Emily Victoria Stokes v Aes Employee Services Pty Ltd

[2024] FWCFB 274

[2024] FWCFB 274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Emily Victoria Stokes
v

Aes Employee Services Pty Ltd

(C2024/2439)

DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER MCKINNON
COMMISSIONER CRAWFORD MELBOURNE, 31 MAY 2024

Notice of appeal against settlement agreement in C2024/1322

1. On 17 April 2024, Ms Emily Victoria Stokes lodged a Form F7 Notice of Appeal in relation to a settlement agreement made with AES Employee Services Pty Ltd (AES) on 27 March 2024 in a conference before Commissioner Mirabella. Ms Stokes seeks to appeal the settlement agreement and seeks an urgent ‘part’ stay of its operative terms. The settlement agreement was made in relation to an application by Ms Stokes under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving dismissal (the general protections application).

1. The question is whether Ms Stokes can apply to the Commission for permission to appeal the settlement agreement. Because a settlement agreement is not a decision of the Commission, the answer to the question is “No”.

Reasons

1. Although there is no signed written document recording their agreement, the settlement terms agreed between the parties were read onto the record by the Commissioner at the conclusion of the conference on 27 March 2024. They included a full mutual release and discharge of all claims arising out of or connected with the employment relationship, except for claims or proceedings under statute or common law for work related injury or illness or proceedings under superannuation legislation.

1. After reading out the agreed settlement terms, the Commissioner said to Ms Stokes:

“These terms had been explained to you previously Ms Stokes and now on recording have been repeated. Do you understand and do you agree with these?”

1. Ms Stokes responded with the word “Yes”.

1. Turning to the representative for AES, the Commissioner asked:

“Do you understand and do you agree to these terms?”

1. The respondent similarly answered “Yes”.

1. The Commissioner then congratulated the parties, advised that they had reached a binding settlement agreement, and concluded the conference.

1. Following the conference, at 3.55pm on 27 March 2024 the Commissioner (through her Associate) wrote to the parties as follows:

“Dear parties,

Thank you for participating in today’s conference regarding the above matter.

Please find attached terms of settlement agreed to at the conference.

Please return a signed copy of the terms of settlement to chambers and to the other party.”

1. Ms Stokes did not sign the settlement terms provided by the Commissioner. Instead, on 28 March 2024, she wrote to the Commission advising that she was reluctant to sign the agreement; that her current psychological state and inexperience in the Commission led her to feel intimidated in the conference, that she was requesting a further conference so that she could seek a larger compensation amount and expressing her confidence in establishing her claim before a judge.

1. Ms Stokes submits that she was not in a fit and proper state to agree to settle her application on 27 March 2024 and that she did not have the means available to effectively negotiate at the time. She says she felt intimidated and pressured to make a decision immediately without the facts of the case being heard. She no longer wishes to be bound by the terms of the settlement agreement. Instead, she seeks the opportunity to bring her case before the court.

1. The difficulty for Ms Stokes in relation to this application is the scope of s.604 of the Act. Under s.604, a person may appeal a decision made by the Commission (other than a decision of a Full Bench or an Expert Panel) by applying to the Commission.[1]

1. A decision of the Commission includes any decision of the Commission, however described, but it does not include the outcome of a process carried out in accordance with s.595(2) of the Act, which is about the Commission’s power to deal with disputes.[2] When the Commission deals with a dispute brought under s.365 of the Act other than by arbitration or the issuing of a certificate under s.368(3), it is exercising its power to deal with the dispute under s.595(2).

1. A settlement agreement is made between the parties to the agreement. It is the outcome of a process carried out in accordance with s.595(2) of the Act. Such outcomes are expressly excluded from the meaning of “decision” in s.595, with the result that a settlement agreement is not a decision of the Commission. It cannot be the subject of an appeal under s.604.

1. If Ms Stokes wishes to contest the binding nature of the settlement agreement, she can do so in a court of competent jurisdiction. Arguments about incapacity and duress can be raised in that setting. If successful in having the settlement agreement set aside, Ms Stokes would then be in a position to seek that the Commission list the matter for further conference or issue a certificate under s.368 of the Act.

Order

1. The application for permission to appeal is dismissed.

DEPUTY PRESIDENT

Matter determined on the papers.

[1] Fair Work Act 2009, s.604.

[2] Act, s.598(1).

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