[2015] FWCFB 2618 The attached document replaces the document previously issued with the above code on 21 April 2015. The document has been edited to correct a typographical error in paragraph [7] by replacing the word “then” with the word “than”. Catherine Taylor Associate to Vice President Hatcher. Dated 28 April 2015 f_p_n_1_ f_p_n_2_ 1 Fair Work Act 2009 s.604 - Appeal of decisions Asciano Services Pty Ltd v Zak Hadfield (C2015/2331) VICE PRESIDENT HATCHER DEPUTY PRESIDENT SAMS DEPUTY PRESIDENT LAWRENCE SYDNEY, 21 APRIL 2015 Appeal against an unpublished decision of Commissioner Riordan at Sydney on 25 March 2015 in matter number U2014/15137 - refusal of respondent to have legal representation. Introduction [1] Asciano Services Pty Ltd (the Appellant) has filed a notice of appeal under s.604 of the Fair Work Act 2009 (FW Act) in which it seeks permission to appeal and appeals an unpublished decision of Commissioner Riordan issued on 25 March 2015 (Decision). In that Decision the Commissioner refused an application made by the Appellant pursuant to s.596 of the FW Act to be represented by a lawyer in unfair dismissal proceedings. The Appellant seeks that permission to appeal be granted, the Decision be set aside and the Full Bench order that the Appellant be granted permission to be represented by lawyers. Background [2] The underlying matter before the Commission relates to an application made by Mr Zak Hadfield (the Respondent) for an unfair dismissal remedy against the Appellant. On 27 February 2015 the Appellant filed submissions in support of an application pursuant to s.596 that it be represented by a lawyer and on 3 March 2015 the Respondent’s representative, the Australian Rail, Tram, and Bus Industry Union (RTBU) filed submissions objecting to the Appellant being represented by a lawyer. Supplementary submissions were filed by both parties on 5 March 2015 and in response to the Commissioner’s request for further information the Appellant filed additional submissions on 11 March 2015. The Decision [3] The Decision the subject of this appeal was in the form of a letter to the parties. We set it out here in full: “I thank the parties for their submissions in relation to section 596 of the Fair Work Act, 2009 (the Act). [2015] FWCFB 2618 DECISION f_p_n_3_ [2015] FWCFB 2618 2 When determining such an application, I have to take note of section 596(2) of the Act. Having taken into account all of the submissions, the Respondent's application to be legally represented in this matter is refused. I do not believe that this matter is of such complexity that legal representation will allow the matter to be dealt with more efficiently. I am confident that the Respondent can represent itself effectively based on the skills and experience of its employees. I do not believe that it is unfair to the Respondent not to allow it to be represented after taking into account fairness between the Respondent and the Applicant's representative.” Submissions Appellant’s submissions [4] In its submissions in support of its application for permission to appeal, the Appellant advanced four propositions: (1) The Commissioner erred by failing to make findings of fact to support the conclusions he reached in the Decision or in the alternative that the Commissioner erred as to the proper construction of s.596(2) of the FW Act. (2) The Commissioner erred by failing to consider the Appellant’s central contentions and failing to take into account factors that were relevant to the criteria in s.596(2). (3) Having regard to the first two errors, the Appellant submitted that the Commissioner failed to take into account factors relevant to s.596(2) such that the exercise of discretion was affected by error of the type identified in House v The King1. (4) The Decision reflected a manifest injustice because the Respondent would be represented by a union while the Appellant would be forced to utilise its internal resources. [5] The Appellant submitted that permission to appeal should be granted because the appeal raises important questions regarding the exercise of jurisdiction by the Commission in applications under s.596, the determination of applications in the absence of an evidentiary basis and the appropriate balancing of interests where an applicant is represented by an industrial organisation. Respondent’s submissions [6] The Respondent submitted that the Appellant could effectively represent itself using its own qualified personnel and that the matter is not so complex that it requires external legal 1 (1936) 55 CLR 499 f_p_n_4_ [2015] FWCFB 2618 3 representation. The Respondent further submitted that the Appellant is a large organisation with significant resources and a sophisticated Human Resources department and furthermore that “the basis of the provision in s.596(2) of the Act was to put everyone on an equal footing”. Finally, the Respondent submitted that the Commissioner did not err in his application of the FW Act and that the Decision should not be overturned. Application for intervention [7] The New South Wales Bar Association sought leave to intervene in these proceedings submitting that it has an interest beyond that of an ordinary member of the public in ensuring that the requirements imposed by s.596(2) are properly taken into account. We have decided to refuse the application because we are not satisfied that the appeal gives rise to any issue of principle or general application in which the Bar Association has a legitimate interest. The submissions the Bar Association intended to advance did no more than agitate for an outcome based on the particular facts of the case and in that respect essentially did no more than echo the case of the Appellant. Consideration [8] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.2 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds. [9] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act: (1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless FWC considers that it is in the public interest to do so. [10] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds. [11] The Decision here was one made under s.596, which is not located in Part 3-2, but in relation to an unfair dismissal remedy application made under Part 3-2. A question arose whether in that circumstance s.400(1) applies. In Australian Postal Corporation v Gorman3 the Federal Court (Besanko J) gave consideration as to whether, in an appeal from an order dismissing an unfair dismissal application under s.587 of the FW Act, s.400(1) applied. The Court said: “[37] The question of whether there was or was not a binding settlement agreement is a question of fact, although no doubt informed by legal principles. In this case in considering whether permission to appeal should be granted and in considering the 2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ 3 [2011] FCA 975 f_p_n_5_ [2015] FWCFB 2618 4 appeal itself the Full Bench was required to apply s 400 of the Act. I did not understand the first respondent to contend otherwise. It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first respondent’s application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.” [12] The Court’s conclusion above suggests that s.400(1) also applies to this appeal. We shall approach the appeal on that basis. However we will also state the conclusion we would reach if s.400(1) did not apply. [13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 The public interest is not satisfied simply by the identification of error, or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest: “... