Brendan Darsie Clarke v Central Queensland Services Pty Ltd
[2023] FWCFB 36
•14 FEBRUARY 2023
| [2023] FWCFB 36 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Brendan Darsie Clarke
v
Central Queensland Services Pty Ltd
(C2022/6669)
| VICE PRESIDENT CATANZARITI | SYDNEY, 14 FEBRUARY 2023 |
Appeal against decision [2022] FWC 2418 of Commissioner Simpson at Brisbane on 12 September 2022 in matter number U2022/3623 – unfair dismissal application – permission to appeal refused.
Introduction
Mr Brendan Clarke (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) against the decision (the Decision)[1] of Commissioner Simpson (Commissioner) issued on 12 September 2022 for which permission to appeal is required.
The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Central Queensland Services Pty Ltd (the Respondent) pursuant to s.394 of the Act. The Appellant’s dismissal concerned his failure to comply with the Respondent’s direction to be fully vaccinated with an approved COVID-19 vaccine and provide proof of that vaccination in accordance with the requirements of the Respondent’s Group Site Access Requirement (the SAR). The Commissioner ultimately dismissed the application finding that the Appellant was not unfairly dismissed within the meaning of the Act.
The matter was listed for permission to appeal only. Directions were set for the filing of material. Both the Appellant and the Respondent filed written submissions and made further oral submissions at the hearing on 18 November 2022.
On 24 October 2022, the Respondent filed submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. On 16 November 2022, the Full Bench refused permission for the Respondent to be legally represented at the hearing.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Respondent operates the Daunia Mine Site (the Site). The Appellant commenced employment with the Respondent in August 2013 and was employed as a Maintenance Technician in the Tool Store at the Site.
As noted above, the Decision concerned the Appellant’s failure to comply with the Respondent’s direction to be fully vaccinated with an approved COVID-19 vaccine and provide proof of that vaccination in accordance with the requirements of the SAR.
The Decision noted the Appellant’s submission in his Form F2 application that the Respondent failed to undertake an adequate consultation process or comply with the BMA Daunia Mine Enterprise Agreement 2019 (the Agreement) and ‘various other legislation’ when implementing the SAR and directing employees to be fully vaccinated against COVID-19 or provide a valid exemption.
In the early stages of the COVID-19 pandemic, the Respondent established a management group in order to mitigate the risk of COVID-19 across its workplaces and sites.
In early-2021 and following the introduction of the national vaccine rollout, the Respondent provided its employees with a range of information relating to the safety and efficacy of the COVID-19 vaccines.
In or around August 2021, the Respondent (and its corporate group) began to consider additional safety controls to prevent the spread of COVID-19 within its sites throughout Australia.
On 21 August 2021, an “Options Analysis” was submitted to the Respondent’s management group which led to the recommendation that vaccination could be a requirement of entry to their worksites.
On 31 August 2021, the Respondent announced by way of email to all staff, including the Appellant, the initiation of a consultation process for the introduction of the SAR. The email provided employees with the opportunity to direct questions, comments or concerns about the SAR and the COVID-19 vaccines to a dedicated email address. This announcement was followed by a consultation process with employees and their representatives in accordance with the Coal Mining Health and Safety Act 1999 (Qld) (the CMSH Act). The Respondent also held briefings with, and provided information to, its management team, superintendents and supervisors to assist them in responding to any questions from workers.
In or around September 2021, the Respondent received memorandums of advice from Mr Tim Dahlheimer (Vice President, Health Safety Environment, Minerals Australia) and Dr Gary Krieger (Senior Vice President, New Fields, and a Doctor of Medicine). The memorandums contained evidence-based support of the efficacy of the COVID-19 vaccines in reducing the threat of COVID-19 at the Site. The Respondent also undertook a Risk Assessment based on information produced by the Australian Technical Advisory Group on Immunisation, news reports and clinical evidence, and consulted with its workforce about the proposal to introduce a vaccination policy.
On 6 October 2021, the senior leaders of the Respondent received an email from Mr Edgar Basto (BHP’s President, Minerals Australia) advising that, in line with Government guidance and the review of the effectiveness and status of COVID-19 controls, a COVID-19 vaccination would become a requirement for entry to workplaces.
