Daniel King v Patrick Projects Pty Ltd

[2018] FWC 1778

[2018] FWC 1778

FAIR WORK COMMISSION

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 of a question of law under s.608(1) are conveniently summarised in Grabovsky v United Protestant Association of NSW Ltd 3as follows:

‘[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.

[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another [[2001] FCA 1589, 115 FCR 78] the Full Federal Court held that a question does not ‘arise’, within the meaning of what is now s.608(1), ‘unless it pertains to an issue that actually exists’. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australia [(1925) 36 CLR 442]in support of this proposition:

“It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. Remote or merely possible relation of the question of law to the facts is not enough to make the question ‘arise’ in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of ‘arising’.”

[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146 [(1998) 82 FCR 391].

[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the FW Act provides that the Commission must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.’ 4

[7] Further, the discretion conferred by s.608 should, where possible and appropriate, be exercised in such a way as to avoid undue delay in the determination of matters before the Commission. 5

[8] Section 608(1) imposes two conditions on the power to refer a question for the opinion of the Federal Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’. If these two conditions are satisfied the President’s discretion to refer the question of law is enlivened.

[9] U2014/7097 is an application for costs pursuant to ss.400A and 611 of the FW Act. Some of the background to the matter may be summarised as follows. On 20 February 2015 Commissioner Williams granted Patrick Projects permission to be represented by a lawyer or paid agent. 6 Mr King appealed the Commissioner’s decision and on 4 May 2015 a Full Bench of the Commission granted permission to appeal, upheld the appeal and quashed the Commissioner’s decision. 7 The application was remitted to Senior Deputy President Drake to determine. On 25 November 2016 Patrick Projects conceded that the termination of Mr King’s employment was unfair and the Senior Deputy President issued a finding to that effect on 30 November 2016.8 On 17 March 2017 the Senior Deputy President issued a decision which dealt with the issue of remedy and ordered Patrick Projects to pay Mr King the sum of $64,655 in compensation.9 Mr King appealed that decision and on 21 June 2017 a Full Bench of the Commission refused permission to appeal.10 Mr King applied for costs and that application is being heard by Commissioner Johns.

[10] As mentioned earlier, section 608(1) imposes two conditions on the power to refer a question for the opinion of the Federal Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’. If these two conditions are satisfied the President’s discretion to refer the question of law is enlivened.

[11] Even if the question sought to be referred can be said to arise in respect of Mr King’s matters and may be characterised as questions of law, thus enlivening the discretion in s.608(1), I am not persuaded that the discretion should be exercised to grant the Referral Application.

[12] Assuming the discretion in s.608(1) is enlivened I would refuse to exercise the discretion, for the reasons which follow.

[13] There are questions of fact which remain to be resolved in Mr King's costs application and the issues of representation arising in that matter.

[14] As the Court in Re Alcoota Land Claim No 146 11 commented:

‘The case stated procedure ought not be adopted where there are disputed questions of fact which impinge upon the question or questions of law reserved for determination’. 12

[15] The above statement was cited with approval by the Court in Hamzy, in the context of the referral of a question of law from the Commission.

[16] In my view the unresolved questions of fact may well impinge upon the question sought to be referred.

[17] It is also clear, on its face, that the question seeks an ‘at large’ ruling on a general matter arising under the Act. It has the character of a question which seeks an advisory opinion from the Court divorced from any particular factual context.

[18] In my view the most expeditious and appropriate course is to refuse the Referral Application and have the relevant matter heard and determined by the Commission. The hearing of the matter will enable any contested issues of fact to be resolved which will provide a more appropriate foundation for the determination of any relevant legal questions. In the event that Mr King subsequently believes that the Commission has determined a matter on an incorrect understanding of the law so as to amount to a jurisdictional error, that can be dealt with in subsequent judicial review proceedings.

[19] The Referral Application is refused.

PRESIDENT

Appearances:

Mr C Strauss for Mr King.

No appearancefor Patrick Projects Pty Ltd.

Hearing details:

2018.

Melbourne (video link to Perth);

26 March

<PR601500>

 1   [2018] FWC 1086.

 2   Ibid.

 3   [2015] FWC 5161.

 4   Ibid at [52]-[55].

 5   The Hoyts Corporation Pty Ltd and Australian Theatrical and Amusement Employees Association, Print K4341; Re Finnemores Pty Ltd, Print M5301; Bulga Coal Management Pty Ltd v CFMEU, Print PR924444 8 November 2002 per Marsh SDP, Cartwright SDP and Hoffman C.

 6   [2015] FWC 1221.

 7   [2015] FWCFB 2679.

 8   PR588080.

 9   [2017] FWC 1583.

 10   [2017] FWCFB 2809.

 11 (1998) 82 FCR 391.

 12   Ibid at 394.

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