Benjamin Gussen v Swinburne University of Technology
[2025] FWCFB 32
•11 FEBRUARY 2025
| [2025] FWCFB 32 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 604—Appeal of decision
Benjamin Gussen
v
Swinburne University of Technology
(C2024/9238)
| DEPUTY PRESIDENT BINET | PERTH, 11 FEBRUARY 2025 |
Appeal against decision [2024] FWCA 2629 of Deputy President O’Neill at Melbourne on 22 July 2024 in matter number AG2024/2247 – extension of time refused
Dr Benjamin Gussen has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) against a Decision[1] issued by Deputy President O’Neill on 22 July 2024. In the Decision, the Deputy President approved the Swinburne University of Technology – Academic & Professional Employees Enterprise Agreement 2024 under s 185 of the Act. Dr Gussen seeks to appeal the Decision on the basis the Agreement should have not been approved due to the presence of clause 30 in the Agreement.
The Notice of Appeal was filed on Thursday 19 December 2024. This is outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2024. Accordingly, the matter was listed before the Full Bench for permission to appeal and an extension of time. The parties consented to the matter being determined without holding a hearing under s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the questions of permission to appeal and extension of time can be determined without the need for oral submissions.
For the reasons that follow, we decline to allow a further period of time for the lodgement of the appeal and the application for permission to appeal is dismissed.
Decision under appeal
The Decision concerns Swinburne University of Technology’s application under s 185 of the Act for the approval of the Agreement. The Deputy President was satisfied that subject to proffered undertakings, the requirements of ss 186, 187, 188 and 190 of the Act had been met. The Agreement was approved on 22 July 2024, commencing operation from 29 July 2024. There were no objections to the approval of the Agreement at the time.
Clause 30 of the Agreement sets out the process for investigating serious misconduct.
Grounds of appeal and public interest
Dr Gussen advances the following grounds of appeal in his Notice of Appeal, summarised as follows:
(1)The Deputy President failed to adequately assess whether Clause 30 complied with the Act. Specifically, Clause 30 is unlawful under s 194(b) as it has the effect of permitting a contravention of Part 3-1 of the Act.
(2)Clause 30 permits SUT to make discretionary decisions regarding allegations of serious misconduct without safeguards for procedural fairness. This has influenced Dr Gussen’s termination of employment and affected his rights under the Act.
(3)Dr Gussen has filed a general protections claim which involves Clause 30. Therefore, whether Clause 30 is lawful impacts on his other claims.
(4)It is in the public interest to ensure that all terms in enterprise agreements comply with the Act.
(5)The approval of Clause 30 sets a precedent for employers to exercise unilateral discretion in disciplinary proceedings.
In Dr Gussen’s lengthy written submissions he groups his arguments under the five grounds of ‘inefficiency’, ‘unfairness’, ‘unreasonableness’, ‘unlawfulness’ and ‘unenforceability’. Dr Gussen’s written submissions can be summarised as follows:
(1)Inefficiency: The Act promotes efficiency through its objectives. Clause 30 removes the right to an internal investigation in cases of serious misconduct. This is inefficient because it reduces the involvement of employees; increases the incidence of disputes being filed with the Commission and discourages cooperative resolution of disputes.
(2)Fairness: Clause 30 removes procedural fairness rights of employees by allowing SUT to terminate employees without an unbiased investigation. This contravenes objectives of the Act. Further, because Clause 30 is worse than comparable clauses in prior enterprise agreements, the Agreement fails the ‘Better Off Overall Test’.
(3)Reasonableness: Clause 30 is unreasonable because it undermines procedural fairness by allowing SUT to bypass mandatory safeguards. These mandatory safeguards are the comparable clauses in prior enterprise agreements. It also violates the objects of s 381 of the Act.
(4)Unlawfulness: Clause 30 is an unlawful term as it permits – or has the effect of permitting – a contravention of Part 3-1 of the Act. Therefore, it conflicts with mandatory procedural fairness requirements in enterprise agreements as per s 186(4) of the Act.
(5)Unenforceability: As Clause 30 has damaged Dr Gussen’s career, health and finances, Clause 30 cannot be regarded as leaving Dr Gussen better off than he would have been under the antecedent clauses in the prior enterprise agreements.
Dr Gussen’s submissions regarding public interest largely mirror his grounds of appeal in his Notice of Appeal and written submissions.
Extension of time
Rule 128(2) of the FWC Rules requires that an appeal must be filed within 21 days after the date of the decision appealed against, or within such further time allowed by the Commission on application.
As is frequently noted,[2] time limits of the kind in rule 128(2) should not be simply extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised by the Full Bench in Jobs Australia[3] as follows:
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.
Taking these matters into account, the exercise of the discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Dr Gussen being granted an extension of time within which to lodge the notice of appeal.[4]
Dr Gussen submits the following in support of his request for an extension of time:
(1)During the 21-day period after the approval of the Agreement, Dr Gussen was still employed full time and so he could not focus on the appeal;
(2)The interplay between Clause 30 and Dr Gussen’s general protections claim required detailed consideration and analysis.
