DECISION

Fair Work Act 2009
s.615 - the President may direct a Full Bench to perform function etc.

David James McCappin
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…

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.

Keep reading for free

Create a free CaseChat account to read David James McCappin v Kone Elevators Pty Ltd t/as Kone and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 435
Decision Date: 29 JANUARY 2020

CaseChat Overview and Summary

David James McCappin brought an application against Kone Elevators Pty Ltd, t/as Kone, in the Fair Work Commission. The nature of the dispute involved claims related to unfair dismissal and associated remedies. The case was heard and decided by the Fair Work Commission.

The primary legal issue the court needed to address was whether there were exceptional circumstances warranting a referral of the matter to a Full Bench of the Fair Work Commission. Section 615 of the Fair Work Act 2009 (Cth) provides the grounds for such a referral, and the applicant argued that this section should apply to his case. The Commission carefully considered the arguments presented and the relevant legal framework.

After evaluating the evidence and the arguments, the Fair Work Commission determined that there were no exceptional circumstances that justified a referral to a Full Bench. The Commission concluded that the matter could be adequately resolved by the original panel without the need for a larger panel of members. Consequently, the application to refer the matter to a Full Bench was refused. The decision focused on the specific legal standards outlined in the Fair Work Act and the absence of any factors that would necessitate a broader review by a Full Bench.

The final orders of the Commission were that the application to refer the matter to a Full Bench be dismissed, and the case would proceed before the original panel.

Orders