was the Applicant required to provide any AQF qualification such as an AQF diploma or AQF advanced diploma as such qualifications do not exist and neither does an Easitag Pty Ltd EBA exist” and that “such qualifications are skill standard packages only applicable to enterprises implementing structural efficiency principles and a skills based career path forming part of an enterprise bargaining agreement”;  33

(15) Electrical worker grade 4 is not a classification, it is a grade level and that “to assign a classification definition found under electrical worker grade 4 for skill stream two workers to his job specification would be inconsistent with the work performed by the Applicant and inconsistent with provisions of the award”; 34

(16) the Respondent, at paragraph 70 of its “final submissions”, asserted that the Applicant “performed work on data cabling, security systems, telecommunications and radio communications equipment and fire alarm equipment” which is “false” and a “misrepresentation”; 35 and

(17) the Commission has jurisdiction under section 603 and it is of “extreme public interest” that it exercise its power in this case. 36

[36] In addition, the Applicant made further submissions as to merits which appear to largely reiterate or expand upon the same points canvassed in his original submissions. For the sake of brevity, I have not repeated these submissions here but have regard to their content in coming to my decision.

Consideration

Objections of Respondent

[37] I turn first to consider the objections of the Respondent in this matter.

[38] For ease of reading, I have considered all of the matters raised by the Respondent under this heading, noting that some of the matters raised as “objections” are positions advanced to dismiss the Application pursuant to section 587 of the Act.

[39] The Respondent contends that this proceeding is vexatious on the basis that:

•  it is instituted with the intention of embarrassing or annoying the Respondent;

•  it has been brought for a collateral purpose;

•  it is groundless;

•  it contains material that is scandalous and embarrassing; and

•  the Application is an abuse of process.

[40] The definition of vexatious has been explored in detail in the decisions of the Commission and other Courts across Australia and need not be re-stated in great detail here. 37 The Respondent relies on the decision of Mansfield J in Rana v Commonwealth [2013] FCA 189, in particular at [42] – [43] at which his Honour stated:

“42. Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.

43. It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant’s intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.”

[41] Further, the Respondent relies on the decision of Gilmour J in Nyoni v Chee Koon Hee (No 4) [2013] FCA 948 at [100] where his Honour observed “An abuse of process can arise where the same or similar complaint is sought to be litigated in more than one court: Williams v Hunt [1905] 1 KB 512. It is an abuse of process to make a collateral attack upon an unappealed decision of the court or upon a decision which, having been appealed, has been affirmed: Stergiou v McGrail [1994] FCA 241”. It is also of assistance to consider the following observations of McHugh J in Rogers v The Queen:

“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.” 38

[42] In coming to my decision, I had regard to the following:

•  the Application is underpinned by the Applicant’s contention that he was not covered by the Modern Award and the Pre-modern Award. This submission is misconceived given that the question of Award coverage was advanced as a consent position by the parties in the original proceedings. As such, the primary position relied on by the Applicant has no foundation;

•  it is not in dispute that the Applicant currently has on foot proceedings in the Federal Court of Australia which include an extant application seeking to litigate issues which are substantially similar to those sought to be dealt with in this proceeding;

•  the Applicant initially framed the Application primarily on two grounds:

•  that his employment was not covered by the Modern Award and Pre-Modern Award; and

•  that the Original Decision was based on false or misleading material.

However, the majority of his submissions seek to agitate the findings of the Original Decision as to classification. If the Applicant was dissatisfied with the outcome in the Original Decision and the Full Bench Decision it was open to him to lodge a further appeal but he did not do so. That he now seeks to revoke the Original Decision, which was affirmed on appeal, on the basis that the decision was wrongly made, serves as a collateral attack upon the Full Bench Decision; and

•  to the extent that the Applicant asserts that the Respondent provided false or misleading information to the Commission and Applicant during the course of the original hearing, I refer to my findings at paragraphs [49] to [53].

