Application by Christopher Budd
[2025] FWC 611
•28 FEBRUARY 2025
| [2025] FWC 611 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.608—Referring questions of law to the Federal Court
Application by Christopher Budd
(ADM2024/12)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 28 FEBRUARY 2025 |
Application for a referral of a question of law to the Federal Court of Australia – application dismissed.
On 2 December 2024, Mr Christopher Budd filed an application pursuant to s 608 of the Fair Work Act 2009 (Cth) (FW Act) seeking a referral of a question of law to the Federal Court of Australia. On 18 December 2024, the applicant was directed to provide written submissions in support of his s 608 referral, including the formation of the question to be referred, by 31 January 2025. In his written submissions, the applicant seeks the referral of the following questions:
a. Question 1: Can the Commission determine the validity of delegated legislation generally?
b. Question 2: Can the Commission determine the validity of delegated legislation made by the President under FWA s 609?
c. Question 3: Can the Commission decide the validity of delegated legislation generally?
d. Question 4: Can the Commission decide the validity of delegated legislation made by the President under FWA s 609?
e. Question 5: Is Fair Work Commission Rules 2024 (FWCR) r 13(1)(b) valid?
Relevant to the final proposed question, r 13(1) of the Fair Work Commission Rules 2024 (Cth) (FWC Rules) provides:
(1) In any matter before the FWC, a person:
(a) must not, without the permission of the FWC, 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 FWC, be represented by a lawyer or paid agent in the matter.
The relevant context in which the s 608 referral application is made can be summarised as follows. During 2024, the Australian Federal Police (AFP) engaged in bargaining with its employees and representatives for a proposed enterprise agreement. On 27 June 2024, the applicant, as an employee bargaining representative, filed a s 229 application for bargaining orders. On 15 November 2024, the bargaining concluded with the completion of a vote of employees to approve the Australian Federal Police Enterprise Agreement 2024-2027 (2024 Agreement). On 19 November 2024, the AFP made an application to the Commission for approval of the 2024 Agreement. On 22 November 2024, the AFP made an application under s 587 of the FW Act for the dismissal of Mr Budd’s application for bargaining orders.
The AFP’s application for dismissal of the bargaining orders application was heard before Commissioner McKinnon on 29 November 2024. In the course of this hearing, Mr Budd raised the contention that the Commission lacked the jurisdiction to determine the AFP’s application because the application was prepared by lawyers acting for the AFP for whom permission for representation had not been granted under s 596 of the FW Act. As part of this argument, Mr Budd submitted that r 13(1)(b) was invalid because it was not authorised by the FW Act and consequently did not permit the AFP to use lawyers in the preparation of its application without permission under s 596. The Commissioner rejected this contention in short ex tempore reasons delivered during the hearing. In respect of the validity of r 13(1)(b), the Commissioner said that this was ‘beyond the scope of the Commission’s function’ and that the Commission was ‘to take the law as it finds it and apply that law in dealing with the matters before it [and] that includes the [FWC Rules]…’.
On 2 December, the 2024 Agreement was approved by the Commission,[1] and it commenced operation on 9 December 2024. Mr Budd has not sought to appeal the decision to approve the 2024 Agreement. On 17 December 2024, Mr Budd filed a notice of appeal (matter C2024/9132) against the ‘decision’ said to have been made by the Commissioner on 29 November 2024 when she rejected his contention concerning the validity of the AFP’s application for dismissal.[2] On 18 December 2024, the Commissioner published her decision and order to dismiss Mr Budd’s application for bargaining orders.[3] In her reasons, the Commissioner concluded that Mr Budd’s application had no reasonable prospects of success because, upon the approval of the 2024 Agreement, s 232(b) of the FW Act applied such that any bargaining order that might be made on Mr Budd’s application could never operate.
Mr Budd has not sought to appeal the Commission’s dismissal of his bargaining orders application. His appeal in matter C2024/9132 has been allocated to a Full Bench to determine the anterior question of whether permission to appeal should be granted. On 13 January 2025, the presiding member of the Full Bench (Binet DP), on the application of Mr Budd, adjourned the hearing of the appeal (which had previously been listed for 4 February 2025) pending the determination of Mr Budd’s s 608 application.
