1 Fair Work Act 2009 s.604—Appeal of decision Vilija Burneikis v NGS Super Pty Limited (C2023/5566) VICE PRESIDENT ASBURY DEPUTY PRESIDENT BINET DEPUTY PRESIDENT GRAYSON BRISBANE, 5 FEBRUARY 2024 Appeal against decision [2023] FWC 2128 of Deputy President Boyce at Sydney on 25 August 2023 in matter number U2023/4734. Background [1] Ms Vilija Burneikis (Appellant) has lodged an appeal under s. 604 of the Fair Work Act 2009 (the FW Act), for which permission is required, against a Decision1 of Deputy President Boyce issued on 25 August 2023 (Decision). The Decision concerned an application for an unfair dismissal remedy made by the Appellant. In the Decision, the Deputy President upheld an objection by NGS Super Pty Ltd (Respondent/NGS Super) finding that the Appellant’s dismissal was a case of genuine redundancy within the meaning of s. 389 of the FW Act and dismissed the application. [2] The factual background recorded in the Decision can be briefly stated as follows. The Appellant was employed by the Respondent from 7 May 2005 until her dismissal which took effect on 15 May 2023. The Respondent manages an industry superannuation fund for teachers in non-government education and community organisations. At the time of the dismissal, the Appellant was employed in the role of Graphic Design Manager (GDM). The principal function of the GDM role was said to be designing and producing communications for employers and the Respondent’s members.2 [3] In March 2023, the Respondent made a decision, based on the changing needs of the business, to outsource its graphic design work and other digital activities. As a result, the Respondent decided that the GDM role was no longer required to be performed by anyone. Following a meeting between the Appellant and representatives of the Respondent on 20 April 2023 and consideration of correspondence received on 8 May 2023 from the Appellant, the Appellant was notified on 15 May 2023 that the decision to make her position redundant had been confirmed and her employment was terminated. [4] In the Decision, the Deputy President was satisfied that when the decision to make the Appellant’s role redundant was made, her role was genuinely no longer required to be [2024] FWCFB 49 DECISION [2024] FWCFB 49 2 performed by anyone because of changes in the operational requirements of the Respondent’s enterprise, that the Respondent had satisfied its obligations in respect of consultation and that there was no evidence that the redeployment of the Appellant within its enterprise would have been reasonable in all the circumstances. The Deputy President accordingly held that the dismissal of the Appellant was a case of genuine redundancy within the meaning of s. 389 of the FW Act. The Appeal [5] The Appellant lodged a Notice of Appeal against the Decision on 15 September 2023. Directions were issued on 21 September 2023 requiring the parties to file outlines of submissions addressing permission to appeal and the merits of the appeal. [6] On 9 November 2023, the Appellant lodged a Form F51 Application for an order requiring Ms Melissa Adam, the Chief Experience Officer for the Respondent, to attend before the Commission at the hearing of the appeal. Ms Adam was called as a witness for the Respondent in the hearing at first instance before the Deputy President and was cross-examined by the Appellant. The Order to attend was sought on the basis that Ms Adam’s attendance would allow Ms Adam to be questioned before this Full Bench about her decision to dismiss the Appellant and confirm the truth and accuracy of her statements. On 10 November 2023, the Presiding Member of this Full Bench conducted a Mentions/Directions hearing. After the appeal process and the basis upon which an appeal can succeed was explained to the Appellant, she indicated that the Form F51 Application would not be pressed. [7] The appeal was listed for hearing before the Full Bench on 13 November 2023 in relation to both permission to appeal and the merits of the appeal. The Appellant was self- represented in the proceedings before the Deputy President and represented by her husband, Mr G Petreski in the appeal. The Respondent continued to be represented by its Head of Legal and Governance, Mr B Tynan-Davey. Decision under appeal [8] The Decision recorded that the Appellant asserted that she had been unfairly dismissed and that the Respondent contended that the dismissal was a case of genuine redundancy, within the meaning of s. 389 of the FW Act. Following receipt of submissions and evidence, the Deputy President held a hearing to resolve the genuine redundancy jurisdictional objection. After setting out ss. 385, 389 and 396 of the FW Act, the Deputy President outlined three questions that, in his view, needed to be answered in view of s. 389, which deals with the meaning of genuine redundancy, as follows: 1. Was the [Appellant’s] job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise? 2. Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy? [2024] FWCFB 49 3 3. Would it have been reasonable in all the circumstances for the Appellant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?3 [9] After discussing the approach to deciding the first question, the Deputy President set out some background facts as follows. In March 2023, the Respondent made a decision, based on the changing needs of the business, to outsource its graphic design work and other digital activities (outsourcing decision). Consequently, the Respondent decided that the GDM role in which the Appellant was employed was no longer required to be performed by anyone. The Appellant was the only graphic designer employed by the Respondent and no other roles were affected by the outsourcing decision. Following the cessation of the Appellant’s employment, the Respondent had engaged an external graphic design agency to perform the relevant graphic design work on a retainer basis and has not replaced the GDM role.4 The Appellant disagreed with the assertion that the GDM role was no longer required to be performed by anyone due to operational reasons and contended that her work in the GDM role, in April/May 2023, was “busier than ever” and the “digital functions” of the Respondent had always been outsourced and were never part of the workload for the GDM role.5 [10] The Deputy President next summarised the Respondent’s evidence given by Mr Luke Jansson (Head of People & Culture) and Ms Melissa Adam (Chief Experience Officer) in response to the Appellant’s contentions. Mr Jansson’s evidence was that the “digital function” and “digital team” the Appellant referred to, is a separate team under the broader “experience” team; the work of the “digital function” is separate from the decision to outsource the graphic design function as part of its move away from physical marketing and its future reliance on more digital content; roles within the digital team do not design digital content and are responsible for building and maintaining the Respondent’s digital footprint by delivering optimised digital experiences and providing data-driven insights into the wider business on user experience and activities.6 Ms Adam’s evidence was that the work of project management of regulatory documents was moved from the “experience” team to the “strategy” team. The related graphic design work was to be outsourced because it was only required to be done a maximum of three times a year and did not require a full-time employee. Ms Adam also stated that there were no vacancies in the “strategy” team at the time of the Appellant’s redundancy or in the anticipated future and there was no availability for redeployment.7 [11] In relation to the first question, the Deputy President concluded that he was satisfied on the evidence that the Respondent had genuine operational reasons to make changes to the business and those changes resulted in the GDM role being no longer required to be performed by anyone. In support of this conclusion, the Deputy President recorded his findings as follows: “a) The Respondent made an operational (or business) decision that it no longer required the GDM role to be performed by anyone. Whilst the GDM role was made up of graphic design work and other administrative or associated tasks, the focus for the purposes of making the GDM role redundant was the graphic design work aspect of the role. b) The Respondent, through its evidence tendered in the proceedings, has explained the operational reasons as to why it determined that it no longer required the GDM role to be performed by anyone. c) None of the Applicant’s evidence or submissions undermine the bona fide basis upon which the Respondent’s decision to make the GDM role redundant has been made. Again, the fact that an employee (such as the