[43] Having regard to the material before me, I am satisfied that these proceedings are an abuse of process, groundless and vexatious.

[44] Given my findings at paragraph [43] above, it is not necessary to examine the additional positions advanced by the Respondent.

Should the Application be dismissed?

[45] Given my findings above at paragraph [43], it is open to me to dismiss the Application pursuant to section 587(1)(b). Section 587(1) provides discretion in the use of the power to dismiss. In the circumstances of this case, having regard to the material before me, I consider it appropriate to dismiss the Application.

[46] However, in the event that I am wrong, I turn now to consider the substantive application.

Application to vary or revoke

[47] It is not disputed, and I am satisfied, that the Applicant has standing to seek an order under section 603.

[48] The Applicant’s argument, in essence, is that his employment with the Respondent was not covered by the Modern Award and Pre-modern Award as agreed by the parties during the proceedings for C2017/277 and that the Respondent, by virtue of false and misleading evidence, misled the Commission and the Applicant into concluding that the Modern Award and Pre-modern Award applied. The Applicant submits that it follows that the Original Decision ought to be revoked. The Respondent denies that it provided false or misleading material and submits that the Original Decision should not be revoked.

Allegations of false or misleading conduct

[49] At this juncture, it is of assistance to consider the Applicant’s submissions regarding the Respondent allegedly engaging in false and misleading conduct, namely that:

•  the Respondent engaged in conduct in contravention of section 678 of the Act; and

•  the Respondent engaged in “Other Misrepresentations” with respect to the requirement to provide “any AQF qualification”.

[50] With respect to the Applicant’s submissions as to contraventions of section 678, I note the view of the Full Bench of the Commission in King & Deeney and Others v Patrick Projects Pty Ltd:  39

“Applications under ss 678 and 677 of the Act cannot be determined by the Commission, but only by a Court of competent jurisdiction.”.

[51] I respectfully adopt the view of the Full Bench.

[52] For completeness, I note that, if the Applicant’s submissions on this issue were intended to additionally be taken as general allegations of false or misleading conduct relevant to the exercise of discretion under section 603 of the Act, I would give them little weight. In coming to this conclusion, I note the following:

(1) many of the Applicant’s allegations of false or misleading material simply highlight portions of the Respondent’s evidence, or refer to other materials including various sections of different industrial awards and other instruments, that the Applicant asserts support his conclusion that he was not covered by the Modern Award or Pre-modern Award or that he says do not sustain the finding in the Original Decision. Even if the evidence he has adduced supports this contention, this does not necessitate a conclusion that the Respondent’s evidence was false or misleading;

(2) with respect to the Applicant’s allegations that the insertion of “3TECHOFF” into his payslips is “fabricated and false” for the purposes of misleading “the Commission into concluding that the Respondent had classified the Applicant and furthermore to discredit the Applicants assertions that he had never been classified” 40 I am not satisfied that the Applicant has established this. In any event, I accept the Respondent’s submissions that in the Original Decision the Commission, as presently constituted, determined classification in accordance with the objective assessment set out in that decision; and

(3) with respect to the Applicant’s allegations that the Respondent’s Standard Operating Procedure (SOP) document is a “false document for the purpose of deceiving the Commission that a SOP existed and that such document formed a platform of “supervision” when in fact it did not”, 41 I consider that the evidence adduced by the Applicant does not sustain this contention and agree with the Respondent that “the fact that the Applicant’s submits (sic) that the SOPs were never provided does not render the document a fabrication”.42

[53] With respect to the Applicant’s submissions regarding the “Other Misrepresentations”, these submissions are not fully developed, and I am unable to make any findings in relation to these.

