Mr Abbas Raza v Harbour Roof Tiling Pty Ltd
[2017] FWCFB 2248
•21 APRIL 2017
[2017] FWCFB 2248
The attached document replaces the document previously issued with the above code on 21 April 2017.
Paragraphs [1] and [2] were mistakenly numbered [1] and [1]. This document corrects the numbering.
Patrick Barkachi
Associate to Vice President Catanzariti
Dated 26 April 2017.
| [2017] FWCFB 2248 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Abbas Raza
v
Harbour Roof Tiling Pty Ltd
(C2017/1312)
| VICE PRESIDENT CATANZARITI | SYDNEY, 21 APRIL 2017 |
Appeal against decision [2017]FWC 1096 of Senior Deputy President Drake at Sydney on 24 February 2017 in matter number C2016/6920.
Introduction
At the hearing before the Full Bench Mr Raza appeared on his own behalf. Mr Genday appeared for Harbour Roof Tiling
On 11 March 2017 Mr Abbas Raza lodged a notice of appeal in which he applied for permission to appeal and appealed under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Senior Deputy President Drake on 24 January 2017 (Decision). In the Decision, the Senior Deputy President dismissed matter C2016/6920, which was an application made under s.372 of the FW Act by Mr Raza on 24 November 2016 in relation to alleged adverse action taken by Harbour Roof Tiling Pty Ltd (Harbour Roof Tiling). Reasons for Decision were subsequently issued[1] (Reasons). Mr Raza had also previously lodged an application for unfair dismissal remedy pursuant to s.394 of the FW Act on 28 September 2016[2].
The Role of the Commission in General Protection matters not involving dismissal
An applicant may apply for the Commission to deal with a dispute where the alleged contravention of the general protections provisions does not involve dismissal[3]. The Commission must hold a conference to deal with the dispute if the parties to the dispute agree to participate[4]. The Commission may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion[5]. It is not otherwise empowered to deal with the matter.
If there is either a conference held under s.374 of the FW Act which does not resolve the dispute or no conference is held due to the parties not agreeing to participate, it remains open to the Applicant to make an application to the Federal Court of Australia or the Federal Circuit Court.
Consideration
An appeal under s.604 of the FW Act is an appeal by way of rehearing, and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker[6]. There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert
Panel); or
(b) made by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
A “decision” for the purpose of an appeal under s.604 is defined in s.598(1) as follows:
(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes).
Section 595(2) empowers the Commission to deal with a dispute which the FW Act expressly authorises it to deal with as it considers appropriate, except by arbitration, including by mediation or conciliation and by making a recommendation or expressing an opinion.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment[7]. The public interest is not satisfied simply by the identification of error[8], or a preference for a different result[9]. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...[10]”
Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused[11]. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error[12]. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal[13].
We consider that it is in the public interest to grant permission to appeal and permission to appeal is granted. This matter raises an issue of importance and general application regarding the Commission’s powers in relation to General Protection matters not involving dismissal. Although the appeal arises out of a process carried out in accordance with subsection 595(2) of the FW Act and Mr Raza appeared resolved at the conference before the Senior Deputy President to only pursuing an application for unfair dismissal remedy pursuant to s.394 of the FW Act, the Senior Deputy President purported to dismiss his application made pursuant to s.372 of the FW Act which she was not empowered to do.
In the circumstances the Senior Deputy President was presented with, once Mr Raza indicated he did not wish to pursue his application made pursuant to s.372 of the FW Act, there was nothing further which the Commission was empowered to do apart from attending to the consequent administrative step of closing the file.
Permission to appeal is granted and the decision of Senior Deputy President Drake on 24 January 2017 is quashed. An order to that effect will be issued.
As Mr Raza’s application made pursuant to s.372 of the FW Act has not been terminated, it remains open to him to make application to the Federal Court of Australia or the Federal Circuit Court.
VICE PRESIDENT
Appearances:
Mr A Raza.
Mr B Genday for Harbour Roof Tiling Pty Ltd.
Hearing details:
2017.
Sydney:
4 April.
[1] [2017] FWC 1096.
[2] U2016/11932.
[3] Section 372 of the FW Act.
[4] Section 374 of the FW Act.
[5] Ibid, Note 2.
[6] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[7] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[10] [2010] FWAFB 5343, 197 IR 266 at [27].
[11] Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
[12] Wan v AIRC (2001) 116 FCR 481 at [30].
[13] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
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