Applicant) might consider a particular decision to be bad, or wrong, or [2024] FWCFB 49 4 consider that another alternative and better (or more appropriate) decision ought to have been made, is not to the point. d) Significantly, Ms Adam, as one of the two decision-makers at the Respondent who made the ultimate decision to make the GDM role redundant, has given evidence in these proceedings, and had that evidence tested by way of cross-examination at hearing. The testing of Ms Adam’s evidence has not resulted in it being undermined or altered.”8 [12] In relation to the second question, the Deputy President recorded that there was a dispute as to whether the Banking, Finance and Insurance Award 2020 (Award) covered and applied to the Appellant’s role at the time of her dismissal. While acknowledging that neither party had advanced any substantive arguments in relation to the coverage and application of the Award, the Deputy President proceeded on the basis that the Award did cover and apply to the Appellant at the point when she was dismissed. [13] The Deputy President observed that clause 28 of the Award requires an employer to comply with the consultation requirements “after an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees”. The phrase “significant effects” includes “termination of employment”. In relation to whether there had been a major change, the Deputy President found as follows: “[32] It has been said that reference to the plural “employees” rather than “employee” in similarly worded clauses does not capture individual redundancies on the basis that individual redundancies do not constitute a “major change” to the Respondent’s operations that impact upon a collective of employees. [33] In this case, there was only one redundancy (i.e. the Applicant’s role). I do not accept, on the evidence before me, in the circumstances of this case, that s.389(1)(b) of the Act is enlivened for consideration in these proceedings. In this regard, I find that, on the terms of clause 28 of the Award, by reference to the case law set out in this decision: (a) The redundancy of the Applicant’s role in the Respondent’s business: • was not a “major change” (i.e. the work performed by the Applicant was outsourced); and • did not have “significant effects” upon the Respondent’s remaining employees on an individual or collective basis (i.e. there is no evidence of any effects let alone significant effects flowing to any of the Respondent’s employees arising from the redundancy of the Applicant’s role with the Respondent. Whilst some existing employees might pick up an additional administrative or other task, this would not constitute any change or effect of significance). (b) The Respondent has satisfied its Award obligations as to consultation concerning the Applicant’s redundancy in that no Award consultations obligations arise for determination in these proceedings (i.e. because the threshold criteria (major change and/or significant effects) under clause 28 of the Award have not been satisfied on the evidence before me as matters of fact).”9 [14] Notwithstanding the conclusion that the requirement to consult in clause 28 of the Award did not apply to the Appellant’s redundancy,10 the Deputy President nevertheless went on to consider and find that even if clause 28 was applicable in this case, the Respondent had consulted with the Appellant in a manner that complied with the requirements in clause 28 of the Award. In this respect, the Deputy President had regard to the factual matters extracted from the Respondent’s submissions which, in summary, included that after making a definite [2024] FWCFB 49 5 decision on 9 March 2023 to outsource the graphic design work, Ms Adam and Mr Jansson conducted a meeting with the Appellant on 20 April 2023 whereby the Appellant was informed about the outsourcing decision, the impact on her role, and the possible redundancy of her GDM position if no alternative role could be found. The Appellant was provided with a letter on 20 April 2023 setting out the nature of the changes arising from the outsourcing decision and foreshadowing the possible termination of her employment if “she could not be redeployed (which was unlikely)”. The Appellant raised several issues regarding the proposed redundancy via correspondence on 8 May 2023. The Decision also recorded that an email was sent to the Appellant on 15 May 2023 to address the issues she had raised in her correspondence to the Respondent on 8 May 2023 and confirming the redundancy decision terminating her employment.11 [15] After recording these matters, the Deputy President rejected the Appellant’s contentions that the Respondent’s efforts at consultation were inadequate, that the process was procedurally deficient and unfair, or that the Respondent was merely going through the motions. The Deputy President was of the view that the Respondent had satisfied the requirements of clause 28 and further held that there was no evidence that any further consultation or consideration of the issues raised by the Appellant would have resulted in a different outcome.12 [16] In relation to whether it was reasonable in all circumstances for the Appellant to have been redeployed within the Respondent’s enterprise or associated entities, the Deputy President quoted the decision of a Full Bench of the Commission in Ulan Coal Mines Limited v A. Honeysett & Ors,13 to the effect that the reasonableness of redeployment for the purposes of s. 389(2) is to be assessed as at the time of the relevant dismissal, and it is necessary to identify the position or other work to which the employee could have been redeployed and determine whether that position or other work is reasonable for both the employer and the employee. The Deputy President also made observations that s. 389(2) does not interfere with the employer’s right to require that selection criteria for a vacant position be met; does not require the employer “to fit a square peg into a round hole”; nor create an obligation for an employer to create a role or to redeploy an employee into a role that the employer does not think is suitable because the employee does not hold the requisite skills, qualifications and/or experience.14 [17] The Deputy President then considered passages from Teterin Resource Pacific Pty Ltd t/a Ravensworth Underground Mine15 (Teterin) and Jain v Infosys Ltd16 (Jain) concerning the onus of proof in the context of the question of whether a dismissal is unfair where the question of whether the dismissal was a case of genuine redundancy is also agitated. In relation to Teterin, the Deputy President said that the conclusion of the Full Bench with respect to the interaction between ss. 389(2) and 385(d) is worth drawing attention to and set out the following passage from that decision: “The manner in which the Deputy President expressed his conclusions may be justified by reference to s.385(d), which requires that for a person to have been unfairly dismissed, the Commission must be satisfied that the dismissal was not a case of genuine redundancy. It must follow that the applicant in an unfair dismissal case bears the risk of failure if the state of satisfaction required by s.385(d) cannot be reached. If the Deputy President considered the evidence insufficient to allow him to determine whether redeployment was reasonable under s.389(2), then (there being no issue with respect to the s.389(1) matters) he could not be satisfied that the dismissals were not genuine redundancies, meaning that the applications before him had to be dismissed.”17 [18] The Deputy President also referred to the Full Bench decision in Jain which stated that: [2024] FWCFB 49 6 “… in the context of the question whether a dismissal was an unfair dismissal in which there is also agitated whether the dismissal was a case of genuine redundancy, to the extent that there is a legal onus of proof or something analogous thereto, it rests with the applicant in the sense that the applicant bears the risk of failure if the satisfaction required by s.385 including paragraph (d) is not reached.”18 [19] The Deputy President then set out the Appellant’s submissions that she should have been redeployed to the Respondent’s strategy/product team because of her skills, experience and the duties performed in the GDM role and as she has always adapted to the changing and evolving needs of the Respondent during her 18-year career. The Appellant also submitted that there was no reason why she could not again adapt to a new redeployment position, just as she had adapted to the GDM role despite holding no relevant qualification. The Deputy President then went on to conclude that the Appellant’s failure to identify any specific role or roles that, at the time of her dismissal, were