Statutory declarations and witness statement

[54] The Applicant has relied on the statutory declarations of Mr Coleman and Mr Plaza in support of the Application as well as his own witness statement. The Respondent objected to the contents of these declarations on the basis that:

(1) the evidence contained in them is “not relevant to the considerations of the Commission in the exercise of its discretion to set aside its decision”; 43

(2) the statutory declaration of Mr Coleman is not “contemporaneous” with these proceedings;

(3) the witnesses could have been called by the Applicant at the time of the original proceedings; 44 and

(4) the Applicant’s witness statement is, in substance, a submission.

[55] While I consider it appropriate to admit the declarations and witness statement, in the circumstances of this case, I consider their contents do little to advance the Application.

Should the order sought be granted?

[56] The Commission may vary or revoke a decision under section 603 on its own initiative or on application. Pursuant to section 603(3), the Commission’s power to vary or revoke a decision under section 603 may not be exercised in relation to certain decisions, none of which are presently relevant.

[57] In Grabovsky, Ross J made the following observations regarding the breadth of the power under section 603: 45

“[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.

[40] In the matters before me the Applicant seeks the variation of four decisions (Decisions 1, 3, 4 and 5). Application 1 seeks to vary the decision of Deputy President Booth and the subsequent appeal such that the workload dispute may be the subject of arbitration. It will be recalled that on appeal the Full Bench determined that the Deputy President had correctly interpreted the relevant clauses of the Agreement and had correctly determined that there was no power in the Commission to arbitrate with respect to the workload issue. In essence the Applicant asks that I overturn the Full Bench decision on the basis that it was wrongly decided. In addition to the original grounds of appeal the Applicant seeks to agitate two additional grounds.

[41] I am not persuaded that s.603(1) provides the requisite power to grant the relief sought. The Act establishes a process whereby a person aggrieved by a decision may appeal the decision, with the permission of the Commission (s.604). Appeals must be determined by a Full Bench (s.613). As a general proposition that where a particular procedure is designated to achieve something other procedures are impliedly excluded, as reflected in the maxim expressum facit cessare tacitum.

[42] The maxim was applied in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia 26, in which Gavan Duffy CJ and Dixon J said:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

[43] Similarly, in R v Wallis; Ex parte Employers Association of Wool Selling Brokers 27 (Wallis) Dixon J said (at 550):

“[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.”

[44] In Wallis the Court held that a section of an act that indicated the manner in which an arbitrator was to deal with a particular issue precluded the arbitrator dealing with that matter in accordance with more general procedures provided for in that act.

[45] Acceding to the Applicant’s applications would undermine the statutory appeal process and would be inconsistent with the public interest that there be finality in litigation. In my view the apparent scope of the power in s.603(1) must be construed such that it does not permit a single Member to vary or revoke an appeal decision by a Full Bench. Absent such a limitation a Member whose decision was overturned on appeal could act on their own motion (pursuant to s.603(2)(a)), or on the application of the respondent to the appeal (pursuant to s.603(2)(b)(i)), and vary or revoke the appeal decision. Such an outcome cannot have been intended by the legislature.

[46] In the event that I am wrong about the scope of the power in s.603(1) and that it is in fact broad enough to encompass a variation of the type sought, I would decline to exercise the discretion to vary the relevant decisions for the reasons expressed in paragraph [45] above.”

[58] In Esso Australia Pty Ltd v the AWU, the High Court of Australia considered the operation of section 603 and made the following observations: 46

