King v Patrick Projects Pty Ltd

[2018] FWC 1086

[2018] FWC 1086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.608— Referral of a question of law to the Federal Court

King and Ors
v
Patrick Projects Pty Ltd
(C2018/576)

JUSTICE ROSS, PRESIDENT SYDNEY, 21 FEBRUARY 2018

Referral of a question of law to the Federal Court – s.608 Fair Work Act 2009 (Cth) – application refused.

[1] The matter before me is an application by Messrs Strauss, King, Deeney, Hughes, Park and Seiffert (collectively, the Applicants) for the referral of questions of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth) (the FW Act) (the Referral Application).

[2] The matter was listed for hearing on 19 February 2018. At the hearing Patrick Projects Pty Ltd (Patrick Projects; the Respondent) sought and was granted permission to be represented by a lawyer pursuant to s.596(2)(a) of the FW Act. The reasons for granting permission are set out at paragraphs [18] to [19] of the transcript of the proceedings.

[3] The referral application is brought pursuant to s.608 of the FW Act, which is in the following terms:

‘608 Referring questions of law to the Federal Court

(1)  The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2)  A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3)  The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4)  Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5)  However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.’

[4] The principles relating to an application for the referral of a question of law under s.608(1) are conveniently summarised in Grabovsky v United Protestant Association of NSW Ltd 1as follows:

‘[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.

[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another [[2001] FCA 1589, 115 FCR 78] the Full Federal Court held that a question does not ‘arise’, within the meaning of what is now s.608(1), ‘unless it pertains to an issue that actually exists’. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australia [(1925) 36 CLR 442]in support of this proposition:

“It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. Remote or merely possible relation of the question of law to the facts is not enough to make the question ‘arise’ in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of ‘arising’.”

[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146 [(1998) 82 FCR 391].

[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the FW Act provides that the Commission 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.’ 2

[5] Further, the discretion conferred by s.608 should, where possible and appropriate, be exercised in such a way as to avoid undue delay in the determination of matters before the Commission. 3

[6] Section 608(1) imposes two conditions on the power to refer a question for the opinion of the Federal Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’. If these two conditions are satisfied the President’s discretion to refer the question of law is enlivened.

[7] The Applicants seek to refer the attached 25 questions to the Federal Court (see Attachment 1). The questions sought to be referred may be grouped into three categories:

(i) Questions 1-13, 17-18 and 21 relate to the operation of s.596 of the FW Act and the representation of a party by a legal representative.

(ii) Questions 14-16, 19-20, 22 and 25 relate to the operation of the powers to award costs in ss.400, 401 and 611 of the FW Act.

(iii) Questions 23 and 24 concern certain industrial instruments.

[8] All of the questions sought to be referred are said to arise in each of the following matters before the Commission:

1. U2014/7097 - King v Patrick Projects Pty Ltd

2. U2014/0982 - Deeney v Patrick Projects Pty Ltd

3. U2014/0983 - Hughes v Patrick Projects Pty Ltd

4. U2014/1008 - Park v Patrick Projects Pty Ltd

5. U2014/1059 - Seiffert v Patrick Projects Pty Ltd

6. C2018/576 - King v Patrick Projects Pty Ltd

[9] I note that Mr Strauss is also named as an applicant in the Referral Application. None of the questions sought to be referred arise in respect of a matter before the Commission in which Mr Strauss is a party.

[10] To the extent that it is contended that if the Referral Application was granted then the opinion of the Court could be visited on a number of past decisions – (such as the Appeal Bench decision of 27 July 2016 4 refusing permission to appeal against the decision of Senior Deputy President Drake to permit the Respondent to be represented by a lawyer in the unfair dismissal proceedings involving Messrs King, Deeney, Hughes, Park, Seiffert and Strauss) – I reject that contention. It proceeds on an incorrect interpretation of s.608(5). Subsection 608(5) states:

‘(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.’ [Emphasis added]

[11] The reference in s.608(5) to ‘the matter’ is a reference to ‘the matter’ before the FWC in relation to which the referred question of law arises. It must necessarily be a matter which is currently before the Commission. Subsection 608(5) operates in circumstances where the Commission has made a decision in the matter after the question has been referred. So much is clear from the structure of s.608, in particular s.608(3), and the use of the word ‘However’ in s.608(5). Section 608 cannot be used as a device to, in effect, mount a collateral attack on appeal proceedings which have been heard and determined before any application is made under s.608.