available for her to be redeployed to, was “fatal” to her contention in this regard, posing the following questions at paragraph [46] of the Decision: “a) How can the Commission assess whether or not it would have “been reasonable in all the circumstances for [an employee] to be redeployed” into another role at an employer’s enterprise (at the time of his/her dismissal) when the employee has not identified exactly what the relevant role (or asserted lost opportunity) was? and b) How can an employer be held to a redeployment requirement or standard when the relevant employee pressing for such a requirement or standard to be observed has not identified the specific role or roles to which such requirement or standard applies?” [20] In answering both questions, the Deputy President concluded that it was not for the Commission to speculate as to redeployment options and, in any event, there was no evidence that there was a vacant role available in the Respondent’s business at the time of the Appellant’s dismissal, for her to be redeployed into. The Deputy President went on to note that Mr Jansson gave “extensive” evidence about the roles available at or around the time of the Appellant’s dismissal, including the roles of Content and Communications Editor and Digital Optimisation Specialist, and Mr Jansson’s evidence was that the Appellant did not have the skills or knowledge to perform either of those roles either immediately or after a short period of training, nor did the Appellant apply for any position advertised on the online intranet job board. Mr Jansson’s evidence was said to have been confirmed by the Appellant under cross-examination at the first instance hearing. [21] On the evidence before the Commission, the Deputy President also rejected and found it unnecessary and inappropriate to make findings as to the Appellant’s claims about the “real” reasons for her dismissal given that he had upheld the Respondent’s jurisdictional objection and the Appellant’s claim could, as a matter of law, go no further. The substance of these matters was not discussed in the Decision. [22] At [52] of the Decision, the Deputy President, having regard to the evidence and submissions of the parties, summarised his findings as follows: “(a) As at the time that the Respondent made the decision to make GDM role (the Applicant’s role) redundant, this role was genuinely no longer required to be performed by anyone at the Respondent’s [2024] FWCFB 49 7 business because of changes in the operational requirements of the Respondent’s enterprise (s.389(1)(a) of the Act). (b) The Respondent has satisfied its obligations as to consultation (s.389(1)(b) of the Act). (c) The Respondent has complied with the requirements of s.389(2) of the Act in that there is no evidence that it would have been reasonable in all of the circumstances to have redeployed the Applicant in its enterprise. (d) In view of (a) to (c) above, the dismissal of the Applicant is a case of “genuine redundancy” within the meaning of s.389 of the Act.” [23] Accordingly, the Deputy President concluded that the Appellant’s dismissal was not one with which the Commission has power to interfere and dismissed the Appellant’s application. Appeal grounds and Appellant’s submissions [24] The appeal grounds are discursive and in part rely on evidence obtained following the Decision to assert that there are factual errors in the Deputy President’s findings. The appeal grounds are set out in the form of a ‘statement’ appended to the Appeal Book filed by the Appellant. To properly characterise the grounds of appeal, it is necessary to read the Appellant’s ‘statement’ in conjunction with her written submissions and the oral submissions made at the hearing. The Appellant argues that the Deputy President fell into error in the sense contemplated in House v the King,19 by “failing to take some material consideration into account”. Taken together, the Appellant’s appeal grounds can be summarised as follows. • Firstly, the Deputy President erred in finding that the Appellant’s role was no longer required to be done as it had been fully outsourced and that she could not have been reasonably redeployed, in circumstances where NGS Super advertised for a ‘Creative Content Producer’ role on 25 August 2023. • Secondly, the Deputy President erred in accepting the Respondent’s witness evidence despite it not being questioned or verified. • Thirdly, in relation to the Deputy President’s findings at [37] of the Decision, there was no consultation with the Appellant, whereas other employees were consulted and treated differently by the Respondent during the redundancy process. Specifically, the Appellant was “put on leave” while other employees continued working while being consulted about their redundancy. • Fourthly, the first instance hearing before the Deputy President was affected by procedural unfairness as: o it was conducted by telephone, no directions hearing was held and the Appellant was unaware of the nature of the proceedings; and/or o The Appellant was unaware that the Respondent was legally represented and receiving assistance from MinterEllison Lawyers. [25] In relation to the first appeal ground, the Appellant relies on a job advertisement posted on Seek on 25 August 2023 in relation to a “Creative Content Producer” role at NGS Super. The Appellant contends that it is factually incorrect for the Respondent to submit that due to [2024] FWCFB 49 8 operational reasons, the GDM role was no longer required to be performed by anyone, the role would be fully outsourced and that she could not have been reasonably redeployed. The Appellant submits that at the time of her dismissal, she was the only graphic designer at NGS Super and that the Acting CEO and Chief Experience Officer did not have first-hand knowledge of her role nor how it operates across the business. The Appellant asserts that although NGS Super stated that her role would be fully outsourced, this is not the case as the role advertised in August 2023 incorporates some of the duties (including design work) and skills of the role she performed. As such, in the Appellant’s submission, she could have been reasonably redeployed if the duties and skills of the GDM are still required by the business. [26] In relation to the second ground of appeal, the Appellant contends that the Deputy President erred in accepting Mr Jansson’s and Ms Adam’s evidence about the tasks the Appellant performed while at work. Specifically, the Appellant submits that contrary to Mr Jansson and Ms Adam’s evidence that she worked on “administration activities”20 such as “office clean ups and assisting with team social events”,21 she did not organise any social events, filing or office clean ups. The Appellant said that Mr Jansson and Ms Adam’s evidence cannot be taken as factually correct in circumstances where the Respondent did not provide any evidence to substantiate the Appellant’s daily work, for example, a witness statement by her direct line manager, Ms Veronica Phillips. The Appellant also asserts that prior to the meeting to discuss her redundancy on 20 April 2023, she had not had any discussions with Mr Jansson nor Ms Adam about any aspects of her role. Further, the Appellant notes she has never had any direct contact with Mr Tynan-Davey about her role or responsibilities. [27] In relation to the third ground of appeal, the Appellant submits that the Respondent failed to consult with her prior to her dismissal and that she was treated differently to other employees going through the redundancy process. Contrary to the Deputy President’s finding at [37] of the Decision, the Appellant submitted that she was not consulted with before being asked to leave the building on 20 April 2023. The Appellant contends that she had not been consulted with about redeployment opportunities in other parts of the business. It is the Appellant's assertion that had there been a consultation process prior to her dismissal and had she been privy to NGS Super’s organisational restructure and growth strategy, she could have understood what areas of the GDM role were no longer required or outsourced and recommenced the digital work she had previously done for NGS Super. The Appellant contrasted her lack of consultation with that of two employees who had been in consultation about their role from mid-December 2022. With respect to the two employees, the Appellant said that they were able to continue working while negotiating their redundancies. [28] In relation to the fourth ground of appeal, the Appellant contends that the first instance hearing before the Deputy President was affected by procedural unfairness. The Appellant submits that it was unfair that the first instance hearing was conducted