On 7 October 2021, the Respondent announced to all workers, including the Appellant, that based on the research and consultation process to date, the SAR was intended to come into effect on 31 January 2022. This announcement requested employees to continue to provide feedback or queries in relation to the SAR to the designated email address or by speaking with their managers.
On 14 October 2021, the Appellant attended a group return to work meeting during which a video message was shown. In the video message, Mr Basto stated that a vaccination mandate would be introduced for the good of the workforce at all Australian worksites. The meeting also included a question and answer segment which the Appellant participated in.
On or about 18 October 2021, the Appellant completed a Job Safety Analysis (JSA) that identified other ways in which the COVID-19 virus could be controlled at the Site. The JSA also set out the risks associated with the Pfizer, Moderna and AstraZeneca vaccines. The Appellant emailed the completed JSA to Ms Lori Smith, the general manager of the Site.
On 17 November 2021, Ms Smith sent an email to the Respondent’s operations team informing them that the Respondent intended to ensure employees could readily access a COVID-19 vaccine through establishing a walk-in vaccination clinic and a Vaccination Data Capture Portal (Portal) for employees to upload their vaccine status data.
On 29 November 2021, Mr Jason Gardner, the maintenance manager for the Site, sent an email to the Appellant’s work email address providing an update regarding the Portal. However, the Commissioner accepted that the Appellant did not receive that email because he was not on Site during that period and the email was never forwarded to his personal email address.[2]
On 3 December 2021, and following the decision of a five-member Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[3] (Mt Arthur Coal), the Respondent (through its corporate group) took additional steps to collaborate with Unions and the Commission to agree on a consultation process to ensure consultation was undertaken in accordance with the Commission’s decision in Mt Arthur Coal.
On 9 December 2021, the Appellant commenced a period of long service leave which continued until 12 January 2022.
On 10 December 2021, all staff received an email which attached an information brief about the health support available at the Site and the uploading of their vaccination status to the Portal.
On 16 December 2021, all staff received an email attaching a document titled ‘Consultation Plan’, which was agreed between the Unions and BHP on 15 December 2021 following the decision in Mt Arthur Coal. The Consultation Plan set out the process by which the Respondent would take into account feedback from workers, as well as identifying any measures it could take to avert or mitigate the effect of the proposed SAR before a final decision on the implementation of the SAR was made.
On 16 December 2021, Ms Smith also approved an updated Workplace Risk Assessment and Control (WRAC) which supported the implementation of vaccination as a SAR for all employees, contractors and visitors from 31 January 2022. The WRAC and Consultation Plan were displayed throughout the Site and were able to be accessed and downloaded through the Respondent’s ‘Consultation Hub’. The Consultation Hub contained a range of information about COVID-19 vaccines and vaccination as a condition of workplace entry, including the memorandums received from Mr Dahlheimer and Dr Krieger.
On 22 December 2021 and following discussions between BHP and Unions, Ms Smith sent an email to all staff updating them on the consultation process on the SAR. Ms Smith also sent an email to all superintendents and management staff attaching information and guidance material to assist them in any discussions with workers in their crew.
On 24 December 2021 and 29 December 2021, Ms Smith attended meetings with BHP representatives and workers at the Site to discuss the introduction of the SAR and the measures that could be implemented to avert or mitigate the effect of the proposed SAR and to answer any questions.
On 5 January 2022, Ms Smith sent an email to all management staff, superintendents and supervisors at the Site attaching further guidance notes on how to approach consultation with workers. Ms Smith also sent an email to all staff at the Site providing an update on the consultation process and further vaccination information and reminding all staff that the consultation period was closing at 8:00pm on 6 January 2022.
Following the closure of the consultation period on 6 January 2022, Ms Smith reviewed and considered the feedback received during the consultation period, including the JSA submitted by the Appellant, before making the ultimate decision that the SAR would commence on 31 January 2022.
