Application by Brian Fisher

[2025] FWC 2403

[2025] FWC 2403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.608—Referring questions of law to the Federal Court

Application by Brian Fisher

(ADM2025/7)

JUSTICE HATCHER, PRESIDENT SYDNEY, 15 AUGUST 2025

Application to refer a question of law to the Federal Court of Australia – application dismissed.

1. On 8 October 2024, Mr Brian Fisher lodged an application for an unfair dismissal remedy (matter U2024/12018). This matter was allocated to Saunders DP. On 4 February 2025, Mr Fisher lodged an appeal against an interlocutory procedural decision said to have been made by the Deputy President (matter C2025/856). Mr Fisher’s unfair dismissal application was dismissed by Saunders DP on 10 February 2025[1] on the basis of a finding that Mr Fisher had not been dismissed by the respondent. Mr Fisher’s appeal then metamorphosed into an appeal against this decision. On 23 April 2025, a Full Bench (Wright DP, Crawford C and Sloan C) refused permission to appeal.[2] On 16 May 2025, Mr Fisher lodged a further notice of appeal relating to his unfair dismissal application (C2025/3988), although it was not clear which decision he was actually appealing. On 18 July 2025, a Full Bench (Roberts DP, Ryan C and Walkaden C) refused to extend time for the lodgment of this appeal and, alternatively, said it would not grant permission to appeal.[3]

1. On 11 June 2025, Mr Fisher filed a further application using a Form F7 — Notice of appeal. The application identifies the decision under appeal as one made by Deputy President Millhouse (wrongly identified as a Commissioner) and her Associate. The date of the decision is identified as 6 June 2025, and Mr Fisher further adds:

1.Refusal to make available for viewing Transcripts. Decision to proceed to a hearing for a second time involving criminal allegations without transcripts, denial of natural justice.

2.Apprehended bias. Proceedings with same commissioners as previous hearing where Applicant seeks a rehearing due to a denial of natural justice. Obstruction of justice. Proceeding without transcripts, and the blocking of witnesses being subpoenaed involving criminal allegations.

3.Refusal to issue subpoenas of witnesses serious criminal allegations.

1. The application states the following in response to the prompt in the Form F7 used as to a description of the decision or order being appealed:

·Questions of law regarding the conduct of the commission. Referral of questions of law under s 608 Fair work Act 2009.

1.Denial of natural justice. Question of law in respect of proceeding to a hearing without Transcripts where it is alleged Respondents witnesses lied under oath for the purpose of perverting the course of justice, misleading the Deputy President at a hearing January 30, 2025. The DP misled falling into error. The cost to the applicant of having hearing Transcribed $1[,]352.40 in the wake of an unfair dismissal claim.

2.Apprehended bias. Commission re hearing case with same Commissioners on panel as original hearing. The commissioners acting consistently, would not bring a fresh set of eyes or open mind to case.

3.Obstruction of justice. Refusal to grant subpoenas of up to 14 witnesses in respect of alleged offences committed under S127a [sic], S385 and S678 Fair work Act 2009.

S385-

Termination of full-time, Monday to Friday, 9 hours per day, 45 hours a week, from set firm advanced commitment period of engagement from September 23, 2024 to January 30, 2025 at well below full casual employment entitlements as part of an agreement under 37.2 of EBA Individual flexible arrangement, terminated from engagement on the spot 10:45 hours, October 4, 2024 by phone (Replaced by another employee). No warning or reasons given. No investigation. The applicant deprived of in the order of $36[,]000 in income.

S327a-

Wage theft in advent employees (4 identified so far) were engaged at below casual entitlements in exchange for frim advanced commitment to ongoing employment beyond introduction of criminalisation of wage theft January 1, 2025.

S608-

Respondents lied and mislead commission under oath including hearing January 30, 2025 for the purpose of perverting the course of justice to deny the Applicant of rights, interests and legitimate expectation of a benefit. A criminal offence.

Refusal to provide transcripts and proceed to hearings without transcripts, for a second time where the commission has proceeded to hearings without transcripts and without the Applicant or Respondent being provided with transcripts of a 3 hour hearing January 30, 2025 that cannot be readily reviewed by audio, where the respondents witnesses are alleged to have lied under oath from the witness box January 30, 2025 an offence under S678 of the Fair work act 2009 an application is being made due to a denial of natural justice in initial proceedings.

