Christopher Budd v Commissioner of the Australian Federal Police (AFP)
[2024] FWC 3320
•29 NOVEMBER 2024
| [2024] FWC 3320 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Christopher Budd
v
Commissioner of the Australian Federal Police (AFP) and Ors
(C2024/8381)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 29 NOVEMBER 2024 |
Appeal against procedural decisions of Commissioner McKinnon 5 November 2024, 15 November 2024, 19 November 2024 and 25 November 2024 in matter B2024/824 – stay application – application refused.
This decision concerns an application for a stay order by Mr Christopher Budd pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against procedural decisions of Commissioner McKinnon on 5 November, 15 November, 19 November and 25 November 2024. The Commissioner’s decisions were made in the context of dealing with Mr Budd’s applications for bargaining orders.
A stay was sought urgently by Mr Budd, ahead of a hearing listed to proceed at 12:00 noon today, 29 November 2024, before the Commissioner. A hearing was convened before me on the afternoon of 28 November 2024, at which I granted the first respondent permission to be legally represented pursuant to s 596(2)(a) of the Act. At the conclusion of the hearing, I informed the parties of my decision to refuse the application for a stay order. An order dismissing the stay application was issued.[1]
These are my reasons for that decision.
Relevant procedural context
The first respondent has been bargaining for an enterprise agreement to replace the Australian Federal Police Enterprise Agreement 2017-2020 and the Australian Federal Police Executive Level Enterprise Agreement 2019-2021. While these negotiations were ongoing, Mr Budd filed a 27 June 2024 application to the Commission seeking bargaining orders pursuant to s 229 of the Act. Mr Budd made a further amended application on 20 September 2024 seeking good faith bargaining orders.
On 14 October 2024, the Commissioner listed the good faith bargaining application for a hearing over three days from 9 to 11 December 2024.
From 8 November to 15 November 2024, the first respondent requested employees to vote on the proposed Australian Federal Police Enterprise Agreement 2024-2027. The proposed agreement was made for the purposes of s 182 of the Act and on 19 November 2024, the proposed agreement was filed with the Commission for approval.[2]
On 21 November 2024, Mr Budd relevantly advised the Commission and the first respondent that he did not intend to withdraw his good faith bargaining application and seeks that it be determined. On 22 November 2024, the first respondent filed an application in the Commission (Dismissal Application) seeking orders as follows:
(a)An order under s 587(1)(b) and (c) of the Act that the good faith bargaining application be dismissed on the basis that it is frivolous and/or has no reasonable prospects of success.
(b)Further and in the alternative, orders that the good faith bargaining application be stayed pending the hearing and determination of the application for approval of the proposed agreement, such that:
(i)All directions, programming orders and hearing dates set in the good faith bargaining application be vacated; and
(ii)If the proposed agreement is approved by the Commission, the good faith bargaining application be dismissed with immediate effect on and from the date of approval of the Agreement.
On 25 November 2024, the Commissioner’s chambers issued an amended Notice of Listing in which the parties were advised that the Dismissal Application would be heard at 12:00 noon on Friday 29 November 2024. Mr Budd filed the Notice of Appeal the following day.
In his Notice of Appeal, Mr Budd seeks a stay in the following terms:
I am seeking a stay against the whole decision/order of 25 November 2024 (that is, to list a dismissal hearing on 29 November 2024).
I am not seeking a stay against the decisions/orders (include lack of decision and order) made on 5, 15, and 19 November 2024 (that is, the s 590(2) decisions).
The respective contentions
Mr Budd identifies four decisions made by the Commissioner in the context of dealing with the good faith bargaining application that he seeks permission to appeal:
25 November 2024: Decision/order to hold a dismissal hearing on 29 November 2024.
19 November 2024: Decision not to decide or otherwise deal with Mr Budd’s application for an order to produce filed on that date.
15 November 204: Decision not to decide or otherwise deal with Mr Budd’s applications for orders to produce and attend filed on that date.
5 November 2024: Express decision not to decide Mr Budd’s order to produce application filed 4 November 2024 until after 11 November 2024 and, to the extent relevant, the decision not to decide or otherwise deal with the relevant application (which was subsumed into the 15 November 2024 applications).
Mr Budd advances seven contentions of procedural unfairness in support of the above grounds. In summary, Mr Budd contends that he will be prejudiced and at a forensic legal disadvantage if the hearing of the Dismissal Application proceeds, absent the determination of his applications for orders pursuant to s 590(2) of the Act. Mr Budd further says that the listing of the Dismissal Application provides him with insufficient time to prepare and a case management conference has not been convened in advance of it. Mr Budd submits that his opportunity for a fair hearing is therefore compromised.
In support of his application for a stay order, in summary, Mr Budd submits that he is seeking a stay of the decision to list the Dismissal Application for hearing on 29 November 2024. Mr Budd proposes that an order be issued in terms that stay the hearing of the Dismissal Application indefinitely (or, perhaps at least to 9 December 2024 when it can be dealt with concurrently with the hearing of the substantive good faith bargaining application), on the condition that any further listing of the Dismissal Application be in accordance with the law.
The first respondent objects to the grant of a stay. In summary, it contends that the power to grant a stay under s 606 of the Act cannot be directed to a stay of the proceedings and, in any event, there is no reasonable prospect of the appeal succeeding and therefore no arguable case that permission to appeal will be granted. Further, it says that the balance of convenience does not weigh in favour of the stay being granted.
