1 Fair Work Act 2009 s.604—Appeal of decision Joshua Zhou v I-Ping Yang (C2025/7222) VICE PRESIDENT GIBIAN DEPUTY PRESIDENT COLMAN DEPUTY PRESIDENT GRAYSON SYDNEY, 16 SEPTEMBER 2025 Appeal against decision of Commissioner Mirabella to issue a certificate in matter C2025/5959 – Application under s 365 of the Fair Work Act 2009 (Cth) for the Commission to deal with a general protections dismissal dispute – Conference conducted by member of the Commission – Employer did not press jurisdictional objection – Alleged that interpreter left prior to conclusion of conference – Certificate issued under s 368(3) of the Act – Whether arguable grounds of appealable error – Permission to appeal refused. Introduction [1] Joshua Zhou has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision of Commissioner Mirabella on 30 July 2025 to issue a certificate in respect of an application made by I-Ping Yang under s 365. The appeal was listed for hearing in respect of permission to appeal and the merits on 8 September 2025. The parties subsequently consented to the Full Bench determining the matter without holding a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions for the purposes of s 607(1) of the Act. [2] Section s 365 provides that, if a person has been dismissed and alleges that the dismissal was in contravention of Part 3-1, the person may apply to the Commission to deal with the dispute. If a jurisdictional objection is raised to the Commission’s authority to deal with an application, the Commission must determine that objection before dealing with the dispute.1 Otherwise, unless the parties agree to arbitration under s 369 of the Act, the Commission’s role is not a determinative one. Section 368(1) provides that the Commission must deal with the dispute other than by arbitration. For example, the Commission may deal with the matter by, for example, mediation or conciliation or by making a recommendation or expressing an opinion.2 If the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been or are likely to be unsuccessful, the Commission is required by s 368(3) to issue a certificate to that effect. [3] This appeal arises from an application made by Mr Yang on 24 June 2025. On that day, Mr Yang filed a Form F8 (General protections dismissal) in which he alleged that he had been [2025] FWCFB 206 DECISION [2025] FWCFB 206 2 dismissed in contravention of Part 3-1 of the Act. The application named Martin Panda Pty Ltd as the respondent. On 27 July 2025, Mr Zhou filed a Form F8A (Response to a general protections dismissal application). The response identified the respondent by using the trading name “Panda Photography”. Mr Zhou’s response alleged that Mr Yang’s application was filed out of time and that Mr Yang had not been dismissed because he had left the employment without notice. The response also indicated that Mr Zhou required a Mandarin interpreter. [4] Section 368(2) requires that any conference conducted under s 368 of the Act is to be conducted in private. The practice of the Commission is commonly to deal with disputes under s 368 in conference, and to do so off transcript. That is what occurred in the conference before the Commissioner on 30 July 2025. However, the application was initially listed for mention on that date. This occurred by Microsoft Teams, which generated a recording. The recording reveals that at the mention, a number of procedural matters were addressed, and that after some ten minutes, the parties agreed to have discussions in conference. Prior to the parties adjourning into conference, Mr Zhou indicated that he did not press his objection that the application was made out of time. [5] The Commissioner issued a certificate later in the day on 30 July 2025. No form of certificate is prescribed by the Act for the purposes of s 368(3). The certificate issued by the Commissioner at the conclusion of the conference accorded with the usual form of such documents used by members of the Commission. The certificate recorded that the Commissioner conducted a conference to deal with the dispute on that day and that the Commissioner was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful. [6] Mr Zhou filed a notice of appeal on the following day, 31 July 2025. The notice of appeal does not directly provide a description of the decision from which Mr Zhou seeks to appeal. We understand the notice of appeal to be directed at the decision of the Commissioner to issue a certificate under s 368(3). In seeking a stay, the notice of appeal says that Mr Zhou seeks to appeal the whole of the decision of the Commissioner “including jurisdictional objection about dismission [sic] from Mr I-Ping Yang”. Grounds of appeal [7] An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides 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.3 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.4 Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. 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.5 [8] Section 604(1) allows a person aggrieved by a decision of the Commission to appeal from that decision. As we have observed, Mr Zhou’s notice of appeal appears to be directed at the Commissioner’s decision to issue a certificate but substantially relates to the conduct of the Commissioner in the course of the conference on 30 July 2025, without explicitly identifying [2025] FWCFB 206 3 any associated decision or decisions. However, we infer from Mr Zhou’s materials that he seeks to appeal from procedural decisions made by the Commissioner during the conference, as well as her decision to issue a certificate, including the terms of that certificate. Ground 1 – Departure of interpreter [9] Mr Zhou’s notice of appeal advances four grounds. By his first ground of appeal, Mr Zhou contends that the Mandarin interpreter that he had requested for the proceeding left the conference before it had concluded, and that from this point he could not fully understand the discussion. Mr Zhou said that he asked the Commissioner for a replacement but that this was denied, the conference continued, and that “key discussions” took place without “language support”. Mr Zhou contends that the Commissioner’s decision to continue the conference without an interpreter disadvantaged him and was unfair. In his