[12] Further, I am not satisfied that the questions in categories (i) and (ii) above are questions ‘arising in a matter before the FWC’ in respect of the matters involving Messrs Hughes, Park, Deeney and Seiffert (i.e. U2014/0982; U2014/0983; U2014/1008 and U2014/1059). These questions relate to the power to permit a party to be represented by a lawyer and the Commission’s powers to award costs.

[13] The matters involving Messrs Hughes, Park, Deeney and Seiffert are first instance unfair dismissal proceedings. None of the matters concern an application for costs and the question of representation has already been determined, at first instance 5 and on appeal.6 In the event that a party wishes to challenge the Appeal decision on the basis that the Commission proceeded on an incorrect understanding of the law amounting to jurisdictional error, that can be dealt with in judicial review proceedings.7

[14] Accordingly, insofar as the Referral Application seeks to refer questions 1-22 and 25 (i.e. those questions in categories (i) and (ii) above) in respect of Messrs Deeney, Hughes, Park and Seiffert, these aspects of the application are dismissed on the basis that the preconditions to a section 608(1) referral have not been met.

[15] The issues raised in questions 23 and 24 may arise in the matters involving Messrs Hughes, Park, Deeney and Seiffert but, for the reasons set out below, even if the discretion to refer these questions is enlivened I decline to exercise that discretion.

[16] I now turn to the two matters involving Mr King.

[17] U2014/7097 is an application for costs pursuant to ss.400A and 611 of the FW Act. Some of the background to the matter may be summarised as follows. On 20 February 2015 Commissioner Williams granted Patrick Projects permission to be represented by a lawyer or paid agent. 8 Mr King appealed the Commissioner’s decision and on 4 May 2015 a Full Bench of the Commission granted permission to appeal, upheld the appeal and quashed the Commissioner’s decision. 9 The application was remitted to Senior Deputy President Drake to determine. On 25 November 2016 Patrick Projects conceded that the termination of Mr King’s employment was unfair and the Senior Deputy President issued a finding to that effect on 30 November 2016.10 On 17 March 2017 the Senior Deputy President issued a decision which dealt with the issue of remedy and ordered Patrick Projects to pay Mr King the sum of $64,655 in compensation.11 Mr King appealed that decision and on 21 June 2017 a Full Bench of the Commission refused permission to appeal.12

[18] Mr King’s costs application is being heard by Commissioner Johns. On 5 February 2018 the Commissioner issued certain directions relating to the matter (the Directions) as follows:

‘Further to email correspondence between the applicant and the Fair Work Commission (Commission) about the future conduct of the applicant’s Costs Application, the Commission directs that:

[1] The original Directions issued on 28 November 2017 which were subsequently amended (Amended Directions) are vacated.

[2] The Costs Hearing scheduled for 22 February 2018 is cancelled.

[3] by 5 pm on Tuesday, 27 February 2018 the applicant must file in the Commission and serve on the respondent a Witness Statement/Affidavit attesting to the nature of his position as a litigant and explaining how (both historically and presently) Mr Strauss is his representative.

[4] by 5 pm on Tuesday, 27 February 2018, the applicant must file in the Commission and serve on the respondent material which:

a) quantifies the costs incurred by him;

b) particularises the costs incurred by him;

c) evidences that he has paid for such costs (or has an obligation to pay for such costs); and

d) evidences any out-of-pocket costs incurred by him.

[5] The matter be listed for hearing about the subject of representation at 3.00 pm (Australian Eastern Daylight Time) on Monday, 5 March 2018 in Sydney (with video-link to Perth).’