Consideration
Section 608(1) of the FW Act provides that ‘The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court’. In Grabovsky v United Protestant Association of NSW Ltd[2015] FWC 5161, the then President of the Commission, Ross J, outlined the following in respect of s 608:
[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.
[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another the Full Federal Court held that a question does not ‘arise’, within the meaning of what is now s.608(1), ‘unless it pertains to an issue that actually exists’. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australia in support of this Proposition:
“It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a
question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. 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’.”
[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146.
[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the Act provides that the Commission must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
(citations omitted)
The passage above makes clear that, even if the two identified preconditions are satisfied, there remains a discretion to be exercised as to whether the referral should occur.
As earlier stated, Mr Budd was directed to file submissions in support of his application for the referral of the above questions. However, his submissions did not address the question of whether the referral should occur but rather sought to answer the questions he had formulated. Those submission are therefore of little assistance.
I am prepared to accept that the questions formulated by Mr Budd are capable of being characterised as questions of law. I also accept that they arise in the appeal lodged by Mr Budd, assuming for present purposes that the appeal is a valid one against a ‘decision’ of the Commission under s 604 of the FW Act.
However, I am not persuaded that I should exercise my discretion to refer Mr Budd’s five questions, or any of them, to the Federal Court. The determinative factor in this respect is the complete lack of practical utility in having the questions determined. The questions are only of practical relevance insofar as they arise in connection with Mr Budd’s application for bargaining orders. As the Commissioner pointed out in her decision dismissing that application, the effect of s 232(b)(ii) is that any bargaining order that might be made in respect of bargaining for an agreement with the AFP could never have any operation once the 2024 Agreement was approved by the Commission on 2 December 2024. Under s 230(1), the Commission has a discretion as to whether to make a bargaining order, and may only make such an order if satisfied that it is reasonable in all the circumstances to make the order. It is inconceivable that the Commission would make a bargaining order under s 230 that could never have operation. For this reason, Mr Budd’s bargaining orders application had, as the Commissioner found, no prospects of success whatsoever.
That renders Mr Budd’s proposed questions of academic interest only in respect of his litigation. Whether the AFP’s motion to dismiss his bargaining orders application was valid or not, and whether his appeal against the Commissioner’s rejection of his contentions concerning this ultimately succeeds or not, the fact remains that his bargaining orders application can never succeed and is therefore pointless.
In addition, the following matters weigh against the exercise of my discretion under s 608(1):
(1)Mr Budd’s central contention that r 13(1)(b) is invalid appears, on a preliminary consideration of the matter, to be lacking in merit. Section 596(1) expressly contemplates the making of procedural rules establishing exceptions to the general rule in the subsection that permission for representation by a lawyer or paid agent, including by making an application or submission, is required in a matter before the Commission. Section 609(2)(b) authorises the making of procedural rules concerning ‘the circumstances in which a lawyer or paid agent may make an application or submission to the FWC on behalf of a person who is entitled to make the application or submission’. Rule 13(1)(b), at least insofar as it applies to the making of applications and submissions, is plainly authorised by the FW Act.
(2)Mr Budd has not explained why, even if the AFP needed permission to have its application prepared by lawyers, that rendered the application invalid and beyond the jurisdiction of the Commission. In any event, I note that the Commission can dismiss an application on its own initiative under s 587(3)(a), so it is unlikely to have mattered whether the AFP’s application under s 587 was valid.
(3)Mr Budd has appealed neither the decision to approve the 2024 Agreement nor the Commissioner’s order dismissing his bargaining orders application.
For the above reasons, Mr Budd’s application for a referral under s 608 of the FW Act is rejected.
PRESIDENT
Hearing details:
Determined on the papers.
Final written submissions:
Christopher Budd: 31 January 2025
[1] [2024] FWCA 4231.
[2] Matter C2024/9132.
[3] [2024] FWC 3516.
Printed by authority of the Commonwealth Government Printer
<PR784847>
0
1
0