49. …The Fair Work Commission has broad powers under s 603 of the Fair Work Act to vary or revoke orders, including power to vary or revoke orders retrospectively[44]. The very considerable breadth of the power accorded by s 603 stands in contrast to the more limited power accorded by s 602 to correct "obvious errors". Thus, although it has been said that courts should eschew the exercise of inherent power to vary an order nunc pro tunc where the variation would have the effect of altering the substantive rights of the parties[45], the statutory power accorded by s 603 is different. As was observed in George Hudson Ltd v Australian Timber Workers' Union[46] in relation to the retrospective operation of the Conciliation and Arbitration Act, the provisions of that Act were not to be read down as if confined to a prospective operation at the expense of the "great public policy" which the Act embodied, namely, that of encouraging and maintaining "industrial peace in the Commonwealth". So also, in Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW)[47], the Court held that the Conciliation Commissioner had power to vary the terms of an award that had expired (but continued in force by operation of statute). As Murphy J stated in R v Gough; Ex parte Key Meats Pty Ltd[48], it was clear that the Australian Conciliation and Arbitration Commission was entitled to vary or set aside an award provision in accordance with the Act even if its new provision operated "locally, temporarily, prospectively or retrospectively, provided the provision would have been within the scope or ambit of the original dispute". The same considerations informed this Court's decision in Re Dingjan; Ex parte Wagner[49] that the power to set aside or vary the terms of a harsh or unfair contract under ss 127A and 127B of the Industrial Relations Act could be exercised in relation to a contract that had been discharged. And the same is surely true of the Fair Work Commission's statutory power under s 603 of the Fair Work Act to vary or revoke orders relating to a proposed agreement or matters arising during the bargaining for such an agreement. To adopt and adapt the language of Kirby J in Emanuele v Australian Securities Commission[50], it may be inferred that Parliament contemplated that oversight and inadvertence would sometimes occur for which the Fair Work Commission's powers of variation and revocation under s 603 would be available[51].

50. Hence, if a document cannot be filed within the time specified in an order made by the Fair Work Commission, an application might be made for the time to be enlarged, or alternatively for the order to be revoked and a new order made allowing greater time, and, if there were good reason for the failure to file the document timeously, no doubt time would be enlarged, especially when it is appreciated that to refuse to enlarge time would preclude the possibility of protected industrial action by reason of s 413(5). Similarly, if a document were filed within time but later found not to comply with requirements imposed by the Fair Work Commission, and there was a satisfactory excuse for the failure in compliance, time in which to file a document complying with requirements might be enlarged retrospectively[52]. If, in exercise of the power conferred by s 603, an order were made by the Fair Work Commission varying or revoking a previous order with effect from a time earlier than the alleged contravention, the effect would be that there would not have been a contravention of the order. If, however, it appeared that the failure to file the document on time or to file what was required by the previous order was the result of contumaciousness or unacceptably careless disregard for the terms of the order, or if it were thought that to alter the order retrospectively would amount to an inappropriate or unfair interference with the rights of the parties, it might be expected that the Fair Work Commission would decline to exercise the power conferred by s 603 with the effect that the immunity attaching to protected industrial action would not arise.”

[59] I have considered the material of the parties in relation to this matter. While I accept that the Commission has “broad powers” under section 603, I would decline to exercise my discretion. In coming to my decision, I have had regard, in particular, to the following:

(1) for the reasons set out at paragraphs [49] to [53] above, I am not satisfied that the Applicant advanced grounds upon which I ought to conclude that the Respondent has provided false or misleading information to the Commission. On that basis, I am not satisfied that “the initial decision was based on incomplete or false information…”;

(2) during the original proceedings, while represented by Counsel and instructing solicitors, the Applicant agreed that he was covered by the Modern Award and Pre-modern Award. That he has now changed his view, some three years later, does not provide a sound basis to exercise my discretion. Further, the Applicant’s material does not disclose information that was not available to the Applicant at the time of the original hearing. As such, I consider the Application is of the kind described in Grabovsky, being a case where a “party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so”;

(3) Acceding the Application would effectively ‘bypass’ the Full Bench Decision via a decision of a single member of the Commission. Such an outcome would be contrary to the intended purpose of section 603, the Act and the hierarchy of Commonwealth Courts and Tribunals. I respectfully adopt the reasoning of Ross J in Grabovsky that “Acceding to the Applicant’s applications would undermine the statutory appeal process and would be inconsistent with the public interest that there be finality in litigation”; and

(4) to revoke the Original Decision would constitute an “inappropriate or unfair interference with the rights of the parties”, specifically the Respondent.

