Mr Brendan Foster v Honeywell T/A Honeywell Australia
[2015] FWCFB 524
•29 JANUARY 2015
| [2015] FWCFB 524 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Honeywell T/A Honeywell Australia
(C2014/7751 and C2014/8020)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 29 JANUARY 2015 |
Appeal in respect of conferences conducted by Deputy President Asbury and Commissioner Spencer at Brisbane on 24 June 2014 & 27 October 2014 respectively in matter numbers C2014/1102 & C2014/1665 - no decisions made - appeals incompetent - applications dismissed.
[1] On 23 June 2014 Mr Foster filed an application (C2014/1102) for the Commission to deal with a non-dismissal general protections dispute pursuant to s.372 of the Fair Work Act2009 (Cth) (the FW Act). Deputy President Asbury conducted a conference in relation to Mr Foster’s application on 29 July 2014. Mr Foster filed a subsequent s.372 application (C2014/1665) on 9 September 2014 and Commissioner Spencer conducted a conference in respect of that matter on 14 October 2014. Mr Foster has lodged appeals in respect of both matters.
[2] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (FWC) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 There is no right to appeal and an appeal may only be made with the permission of the FWC. 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. (emphasis added)
[3] It is apparent from s.604(1) that an appeal only lies from a ‘decision’ made, relevantly, by the Fair Work Commission. In the matters before us there has been no decision by the Commission. The role of the Commission in relation to s.372 applications is confined by ss.374 and 375 of the FW Act,:
374 Conferences
(1) If:
(a) an application is made under section 372; and
(b) the parties to the dispute agree to participate;
the FWC must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(2) Despite subsection 592(3), the FWC must conduct the conference in private.
375 Advice on general protections court application
If the FWC considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.
[4] It is apparent that the Commission’s role in relation to s.372 applications is to convene a conference (if the preconditions in s.374(1)(a) and (b) have been met) and at such a conference the Commission may mediate or conciliate, or make a recommendation or express an opinion (s.592(4)). The Commission may also provide advice in relation to the application, in the circumstances set out in s.375. But the Commission has no determinative function in relation to the s.372 dispute and, in particular, it is not authorised to deal with the dispute by arbitration (see s.595(3)).
[5] In these circumstances it is unsurprising that the Members who convened a conference to deal with Mr Foster’s disputes did not make any decisions in respect of those disputes. No decisions were evident on a review of the relevant files and the appellant was unable to direct our attention to any decisions published by the Commission in respect of these matters.
[6] As there has been no decision by the Commission in relation to either of these matters, there can be no appeal.
[7] The appeals are incompetent and accordingly are dismissed pursuant to s.587(1)(a) of the FW Act.
PRESIDENT
Appearances:
The Appellant: Mr B. Foster in person
The Respondent: Ms T. Brown and Ms L. Whitehead
Hearing details:
Sydney with video link to Brisbane
21 January 2015
1 This is so because on appeal FWC 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.
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