The matter involves an application under S385, S327a and S678 of the Fair work act 2009.

The commission has acted to contain proceedings below a minimum threshold required for proper judicial process and the interests of justice and public interest.

1. As to the prompt for the grounds of appeal in the Form F7, Mr Fisher sets out s 608 of the Fair Work Act 2009 (Cth) and then states:

Denial of natural justice.

·Questions of law regarding the conduct of the commission. Referral of questions of law under S608 Fair work Act 2009 to the full bench of Federal court.

1.Proceeding to a hearing without transcripts for a second time, Denial of natural justice. Failure to give proper, genuine or realistic consideration to a hearing. Question of law in respect of proceeding to a hearing for a second time in matters involving criminal conduct without Transcripts where it is alleged Respondent’s witnesses lied under oath for the purpose of perverting the course of justice, misleading the Deputy President who fell into error at a hearing January 30, 2025 a serious criminal offence. The cost to the Applicant of having the hearing Transcribed $1,352.40 in the wake of an unfair dismissal claim and negative financial impact. A duty of the commission to make available for inspection transcripts under S2.32 Federal court rules 2011.

R v Watts [1992] 1 Qd R 214, a case where the tape recordings were long (5 hours) and indistinct, the Court of Appeal concluded that it was a proper exercise of discretion to admit the transcripts as evidence. In this case, the tape is 3 hours long.

2.Apprehended bias. Commission rehearing case with same Commissioners on panel as original hearing. A fair-minded lay observer might apprehend the commissioners acting consistently, would not bring a fresh set of eyes or open mind to case, and would seek to act consistently with their previous decision.

Legal precedent- GetSwift Limited v Webb FCAFC 26

3.Obstruction of justice. Refusal to grant subpoenas of up to 14 witnesses in respect of alleged offences including serious alleged offences under S127a [sic], S385 and S678 Fair work Act 2009.

Refusal to provide transcripts and proceed to hearings without transcripts, for a second time where the commission has proceeded to hearings without transcripts and without the Applicant or Respondent being provided with transcripts of a 3 hour hearing January 30, 2025 that cannot be readily reviewed by audio, where the respondents witnesses are alleged to have lied under oath from the witness box January 30, 2025 an offence under S678 of the Fair work act 2009 an application is being made due to a denial of natural justice in initial proceedings. The Applicant having been terminated from full time work, net income of $2’300/wk to no work for 8 months with the employer since October 4, 2024, causing significant financial upheaval.

The matter involves an application under S385, S327a and S678 of the Fair work act 2009.

1.The commission has acted to contain proceedings below a minimum threshold required for proper judicial process and the interests of justice and public interest.

1. In response to the prompt concerning the matter which would make it in the public interest to grant permission to appeal, Mr Fisher answers:

The Public Interest is not served where the interests of justice are not reali[s]ed nor the commission[’]s enactment reali[s]ed. Where members of the commission act outside of their jurisdictional require[e]ments.

1. On 11 June 2025, my chambers sent Mr Fisher an email containing the following enquiry:

You filed a Notice of Appeal (F7) today, however, it seems that it may be an application under s.608.

Can you please clarify whether you are appealing a decision (if so, which decision) or are you asking for the referral of questions of law to the Federal Court?

1. Mr Fisher gave the following response by email the same day:

It is an application under S608

I'm not aware of a speci[fi]c form for such applications other than the F7 form.

1. On 12 and 19 June 2025, Mr Fisher sent emails to Deputy President Saunders’ chambers and my chambers respectively, requesting that certain documents he had provided be collated into an appeal book. On 19 June 2025, my chambers sent the following email to Mr Fisher:

On Wednesday 11 June 2025, you clarified … that your application is for a referral of questions of law to the Federal Court under s 608 of the Fair Work Act 2009 (Cth), rather than an appeal under s 604. As such, you do not need to submit an appeal book as you have clarified that this matter is not an appeal.

1. Mr Fisher sent two emails in response the same day. The first stated:

It is a[n] interlocutory application that has not been addressed properly.

