Mr Arthur Hoyle v University of Canberra

[2015] FWC 6743

[2015] FWC 6743

The attached document replaces the document previously issued with the above code on 30 September 2015

Typographical error in paragraph [1] has been corrected.
Reference in header to s.608 of the Fair Work Act 2009 has been removed.

Miriam Henry

Associate to Justice Ross, President

Dated: 30 September 2015

[2015] FWC 6743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 615A - Application for the President to direct a Full Bench to perform a function

Mr Arthur Hoyle
v
University of Canberra
(U2015/10328)

JUSTICE ROSS, PRESIDENT MELBOURNE, 30 SEPTEMBER 2015

Referral to a Full Bench - section 615A Fair Work Act (Cth) - application granted.

[1] Mr Arthur Hoyle (the Applicant) has applied for a direction pursuant to s.615A of the Fair Work Act 2009 (Cth) (the Act) that two applications for interim decisions be referred to a Full Bench of the Commission.

[2] The referral application arises in the context of an unfair dismissal application lodged on 31 August 2015 pursuant to s.394 of the Act. The relevant background may be shortly stated.

[3] On 12 August 2015 the Applicant’s employment with the University of Canberra (the Respondent) was terminated on the ground of serious misconduct. The Applicant submits that the dismissal was unfair for the reasons set out in his unfair dismissal application and seeks reinstatement pursuant to s.390 of the Act. The Applicant has been charged with some 14 offences contrary to the Crimes Act 1900. The Applicant asserts that these criminal charges are substantially the same as the allegations put to him by the Respondent, which ultimately led to the termination of his employment.

[4] In the application before me, the Applicant seeks:

(i) a direction that a Full Bench hear and determine an application for an interim decision reinstating the Applicant to his employment with the Respondent to the same position and otherwise on the same basis as immediately prior to his dismissal; and

(ii) a direction that a Full Bench hear and determine an application for a decision staying the conduct of any conference or hearing in this matter until the criminal proceedings against the applicant have been heard and determined.

[5] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

[6] Applications under s.615A have recently been determined in Lend Lease Building Pty Ltd and others 1 (Lend Lease), Collinsville Coal Operations Pty Limited2 (Collinsville) and Metropolitan Fire & Emergency Services Board3 (MFESB). In Collinsville I set out the considerations relevant to the determination of such applications, as follows:

“[5] The issue for determination is whether I am satisfied that it is in the public interest to refer the agreement approval application to a Full Bench. The expression 'in the public interest', when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. [O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ]

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under s 615A.

[7] Section 577 provides as follows:

“The FWC 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.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’.

[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.”

[7] Similar observations were made in Lend Lease at [5] - [8], and MFESB at [8] - [13].

[8] In the present proceeding the Applicant advanced two broad propositions in support of the contention that it was in the public interest to refer the applications for interim relief to a Full Bench,:

(i) the applications are novel in the context of unfair dismissal applications and affords an opportunity to establish how the Commission's power to make interim decisions can be applied in the context of Part 3-2 of the Act; and

(ii) the applications afford an opportunity for a Full Bench of the Commission to provide guidance where there is significant commonality between the issues in concurrent unfair dismissal and criminal proceedings.

[9] The Respondent opposed the Applicant’s application to refer the matter to a Full Bench, but acknowledged that the Commission had not previously considered whether or not to grant interim relief in the context of an unfair dismissal application.

[10] I am satisfied that for the reasons advanced by the Applicant it is in the public interest to refer the applications for interim relief to a Full Bench. As the jurisdictional prerequisites in s.615A(1)(a) and (b) have been satisfied, s.615A(1) provides that I must issue the direction sought. Accordingly I will direct that a Full Bench determine the applications for interim relief.

PRESIDENT

Appearances:

The Applicant: Mr James Macken of counsel and Mr John Wilson

The Respondent: Ms Elizabeth Raper of counsel and Ms Jennifer Wyborn

Hearing details:

Melbourne (by telephone).

2015.

29 September.

 1   [2014] FWC 5026

 2   [2014] FWC 3129

 3   [2014] FWC 2498

Printed by authority of the Commonwealth Government Printer

<Price code A, PR572446>