[19] On 5 February 2018 Mr King lodged an appeal against the Directions and that is matter C2018/576.

[20] As mentioned earlier, section 608(1) imposes two conditions on the power to refer a question for the opinion of the Federal Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’. If these two conditions are satisfied the President’s discretion to refer the question of law is enlivened.

[21] Even if each of the questions sought to be referred can be said to arise in respect of Mr King’s matters and that they may be characterised as questions of law, thus enlivening the discretion in s.608(1), I am not persuaded that the discretion should be exercised to grant the Referral Application.

[22] Assuming the discretion in s.608(1) is enlivened I would refuse to exercise the discretion, for three reasons.

[23] First, the determination of the proposed questions of law by the Court will not necessarily dispose of the substantive applications and hence it cannot be confidently predicted that the referral will avoid unnecessary costs.

[24] Second, in relation to Mr King's costs application and the issues of representation arising in that matter, there are questions of fact which remain to be resolved. These matters are set out in the Directions. A similar problem arises in relation to questions 23 and 24, insofar as these questions arise in the matters concerning Messrs Hughes, Park, Deeney and Seiffert. The factual substratum and the relevance of the industrial instruments to the unfair dismissal proceedings are, at present, undetermined.

[25] As the Court in Re Alcoota Land Claim No 146 13 commented:

‘The case stated procedure ought not be adopted where there are disputed questions of fact which impinge upon the question or questions of law reserved for determination’. 14

[26] The above statement was cited with approval by the Court in Hamzy, in the context of the referral of a question of law from the Commission.

[27] In my view the unresolved questions of fact will impinge upon the questions sought to be referred.

[28] Finally, it is clear on their face that the questions seek an ‘at large’ ruling on general matters arising under the FW Act. They have the character of questions which seek an advisory opinion from the Court divorced from any particular factual context. Further, a number of the questions are readily answerable by reference the FW Act and the existing jurisprudence. As such, the Referral Application effectively asks the Court to express its view on points of law which are either settled 15 or are capable of being determined by the Commission, utilising ordinary principles of statutory interpretation.

[29] The Commission regularly interprets and applies sections of the FW Act and the terms of industrial instruments in many and varied circumstances. In my view the most expeditious and appropriate course is to refuse the Referral Application and have the relevant matters heard and determined by the Commission. The hearing of these matters will enable any contested issues of fact to be resolved which will provide a more appropriate foundation for the determination of any relevant legal questions. In the event that one of the Applicants subsequently believes that the Commission has determined a matter on an incorrect understanding of the law so as to amount to a jurisdictional error, that can be dealt with in subsequent judicial review proceedings.

[30] The Referral Application is refused.

PRESIDENT

Appearances:

Mr C Strauss for the Applicants.

Mr M Stutley for Patrick Projects Pty Ltd.

Hearing details:

2018.

Melbourne (video link to Perth);

19 February.

<PR600547>

ATTACHMENT 1

The Applicants seek to refer the following questions to the Full Court of the Federal Court:

1. If a party has lodged an objection to a party being represented by a lawyer, then is it reasonable for the FWC to accept, consider or act upon any submission made by the other party's lawyer, before determining a 596(2) application first?

2. If a section 596(2) process has been signalled or commenced by the FWC, then is it reasonable for the FWC to accept, consider or act upon any submission made by the other party's lawyer, before determining the 596(2) application first?

3. If a section 596(2) process has commenced and the FWC has issued directions in order to progress the section 596(2) process, then is it reasonable for the FWC to accept, consider or act upon any submission made by the other party's lawyer, before determining the 596(2) application first?

4. If the FWC has determined a section 596(2) application and the FWC has not granted permission for the party to be represented by a lawyer, then by default, it is reasonable that the FWC has also simultaneously refused permission for the party to be represented by a lawyer?

5. If the FWC has determined a section 596(2) application and the FWC has either (a) not granted or (b) refused permission for the party to be represented by a lawyer, then is it reasonable that rule 12(2) automatically take effect and override rule 12(1) and restricts a party under section 596(1) but without the exceptions as included in section 596(1)?