You have attempted to run the interlocutory proceeding exactly the same as last time. Same judic[i]al members. Without transcripts. Without witnesses.

On that basis, I asked that the decision by the commission to proceed with the same members, without transcripts and without witnesses be referred to the federal court on a basis of ap[p]rehended bias and denial of natural justice. …

1. The second email stated:

I might add, involving serious criminal allegations including pursuant of [sic] s678 of the Fair work Act 2009 which to date the Fair work commission has omitted from its decisions, failing to address at all.

1. On the basis of the above information, I will proceed on the basis that Mr Fisher’s application is not an appeal and, at least, includes an application for the referral of questions of law to the Federal Court of Australia under s 608 of the FW Act. I will deal with that application in this decision. On one view, Mr Fisher may also purportedly be applying for judicial review of a decision of this Commission by the Court. Such an application would need to be made to the Court itself and consequently that is not a matter I need to consider further. Section 678 of the FW Act establishes offences relating to giving false or misleading evidence to the Commission. Whether any such offence has been committed is beyond the jurisdiction of the Commission to determine and, again, is therefore not a matter I need to consider it further.

1. Section 608 of the FW Act provides:

(1)The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2)A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3)The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4)Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5)However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

1. The principles applicable to the construction and application of s 608(1) were recently summarised in United Firefighters’ Union of Australia v Fire Rescue Victoria[4] at [12]–[13] as follows. Section 608(1) imposes two preconditions on the exercise of the power conferred by the subsection on the President. The first is that any question must be one ‘of law’. The second is that the question must be one ‘arising in a matter before the Commission’.[5] For a question of law to ‘arise’, it must pertain to an issue that actually exists — that is, it must necessarily enter into the legal determination of the matter upon the facts stated. It is not sufficient that it might or will possibly arise. Remote or merely possible relation of the question of law to the facts is not enough to make the question ‘arise’ in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of ‘arising’.[6]

1. If these preconditions are satisfied, there remains a discretion as to whether to grant the referral. That discretion is to be exercised having regard to the purpose and objects of the FW Act and, having regard to s 577, it should be exercised where possible and appropriate in such a way as to avoid undue delay in the determination of matters before the Commission.[7] If there are outstanding evidentiary or factual issues which would inhibit the efficient determination of the question of law, that will be a discretionary matter likely to weigh against a referral pursuant to s 608(1).[8]

1. The preconditions for the exercise of the power in s 608(1) are not satisfied. First, Mr Fisher’s proposed ‘questions’, which I take to be those set out in [3] and [4], are not ‘questions of law’ capable of being answered as such by the Court. They are rather a series of propositions involving mixed issues of fact and law. Second, the ‘questions’ do not arise in any matter that is before the Commission. As earlier recounted, Mr Fisher’s unfair dismissal application in matter U2024/12018, and his appeals in matters C2025/856 and C2025/3988, have been dealt with to finality by the Commission. No question of law can now arise in respect of those matters. To the extent that Mr Fisher’s application the subject of this decision may be said to be a matter before the Commission, the consideration of that application does not require determination of the proposed ‘questions’, and thus they do not arise in the current matter in the requisite sense.

1. I therefore refuse Mr Fisher’s application for the referral of questions of law under s 608 of the FW Act. As this is the only matter raised by Mr Fisher’s application which is within the jurisdiction of the Commission, Mr Fisher’s application is dismissed.

PRESIDENT

[1]  [2025] FWC 380.

[2]  [2025] FWCFB 85.

[3]  [2025] FWCFB 148.

[4]  [2025] FWC 2384.

[5]  Grabovsky v United Protestant Association of NSW Ltd[2015] FWC 5161 [52].

[6] Ibid [53]–[54]; Hamzy v Tricon International Restaurants [2001] FCA 1589, 115 FCR 78 [21]; Application by Restaurant and Catering Association of Victoria [2013] FWC 6705, 232 IR 433 [11].

[7]  Health Services Union v Liviende Inc[2013] FWC 4435 [9]–[10].

[8]  Country Fire Authority v United Firefighters' Union of Australia[2012] FWA 8803 [9]–[14].

Printed by authority of the Commonwealth Government Printer

<PR790757>