written submissions, Mr Zhou also complained about the quality of the interpretation, including that the interpreter failed to provide continuous interpretation. [10] We do not consider that the first ground of appeal raises an arguable case of appealable error. It appears that the decisions of the Commissioner that are sought to be impugned by this ground are the decision to continue the conference after the departure of the interpreter and the decision not to arrange for a replacement. It is not clear that those steps are capable of being described as “decisions” for the purposes of s 604(1) of the Act. Although s 598(1) indicates that reference to a “decision” including “any decision of the FWC however described”, not every step taken by a member of the Commission in dealing with a matter before it will constitute a “decision” susceptible to appeal. The ordinary meaning of a “decision” in judicial or administrative proceedings is “an announced or published ruling or adjudication”.6 We are not convinced that the acts sought to be challenged were “decisions”. The ground might be construed as a challenge to a decision to refuse to adjourn the conference which could conceivably be subject of an appeal. However, although he says that he requested a replacement interpreter, Mr Zhou does not say that he asked for an adjournment and the request was refused. [11] Of course, a denial of procedural fairness might arise if a party is unable to properly participate in proceedings before the Commission by reason of denial of access to an interpreter or inadequate interpretation. Ordinarily, a meaningful opportunity to give evidence and present arguments in the case of a person who is not fluent in the English language will only be afforded if an interpreter is present and that which the person wishes to convey to the Commission is fairly interpreted.7 However, the mere fact that a party does not have the facility of an interpreter might not necessarily mean that they have been denied a procedurally fair hearing.8 Whether inadequate interpretation, or the absence of an interpreter, means that a hearing was not fair will depend on the particular circumstances of the case.9 In the circumstances of this matter, we consider that there is no utility in granting permission to appeal with respect to the departure of the interpreter or the continuation of the conference in the absence of the interpreter, or upholding the appeal, unless those events vitiate the decision of the Commissioner to issue the certificate under s 368(3) of the Act. [12] To the extent that the first ground of appeal seeks to impugn the decision to issue a certificate, we do not believe the ground raises an arguable case of appealable error. The critical feature of this matter is that the Commissioner did not determine any aspect of Mr Yang’s claims or any response made by Mr Zhou. The only decision to be made by a member of the [2025] FWCFB 206 4 Commission under s 368(3) is whether they are “satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful”. It is, to say the least, unfortunate that the interpreter assisting the parties in the conference departed the conference prior to its conclusion. It is regrettable that Mr Zhou feels he was not able to participate in the conference in the manner he would have wished. However, there is no basis upon which we can conclude that it was not open to the Commissioner to form the state of satisfaction necessary to issue a certificate under s 368(3). It appears that the interpreter was present for a period of one hour. We do not know with any precision what occurred during that period. The material before us does not establish that the Commissioner could not have formed the view that reasonable steps had not, and would not, resolve the dispute based upon what occurred up to the point that the interpreter left the conference, or by way of direct communications with the parties separately. [13] Finally in relation to this ground, we note that Mr Zhou had raised a jurisdictional objection to Mr Yang’s s 365 application, namely, that he had not been dismissed. But on Mr Zhou’s own account, he withdrew this objection in the conference. Further, it seems clear from the material before us that Mr Zhou’s decision to abandon his objection occurred prior to the interpreter’s departure. The Commission is required to act in a manner that is fair and just and will take reasonable steps to facilitate interpretation where this is reasonably required. But the materials before us disclose no arguable case of appealable error on the part of the Commissioner in connection with the interpretation arrangements in this case. Ground 2 – Jurisdictional objection [14] The second ground of appeal is an allegation that the Commissioner pressured Mr Zhou to withdraw the jurisdictional objection that Mr Yang had not been dismissed and told him that if he did so the matter could then be resolved that day. Mr Zhou submits that the Commissioner repeatedly urged him to withdraw his jurisdictional objection and that, although he asked the Commissioner for more time to consider the matter, he was given only five minutes. He says that under pressure, and without legal advice or understanding the consequences, he reluctantly withdrew his objection. [15] We do not consider that any arguable error is revealed by this appeal ground. If Mr Zhou maintained his jurisdictional objection, it would have been necessary for the Commissioner to determine the objection before exercising powers under s 368 of the Act because there remained a dispute as to the entitlement of Mr Yang to make the application.10 However, Mr Zhou accepts that he withdrew the jurisdictional objection during the conference. In those circumstances, it was open to the Commission to exercise powers under s 368(1) by proceeding with the conference and, if satisfied reasonable attempts to resolve the dispute had not been, or would not be, successful, to issue a certificate under s 368(3). [16] It is difficult for us to comment on the contention that the Commissioner pressured Mr Zhou to withdraw this jurisdictional objection in circumstances in which no recording or transcript of the conference itself exists. There is nothing in the material before us to suggest that the Commissioner