On 13 January 2022, Mr Gardner sent correspondence to the Appellant directing him to produce evidence of his vaccination status for him to access the Site upon his return from leave. The correspondence stated, amongst other things, that the Appellant:
· was advised about the SAR in October 2021;
· was advised on 29 November 2021 that the Respondent needed to maintain records of the COVID-19 vaccination status of its workforce;
· had failed to upload his COVID-19 vaccination status to the Portal;
· was directed to upload his vaccination status via the Portal; and
· could direct any questions or comments in the relation to the requirement to upload his vaccination status to the dedicated email address, the Respondent’s COVID-19 vaccine support line and/or his team leader.
On 25 January 2022, the Appellant received an email which informed him that the Commission had issued a Recommendation that the SAR was lawful and reasonable. Ms Smith also sent an email to all staff informing them that the SAR would commence at 12:01am on 31 January 2022 and provided other information including details of the various measures that had been implemented as a result of the consultation process, such as the utilisation of unpaid leave or remote working arrangements.
On 27 January 2022, the Appellant was informed by Mr Gardner during a telephone call that he would need to be fully vaccinated by 31 January 2022 to attend the Site.
On 31 January 2022, the SAR came into effect at the Site and remained in effect as at the time of the hearing at first instance.
On 1 February 2022, the Appellant was stood down and given 48 hours to ‘show cause’. The Appellant provided a response within that timeframe in which he stated the SAR was not reasonable due to the risk of adverse health effects and requested that he be exempt from the SAR until a ‘newer’ vaccination with less risk of adverse health risks becomes available.
On 7 February 2022, the Appellant advised Mr Gardner that he would be prepared to consider receiving the Novavax vaccine once it became available later that month.
On 24 February 2022, the Appellant sent an email to Mr Gardner advising that he would not be receiving the Novavax vaccine as there was insufficient evidence and data available to reach an informed decision that it is safe for use. The Appellant requested an exemption from what he described as the unreasonable vaccination requirement.
On 8 March 2022, Mr Gardner advised the Appellant that his employment was terminated. Mr Gardner made the decision to terminate the Appellant’s employment after receiving the Appellant’s correspondence on 24 February 2022 and giving consideration to the following factors:
· The Appellant had been on notice about the SAR since at least October 2021;
· The Respondent had provided workers with ample opportunity to receive a COVID-19 vaccination;
· The Appellant did not present any legitimate exemptions or provide any medical evidence to justify or explain his refusal;
· The Appellant expressed a willingness to receive the Novavax vaccine which was accommodated by the Respondent. The Appellant subsequently decided not to proceed with the Novavax vaccine.
· The Appellant was given an opportunity, which he took up, to respond to the proposal to terminate his employment for failure to comply with the SAR;
· The Appellant’s substantive role required him to attend the Site to perform work in the tool store;
· The Appellant was unable to fulfil the inherent requirements of his role because he was not permitted to enter or remain on the Site pursuant to the SAR; and
· There were no other vacant roles that the Appellant could be deployed into.
The Appellant submitted that he was never consulted appropriately on an individual basis and that the Respondent failed to comply with its consultation obligations under the Agreement and safety legislation and that there was not a valid risk assessment undertaken.
The Appellant further submitted that he had limited contact with other workers on Site and relied on the JSA to support his contention that the risk of COVID-19 could be managed by means other than vaccination.
The Respondent submitted that the SAR was a lawful and reasonable direction and relied on Mt Arthur Coal as to what is ‘reasonable’.