without a prior directions hearing and by telephone as it was difficult to follow the process and difficult to understand how a jurisdictional objection hearing worked in relation to an unfair dismissal application.22 The Appellant said that she did not understand whether the first instance hearing was a telephone conference or why it was not conducted in person or via video conference.23 She also said that she understood the first instance hearing to be an opportunity to answer a few questions from the Deputy President to understand the jurisdictional objection.24 The Appellant said that had she understood the process, she would have asked the Deputy President for the hearing to be conducted in person or via video link, been represented by her husband, Mr Petreski25 and, [2024] FWCFB 49 9 in cross-examination, ask the Respondent’s witnesses about her role within the company and what her role entailed. [29] Further, the Appellant contends that she did not know that Mr Tynan-Davey was a solicitor and that NGS Super was seeking legal assistance from MinterEllison Lawyers. The Appellant submits that she has been at a disadvantage as she did not have an opportunity to retain a lawyer to act on her behalf in the first instance.26 The Appellant asserts that had she known the Respondent was legally represented, she would have sought her own legal representation. Relying on Fitzgerald v Woolworths Limited27 (Fitzgerald), the Appellant submitted that permission for lawyers and paid agents to represent a client in a matter extends to out of court activities, including preparing applications and making submissions and as such, there was unfairness in the Appellant being unaware that the Respondent was assisted by Minter Ellison Lawyers. [30] The Appellant maintains that her dismissal was not a case of genuine redundancy and that her dismissal was harsh, unjust or unreasonable. Respondent’s Submissions [31] The Respondent submits that the Decision is not affected by any appealable error and permission to appeal should be refused. In the alternative, the Respondent contends that none of the appeal grounds should be upheld and the appeal should be dismissed. [32] In relation to whether it is in the public interest to grant the appeal, the Respondent asserts that it is unclear what principles the Appellant relies on to say that there is public interest. The Respondent submits that the task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement28 and whether something is in the public interest generally relates to a benefit or advantage to the whole community, as opposed to an individual.29 [33] The Respondent contends that the Decision does not satisfy the public interest test as it turns on its own facts and circumstances and does not raise any issue of importance or general application and there are no issues of importance or general application. Further, the Decision is logical, well-reasoned and applies well-established legal principles in relation to genuine redundancy under s. 389 of the FW Act. In the Respondent’s view, the Decision does not “manifest injustice”, the result is not counter-intuitive, and the legal principles are not disharmonious with other decisions. In the circumstances, the Respondent submits that the Appellant has not established that it is in the public interest for permission to appeal to be granted and as such, the appeal should be dismissed. [34] Contrary to the Appellant’s submissions, the Respondent contends that the Appellant does not demonstrate any error of fact by the Commission, let alone a “significant” error of fact. In relation to the Appellant’s submission that there are a number of ‘factual errors’ in Mr Jansson and Ms Adam’s witness statements and errors in the transcript related to Mr Tynan- Davey, the Respondent asserts that those submissions appear to misconstrue the basis of an appeal. The Respondent submits that an appeal must relate to an error of fact by the Commission, not by the Respondent or its witnesses. In the Respondent’s view, the Appellant fails to assert that the Deputy President made an error in applying the evidence that was given [2024] FWCFB 49 10 by the witnesses, and instead centres her submissions on the fact that the evidence is incorrect and the Deputy President failed by “taking these statements as being true”.30 [35] The Respondent contends that the Appellant had the opportunity to question both Mr Jansson and Ms Adam about the validity and accuracy of their evidence during the first instance hearing, but the Appellant's questioning did not result in the Respondent's evidence being undermined or altered.31 The Respondent considers the Deputy President’s acceptance of the Respondent's evidence as the logical conclusion as the Appellant’s questioning did not cause the witnesses' evidence to change. As such, the Respondent submits that there was no error of fact, let alone a significant error as required by s. 400(2). [36] The Respondent notes that the Appellant, on appeal, has sought to submit a screenshot of a job advertisement for a “Creative Content Producer” role at NGS Super as evidence that her role is still required to be performed. In response, the Respondent contends that for the purposes of a genuine redundancy, the relevant evidence regarding the requirement of whether a job was still required to be performed and any redeployment opportunities, is at the time of the dismissal. It is not relevant whether the employer advertises or employees someone in a similar position at a later time.32 Further, it is the Respondent’s submission that an employee’s job can be found to no longer exist even though the tasks and duties they performed may continue to be performed by other employees.33 [37] The Respondent explained that the decision to make the GDM role redundant occurred on 9 March 2023 and the consultation period regarding redeployment opportunities continued until the eventual termination of Appellant's employment which occurred on 15 May 2023. The Respondent highlights that this is more than three months before the job advertisement was posted on 25 August 2023. At the time of the Appellant’s dismissal, the Respondent stated that the advertised role was not required nor available and, as such, the Appellant could not have been placed into this role. [38] Further, the Respondent sought to distinguish the required skills of a Creative Content Producer from those of a GDM. While a Creative Content Producer is required to have skills in creating captivating visuals for social media platforms; designing web banners, tiles and other social media elements; and capturing, editing and producing engaging videos, as outlined by Ms Adam in her witness statement, the Appellant’s core responsibilities were to “design and manage all aspects of desktop publishing for various publications and collateral, including; annual reports, supplementary annual reports, internal fact sheets, brochures, newsletters, posters, flyers, postcards, policy documents, adverts, special event invitations, DM letters and business cards”.34 [39] Ms Adam also stated that the GDM role sat within the wider “experience” team, where other roles in the team centred around “writing content, proofing and editing, managing the website, digital analytics, running social media and events coordination”.35 Further, the Respondent relies on the Appellant’s evidence in the first instance hearing that she was not qualified nor did she have the skills to perform the functions of other roles within the “experience” team at the time of her dismissal.36 In the Respondent’s submission, it is clear from the skills listed in the job advertisement that the role of 'Creative Content Producer' is not the same as the GDM role, but is consistent with the Respondent's growth plan to engage younger audiences through digital platforms. The Respondent submits that the existence of the [2024] FWCFB 49 11 advertisement listed on 25 August 2023 does not mean the Appellant's role was not redundant, let alone represent a significant error of fact by the Commission for the purposes of s. 400(2) of the FW Act. [40] In relation to the designer retainer being cancelled, the Respondent contends there is no submission by the Appellant in relation to the cancellation of any design retainer, including the timing of its cancellation, that could amount to a significant error by the Commission. The Appellant merely refers to the alleged cancellation of a retainer held by the Respondent in relation to design services to which the Appellant questioned Ms Adam about during the first instance hearing. [41] In relation to any alleged differential treatment between the redundancies of two former NGS Super employees and the Appellant, the Respondent contends that this