David James McCappin v Kone Elevators Pty Ltd t/as Kone
[2020] FWC 435
•29 JANUARY 2020
| [2020] FWC 435 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.615 - the President may direct a Full Bench to perform function etc.
v
KONE Elevators Pty Ltd t/as KONE
(U2019/11091)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 29 JANUARY 2020 |
Application to refer a matter to a Full Bench - s.615 Fair Work Act 2009 (Cth) – application refused
[1] Mr McCappin (the Applicant) lodged an unfair dismissal application on 3 October 2019. The employer response to that application took a jurisdictional objection upon the basis that the Applicant’s annual rate of earnings is above the high income threshold in s.382(b)(iii) of the Fair Work Act 2009 (Cth) (the Act); (the jurisdictional objection). The Applicant contends that the jurisdictional objection raises two issues, namely:
(i) whether the monies paid by the Respondent to superannuation in excess of the amount which it is obliged to pay under the Superannuation Guarantee Charge Act 1992 are to be treated as earnings for the purposes of section 332; and
(ii) whether the car allowance paid to the Applicant (or some part of it) it to be treated as earnings for the purposes of section 332.
[2] I note that the Commission, as constituted by Commissioner Hampton, is currently reserved on the Respondent’s jurisdictional objection.
[3] The Applicant has filed a Form F48 – Application for direction on procedure – seeking a direction pursuant to s.615 of the Act that the jurisdictional objection raised by the Respondent in the Applicant’s unfair dismissal claim be determined by a Full Bench (the Referral Application). The Respondent opposes the referral of the matter. The parties have filed written submissions in respect of the Referral Application and are content for that application to be determined on the papers.
[4] I note that while the Referral Application is said to be pursuant to s.615, the Applicant’s submission in support of the referral also relies on s.615A. I have taken it that the Applicant seeks the referral under ss 615 or 615A.
[5] Section 615 of the Act states:
‘The President may direct a Full Bench to perform function etc.
(1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.
Note: The President gives directions under section 582.
(2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.
(3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.
Note: For the constitution of a Full Bench, see section 618.’
[6] Section 615A of the FW Act states:
‘615A When the President must direct a Full Bench to perform function etc.
(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:
(a) an application is made under subsection (2); and
(b) the President is satisfied that it is in the public interest to do so.
Note: The President gives directions under section 582.
(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:
(a) a person who has made, or will make, submissions for consideration in the matter;
(b) the Minister.’
[7] The proper interpretation of these provisions is well settled. Section 615 confers a broad discretion upon the President to direct that a function or power be exercised by a Full Bench. In relation to the s.615A application, the issue for determination is whether I am satisfied that it is in the public interest to refer the matter to a Full Bench. The expression ‘in the public interest’, when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. 1
[8] Sections 577 and 578 of the Act are relevant to the exercise of the President’s powers under ss.615 and 615A.
[9] Section 577 provides as follows:
‘The FWC 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.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).’
[10] Section 578 directs the Commission to take into account, among other things, the objects of the Act and ‘equity, good conscience and the merits of the matter’. Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.
[11] The Applicant submits that it is in the public interest for me to make a s.615 direction.
[12] The Applicant contends that the Respondent paid superannuation at the rate of 12% of base salary for all of its employees not bound by an Award or Enterprise Agreement. Such payment was ‘across the board’ and not the result of a salary sacrifice or like arrangement; that is to say that it was not paid in lieu of salary. The Applicant submits that there are no Full Bench authorities on whether superannuation paid in such circumstances is to be treated as earnings for the purposes of s.332(1).
[13] The question of whether a car allowance (as opposed to the provision of a company car) is to be treated as earnings has been previously considered by a Full Bench in Sam Technology Engineers Pty Ltd v Bernadou 2(Sam Technology). The Applicant submits that it is ‘strongly arguable or at least arguable’ that Sam Technology was wrongly decided for the reasons set out in the Applicant’s written decision.
[14] I have considered all of the submissions put by the Applicant in support of the Referral Application. I do not propose to grant the application sought. I am not persuaded that the submissions advanced on behalf of the Applicant sufficiently enliven the public interest. As I am not satisfied that it is in the public interest to direct a Full Bench to hear and determine the s.394 application, the s.615A application must be dismissed.
[15] Nor am I persuaded that it is appropriate to exercise my discretion, under s.615 to direct that the application be heard by a Full Bench. Considerations of fairness, efficiency and expedition lead me to conclude that the appropriate course is to have the jurisdictional objection determined by a single Member.
[16] Three matters tend against granting the referral. First, efficiency considerations favour the determination of the facts by a single Member at first instance. In any subsequent appeal the Full Bench will have the benefit of the Member’s determination of the factual matrix.
[17] Second, the Referral Application only relates to the Respondent’s jurisdictional objection. In the event that the objection was dismissed, the merits of the Applicant’s unfair dismissal application would then be referred to a single member for determination. Such a bifurcated process is likely to lead to delay and additional costs to the parties.
[18] Third, it seems to me that the Referral Application is, at least in part, a device to reconsider Sam Technology, which the Applicant apprehends may be unfavourable to the substantive application (ie the jurisdictional objection). As I observed in Gee v Tasmanian Ports Corporation Pty Ltd, 3 s.615A ‘is not intended to provide a mechanism to review Full Bench decisions in order to produce a favourable outcome for a party dissatisfied with a particular authority’.4 Any challenge to the decision in Sam Technology can be dealt with in any subsequent appeal from the decision in the substantive application.
[19] For the reasons given I do not propose to grant the Referral Application.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR716227>
1 O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ
2 [2018] FWCFB 1767
3 [2016] FWC 6710
4 Ibid at paragraph [13]
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