(3)Clause 30 raises significant issues of procedural fairness and compliance with the Act so it is in the public interest for Dr Gussen’s appeal to proceed.
Consideration
We are not persuaded that Dr Gussen has provided a satisfactory reason for the long delay in lodging the appeal. The Decision was handed down on 22 July 2024. The last day for filing an appeal was 12 August 2024. Dr Gussen’s Notice of Appeal was filed on 7 December 2024. He is 129 days out of time. Dr Gussen’s submissions that he was working full time and could not focus on the appeal is not a satisfactory reason. Appellants routinely manage to file their appeals on time whilst being engaged in full time employment. Dr Gussen could have attended to filing of his appeal application at night or on weekends. Alternatively, he could have engaged a paid agent or legal representative to prepare and lodge the appeal on his behalf. Similarly, his submission that the interaction between Clause 30 and his general protections required detailed consideration is not a satisfactory reason for the delay. Often appeals require complex analysis. The 21 day time limit is intended to provide sufficient time for that to occur. Furthermore the filing of a notice of appeal does not require the same depth of analysis that preparation of submissions does.
Even if we were prepared to accept that Dr Gussen has provided a satisfactory reason for the delay in lodging his appeal and that there is no prejudice to SUT if time were extended, we are not satisfied that an extension of time is appropriate. In assessing whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of the grounds would be upheld if time were extended.
Having regard to Dr Gussen’s Notice of Appeal and submissions, we do not consider that Dr Gussen has alleged any matter that demonstrates an arguable case of appealable error.
There is no right to appeal. An appeal may only proceed with the permission of the Commission.
Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[5] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[6] The public interest might be attracted where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, 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.[7]
It will rarely be appropriate to grant permission to appeal unless the appellant demonstrates an arguable case of appealable error. This is because an appeal cannot succeed in the absence of an appealable error.[8] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
All of Dr Gussen’s grounds of appeal are misconceived. With regards to ground 1 and whether Clause 30 is unlawful, Dr Gussen has failed to articulate how Clause 30 interferes with the operation of Part 3-1 of the Act. Further, in our assessment of Clause 30, we are satisfied that it does not have the effect of interfering with Part 3-1 of the Act. Dr Gussen’s primary grievance with Clause 30 appears to be that SUT may determine whether an investigation is required (and how it is to be conducted) after considering an employee’s response to serious misconduct allegations. There is nothing we can see in Clause 30 that interferes with the operation of the Act.
Grounds 2 and 3 concern Dr Gussen’s grievance with how Clause 30 may or may not have impacted on his termination and separate general protections claim. This does not give rise to appealable error.
Ground 4 contends that it is in the public interest to ensure that all terms in enterprise agreements comply with the Act. We agree. However, as we have already outlined, there is nothing that we can identify in Clause 30 that is non-compliant with the provisions of the Act that relate to the content of enterprise agreements.
In Ground 5, Dr Gussen asserts that Clause 30 will set a precedent for employers to make unilateral decisions in disciplinary proceedings. We note that not all enterprise agreements contain clauses on the conduct of disciplinary proceedings, and it is not a mandatory term. We do not accept that one clause on a matter that is not mandated to be included in all enterprise agreements will set a precedent for other enterprise agreements or that such a clause could not or should not be included in an enterprise agreement as a matter of law or public policy.
With regards to Dr Gussen’s submissions or grounds regarding efficiency, whether or not Clause 30 outlines the most efficient process for investigating serious misconduct is not a relevant consideration in the approval of an enterprise agreement.
Dr Gussen’s contentions regarding fairness, reasonableness and the BOOT are also misguided. Dr Gussen makes comparisons to prior enterprise agreements. The BOOT assessment is to be made against the relevant award.
In our view, Dr Gussen has not advanced any arguable contention that there was error in the Deputy President’s decision to approve the Agreement. The Deputy President approached the statutory considerations in s 185 of the Act in an orthodox manner. Dr Gussen’s grounds of appeal and submissions are – at the heart of it – premised on his grievances regarding how Clause 30 impacted on him and his employment, rather than any identified appealable error in the Decision.
We are not otherwise persuaded that the balance of matters raised in Dr Gussen’s written submissions demonstrate an arguable case of appealable error. Nor are we satisfied, for the purposes of s 604(2) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application such that permission to appeal must be granted under the Act. This weighs against the grant of an extension of time to lodge the appeal.
Conclusion and order
Having regard to the likelihood that the appeal grounds would not be upheld if time were extended, we conclude that in all the circumstances, the interest of justice do not favour Dr Gussen being granted an extension of time.
An extension of time to file the appeal is refused. Dr Gussen’s application for permission to appeal is dismissed on that basis.
DEPUTY PRESIDENT
[1] [2024] FWCA 2629.
[2] See Snyder v Helena College Council, Inc t/a Helena College [2019] FWCFB 81.
[3] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide [2020] FWCFB 1692 at [8] and the authorities cited therein; Andrew John Paul v Busways Pacific Pty Ltd & Others [2024] FWCFB 369 at [32]-[33].
[4] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 54.
[5] O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 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; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28].
[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
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