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”6 [14] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.7 [15] 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 4 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44]-[46] 5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388, affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 6 [2010] FWAFB 5343 at [27], (2010) 197 IR 266 7 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481 f_p_n_6_ [2015] FWCFB 2618 5 of appealable error.8 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9 [16] The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies.10 [17] Section 596 of the FW Act provides: 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. … [18] The interpretation of s.596 was the subject of consideration in the decision of the Federal Court (Flick J) of Warrell v Walton11: 8 Wan v AIRC (2001) 116 FCR 481 at [30] 9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe [2014] FWCFB 1663 at [28] 10 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there. 11 [2013] FCA 291 f_p_n_7_ [2015] FWCFB 2618 6 “[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission …”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”. [25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)…” [19] We are not satisfied that it is in the public interest that permission to appeal be granted. Nor do we consider that, if s.400(1) does not apply, there are discretionary grounds justifying the grant of permission. We have reached this conclusion for the following reasons: (1) We do not consider that this appeal gives rise to any issue of general principle, that the Decision was disharmonious with other decisions, or that there is any diversity of decisions at first instance which requires guidance at the Full Bench level. The Federal Court decision in Warrell v Walton and the Full Bench decision in New South Wales Bar Association v McAuliffe12 provide the necessary guidance as to the interpretation and application of s.596. No issue raised in this case would make it necessary to supplement the propositions of general application stated in those decisions. The Decision was one which turned on its own facts. (2) We do not accept the Appellant’s submission that this case involved an important issue concerning the need to make findings of primary fact upon which the consideration of the criteria in s.596(2) may proceed. In this case, no evidence was adduced in relation to the question of permission to appear, and 12 [2014] FWCFB 1663 f_p_n_8_ [2015] FWCFB 2618 7 the matter proceeded on the basis of written submissions which contained a number of uncontested factual assertions. The Decision made it clear that the Commissioner had taken the submissions into account, and it can therefore reasonably be assumed that the Commissioner proceeded on the basis of the asserted facts. In that circumstance, and having regard to the fact that the Decision was merely an interlocutory one, we do not consider it was necessary for the Commissioner to recite the facts asserted in the submissions. (3) The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion. Although reasonable minds might differ as to whether any of those criteria was satisfied on the facts of this case, we do not think it can be said that the conclusions reached by the Commissioner were not reasonably available on the asserted facts. (4) We do not consider, having regard to the internal legal, human resources and other specialist personnel available to it, that the Decision manifests any injustice to the Appellant. The particular concern expressed by the Appellant that any such personnel may not actually be available to represent it at the hearing, which is due to run from 28 April-1 May 2015, is ameliorated by the fact that, as became apparent during the hearing of the appeal, the matter will not be ready for hearing on those dates and will have to be rescheduled. The availability of the parties’ representatives will no doubt be taken into consideration by the Commissioner when further dates are set. (5) The effect of rule 12(1) of the Fair Work Commission Rules 2013 when read with s.596(1) is that the Decision does not affect the capacity of the Appellant to have its out-of-court preparation work performed by lawyers. This further ameliorates the effect of the Decision, which is confined to in-court representation. [20] Two other relevant observations may be made. The first is that it is unclear whether Mr Hadfield’s unfair dismissal remedy application is to be dealt with in a determinative conference under s.398 or a formal hearing under s.399. The more informal procedures of a determinative conference may be more appropriate for a self-represented litigant such as the Appellant, and it remains open for the Appellant to apply to the Commissioner to have the matter dealt with in this way. The second is that, in the event that there is some relevant change in the circumstances of the case that might affect the applicability of the s.596(2) criteria - for example, some complex legal issue arises, or there remains a problem with the availability of relevant internal personnel - then the Appellant is not barred from making a fresh application for permission to be represented by lawyers. Conclusion [21] Permission to appeal is refused. VICE PRESIDENT f_p_n_9_ [2015] FWCFB 2618 8 Appearances: Y. Shariff of counsel with P. Almond solicitor for Asciano Services Pty Ltd. K. Pryor, J. Epps and J. Curley from the Australian Rail, Tram, and Bus Industry Union for Z. Hadfield. R. Kenzie QC and D. Mahendra of counsel for the New South Wales Bar Association. Hearing details: 2015. Sydney: April 17. Printed by authority of the Commonwealth Government Printer <Price code C, PR563139> f_p_n_10_