did not conduct the conference appropriately. It is not unlikely that the Commissioner explained to Mr Zhou that, if the jurisdictional objection was pressed, she could not deal with the matter under s 368 and try to resolve it until she had first determined his jurisdictional objection. The Commissioner might well have emphasised the practical [2025] FWCFB 206 5 advantages of not pressing the jurisdictional objection and Mr Zhou may have felt pressured in those circumstances. However, the fact remains that Mr Zhou accepts he withdrew the jurisdictional objection. It was then open to the Commissioner to conduct a conference for the purposes of s 368(3) and, if satisfied the dispute was not able to be resolved, to issue a certificate. No appealable error arises in those circumstances. Ground 3 – Removal from conference [17] The third appeal ground contends that Mr Zhou was “prematurely removed” from the online conference and that a few minutes later he received a telephone call from the Commissioner who advised him that a certificate would be issued. Mr Zhou submits that he had not fully understood this part of the discussion and that he was denied a fair opportunity to participate in the conference. Again, no error is revealed. It is both acceptable and common for a member to have separate discussions with the parties during a conciliation conference to endeavour to explore whether the dispute can be resolved. That is an unremarkable approach to be adopted in a conference aimed at exploring whether a dispute is able to be resolved between the parties. [18] To the extent that Mr Zhou alleges that the Commissioner was in error to conclude the conference and issue the certificate, he offers no reasons as to why these decisions were erroneous. Mr Zhou does not say for example that he had accepted a settlement proposal from Mr Yang and that the matter had in fact resolved, or that he had asked to make a further settlement offer. No reason is given as to why it was not open to the Commissioner to be satisfied that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful. As we have said, on the material before the Full Bench, there is no basis upon which we could find that it was not open to the Commissioner to form the state of mind required by s 368(3) of the Act. Ground 4 – Identity of the respondent [19] In the fourth ground of appeal, Mr Zhou contends that the certificate issued by the Commissioner erroneously named Martin Panda Pty Ltd as the respondent. Mr Zhou submits that Martin Panda Pty Ltd does not have any contractual or employment relationship with Mr Yang and that all work-related matters during the relevant period were conducted by himself personally under the trading name “Panda Photography”. [20] Again, no appealable error is disclosed. Martin Panda Pty Ltd was the name of the respondent indicated on Mr Yang’s s 365 application form. Nothing has been offered by Mr Zhou to substantiate the assertion that “Panda Photography” (which appears to be a trading name rather than a legal one) was the true employer of Mr Yang. Even if Mr Zhou is correct to say that Martin Panda Pty Ltd did not employ Mr Yang and was not relevantly involved in the alleged contravention, no consequence would follow. No jurisdictional defect arises if an application under s 365 of the Act fails to name the correct entity as the former employer of the applicant.11 Furthermore, if Martin Panda Pty Ltd was not Mr Yang’s employer, or otherwise involved in the alleged contravention of Part 3-1 of the Act, no prejudice is caused to that entity by being named in the certificate issued by the Commissioner. It is not necessary for there to be a precise coincidence between the name of the respondent named in the Commission certificate and the name of the respondent in a general protections court application.12 If Mr [2025] FWCFB 206 6 Yang were to make a general protections court application, it would be open to him to then identify a different person or entity as his employer notwithstanding the entity named in the certificate.13 If Martin Panda Pty Ltd is not the true employer and Mr Yang does not take steps to name the correct entity, the company could seek to have the general protections court application struck out on the basis it could not succeed. Either way, nothing flows from Mr Zhou’s assertion that the certificate issued by the Commissioner did not correctly identify Mr Yang’s employer. Conclusion and disposition [21] We do not consider that Mr Zhou’s appeal grounds disclose an arguable case of appealable error on the part of the Commissioner. We are not satisfied that it is in the public interest to grant permission to appeal, nor do we consider that permission to appeal should be granted on general discretionary grounds. [22] The Full Bench orders that permission to appeal be refused. VICE PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR791772> 1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [67] (Rares, Collier J and Charlesworth JJ). 2 See Fair Work Act 2009 (Cth), s 595(2). 3 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [44] (Buchanan J) referring to Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). 4 GlaxoSmithKline Australia Pty Ltd v Makin [2011] FWAFB 5343; (2010) 197 IR 266 at [27]. 5 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ). 6 McKerlie v Ratelt Australia Pty Ltd [2020] FWCFB 5131; (2020) 301 IR 271 at [53] referring to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 (Mason CJ). 7 SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923 at [27] (Graham J). [2025] FWCFB 206 7 8 Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744 at [18] (Flick J). 9 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 at [5] (Allsop CJ); MZAMP v Minister for Immigration and Border Protection [2016] FCA 804 at [85] (Rangiah J). 10 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [67] (Rares, Collier J and Charlesworth JJ). 11 Civmec Constructions & Engineering Pty Ltd v Minchin [2025] FWCFB 2; (2025) 339 IR 268 at [35]-[36]. 12 Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [34] (O’Callaghan J). 13 Rutherford v Hausner [2011] FMCA 1033; (2011) 212 IR 343 at [18]-[22] (Riethmuller FM); Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [38] (O’Callaghan J).