[60] For completeness, I note that, at the hearing on 3 December 2020, the Applicant made reference to having the Original Decision “varied”. This submission was not fully developed and, in any event, for the reasons set out at paragraph [59] above I would decline to exercise my discretion to make such an order.

Conclusion

[61] For the reasons outlined above at paragraphs [37] to [45], I consider the Application vexatious and dismiss it pursuant to section 587(1)(b) of the Act.

[62] The Respondent foreshadowed in its written material an intention to make an application for costs. Any such application should be made in accordance with the Act and in the proper form.

[63] An order will be issued separately give effect to this decision.

COMMISSIONER

Appearances:

Mr J. Vassallo, Applicant

Ms S. Bingham of Counsel for the Respondent

Hearing details:

22 October 2020 and 3 December 2020 (via telephone)

Printed by authority of the Commonwealth Government Printer

<PR726115>

 1   Warrell v Fair Work Australia [2013] FCA 291.

 2   Ibid.

 3   Original Decision at [23].

 4   Original Decision at [23]; Consent Position of Parties dated 12 April 2017.

 5   Original Decision at [23]; Consent Position of Parties dated 12 April 2017.

 6   Original Decision at [23]; Consent Position of Parties dated 12 April 2017.

 7   Original Decision at [49].

 8   Jeffrey Vassallo v Easitag Pty Ltd t/a Easitag [2018] FWCFB 501 (Full Bench Decision).

 9   Submissions of the Respondent on the Summary Dismissal of the Application dated 10 September 2020 (Respondent’s Submissions).

 10   Respondent’s Submissions at [29].

 11   Respondent’s Submissions at [26].

 12   Respondent’s Submissions at [31].

 13   Respondent’s Submissions at [34].

 14   Respondent’s Submissions at [33].

 15   Respondent’s Submissions at [35].

 16   Respondent’s Submissions at [38].

 17   Respondent’s Submissions at [39].

 18   Respondent’s Reply Submissions at [3].

 19   Respondent’s Reply Submissions at [9].

 20   Applicant’s Submissions as to the Fair Work Commission’s Jurisdiction (Applicant’s Jurisdictional Submissions) at [12].

 21   Applicant’s Jurisdictional Submissions at [16] – [17].

 22   Ibid at [18].

 23   Ibid at [19].

 24   Ibid [20(a)].

 25   Ibid at [20(b)].

 26  Ibid at [20(c)].

 27   Ibid at [23] – [26].

 28   Ibid [29] – [30].

 29   Award Modernisation [2009] AIRCFB 345 at [92].

 30   Applicant’s Jurisdictional Submissions at [33] – [34].

 31   Ibid at [37].

 32   Ibid at [38] – [75].

 33   Ibid at [77] – [78].

 34   Ibid at [80] – [81].

 35   Ibid at [82] – [83].

 36   Ibid at [86].

 37   See for example: General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at [10] – [11]; Miller v Ryan & Ors [1980] 1 NSWLR 93 at 109; Attorney-General For New South Wales V Solomon & Ors (1987) 8 NSWLR 667 at 673; Applicant v Respondent [2010] FWA 1765 at [12] – [15]; Kennedy v Australian Taxation Office [2011] FWA 7469 at [25] citing Attorney General v Wentworth (1988) 14 NSWLR 481 at 491.

 38   (1994) 181 CLR 251 at 286.

 39   [2016] FWCFB 5069 at [7].

 40   Applicant’s Jurisdictional Submissions at [53] - [55]

 41   Ibid at [73]

 42   Respondent’s Further Reply Submissions at [8(b)].

 43   Respondent’s Submissions in Reply dated 13 November 2020 at [3(a)].

 44   Ibid at [3(b)].

 45   Grabovsky at [39] – [46].

 46   [2017] HCA 54 at [49] – [50].