is irrelevant to the Decision and any restructure would be unrelated to the Appellant or the role she previously held. The Respondent submits that the Deputy President was correct in finding that the Appellant was not required to be consulted with in the first place,37 and if consultation was required, the Respondent complied with any consultation obligation.38 In any event, the Respondent contends that the consultation process involving other employees is irrelevant to the Decision and not an error of fact, let alone a significant error of fact for the purposes of s. 400(2) of the FW Act. [42] In summary, the Respondent contends that the Deputy President correctly applied the legal principles in dismissing the Appellant's unfair dismissal application. It is the Respondent’s submission that the Appellant has failed to establish that it is in the public interest to grant permission to appeal and failed to establish that the Decision involved significant error of fact. In relation to the disposition of the appeal, the Respondent submits that permission to appeal should be refused and the appeal should be dismissed. Permission to appeal [43] The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a “significant error of fact” (s. 400(2)). Section 400 of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally. [44] The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.39 The public interest test is not satisfied simply by the identification of error,40 or a preference for a different result.41 The public interest might be attracted where: • a matter raises issues of importance and general application; • there is a diversity of decisions at first instance so that guidance from an appellate court is required; • the decision at first instance manifests an injustice; [2024] FWCFB 49 12 • the result is counter intuitive; or • the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.42 [45] The test set out in s. 400 has been described as “a stringent one”.43 To be characterised as significant, a factual error must vitiate the ultimate exercise of discretion.44 [46] 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.45 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. Consideration Ground 1 [47] The Appellant contends that the Deputy President erred in finding that: (i) The Appellant’s role was no longer required to be done by anyone as it had been fully outsourced; and, (ii) The Appellant could not have been reasonably redeployed, in circumstances where the Respondent advertised for a ‘Creative Content Producer’ role on 25 August 2023. [48] The Respondent’s position on appeal is that the Appellant’s role was no longer required as at the time of her dismissal, that the Creative Content Producer role was not required or available at the time of her dismissal and that, in any event the Appellant was not suitable to be redeployed into the role. [49] During the hearing before the Full Bench the Appellant conceded that she had only been doing part of the Creative Content Producer role and that it was not exactly the same role that she had held prior to termination. [50] Having considered the submissions of the parties, we consider that the Deputy President considered the correct question, being whether the Applicant’s job was no longer required to be performed by anyone because of the operational requirements of the Respondent’s enterprise. For the purposes of a genuine redundancy, the relevant evidence regarding the requirement of whether a job was still required to be performed and any redeployment opportunities, is at the time of the dismissal. [51] Mr Jansson and Ms Adam gave extensive evidence, which was accepted by the Deputy President, regarding the decision of the Respondent to abolish the Appellant’s role and also the redeployment opportunities available with the Respondent at the time of the dismissal. These were not seriously challenged under cross-examination. The Creative Content Producer role was not advertised until more than three months after the Appellant was dismissed. In these circumstances and where the Appellant has made the appropriate concessions summarised at [2024] FWCFB 49 13 [49] above we do not consider that the advert of the new role demonstrates that the Appellant’s role was not redundant, nor does it demonstrate that she could have been reasonably redeployed as at the time of her dismissal. In our view, contrary to the submissions of the Appellant, the establishment and advertisement of this new role does not demonstrate that her previous duties and skills were still required by the business. We do not consider that this discloses any error, let alone, a significant error of fact, in the Decision. [52] As Ground 1 discloses no arguable case of appealable error, we reject it. Ground 2 [53] The Appellant argues that the Deputy President erred in accepting the Respondent’s witness evidence despite it not being questioned or verified. It would appear that the Appellant’s criticism is directed at the Deputy President accepting various statements made by Mr Jansson and Ms Adams in their filed statements regarding the break-up of the administrative and/or menial duties and design duties in the Appellant’s role, in circumstances where neither Mr Jansson nor Ms Adams had any real oversight of her role or duties.46 [54] The Respondent submits that the submissions of the Appellant alleging that a number of 'factual errors' were made by witnesses Mr Jansson and Ms Adam and inaccurate submissions made by Mr Tynan-Davey at the Hearing misconstrue the basis of an appeal on a matter of fact, which must relate to an error of fact by the Commission, not by the Respondent or its witnesses. We have reviewed the transcript, evidence and submissions and consider that the Appellant took the opportunity to question both Mr Jansson and Ms Adam about the validity and accuracy of their evidence during the hearing. This did not result in any significant concessions being made by these witnesses or their evidence undermined. Whilst we are sympathetic to the Appellant’s frustration that witnesses, like her immediate supervisor, were not called, the Deputy President is not required to question or verify evidence. His role is to properly consider and weigh all of the evidence of the witnesses who were called including the Appellant and make findings based on that evidence. In our view, it was open to him to accept the evidence of the Respondent’s witnesses in the circumstances where their evidence was not undermined by any cross-examination conducted by the Appellant. [55] We consider that the Appellant has not identified any significant error of fact in the Decision. As Ground 2 discloses no arguable case of appealable error, we reject it. Ground 3 [56] The Appellant submits that, contrary to the Deputy President’s finding at [37] of the Decision, the Appellant was not consulted regarding the proposed redundancy or opportunities for redeployment prior to her dismissal. The Appellant contended that had this process occurred, as she said it had with two other employees who had been selected for redundancy, she could have remained in employment with the Respondent. [57] The Respondent maintains its position that the Deputy President’s finding at first instance was correct and that there was no obligation on the Respondent to consult with the Appellant47 - and if consultation was required, the Respondent had complied with its [2024] FWCFB 49 14 consultation obligation.48 The Respondent submits that the treatment of other employees was irrelevant to the Decision and not an error of fact, let alone a significant error of fact for the purposes of s. 400(2) of the FW Act. [58] In his decision, the Deputy President adopted the approach as outlined above at [12] to [15], of: 1. Proceeding on the basis that that the Award covered and applied to the Appellant and the Respondent, 2. Forming a view that on the evidence before him and the circumstances of the case, where there was only one redundancy, no major change and no significant effects upon remaining employees, that clause 28 of the Award did not apply and the Respondent did not have any obligation under the Award to comply with, and 3. Regardless of this finding, went on to consider whether the Respondent had satisfied the requirements in clause 28 of the Award. [59] We infer that the Deputy President’s approach to construction of the Award was at least partially based on his findings that only one employee was affected49 and the Tsiflelidis v Crown Melbourne Limited50 (Tsiftelidis) decision. Given the decision of the Full Bench in Nicholas Williams v KTC Refrigeration & Air Conditioning Pty Ltd51 (KTC), we have reservations regarding this finding. We agree with the Full Bench in that matter, that