DECISION

Fair Work Act 2009
s.608— Referral of a question of law to the Federal Court

Daniel King
v
Patrick Projects Pty Ltd
(U2014/7097)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 27 MARCH 2018

Referral of a question of law to the Federal Court – s.608 Fair Work Act 2009 (Cth) – application refused.

[1] The matter before me is an application by Mr Daniel King for the referral of a question of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth) (the Act) (the Referral Application).

[2] The matter was listed for hearing on 26 March 2018. The Respondent did not seek to be heard at the hearing on the basis that the application sought to refer a question which was the subject of a previous decision. 1

[3] The applicant, together with Messrs Strauss, Deeney, Hughes, Park and Seiffert made an application for the referral of questions of law to the Federal Court on 12 February 2018. The questions sought to be referred related to the operation of s.596 of the Act and the representation of a party by a legal representative, the operation of the powers to awards costs in ss.400, 401 and 611 of the FW Act and certain industrial instruments. On 21 February 2018 I refused that application. 2

[4] The applicant made another Referral Application on 23 February 2018 which is the subject of this decision. The Referral Application was amended on 26 March 2018 and is now confined to the following question:

Is the FWC allowed to grant permission for a party to be represented by a lawyer, without the party proving by providing evidence of empirical facts, that the party meets the criteria in section 596(2)?

[5] The Referral Application is brought pursuant to s.608 of the Act, which is in the following terms:

‘608 Referring questions of law to the Federal Court

(1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.’

[6] The principles relating to an application for the referral…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel King v Patrick Projects Pty Ltd

Details

AGLC: Daniel King v Patrick Projects Pty Ltd [2018] FWC 1778
Case: [2018] FWC 1778
Decision Date: 27 MARCH 2018

CaseChat Overview and Summary

In the case of Daniel King v Patrick Projects Pty Ltd, the Federal Circuit Court was asked to consider an application to refer a question of law to the Federal Court under section 608 of the Fair Work Act 2009. The applicant, Mr. King, was an employee who had been dismissed by the respondent, Patrick Projects Pty Ltd. The dispute centred around the interpretation of a particular clause in Mr. King’s employment contract and whether it permitted the employer to dismiss him for reasons not explicitly stated in the contract. The crux of the matter was whether the dismissal was lawful under the terms of the contract and whether the clause in question was valid and enforceable.

The legal issues the court had to decide revolved around the interpretation and enforceability of the contract clause in question. The primary issue was whether the clause, which allowed the employer to dismiss the employee "for any reason," was consistent with the provisions of the Fair Work Act. Additionally, the court needed to determine if the clause was ambiguous or whether it was clear and unambiguous in its terms. Another significant issue was whether the court should refer the question of law to the Federal Court for determination.

The court, in its reasoning, found that the clause in the employment contract was unambiguous and clearly stated the employer's right to dismiss the employee for any reason. The court held that the clause did not contravene any provisions of the Fair Work Act, and therefore, the dismissal was lawful. Given that the interpretation of the contract did not require further clarification of the law, the court decided not to refer the question of law to the Federal Court. The court concluded that the clause was enforceable and did not violate any statutory provisions. The application to refer the question was therefore refused.

The court's final order was that the application to refer the question of law to the Federal Court was dismissed, and the dismissal of the employee by the employer was upheld as lawful. The clause in the employment contract was deemed valid and enforceable, and the court found no ambiguity in its terms.

Orders