The Commissioner began his consideration of s.387 of the Act by observing that the decision in Mt Arthur Coal concluded that the SAR was capable of being a lawful and reasonable direction, however there was a deficiency in relation to the consultation process.[4]
The Commissioner further observed that the Full Bench in Mt Arthur Coal had extensive expert evidence before it and set out a number of general factual propositions relating to COVID-19 and vaccinations that were accepted by the Full Bench in Mt Arthur Coal. The Commissioner then adopted the reasoning of the Full Bench.[5]
The Commissioner rejected the Appellant’s contentions that his working arrangements resulted in him having limited contact with other workers on Site and therefore it was unreasonable for the SAR to apply to him. The Commissioner found it was uncontentious that the Appellant was required to have contact with other workers on shift.[6]
The Commissioner accepted that the WRAC supported the rationale for implementing the SAR and the way it was prepared was not in breach of the CMSH Act.[7]
The Commissioner found that the evidence established the Respondent engaged in appropriate consultation, whether the obligation to consult arose under the terms of the Agreement or workplace health and safety legislation, and that the Appellant had participated in the consultation process through the submission of the JSA and had access to considerable information in the period prior to the implementation of the SAR. The Commission found that the Appellant’s own decision to be away at relevant times did not lead to a conclusion that there were deficiencies in the Respondent’s consultation process.[8]
The Commissioner concluded the SAR was a lawful and reasonable direction and the Appellant’s failure to comply with the SAR was a valid reason for his dismissal.[9]
The Commissioner was satisfied that the Appellant was notified of the reason for dismissal and had an opportunity to respond, finding that the Appellant was made aware in the months leading up to the implementation of the policy, that if he was not vaccinated his employment may be terminated.[10]
The Commissioner found the Appellant was not unreasonably refused a support person and that his dismissal did not relate to unsatisfactory performance. Further, the Commissioner was satisfied that the Respondent was a large employer with a dedicated human resources function.[11]
In terms of the other relevant matters, the Commissioner found the Appellant’s length of service in the coal mining industry, that he was in the latter stage of his career, and his unblemished record as an employee weighed in the Appellant’s favour.[12]
Having considered each of the matters specified in s.387 of the Act, the Commissioner was satisfied that the dismissal of the Appellant was not harsh, unjust or unreasonable, and that the Appellant was not unfairly dismissed within the meaning of s.385 of the Act.[13]
Permission to appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[14] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
In the decision of the Full Court of the Federal Court 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”.[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[16] 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.”[17]
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 an appealable error.[18] 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.[19]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[20]
Grounds of Appeal and Submissions
Appellant
The Appellant provided numerous grounds of appeal in his Form F7 – Notice of Appeal and written submissions. We have summarised and distilled the Appellant’s grounds of appeal and submissions as follows:
· Ground 1 – the Commissioner erred by failing to consider or respond to the case advanced by the Appellant and failed to provide adequate reasons. In support of this ground, the Appellant submits the Commissioner failed to consider many of his arguments contained in the Form F2 application and his submissions and refer to them in the Decision.
· Ground 2 – the Commissioner erred in failing to correctly apply relevant legislation and case law, and the terms of the Agreement. In support of this ground, the Appellant submits the Commissioner failed to consider and correctly apply the Act, the CMSH Act, relevant case law, including the decision in Mt Arthur Coal, and the terms of the Agreement.
· Ground 3 – the Commissioner erred in finding that the Respondent’s consultation process was appropriate.
· Ground 4 – the Commissioner failed to act with integrity, impartiality and fairness and displayed a bias in favour of the Respondent in the programming of the matter for hearing and throughout the hearing. In relation to this ground, the Appellant submits the Commissioner:
oDid not provide directions for the Appellant to file witness statements and submissions in reply to the Respondent’s witness statements and submissions;
oDid not allow a sufficient period of time between the filing of the Respondent’s materials and the hearing of the matter;
oRefused to hold an in-person hearing on the basis that the Appellant was not vaccinated, indicating a predisposition against persons who have not received the COVID-19 vaccination;
oAllowed the Respondent to have persons observing the proceedings but required the Appellant’s observers to apply for permission to observe;
oUnfairly intervened in the proceedings preventing the Appellant from effectively cross examining the Respondent’s witnesses; and
oFailed to allow the Appellant a sufficient opportunity to make submissions in support of his case.
· Ground 5 – the Commissioner made many significant errors of fact by relying on irrelevant, inaccurate and unsubstantiated matters and the Decision is fundamentally and procedurally incorrect. In support of this ground, the Appellant submitted the Commissioner:
oAccepted testimony without evidence of fact and attached weight to its accuracy;
oHas taken excessive amounts of irrelevant and immaterial evidence and used it as support in the Decision;
oHas handpicked and filtered the evidence in a biased manner that lacks impartiality and is prejudiced against the Appellant;
oPlaced extraordinary consideration on the evidence of Ms Smith who was shown to have lied under oath on a number of occasions during cross examination; and
oFailed to give the necessary consideration to the Appellant’s arguments and evidence.