Tsiflelidis does not establish a decision rule to the effect that in any case where there is a single redundancy, or a proportionately small number of redundancies, the consultation term in a modern award or an enterprise agreement dealing with major change will not apply.52 However, this issue does not require determination in this matter given that the Deputy President, despite his findings regarding the Award, went on to consider whether consultation had been engaged in by the Respondent in the terms required by the Award. [60] We would note at the outset, per the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal53 (Mt Arthur Coal) that: [108] The following propositions may be drawn from these cases about what constitutes consultation: … • a right to be consulted, though a valuable right, is not a right of veto; • the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal; • an ordinary understanding of the word “consult” would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made. [61] The Deputy President carefully considered the evidence and submissions of the parties at [35] to [38] of the Decision. The Deputy President found, in summary, that a definite decision was made on 9 March 2023, that on 20 April 2023 a meeting was held between the Appellant [2024] FWCFB 49 15 and the Respondent where it notified her that her role was no longer required as a result of outsourcing, and that she would be terminated if no other alternative role was found for her. The Deputy President found that in this meeting the Respondent discussed attempts to find a role for the Appellant to be redeployed into, the Appellant was given the opportunity to ask questions, discuss the changes, consider the information provided and correspondence of the same date and she was provided with additional paid leave to consider both the redundancy decision and her response. He further found that the Respondent had commenced those discussions as soon as practicable in the circumstances. [62] Following the meeting of 20 April 2023, the Respondent attempted to arrange a second meeting with the Appellant to allow her the opportunity to raise questions or make comment regarding her redundancy. The Appellant then advised the Respondent via letter on 8 May 2023 that her preference was not to meet in person. Her correspondence also raised several issues regarding her position, the work that she performed and the redundancy for the Respondent’s consideration. The Respondent considered the matters raised by the Appellant and then confirmed the redundancy decision on 13 May 2023. [63] Having considered the transcript of the hearing, the evidence and submissions filed by the parties we cannot identify any significant errors of fact. We consider that it was open to the Deputy President to make these findings of fact. Further, we consider that the Deputy President did not err in finding that the Respondent complied with clause 28 of the Award. Clause 28 required the Respondent to notify the Appellant of the decision to introduce major change, provide all relevant information in writing regarding the change and the effects of that change and then discuss that change, its effects and measures the Respondent was taking to avert or mitigate the effect on the Appellant. The evidence demonstrates that this occurred. What is not required in a consultation process is for an employee to hold some form of veto.54 [64] Finally, the Appellant appears to contend that she was not properly consulted by the Respondent as she was treated differently with other employees who were in a redundancy consultation process from in or around mid-December 2022 in a different department, the Growth Business Unit, and that she was further disadvantaged in the consultation process and measures she might have otherwise proposed to avert a termination as a result of being placed on leave. We do not consider that any unrelated consultation with other employees in other restructures has a bearing on whether the Respondent complied with any award obligations at the time of her dismissal as contended by the Appellant. [65] Further, we do not consider that placing the Appellant on leave undermined her ability to engage in the consultation process with the Respondent. The evidence demonstrates that she was not cut off from the systems of the Respondent and was able to engage in the consultation process while on leave. Indeed, as can be demonstrated by the 8 May letter she was able to express her views in relation to the proposed redundancy. [66] As Ground 3 discloses no arguable case of appealable error, we reject it. Ground 4 The proceedings before the Deputy President [2024] FWCFB 49 16 [67] The proceedings before the Deputy President followed upon the issuance of a notice of listing issued on 3 July 2023. That notice of listing, as emailed to the Appellant and the Respondent, relevantly provided: a. That the matter was listed for hearing- Jurisdiction only, by telephone on 31 July 2023; b. The parties with a mechanism for the parties to advise the Commission of the details of attendees; and c. Advice to the parties as to how to dial in to the hearing and announce their attendance, their role and whether they were self-represented or appearing on behalf of a party as their representative. [68] Directions were also issued by the Commission on 3 July 2023. The directions were as follows: [1] Any party seeking to be represented must comply with the Commission Practice Note regarding Lawyers & Paid Agents; seehttps://www.fwc.gov.au/resources/practicenotes/lawyers-and-paid-agents. It is noted that this should be done at the earliest possible opportunity. [2] By 4.00pm AEST on Monday, 10 July 2023, the Respondent must file with the Commission and serve on the Applicant an outline of submissions, witness statements, and any documents in support of the jurisdictional objection(s) it relies upon. [3] By 4.00pm AEST on Monday, 17 July 2023, the Applicant must file in the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in opposition to the jurisdictional objection(s) relied upon by the Respondent. [4] By 4.00pm AEST on Monday, 24 July 2023, the Respondent must file in the Commission and serve on the Applicant any submissions, witness statements, and other documents in reply. [5] The matter is listed for hearing in regard to the jurisdictional objection(s) at 10.30am AEST by Telephone on Monday, 31 July 2023. [6] Filing of documents is to occur by email to the Associate to Deputy President Boyce at chambers.boyce.dp@fwc.gov.au. Please note that any correspondence sent to Chambers regarding this matter must copy in all other parties and/or their representatives. [7] Liberty to apply generally on 2 days’ notice upon email notification to the Associate to Deputy President Boyce. [69] Direction 1 required that any party seeking to be represented by a lawyer or paid agent must comply with the Commission’s Practice Note: Lawyers and Paid Agents, and that this should be done at the earliest possible opportunity. The Directions then contained a link to the Practice Note which, in summary, states that a person must give notice that a lawyer or paid agent acts for the person in relation to a matter before the Commission if they provide professional services to the person in relation to a matter including giving legal or other advice, preparing or advising on documents including applications, forms, witness statements and submissions, lodging documents with the Commission or preparing to appear as an advocate.55 [2024] FWCFB 49 17 Notice is given by identifying the lawyer in the application or other approved form lodged in the matter or by lodging a “Form F53 – Notice that a person has a lawyer or paid agent” (Form F53). [70] On 31 July 2023 the jurisdictional hearing proceeded by way of telephone. Neither the Appellant or Respondent were represented and neither party made an application to be legally represented in accordance with Direction 1. Both parties complied with the directions by the filing of evidence and submissions. Consideration [71] In the hearing on the appeal before the Commission the Appellant contended that she was denied procedural fairness as: • No directions hearing was held prior to the jurisdictional hearing and the hearing was conducted by telephone and the Appellant was unaware of the nature of the proceedings; and/or • The Appellant was unaware that the Respondent was legally represented and receiving assistance from Minter Ellison Lawyers. [72] As the Commission identified in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited,56 administrative decision makers, including Members of the Commission, must accord procedural fairness to those affected by decisions they make. What is required to achieve this