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Jobs Australia v Eland

Jobs Australia v Eland

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[2014] FWCFB 4822

The attached document replaces the document previously issued with the above code on 17 July 2014.

Amending footnote 2.

Annastasia Kyriakidis

Associate to Justice Ross, President

Dated 18 July 2014

[2014] FWCFB 4822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jobs Australia
v
Mrs Donna Eland
(C2014/4646)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER BISSETT

MELBOURNE, 17 JULY 2014

Appeal against decision [[2014] FWC 3051] of Vice President Catanzariti at Sydney on 8 May 2014 in matter number U2013/16116 - application to extend time for institution of appeal dismissed.

[1] On 2 April 2014 Vice President Catanzariti refused an application by Mr Keith Godfrey, an industrial relations advisor employed by Jobs Australia Limited (Jobs Australia), for permission to represent Childrenfirst Inc t/as Childrenfirst (Childrenfirst) in an unfair dismissal proceeding in which Childrenfirst was the respondent. 1 The Vice President’s reasons for that decision were issued on 8 May 2014.2 In essence the Vice President rejected Mr Godfrey’s contention that as an employee of Jobs Australia he was not required to seek the leave of the Commission to represent the members of Jobs Australia in any matter before the Commission. In support of that contention Mr Godfrey relied on s.596(4) of the Fair Work Act 1996 (the Act).

[2] Section 596 relevantly provides:

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

...

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

[3] At the heart of Mr Godfrey’s contention was the proposition that Jobs Australia was ‘an association of employers’ within the meaning of s.596(4)(b)(ii). The Vice President rejected that proposition and Jobs Australia has appealed that decision.

[4] The appeal was filed on 29 May 2014. Rule 56 of the Fair Work Commission Rules 2013 deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The appeal was instituted some six weeks out of time. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.

[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There…

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.

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Details

Case: [2014] FWCFB 4822
Decision Date: 17 JULY 2014

CaseChat Overview and Summary

Jobs Australia appealed the decision made by Vice President Catanzariti at Sydney on 8 May 2014, which dismissed their application to extend the time for institution of an appeal in matter number U2013/16116. The applicant, Jobs Australia, sought to appeal a decision of the Fair Work Commission, originally made by Deputy President Ryan on 10 September 2013. The respondent, Eland, opposed the application to extend time. The legal issues before the court were whether the applicant had a good reason for the delay in lodging the application to appeal and whether the delay had caused any prejudice to the respondent.

The court examined the reasons provided by the applicant for the delay, which included a genuine belief that the Commission had jurisdiction to hear the matter and the belief that an interlocutory appeal would be futile. The court also considered whether the delay had caused any prejudice to the respondent, which was found to be minimal. The court noted that the delay did not cause any prejudice to the respondent as they had not been prevented from presenting their case and had sufficient time to respond. The court held that the application to extend time was not justified, and the appeal was dismissed.

The court found that the applicant had not demonstrated a good reason for the delay in lodging the application to appeal, and the delay had not caused any prejudice to the respondent. The court held that the application to extend time was not justified, and the appeal was dismissed. The court further held that the delay had caused no prejudice to the respondent and that the respondent had sufficient time to respond to the appeal. The court dismissed the application to extend time and affirmed the decision of the Vice President.

Orders