· Ground 6 – the Commissioner erred by failing to find the Respondent’s decision to stand the Appellant down without pay was unlawful and unreasonable.
· Ground 7 – the Commissioner failed to give due consideration and weight to the Appellant’s personal and work circumstances and history as part of his consideration under s.387.
· Ground 8 – the Commissioner erred by finding at [104] of the Decision that the Appellant was aware that if he is not vaccinated his employment may be terminated.
· Ground 9 – that the Commissioner erred by allowing the Respondent to be represented by two lawyers.
Respondent
While the Respondent was not directed to provide written submissions as this matter was listed for permission to appeal only, they nonetheless filed short submissions in response to the Appellant’s written submissions.
The Respondent submits that the Commissioner provided a clear explanation of the submissions and the evidence and why he accepted the Respondent’s evidence. The Respondent submits the Commissioner correctly considered and applied the decision in Mt Arthur Coal.
The Respondent further submits the Appellant has failed to establish that any successful ground of appeal exists.
New material
On 3 February 2023, and after we had reserved our decision, the Appellant made an application to rely on new material in the appeal. The new material related to an announcement by the Respondent’s corporate group that the SAR will be ‘de-escalated’ at all its Australian workplaces from 1 March 2023. From that date, workers will not be required to have received a COVID-19 vaccination as a condition of entry to the Site.
The Appellant submits that it would be fair and just that this new information be considered as part of his appeal.
Public Interest Contentions
Appellant
Although the Appellant’s public interest contentions were largely a recitation of the grounds of appeal, the Appellant submits that it is in the public interest for the Commission to grant permission to appeal because:
The appeal raises substantive issues of importance and wider issues of principle that required revisiting through an appellate body;
The Decision is clearly unreasonable and plainly unjust and not in the public interest or benefit. In support of this submission, the Appellant relies on the decision in Aperio Group (Australia) Pty Ltd t/as Aperio Finewrap v Sulemanovski [2011] FWAFB 1436.
Respondent
The Respondent submits that the Appellant has failed to demonstrate that permission to appeal is in the public interest.
Consideration
Whether the Full Bench should receive further evidence in the appeal
Before turning to consider the grounds of appeal advanced by the Appellant, we will first deal with whether the Full Bench should receive new evidence that the Appellant seeks to adduce on appeal. Section 607(2) of the Act provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence. However, it is by no means a matter of course that it will do so.
Principles relevant to the exercise of discretion to admit new evidence or to consider further material were considered in Akins v National Australia Bank (Akins)[21] in which the New South Wales Supreme Court identified three conditions that it would need to be satisfied of before the discretion might be exercised to admit further evidence. First, it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance. Second, it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. Third, the evidence must be credible.[22]
The new evidence the Appellant seeks to adduce on appeal comprises an announcement by the Respondent’s corporate group that the SAR will be ‘de-escalated’ at all of its Australian workplaces and will no longer apply from 1 March 2023.
The Appellant was dismissed on 8 March 2022. The relevant circumstances that the Commissioner was required to consider are those that existed at the time of the dismissal.[23] Accordingly, we are not persuaded that the material is highly probative evidence such that there is a probability the Commissioner would have reached a different outcome at first instance. We decline to exercise our discretion under s.607(2) of the Act to admit further evidence.
Grounds of Appeal
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that the Appellant’s grounds of appeal disclose an arguable case of appealable error. However, for completeness, we address the Appellant’s submissions as follows.
In relation to ground 1, the Commissioner outlined the salient background facts in chronological order, with sufficient detail and reference to the Appellant’s submissions and contentions. That every matter of fact or law raised in the proceedings at first instance is not set out in the Decision does not give rise to appealable error.[24] We find ground 1 discloses no reasonably arguable case of error that would attract the public interest.