in any given case should be determined by reference to “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made” 57. [73] Having the benefit of observing a witness advance their case, while not to be overstated, is not to be dismissed as illusory.58 A decision maker’s ability to ask a witness questions and observe their demeanour during oral hearing can assist in resolving issues of credit.59 Similarly, Gageler and Gordon JJ observed in Minister for Immigration and Border Protection v WZARH:60 Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given. [74] As per the Full Bench’s commentary in Reeve v PKF (Gold Coast) HR Services Pty Ltd,61 what is required to accord procedural fairness to parties in the conduct of matters before the Commission will turn on the circumstances of each case.62 Where an alleged denial of procedural fairness has been claimed by a party, it is necessary that they identify, in some capacity, a causal link between the alleged failure and the outcome of the decision at first instance in order to establish an arguable case of appealable error.63 Appeal ground 3 proceeds on the basis that Mr Reeve was placed at a significant disadvantage as a consequence of the Respondent being given an opportunity to serve the confidential material beyond the date contained in the Commission’s directions. However, Mr Reeve has not identified how this contention [2024] FWCFB 49 18 affected the outcome of the decision in circumstances where Mr Reeve (a) filed supplementary responsive material, which was received into evidence by the Commission, (b) was given an opportunity at the hearing to present his case, and (c) has not identified any defect in his material which is alleged to have arisen as a result of the condensed timeline. No practical injustice is obvious on the face of the decision. Absent any allegation which draws a causal link between the alleged denial of procedural fairness and the outcome of the Commissioner’s decision, no arguable case of appealable error arises.” Hearing via telephone and failure to conduct a directions hearing [75] The Directions issued by the Deputy President indicate that he had decided the hearing would be conducted by telephone, before the parties had filed their material. Section 397 of the Act requires that the Commission conduct a conference or hearing in relation to a matter arising under Part 3 – 2 of the Act which concerns unfair dismissal, if, and to the extent that, the matter involves facts, the existence of which are in dispute. It was clear that the matter did involve disputed facts, from the Form F2 Application filed by the Appellant and the Form F3 Response filed by the Respondent. [76] Section 577 of the Act relevantly requires the Commission to perform its functions and exercise its powers in a manner that is: fair and just; quick, informal and avoids unnecessary technicalities; and open and transparent. While s. 589(1) empowers the Commission to make procedural and interim decisions in relation to how, when and where a matter is to be dealt with, those decisions must be consistent with requirements for the Commission to accord fairness and justice to parties in proceedings. [77] In our view, the method of conducting the hearing was not appropriate. There is no indication that either party requested a telephone hearing in accordance with the Commission’s Practice note: Requests to appear remotely, and, if there was such a request, there was no apparent basis for the request to be granted given the proximity of the parties to the Sydney office of the Commission64. Both parties appeared in the appeal in person. Even if there was a reasonable basis for a hearing to be conducted remotely, there is no apparent reason why it could not have been conducted by video. [78] The Commission has invested considerable time and resources to ensure that it has technology to conduct hearings by video using Microsoft Teams where this is appropriate, and to provide assistance to remote parties or those who have genuine and reasonable grounds for not attending hearings in person, to participate by video. As a Full Bench of the Commission observed in KTC, while it may be necessary in unusual or emergent circumstances for Commission proceedings to be conducted by telephone, this practice should be avoided in cases of contested hearings particularly where there are disputed facts, and the credit of witnesses is in issue. The Full Bench in that case also said that it is difficult to conceive of an unfair dismissal application where one or other of these considerations is not in play.65 [79] In the present case, the parties were in Sydney and there is no apparent reason why they could not have attended the Commission for a hearing. However, notwithstanding our views in relation to how the hearing was conducted, in the circumstances of this case, even if an in- person hearing was held we are satisfied that the Respondent's jurisdictional objection would have, and should have, been upheld. Legal Representation [2024] FWCFB 49 19 [80] Similarly, the Appellant did not make any application to be represented by a lawyer or paid agent at the hearing before the Deputy President. At the hearing before the Full Bench she properly conceded that she was aware that she could have made that application but did not think she needed it as the Respondent was not represented.66 [81] The Applicant placed reliance on the decision of the Full Bench in Fitzgerald,67 where it was held that permission for lawyers and paid agents to represent a client in a matter extends, in certain circumstances, to out of court activities, including preparing applications and making submissions. Effectively, the Appellant, in reliance on Fitzgerald, sought to argue that she had been denied the opportunity to seek legal representation by the conduct of the Respondent using the assistance of lawyers behind the scenes, where they did not seek permission in accordance with the Directions and in contravention of s.596 of the FW Act and the Fair Work Commission Rules (FW Rules). She maintains that she would have sought permission to be legally represented if she was aware. The Respondent conceded that it had used legal representatives to fill out its employer response and prepare submissions.68 [82] Section 596, dealing with the requirement for the grant of permission and the exceptions to that requirement, was as follows at the time of the hearing before the Deputy President: 596 Representation by lawyers and paid agents (1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC. (2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if: (a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or (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. Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following: (a) where a person is from a non-English speaking background or has difficulty reading or writing; (b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy. (3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages). (4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent: (a) is an employee or officer of the person; or (b) is an employee or officer of: (i) an organisation; or [2024] FWCFB 49 20 (ii) an association of employers that is not registered under the Registered Organisations Act; or (iii) a peak council; or (iv) a bargaining representative; that is representing the person; or (c) is a bargaining representative. [83] Section 609 of the FW Act authorises the making of procedural rules. Pursuant to s.609, Rules 11 and 12 of the FW Rules have been made and set out the relevant requirements for representation of a party before the Commission. At the time of the hearing before the Deputy President these rules were as follows: 11 Notice—lawyer or paid agent acting, or ceasing to act, for person in relation to matters before Commission (1) If a person wants to advise the Commission that a lawyer or paid agent acts for the person in relation to a matter before the Commission, the person must lodge a notice with the Commission. Note 1: A person may want to lodge a notice under this subrule (and serve the notice in accordance with rule 41) so that: (a) a lawyer or paid agent acting for the person is copied into information relating to the matter; or (b) all other parties to the matter are given notice that costs are being incurred by the person for which a party (or their lawyer or paid agent) could be liable if an order for costs is made against them by the Commission. Note 2: A notice must be in the approved form—see subrule 8(2). (2) If: (a) a person has lodged a notice under subrule (1) about a lawyer or paid agent in relation to a matter before the Commission; and (b) the lawyer or paid agent of the person ceases to act for the person in relation to the matter; the person must lodge a notice with the Commission advising that the lawyer or paid agent has ceased to act for the person in relation to the matter. Note: A notice must be in the approved form—see subrule 8(2). 