1 Fair Work Act 2009 s.604—Appeal of decision Susann Kovacs and Felipe Cespedes v Jessica Dickson (C2025/6709) DEPUTY PRESIDENT COLMAN DEPUTY PRESIDENT FAROUQUE COMMISSIONER TRAN MELBOURNE, 18 SEPTEMBER 2025 Appeal against decision [2025] FWC 1218 of Deputy President Butler at Brisbane on 2 May 2025 in matter number C2025/7717 – extension of time refused [1] Susann Kovacs and Felipe Cespedes (appellants) have lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Butler issued on 2 May 2025 ([2025] FWC 1218) in which she dismissed the appellants’ jurisdictional objection to an application made against them by Jessica Dickson (respondent) under s 365 of the Act. The matter was listed before us for permission to appeal only. [2] Section 585 of the Act requires an application to the Commission to be in accordance with the procedural rules. The appeal was lodged outside the period of 21 days from the date of the Deputy President’s decision, contrary to rule 128(2)(a) of the Fair Work Commission Rules 2024. A preliminary question therefore arises as to whether the appellants should be granted an extension of time to file their notice of appeal pursuant to rule 128(2)(c). We will return to this question after considering the grounds of appeal. [3] The respondent was hired by the appellants as a nanny for their two children. When the engagement was terminated, she lodged an application under s 365. This provision states that if a person has been dismissed, and alleges that the dismissal contravened Part 3-1 of the Act, the person may apply to the Commission to deal with the dispute. Before the Deputy President, the appellants contended that the respondent was not its employee but a contractor, and that the termination of her engagement was therefore not a dismissal. In her decision, the Deputy President set out the text of s 15AA of the Act, which concerns how one is to determine whether an individual is an employee, and the evidence of the circumstances of the respondent’s engagement. The Deputy President found, among other things, that the appellants had the right to direct the respondent in the performance of her duties, that although her hours were changeable she could not set them herself but had to negotiate them, that her work was not delegable, and that in certain respects the appellants represented to others that the respondent was their employee. The Deputy President concluded that, based on her findings, and considering the real substance, practical reality, and true nature of the relationship as required by s 15AA, the respondent had been an employee of the appellants and was dismissed. [2025] FWCFB 211 DECISION [2025] FWCFB 211 2 [4] An appeal from the Deputy President’s decision may only be brought with the permission of the Commission under s 604(1). Section 604(2) states that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). The fact that a member may have made an error is not necessarily a sufficient basis to grant permission to appeal. [5] The notice of appeal contains a single appeal ground which is that the Deputy President erred in concluding that the respondent was an employee. However, no cogent argument is advanced as to why the Deputy President’s decision was erroneous. The appellants simply insist on a different conclusion. In their written submissions, the appellants contend that the Deputy President failed to address the differences in the law that applied before and after 26 August 2024. But the Deputy President addressed precisely this point from [10] to [12]. Further, all that mattered was whether the respondent was an employee of the appellants on the day that her engagement was terminated, such that she was dismissed. In this regard, the appellants’ confounding alternative contention, that the respondent was its employee only from 26 August 2024, would amount to a concession that the Deputy President was correct to conclude that the respondent was dismissed on 5 October 2024. The appeal fails to raise any arguable case of error in the Deputy President’s decision. In such circumstances, we are not satisfied that it would be in the public interest or otherwise appropriate to grant permission to appeal. [6] In light of our view that the notice of appeal reveals no arguable case of error and presents no case for the grant of permission to appeal, there is no sensible basis to extend time to file the notice of appeal. [7] We refuse to grant a further period for the filing of the notice of appeal. The application for permission to appeal is therefore dismissed. We would in any event have refused permission to appeal. DEPUTY PRESIDENT [2025] FWCFB 211 3 Appearances: S. Ogden of counsel for the appellants J. Dickson for herself Hearing details: 2025 Melbourne 17 September Printed by authority of the Commonwealth Government Printer <PR791876>