6. Does section 596(2) allow the FWC any discretion in determining a section 596(2) application?

7. Is discretion only, without proof, specificity, particularisation, quantification and measurement of circumstances, sufficient to allow the FWC to grant permission for a party to be represented by a lawyer, under section 596(2)?

8. Does any amount of discretion, with or without proof, specificity, particularisation, quantification and measurement of circumstances, allow the FWC to grant permission for a party to be represented by a lawyer, under section 596(2)?

9. What is the required minimum standard or level or amount of proof, specificity, particularisation, quantification and measurement of circumstances, that allows the FWC to grant permission for a party to be represented by a lawyer, under section 596(2)?

10. Is it reasonable that an onus and burden of proof, specificity, particularisation, quantification and measurement of circumstances, fall solely on the party making a section 596(2) application?

11. Is it “unfair” or “fairness” under section 596(c) if a party is allowed to be represented by a lawyer and that lawyer is able to present and make legal arguments (including by making an application or submission to the FWC on behalf of the person) and the FWC is required to consider those legal arguments, while the other party is not represented by a lawyer and cannot respond to and defend against those legal arguments?

12. Is it “quick, flexible and informal” under section 381(1)(b)(i) if a party is allowed to be represented by a lawyer and that lawyer is able to present and make legal arguments (including by making an application or submission to the FWC on behalf of the person) and the FWC is required to consider those legal arguments, while the other party is not represented by a lawyer and cannot respond to and defend against those legal arguments?

13. Is it a “fair go all round” under section 381(2) if a party is allowed to be represented by a lawyer and that lawyer is able to present and make legal arguments (including by making an application or submission to the FWC on behalf of the person) and the FWC is required to consider those legal arguments, while the other party is not represented by a lawyer and cannot respond to and defend against those legal arguments?

14. Is a party who makes a costs application under section 400A, 401 and or 611, only required to produce an itemised schedule of costs under section 403(1), in order to satisfy the financial component of that costs application?

15. Is a party who makes a costs application under section 400A, 401 and or 611, who produces an itemised schedule of costs under section 403(1), also required to produce evidence of the items attended to as per the itemised schedule of costs, in order to satisfy the financial component of that costs application?

16. Is a party who makes a costs application under section 400A, 401 and or 611, other than being required to produce an itemised schedule of costs under section 403(1) and perhaps also evidence of items attended to as per the itemised schedule of costs, also required to produce any evidence of any payment obligations, payment liabilities or any actual payments for expenses arising from the representation of the party by a person or organisation other than on a legal professional basis, in order to satisfy the financial component of that costs application?

17. Is a person who represents a party, who is not a lawyer, who is not a paid agent who charges or receives a fee as described in section 12, who represents the party other than on a legal professional basis as described in section 403(1), but who has or might receive some payment or payments from an Applicant's claim for expenses arising from the representation of a party by a person or organisation other than on a legal professional basis, under section 403(1), then also considered to be a paid agent for the purposes of section 596(2)?

18. If a person who represents a party, is not a lawyer or trained or qualified in law or trained and qualified and experienced to understand, respond to and defend against legal arguments, also is not trained or qualified in human resources, has no specialist human resources abilities, is not an officer or employee of an industrial association or with experience in workplace relations advocacy, but primarily only due to financial considerations, is considered by the FWC to be a paid agent for the purposes of section 596(2), then does the FWC have any ability to allow the opposing party to be represented by a lawyer, but only because the first party is represented by that person who is considered to be a paid agent for the purposes of section 596(2)?

19. If a person who represents a party, is not a lawyer or trained or qualified in law or trained and qualified and experienced to understand, respond to and defend against legal arguments, also is not trained or qualified in human resources, has no specialist human resources abilities, is not an officer or employee of an industrial association or with experience in workplace relations advocacy, but primarily only due to financial considerations, is considered by the FWC to be a paid agent for the purposes of section 596(2), then is it reasonable for that party or that person who is the representative be subject to a costs against them under section 400A, 401 and or 611?