The employee bargaining representatives were advised of the stay hearing and with one exception, did not attend (nor were they compelled to). No submissions were advanced by the employee bargaining representatives in respect of Mr Budd’s stay application.
Relevant principles
Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision the subject of an appeal. Section 606(1) of the Act provides as follows:
If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.
In deciding whether to exercise its discretion to grant a stay order, the Commission must first be satisfied that the appellant has an arguable case, with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.[3] Further, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[4] Accordingly, both “elements” are necessary conditions to the grant of a stay.
In determining a stay application, the Commission must assess the strength of the appellant’s case without the benefit of hearing the appellant’s full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is necessarily a preliminary assessment only.
Further, an applicant for a stay must positively demonstrate that the balance of convenience must weigh in favour of a stay being granted. There is no prima facie position in favour of the granting of a stay and the grant of a stay is not to be regarded as the usual course.[5]
Consideration
As is apparent, in substance Mr Budd is seeking a stay of the 29 November 2024 listing for hearing the Dismissal Application. I do not consider that s 606(1) of the Act empowers the Commission to issue a stay order in these terms. The setting of a hearing date by the issuance of a Notice of Listing is not an operative decision capable of being stayed under s 606(1) for the reasons expressed by his Honour, Justice Hatcher in CFMEU v Collinsville Coal Operations Pty Limited.[6] Accordingly, I do not consider the stay order sought by Mr Budd can be made.
In any event, I am not persuaded that Mr Budd has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal. The decisions under appeal are in the nature of procedural rulings. In respect of such decisions, the Federal Court (Justice Lee) in Link Investments Ltd v DC Rd DC Pty Ltd[7] recently stated:[8]
…if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”.
It is in the public interest to discourage appeals from preliminary or procedural rulings.[9] A distinction is to be drawn between an exercise of discretion on a point of practice or procedure (as is the case here) and an exercise of discretion which determines substantive rights.[10] Permitting appeals against such preliminary or procedural rulings may prolong the overall proceedings and the possibility of multiplicity of appeals is to be guarded against.
Section 589 of the Act relevantly provides that the Commission may make decisions as to how, when and where a matter is to be dealt with. The decisions under appeal concern procedural decisions made by the Commissioner in the context of the proceedings before her, in the exercise of her discretion in the manner described in House v King.[11] The procedural decisions that are challenged in the Notice of Appeal do not appear to determine any substantive rights.
In circumstances where I am not satisfied that the appeal grounds give rise to sufficient prospects of success on appeal to justify the granting of a stay, it is unnecessary for me to deal with the question of balance of convenience in detail, and I do not do so. However, I observe that it seems evident from Mr Budd’s submissions at the stay hearing that many of the matters that Mr Budd seeks to agitate in his appeal are matters that should properly be raised before the Commissioner. It is noted that at the time of the stay hearing, Mr Budd had not made an application to the Commissioner that the hearing of the Dismissal Application be adjourned. In any case, on the material before me, I would not conclude that the balance of convenience favours a stay, even if I were required to consider that matter.
Conclusion
For these reasons, the application for a stay order was refused and an order was issued to that effect.[12]
Legal name of the first respondent
For completeness, I note that the first respondent submits that its legal name has been recorded erroneously in the Form F7 Notice of Appeal and that it should be identified as Commonwealth of Australia represented by the Australian Federal Police.[13] Mr Budd objects to the Commission exercising its powers pursuant to s 586 of the Act on the basis that this is an issue being dealt with by the Commissioner at first instance. In these circumstances I decline to correct or amend the application but observe that it is a matter that may have a bearing upon the competency of the application for permission to appeal and will require resolution at or before that time.
DEPUTY PRESIDENT
Appearances:
C Budd on his own behalf.
D Trindade of Clayton Utz for the first respondent.
G Hammond on his own behalf.
Hearing details:
2024.
Melbourne (by video)
November 28
[1] PR781802
[2] AG2024/4565
[3] Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 785 at [5] approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 786
[4] Ibid; See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13]
[5] Supreme Caravans Pty Ltd v Pham[2013] FWC 4766 at [11] citing Edwards v Telstra Corporation Limited [1998] AIRC 679, Print Q2467; Gonva Group Pty Ltd v Lina Ramirez [2024] FWC 1808 at [17]
[6] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11]
[7] Link Investments Ltd v DC Rd DC Pty Ltd [2024] FCA 610 at [17], citing the “warning” of Jordan CJ in In re the Will of F.B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 (at 323); Christopher Ross v Australian Postal Corporation [2024] FWCFB 350 at [83]
[8] Link Investments Ltd v DC Rd DC Pty Ltd [2024] FCA 610 at [17]
[9] Comsec Trading Ltd and Others v Finance Sector Union of Australia, PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C
[10] See In re the Will of F.B. Gilvert (dec.) (1946) 46 SR (NSW) 318 at 323
[11] House v King (1936) 55 CLR 499
[12] PR781802
[13] This appears to be broadly consistent with the s 229 application for bargaining orders in proceeding B2024/824
Printed by authority of the Commonwealth Government Printer
<PR781850>
0
0
0