[2012] FWAFB 2104 [2012] FWAFB 2104 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604 - Appeal of decisions Ms P Hetherington-Gregory v Harrington Village Motel (C2012/2654) SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT RICHARDS COMMISSIONER CAMBRIDGE MELBOURNE, 13 MARCH 2012 Appeal against certificate of Commissioner McKenna at Sydney on 25 January 2012 in matter number C2012/2202 - production of documents. [1] On 13 February 2012, Ms P A Hetherington-Gregory lodged an appeal against a certificate issued, pursuant to s.777 of the Fair Work Act 2009 (the Act), by Commissioner McKenna in Sydney on 25 January 2012 in matter number C2012/2202 - an application under s.773 of the Act to deal with an unlawful termination application. [2] The appeal is listed for hearing at 10.00 am on Wednesday, 28 March 2012, in Sydney. [3] On 6 March 2012, Ms Hetherington-Gregory applied for the making of an order requiring production of documents, directed to the respondent in the appeal, Mr R G Baird and Mrs J B Baird for the Harrington Village Motel (the Respondent). The order sought would require the production of various financial returns of the Respondent, financial information in relation to the Respondent’s business, entitlements paid to Ms Hetherington-Gregory, communications in relation to the state of the Respondent’s premises, medical certificates in relation to Mrs Baird and all documents lodged by the Respondent with Fair Work Australia. [4] In her reasons for the making of the order Ms Hetherington-Gregory contended that in the s.776 conference before Commissioner McKenna, Mr Baird made inaccurate statements. Ms Hetherington-Gregory also contended that the information sought by her through the order was necessary to allow her “to take up ‘the right of reply’ to the issues raised by Mr Baird in the hearing on the 25 January 2012”. [5] We refuse to make the order sought by Ms Hetherington-Gregory. [6] Whilst a requirement upon the Respondent to produce the sort of information detailed in the Schedule to the order to produce might be appropriate in respect of an application to the Federal Magistrates Court or the Federal Court of Australia by Ms Hetherington-Gregory under s.779 of the Act, for a determination of her claim by the Federal Magistrates Court or the Federal Court of Australia, the making of such an order is not appropriate for either the conduct of a s.776 conference by Fair Work Australia or, as is currently the case, an appeal in relation to such a conference. [7] In our view, the application for the order to produce by Ms Hetherington-Gregory for the purposes of her appeal is based on a fundamental misapprehension as to the nature of a s.776 conference and the function and powers of a Member of Fair Work Australia in conducting such a conference. [8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties. [9] The statutory requirements upon a Member in relation to a s.776 conference are: ● If satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that effect (s.777); and ● If the Member considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly (s.778). [10] A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties. [11] As noted by a Full Bench in Wright and Australian Customs Service 1 (in the context of s.170CE of the Workplace Relations Act 1996 ): ● “The process of conciliation does not, of course, involve a formal hearing and the taking of evidence. Its function is directed towards the resolution of the matter by amicable agreement. During the process, concessions may well be made for the purpose of achieving such a resolution.” ● “It should be emphasised, however, that, in considering the merits, the Commission has not had the benefit of sworn evidence and is not, therefore, in a position to make findings of fact on contested issues. The fact that the member is involved in conciliation and not arbitration provides a sound reason against the member embarking on a detailed consideration of the substantive case . . .” [12] The materials sought by Ms Hetherington-Gregory were not before Commissioner McKenna. An examination of the s.773 application files reveals that the only documents before the Commissioner were: 1. The application in Form F9, which attached the termination letter, an extract from the Act identifying the unlawful termination ground alleged (s.772(1)(e)), a two page note dated 23 December 2011 from Ms Hetherington-Gregory to Mr Baird, a request for a Certificate of Currency under s.163A(2) of the Workers Compensation Act 1987 and a series of photographs of structural issues with the property in which Ms Hetherington-Gregory worked; and 2. The Employer’s response in Form F9A which stated the reason for dismissal as “Financial difficulties IE $14000 had to be taken from personal account to maintain business” and states that none of the alleged contraventions of s.772(1) apply. [13] Having considered that limited material and having considered what was put by the parties in the course of the conference, Commissioner McKenna was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful, and the Commissioner issued a s.777 certificate to that effect and provided advice to the parties as to the prospects of success of the application in the course of the conference. [14] The substantial evidentiary material sought by Ms Hetherington-Gregory through the order to produce was not appropriate or necessary for the purposes of the s.776 conference undertaken by Commissioner McKenna. Nor is it necessary or appropriate for the determination of an appeal in relation to that conference. The application for the making of the order is refused. [15] As already noted, the application for the production of evidentiary materials by Ms Hetherington-Gregory seems to be premised on the mistaken belief that Commissioner McKenna was empowered to and did determine Ms Hetherington-Gregory’s application. That is not the case. Fair Work Australia’s function in relation to a s.773 application is limited to the conduct of a conference directed towards the resolution of the matter by amicable agreement. The power to determine an application in relation to a termination of employment on alleged unlawful grounds falls exclusively to the Federal Magistrates Court or the Federal Court of Australia under s.539 of the Act, in relation to s.772(1). [16] In the certificate issued on 25 January 2012, Commissioner McKenna certified that she was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. The effect of the certificate was to enable Ms Hetherington-Gregory to make an application to the Federal Magistrates Court or the Federal Court of Australia to seek a determination of her application. SENIOR DEPUTY PRESIDENT 1 PR926115 , at paragraphs 28 and 29. Printed by authority of the Commonwealth Government Printer <Price code A, PR521123>