20. If a party vigorously defends an unfair dismissal application, then belatedly concedes to the question of the dismissal being harsh, unfair or unreasonable, then is it reasonable that the party and the representative be automatically subject to costs being awarded against them under section 400A, 401 and or 611?

21. Is it reasonable so as to be incumbent upon the Full Bench of the FWC, regardless of any processes assumed or established in order for a party to be granted permission to appeal, to always ask , consider or reconsider the underlying question in relation to representation, in that, does the party seeking to be represented by a lawyer (including by making an application or submission to the Commission on behalf of the Respondent) meet section 596 at the time that the matter is before the Full Bench?

22. If a party who makes a costs application under section 400A, 401 and or 611, produces an itemised schedule of costs under section 403(1), in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis, then is it reasonable, for the itemised schedule of costs to include not only the core proceedings (such as unfair dismissal proceedings) but also any related proceedings (such as representation or permission to appeal or appeal proceedings) as in some way they are connected to and arose due to the core proceedings?

23. If a party who lodges an application for relief from unfair dismissal, includes a claim for relief from provisions not only within an industrial instrument approved by the FWC, but also includes a claim for relief from provisions within another industrial instrument that is not approved by the FWC, but is relevant to the employment, the workplace and the benefits of the party, then is it reasonable for the party to be able to claim relief on grounds in relation to the document that is not approved by the FWC?

24. If an employer, having knowledge and consideration of the FW Act, executes an industrial instrument of an agreement to be approved by the FWC and at the same time time executes another industrial instrument that is not intended to be approved by the FWC, then is it reasonable that both industrial agreements be considered so as to be in operation together and enforceable, at least to the extent of the allowable terms?

25. If an employer, having knowledge and consideration of the FW Act, executes an industrial instrument of an agreement to be approved by the FWC and another industrial instrument not approved by the FWC but can be considered to be in operation together with the approved agreement, then is it reasonable if a party who makes an application under section 400A, 401 and or 611, produces an itemised schedule of costs under section 403(1), is able to claim costs in relation to all industrial instruments, not only those approved by the FWC?

 1   [2015] FWC 5161.

 2   Ibid at [52]-[55].

 3   The Hoyts Corporation Pty Ltd and Australian Theatrical and Amusement Employees Association, Print K4341; Re Finnemores Pty Ltd, Print M5301; Bulga Coal Management Pty Ltd v CFMEU, Print PR924444 8 November 2002 per Marsh SDP, Cartwright SDP and Hoffman C.

 4   Daniel King and others v Patrick Projects Pty Ltd [2016] FWCFB 5069.

 5   See [2016] FWC 4189.

 6   See [2016] FWCFB 5069.

 7 [2016] FCAFC 161 at [45] per Jessup J, [71] per Katzmann and White J at [175]; Also see Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33]-[35].

 8   [2015] FWC 1221.

 9   [2015] FWCFB 2679.

 10   PR588080.

 11   [2017] FWC 1583.

 12   [2017] FWCFB 2809.

 13 (1998) 82 FCR 391.

 14   Ibid at 394.

 15 In relation to the operation of sections 596 and 381 of the FW Act, see for instance: Warrell v Walton (2013)

2 Printed by authority of the Commonwealth Government Printer

33 IR 335; Oratis v Melbourne Business School [2014] FWCFB 3869; King v Patrick Projects Pty Ltd [2015] FWCFB 2679. In relation to the operation of Rule 12 of the FWC Rules see: Fitzgerald v Woolworths Limited[2017] FWCFB 2797. In relation to the operation of sections 400A, 401 and 611 see for instance: RainshieldRoofing Pty Ltd v Paerau and Dircks [2014] FWC 3777; Dircks v JimRoy Pty Ltd (2009) 186 IR 242; Church vEastern Health (2014) 240 IR 377; Selcuk v Maddison & Associates Pty Ltd [2015] FWC 4390; and Health Services Union – Victoria No.1 Branch v Sanli [2018] FWCFB 745.