Mr Igor Grabovsky
[2020] FWCFB 5995
•8 DECEMBER 2020
| [2020] FWCFB 5995 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Igor Grabovsky
(C2020/2485 and C2020/5259)
DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 8 DECEMBER 2020 |
Appeal against Statement PR717969 of Deputy President Anderson at Adelaide on 31 March 2020 and Decision [2020] FWC 3164 and Order PR720259 of Deputy President Anderson at Adelaide on 19 June 2020 in matter number AB2019/601.
[1] Mr Grabovsky has applied for permission to appeal, and appeals a statement issued by Deputy President Anderson on 31 March 2020 (Statement), 1 and a decision of the Deputy President on 19 June 2020 (Decision)2 and Order of the same date.3 The Statement, Decision and Order were made in respect of Mr Grabovsky’s application for an order to stop bullying.
[2] On 12 August 2020, Mr Grabovsky sought an extended timetable for the filing of submissions and material in support of the two appeals. Mr Grabovsky submitted that the complexity of the appeals including the volume of material, his current medical condition and the impact occasioned by the COVID-19 pandemic supported his request. Mr Grabovsky also sought that the hearing date be vacated, and the matter determined on the papers. 4 There being no objection and effective consent to this course, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the Act. It was considered that the question of permission to appeal and the merits of the appeal could be adequately determined without the parties making oral submissions.
[3] For the reasons that follow, we have refused Mr Grabovsky’s application to recuse ourselves and reconstitute this Full Bench.
[4] In the determination of the appeals, we refuse permission to appeal in relation to the Statement, and the Decision and Order. Mr Grabovsky’s appeals are dismissed.
Procedural history
[5] Mr Grabovsky filed a stop bullying application on 21 October 2019. He named the Commission as the employer/principal. Mr Grabovsky says that he was bullied by each of the persons set out at Attachment A to the stop bullying application. Attachment A lists a number of former and current Commission Members, the General Manager and a staff member of the Commission.
[6] The procedural history to Mr Grabovsky’s stop bullying application is summarised in an earlier decision of this Full Bench in which Mr Grabovsky sought to appeal a statement and directions issued by Deputy President Anderson on 10 December 2019 (first appeal decision). 5 The 10 December 2019 statement set out the Deputy President’s provisional decision on representation, a decision concerning recusal, directions for compliance by the parties (which were subsequently set out in the directions issued separately by the Deputy President), and a decision to refuse Mr Grabovsky’s request for a postponement of the proceedings. In the first appeal decision of 20 March 2020, Mr Grabovsky was not granted permission to appeal the 10 December 2019 statement and directions.6
[7] Subsequently on 31 March 2020, the Deputy President issued a Statement setting out the next steps in the application. The Deputy President said that he would proceed to determine the jurisdictional issues raised by the Commonwealth having regard to the material before the Commission. 7 The Deputy President also stated that he would make a final determination as to the question of representation of the Commonwealth by the Australian Government Solicitor (AGS).8 The Statement confirmed that the Deputy President’s decision was reserved in respect of these matters.9
[8] On 19 June 2020, the Deputy President issued a Decision and Order dismissing Mr Grabovsky’s stop bullying application for want of jurisdiction. 10
Application to reconstitute Full Bench
[9] Mr Grabovsky submits that he does not recognise the legitimacy of this Full Bench. 11 This contention appears to be made on two grounds. First, Mr Grabovsky alleges bullying by the Full Bench within the meaning of s 789FC of the Act (application for a Commission order to stop bullying).12 Second, Mr Grabovsky submits that this Full Bench is precluded from determining the appeals on the basis that its Members decided the first appeal.13 Mr Grabovsky seeks that the Members of this Full Bench recuse themselves or resign on the basis of actual bias, apprehended bias and by extension, a conflict of interest.14
[10] A claim of actual bias requires clear and direct evidence that a decision-maker was in fact biased. This includes proof that the decision maker(s) approached the issues with a closed mind, prejudged the matter, or could not be swayed by the evidence due to prejudice orpartiality in favour of a party. 15 Mr Grabovsky’s contention of actual bias relates to the fact that this Full Bench determined the first appeal.16 However, Mr Grabovsky has not advanced any evidence to support his contention of actual bias. The fact that this Full Bench determined the matters arising in the first appeal decision is not telling of actual bias in the present appeal nor does that fact of itself give rise to any legitimate claim of bullying by this Full Bench. Mr Grabovsky’s mere suspicion that the Full Bench would prejudge the appeals or approach the matters with a closed mindis insufficient to ground an arguable case of actual bias. Accordingly, this contention cannot be sustained and is rejected.