In relation to ground 2, the Appellant has not identified the specific provision in the Act or term of the Agreement that the Commissioner failed to consider or incorrectly apply. In relation to the CMSH Act, the Appellant has not explained how the Commissioner failed to apply that in circumstances where he accepts matters relating to COVID-19 do not fall within the scope of that legislation.[25] In relation to the decision in Mt Arthur Coal, the findings of the Full Bench were both relevant and directly applicable to the case before the Commissioner and correctly applied by the Commissioner. We find ground 2 discloses no reasonably arguable case of error.
In relation to ground 3, the Commissioner set out in detailed fashion the consultation process undertaken by the Respondent. Where such evidence and submissions were not accepted, the Commissioner provided reasons. We are satisfied that there is no arguable case of error in relation to ground 3.
In relation to ground 4, although the directions did not provide for the filing of materials in reply, the Appellant was permitted to file evidence in response to the Respondent’s witness statements[26] and was granted an adjournment of almost three weeks to prepare for the hearing.
The conduct of the hearing via Microsoft Teams Video was consistent with the Commission’s policy in effect at the time regarding in-person hearings and unvaccinated persons. In relation to the Respondent’s observers, the transcript identifies they were employees of the Respondent.
On our review of the Transcript of the hearing on 27 July 2022, the Commissioner’s minimal interventions were appropriate in the circumstances, generally relating to the form and relevance of questions. We also observe the Appellant was given the opportunity to make closing oral submissions in chief and in reply. We find ground 4 discloses no reasonably arguable case of error.
In respect of ground 5, beyond the level of generalisation the Appellant did not identify what the alleged significant errors of fact were. Consequently, no reasonably arguable case of error is disclosed.
In relation to ground 6, the Respondent’s decision to stand the Appellant down without pay is consistent with the terms of the Agreement. There is no arguable case of error in relation to ground 6.
In relation to ground 7, it is evident from the reasons for Decision that the Appellant’s contention is entirely lacking in merit.
Ground 8 alleges the Commissioner erred by finding the Appellant was aware in the months leading up to the implementation of the SAR that “if he is not vaccinated his employment may be terminated”. The Appellant accepts there was evidence before the Commission which stated that “if he failed to comply with the SAR, he may be disciplined up to and including termination”, but objects to the wording adopted by the Commission in the Decision. We find ground 8 discloses no reasonably arguable case of error.
Finally, in relation to ground 9, the Commissioner granted permission to the Respondent to be represented by a lawyer.[27] Where permission is granted pursuant to s.596, the Commission does not have the power to determine which lawyer will appear.[28] That one lawyer appears at the interlocutory stage and another at the substantive hearing is unremarkable and discloses no arguable case of error.
Public Interest Considerations
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400(1), that any of the matters raised by the Appellant enliven the public interest and justify the grant of permission to appeal. We do not consider that the appeal raises any issue of importance or general application. Nor do we consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr B Clarke, on his own behalf.
Ms E Larsen, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
18 November.
[1] [2022] FWC 2418.
[2] Decision at [49].
[3] [2021] FWCFB 6059.
[4] Decision at [91].
[5] Decision at [91]-[93].
[6] Decision at [93].
[7] Decision at [97].
[8] Decision at [99]-[100], [102].
[9] Decision at [102]-[103].
[10] Decision at [104].
[11] Decision at [105]-[108].
[12] Decision [109]-[111].
[13] Decision at [112].
[14] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[15] (2011) 192 FCR 78 at [43].
[16] 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 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
[17] [2010] FWAFB 5343, 197 IR 266 at [27].
[18] Wan v AIRC (2001) 116 FCR 481 at [30].
[19] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [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].
[20] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[21] (1994) 34 NSWLR 155.
[22] Cited n Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6936.
[23] CSL Limited T/A CSL Behring v Chris Papaioannou[2018] FWCFB 1005 at [77].
[24] Barach v University of New South Wales[2010] FWAFB 3307 at [16].
[25] Appellant’s Submission Doc1(12) at [43].
[26] Exhibit 2 and Exhibit 3 (See Transcript at PN62-PN70 and PN97-PN101).
[27] Brendan Clarke v Central Queensland Services Pty Ltd[2022] FWC 1589 at [6].
[28] Appeal by New South Wales Bar Association [2014] FWCFB 1663 at [24].
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