Baccara-Geva (Australia) Pty Ltd T/A Baccara v Edi Idelman
[2015] FWCFB 1957
•25 MARCH 2015
| [2015] FWCFB 1957 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Edi Idelman
(C2015/1573)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 25 MARCH 2015 |
Appeal against Decision [2015] FWC 296 of Commissioner Ryan at Melbourne on 15 January 2015 in matter number U2014/14534; Appeal raises proper construction of s.23 (3) of the FW Act; construction of s.23 not previously considered by a Full Bench of the Commission; appellant has made out an arguable case for its preferred construction; matter raises issues of importance and general application; public interest enlivened - permission to appeal granted.
[1] Baccara–Geva (Australia) Pty Ltd (appellant) dismissed Edi Idelman (respondent) from its employment on 3 October 2014. At the time of his dismissal, the respondent had been employed by the appellant for a period of just short of 10 months. When it dismissed the respondent from its employment, the appellant employed five employees including the respondent.
[2] After the respondent had made an application under s.394 of the Fair Work Act 2009 (Cth) (FW Act), the appellant gave notice that it objected to the respondent’s application on the ground that the respondent had not completed the minimum employment period set out in s.383 of the FW Act. Specifically the appellant asserted that it was a small business employer within the meaning of s.23 of the FW Act and as the respondent had been employed by it for a period of less than one year, he was not by reason of s.382, a person who was protected from unfair dismissal at the time that the appellant had dismissed him.
[3] The appellant accepts that it is an associated entity (within the meaning of s.50AAA of the Corporations Act 2001 (Cth)) of a foreign company, namely Baccara–Geva Cooperative Agricultural Society Ltd, which is registered in Israel. The foreign company does not have operations in Australia nor does it employ any person in Australia. However the appellant maintains that as the employees of the foreign company are not national system employees and as the foreign company is not a national system employer, its employees should not be counted in calculating the number of employees employed by the appellant at the time of the respondent’s dismissal for the purposes of s.23 (3) of the FW Act. It is not in dispute that if the foreign company’s employees are to be counted in the calculation, the appellant will have employed in excess of 15 employees at the time of the respondent’s dismissal, and so would not be a small business employer.
[4] The question whether the appellant was a small business employer at the time of the respondent’s dismissal was considered by Commissioner Ryan. The Commissioner determined that the appellant was not a small-business employer within the meaning of s.23 of the FW Act because the foreign company and the appellant were associated entities and the combined number of employees exceeded 15. 1 In rejecting the appellant’s construction of s.23 of the FW Act the Commissioner preferred the construction for which the respondent had contended and he concluded therefore that the respondent had completed the minimum employment period, being a period of six months immediately before the respondent’s dismissal.2
[5] The appellant seeks permission to appeal the Commissioner’s decision and that is the matter before us.
[6] The decision the subject of this appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). The appellant’s application for permission to appeal is not advanced on the ground that the Commissioner’s decision is attended by any error of fact. 3 In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.4 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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
[8] 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. 7 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.8
[9] Central to the appellant’s argument that permission to appeal should be granted is that the Commissioner’s construction and application of s.23 of the FW Act was incorrect. It submits that as the FW Act cannot and does not extend to regulating the activities of a foreign corporation which does not have any presence or conduct any activity in Australia, it must follow that an associated entity that is a foreign company with no Australian activities is not caught by the FW Act and its employees cannot be included in the calculation of the number of employees of a national system employer that is an associated entity of the foreign company. The appellant submitted that as the Commissioner concluded to the contrary he was in error.
[10] The appellant submitted that permission to appeal should be granted because it is able to establish that there is an arguable case that the Commissioner was in error as to the proper construction of s.23 of the FW Act, that the proper construction of that section had not previously been considered by a Full Bench of this Commission and the issues to be agitated on appeal are of importance and of general application. The respondent had earlier advised that he would not be attending the hearing of the appellant’s permission to appeal application and made no submissions on the question whether permission should be granted.
[11] We are persuaded that the appellant has at least made out an arguable case for its preferred construction of s.23 of the FW Act. It follows that it has also made out an arguable case that the Commissioner made an appealable error in concluding to the contrary. It does not appear to us that the proper construction of s.23 has previously been the subject of consideration by a Full Bench of this Commission nor does the issue raised by this appeal appear to have been extensively considered by members of the Commission previously. The question of the proper construction of s.23 of the Act in the context of assessing whether an applicant for an unfair dismissal remedy application has completed the requisite minimum employment period set out in s.383 is one of importance and general application. We are therefore satisfied that the public interest is enlivened
[12] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. For the reason given we consider that it is in the public interest to grant permission to appeal and we do so.
[13] Directions for the hearing and determination of the appeal will separately be issued. The directions will include an invitation to peak union and employer bodies as well as the Minister, to make submissions on the issue raised by the appeal.
PRESIDENT
Appearances:
The Appellant: Ms K Bowshell of counsel
The Respondent: No appearance
Hearing details:
Melbourne
18 March 2015
1 [2015] FWC 296 at [11]
2 Ibid
3 Appellant’s Outline of Submissions at [13]
4 (2011) 192 FCR 78 at paragraph 43
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
6 (2010) 197 IR 266 at paragraph 27
7 Wan v AIRC [2001] FCA 1803 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28] at the
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