12 Representation by lawyers and paid agents (1) For the purposes of subsection 596(1) of the Act, in any matter before the Commission, a person: (a) must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but (b) may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter. Note: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section. (2) Despite paragraph (1)(a), a person may, without the permission of the Commission, be represented in a matter by a lawyer or paid agent: (a) participating in a conference or hearing in relation to the following: (i) a matter arising under Part 2-3 of the Act (modern awards); [2024] FWCFB 49 21 (ii) a matter arising under Part 2-5 of the Act (workplace determinations); (iii) a matter arising under Part 2-6 of the Act (minimum wages); (iv) a matter arising under section 510 or 512 of the Act (entry permits); and (b) participating in a conference conducted by a member of the staff of the Commission, whether or not under delegation, in relation to the following: (i) an application under section 394 of the Act for an unfair dismissal remedy; (ii) an application under section 789FC of the Act for an order under section 789FF of the Act to stop bullying or sexual harassment. (3) Despite anything in this rule, the Commission may, in relation to a matter before the Commission, direct that a person is not to be represented in the matter by a lawyer or paid agent except with the permission of the Commission. (4) To avoid doubt, nothing in paragraph (2)(b) is to be taken as permitting a person to be represented in a matter by a lawyer or paid agent participating in a conference before a Commission Member in relation to an application under section 394 or 789FC of the Act without the permission of the Commission. [84] Central to the consideration of the Full Bench in Fitzgerald were s.596 of the FW Act and Rules 11 and 12 of the FW Rules. These rules have been amended following Fitzgerald to remove the references to any requirement to seek permission for matters such as preparing or lodging a written application or written submissions. Rule 12 was amended to make explicit that permission must be granted for a lawyer or paid agent to participate in a conference or hearing before the Commission, but that a party may otherwise without the permission of the Commission, be represented by a lawyer or paid agent in the matter. [85] We have considered the Respondent’s concession that legal representation was engaged for the purposes of preparing submissions and filing an employer response in these proceedings.69 The operation of s.596 of the FW Act and Rules 11 and 12 of the FW Rules invites but does not oblige a representative who commences acting for a party (as distinct from participating in a conference or hearing on that party’s behalf), to file a Form F53 with the Commission and to serve that Notice on the opposing party. A person may want to give notice under rule 11(1) so that the Commission and other parties will copy the lawyer or paid agent into correspondence and other documents in the matter. A person may also want to give notice under rule 11(1) to put the other parties on notice that costs are being incurred for which the other parties (or their lawyers or paid agents) could become liable if a cost order is made by the Commission. A person must give notice only if they seek be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter. [86] The Respondent did not seek to be represented at the hearing of the matter, nor did the Respondent’s representatives take any role at hearing, in the manner contemplated by the Full Bench in Fitzgerald.70 Accordingly, we consider that the Respondent did not, in the case before the Deputy President, need to file a Notice of Commencing to Act or seek permission from the Commission when it obtained the assistance of legal counsel in preparing its employer response and submissions. [87] Given our findings, we consider that Ground 4 discloses no arguable case of appealable error, and we reject it. Conclusion [2024] FWCFB 49 22 [88] In the appeal we must determine, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, whether an appeal should be granted. We are satisfied that the Deputy President has not erred in the application of the principles to the facts and evidence as presented to him. [89] Further, we have considered whether the appeal attracts the public interest, and we are not satisfied, for the purposes of s.400 of the Act, that it does. In reaching this conclusion we have had regard to the fact that: • there is not a diversity of decisions at first instance so that guidance from an appellate bench is required; • the appeal does not raise issues of importance and/or general application; • the Decision at first instance does not manifest an injustice, nor is the result counter- intuitive; • the Decision at first instance does not disclose any significant errors of fact; • the legal principles applied by the Deputy President were not disharmonious when compared with other decisions dealing with similar matters. [90] It follows that we must refuse permission to appeal. Accordingly, permission to appeal is refused. VICE PRESIDENT Appearances: G Petreski for the Appellant. B Tynan-Davey, Respondent. Hearing details: 2023. Sydney: November 13. [2024] FWCFB 49 23 Printed by authority of the Commonwealth Government Printer <PR770998> 1 [2023] FWC 2128 (‘Decision’). 2 Ibid at [18]. 3 Ibid at [9]. 4 Ibid at [20]. 5 Ibid at [21]. 6 Ibid at [22]. 7 Ibid at [23]. 8 Ibid at [25]. 9 Ibid at [33]. 10 On this point, the Deputy President cited the observations by White J in Port Kembla Coal Terminal Ltd v CFMMEU (2016) 248 FCR 18, [2016] FCAFC 99 and Tsiftelidis v Crown Melbourne Limited [2016] FWCFB 4675 (Tsiftelidis) at [33]. 11 Decision at [35]-[37]. 12 Ibid at [36]-[37]. 13 [2010] FWAFB 4125. 14 Decision at [42]. 15 [2014] FWCFB 4125 (Teterin). 16 [2014] FWCFB 5595 (Jain). 17 Teterin [31(2)]. 18 Jain [35]. 19 (1936) 55 CLR 499 at 505. 20 Witness Statement of Luke Jansson dated 10 July 2023 at [5]. 21 Witness Statement of Melissa Adam dated 10 July 2023 (Adam), tendered in the first instance hearing, at [11]. 22 Transcript of Hearing on 13 November 2023 (Transcript) at PN106, PN113 – PN114 and PN164. 23 Transcript at PN159. 24 Transcript at PN164. 25 Transcript at PN177. 26 Transcript at PN28. 27 [2017] FWCFB 2797. 28 Rabbi Samuel To-Lev v Strathfield & District Hebrew Congregation [2018] FWCFB 5613 at [17]. 29 Palak Rani v Limitless Ventures Toscas Pty Ltd t/a Toscanis Mackay [2015] FWCFB 8216 at [6]. 30 Appellant’s Outline of Submissions at paragraph 10(A)(i). 31 Decision at [25]. 32 Williams v The Building Connection Group Pty Ltd [2017] FWC 30 at [36]. 33 Ulan Coal Mine Limited v Henry Jon Howarth and others [2010] FWAFB 3488 at [17]. 34 Adam at [5]. 35 Adam at [6]. 36 Transcript of First-Instance Hearing on 31 July 2023 at PN193 – PN206. 37 Decision at [33]. 38 Decision at [27]-[35]. [2024] FWCFB 49 24 39 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]. 40 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24] – [27]. 41 Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operation/Warkworth [2010] FWAFB10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]. 42 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24] – [27]. 43 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). 44 Gelagotis v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [43]. 45 Wan v AIRC (2001) 116 FCR 481 at [30]. 46 Appellant outline of submissions at [10], Appellant’s Statement of Appeal filed on 22 September 2023 at Section 2. 47 Decision at [33]. 48 Decision at [27]-[35]. 49 Given the consideration at [32]-[33] of the Decision. 50 Tsiftelidis. 51 [2023] FWCFB 194 (KTC). 52 Ibid at [93]-[101]. 53 [2021] FWCFB 6059 (Mt Arthur Coal) at [108]. 54 Mt Arthur Coal at [108]. 55 Practice Note: Lawyers & Paid Agents, Fair Work Commission website, < Practice note: Lawyers & paid agents | Fair Work Commission (fwc.gov.au)>. 56 [2019] FWCFB 4022. 57 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 [30] per Kiefel CJ, Bell and Keane JJ. 58 Ibid [44] per Fox v Percy (2003) 214 CKR 118, 125 – 127. 59 Ibid [41] per WZARH v Minister for Immigration and Border Security (2014) 230 FCR 130 [57]. 60 (2015) 256 CLR 326 at [59] – [61]. 61 [2023] FWCFB 153. 62 Ibid at [52]. 63 Ibid at [55]. 64 The Respondent is located at World Square and the Applicant is located at Strathfield. 65 KTC at [71]. 66 PN56. 67 [2017] FWFCB 2797. 68 PN44. 69 PN44. 70 Fitzgerald at [53]-[55].