Keane and Decision Maker

Keane and Decision Maker [2022] AATA 2519 (6 April 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1989
Re:Thomas Keane
APPLICANT

Decision MakerAnd
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:6 April 2022
Place:Adelaide

The application for extension of time is refused.
................................[Sgnd]........................................
Senior Member B J Illingworth
Catchwords
JURISDICTION – Fair Work Commission decision – Fair Work Act – Appeal – Tribunal has no jurisdiction to hear the extension of time application or the substantive application
Legislation
Fair Work Act 2009 (Cth)
Administrative Appeals Tribunal Act 1975
Cases
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118,
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344
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REASONS FOR DECISION
Senior Member B J Illingworth
6 April 2022
INTRODUCTION

On 8 March 2022, the applicant filed an Application for Extension of Time to review a decision of the Fair Work Commission dated 19 April 2021 (the decision) together with an Application for Review of the decision.
The decision related to the consideration of an application by the applicant’s employer, made pursuant to s 587 of the Fair Work Act 2009 (Cth), to dismiss the unfair dismissal application. The application was granted.
BACKGROUND
On 9 January 2021, the applicant filed an application under the Fair Work Act 2009 (Cth) for unfair dismissal from his employment.
Following the filing of the application for unfair dismissal, the applicant and respondent had, in the course of a conciliation conference, reached a binding settlement agreement which finalised the application for unfair dismissal, which agreement was recorded by Commissioner Hampton who was presiding over the conciliation conference. The applicant thereafter refused to sign the written agreement detailing the terms of settlement.
The applicant subsequently asked Commissioner Platt to reinstate him to his pre-dismissal position which required the Commissioner to first undertake a hearing to determine if the applicant had been unfairly dismissed, and if so, that it was appropriate to reinstate the applicant. The applicant requested the matter be set down for hearing.
However, before that could be done, Commissioner Platt was first required to determine the s 587 application by the employer to dismiss the application on the basis that the parties had reached a binding settlement.
Commissioner Platt decided that the parties reached a binding agreement at the conciliation conference before Commissioner Hampton. Accordingly, the applicant’s substantive application had no prospect of success and in the exercise of the discretion in s 587 of the Fair Work Act 2009, the unfair dismissal application was dismissed.
THE APPLICANT’S POSITION
In submissions, the applicant raised numerous complaints about the manner in which he had been dealt with by the Fair Work Commission and various other organisations to whom he had gone to seek redress. He also complained about the manner in which he had been dealt with by his former employer, including the allegations which resulted in his dismissal.
The applicant did not accept that he had entered into an agreement in the conciliation conference before Commissioner Hampton.
He wanted the Tribunal in its role as an Appeals Tribunal to address the various complaints including the conduct of the Fair Work Commission and the failure to afford him procedural fairness in coming to the decision.
THE LEGISLATIVE FRAMEWORK
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prescribes the time within which a person may bring an application for review to the Administrative Appeals Tribunal (the Tribunal), namely 28 days, commencing from the date the decision was made. Hence, the application filed by the applicant is nearly 12 months out of time.
Section 29(7) of the AAT Act allows the Tribunal to extend the time for the making of applications “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
In the case of Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 (Hunter Valley), Wilcox J sets out a number of non‑exhaustive criteria that can be taken as a guideline for the Tribunal’s determination of extension of time applications. The criteria can be summarised as:
(a) Whether the Applicant has shown an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
(b) Whether the Applicant has rested on his rights and allowed the decision‑maker to believe that the matter has finally concluded;
(c) Whether there has been any prejudice to the respondent as a result of the delay in the making of the application;
(d) Whether the respondent or the general public would suffer any prejudice as a result of the granting of the extension of time;
(e) Whether there is merit in the substantive application; and
(f) More generally, the considerations of fairness as between the Applicant and other persons in a similar position.
I note that Hunter Valley has been cited with approval by numerous Tribunal decisions, although with the caveat that “[t]oo slavish” an adherence to the Hunter Valley guidelines should be avoided.[1]
[1] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, 128 [41] (Hill J).
In considering the application for extension of time, it is necessary for the Tribunal to consider, amongst other things, the length of the delay, the explanation for the delay, and the merit of the substantive application.
In the Application for Extension of Time, the reasons given by the applicant for the delay reads “I have actively sent nearly 500 emails to the commission, tried to appeal and had no information provided to myself all have been rejected without basis. This was my employment.” This is not a satisfactory explanation for the delay in bringing the application for review before the Tribunal.
However, a more fundamental issue arises in this matter namely the merit of the substantive application, or more precisely, whether the Tribunal has the power to review the decision.
JURISDICTION OF THE TRIBUNAL
The jurisdiction of the Tribunal to review certain decisions is dependent upon an enactment providing power to the Tribunal to do so. Part IV Division 1 of the AAT Act is headed “Applications for review of decisions” in which Division is found s 25 and which relevantly reads:
“(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
……
(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made.”
It is only those decisions nominated by the enactment that can be the subject of an application for review to the Tribunal.
The procedure for appeal or review of decisions under the Fair Work Act is contained in Divisions 3 and 4 at sections 604 – 625 of that Act. In short, the Fair Work Act provides that the Commission must grant permission to appeal a decision to the Full Bench of the Fair Work Commission and if permission is granted, the Full Bench will then determine the appeal. Section 56 of the Fair Work Act provides that a person seeking to institute an appeal under s 604 of the Fair Work Act, against a decision of a single Commission Member, must do so by lodging a notice of appeal within 21 days of the decision, the subject of the appeal.
The Fair Work Act does not confer power in the Tribunal to review a decision of the Fair Work Commission; hence the Tribunal has no jurisdiction to hear and determine the application for review filed by the applicant. Accordingly, as there is no power conferred in the AAT to determine the substantive application, the application for extension of time is futile, and therefore, it is not reasonable in all the circumstances to grant the application for extension of time.
DECISION
The application for extension of time is refused.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...........................[Sgnd].......................

                   Associate

Dated: 6 April 2022

Dates of hearing:  6 April 2022
Advocate for the Applicant:              Self-represented
Advocate for the Respondent:          N/A

[2022] AATA 2519

6 April 2022

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Standing