[11] As to the contention of apprehended bias, the High Court in Ebner v The Official Trustee in Bankruptcy explained the apprehended bias test as follows: 17
“... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
[12] The test involves two steps. First, there must be identification of what it is said that might lead a decision-maker to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the case on its merits. 18
[13] Mr Grabovsky says that “apprehended bias is an inherited quality of conflict of interest.” 19 Mr Grabovsky has not identified how, by having determined the first appeal decision, a fair-minded lay observer might reasonably apprehend that this Full Bench may not bring an impartial mind to the resolution of the appeals. The mere fact that Mr Grabovsky’s first appeal was not upheld does not give rise to an apprehension of bias. Further, Mr Grabovsky has not identified a logical connection between his contention of bullying by the Full Bench within the meaning of s 789FC and the fear that this Full Bench will not determine the appeals on their merits.
[14] The fair-minded lay observer would appreciate that this Full Bench is capable of assessing the appeals on the material before it and not by reference to extraneous matters. We therefore reject Mr Grabovsky’s contention of apprehended bias and, by extension, a conflict of interest. Neither contention can be sustained.
[15] We now to turn consider the appeals.
The Decision
[16] After setting out the background, 20 the Deputy President summarised the Commonwealth’s jurisdictional objections to Mr Grabovsky’s application as follows:21
“• that Mr Grabovsky, as a lay advocate and litigant, is not a “worker” for the purposes of the stop bullying provisions of the FW Act;
• that Mr Grabovsky was not “at work” at the relevant times for the purposes of the stop bullying provisions of the FW Act;
• that Mr Grabovsky could not have formed a “reasonable belief” of having been bullied at work for the purposes of the stop bullying provisions of the FW Act;
• that members and past members of the Commission have immunity, by force of law, from such proceedings; and
• the relief sought by Mr Grabovsky cannot be lawfully ordered.”
[17] The Deputy President proceeded by summarising the matters dealt with by the 10 December 2019 statement and the first appeal decision. 22 The Deputy President also noted that an application was made by Mr Grabovsky seeking that the stop bullying application be amended to name the Deputy President and others as persons against whom bulling is alleged. In respect of this matter the Deputy President said, “it would be an intolerable frustration to the administration of justice if a litigant could impede the determination of claims by seeking to name the duly appointed arbitrator as a responding person to the very litigation being arbitrated.”23
[18] The Deputy President next turned to address the issue of whether the AGS requires permission from the Commission to represent the Commonwealth in the proceedings. This was a matter in respect of which the Deputy President had earlier made a provisional decision that (1) the AGS had standing to appear on behalf of the Commonwealth in the proceedings without requiring permission, and (2) were he required to consider the request for permission, permission would be granted pursuant to s 596(a) (sic.). 24
[19] Subsequently, and in accordance with the 10 December 2019 directions, the parties filed further submissions on the question of representation. Having regard to these submissions, the Deputy President determined in the Decision that the provisional representation decision should be made final. 25 However, the Deputy President concluded in the alternative that if an exercise of discretion was required under s 596(2) of the Act, permission would be granted to the AGS pursuant to ss 596(2)(a) and (b) on the basis that the jurisdictional objections raise issues of complexity and it would be unfair to require the persons named or potentially named to advocate or represent themselves. In exercising discretion, the Deputy President took into account the fact that Mr Grabovsky is self-represented.26
[20] The Deputy President proceeded by setting out the relevant sections of the Act as they relate to Mr Grabovsky’s application for stop bullying. 27
[21] In respect of the former and current Commission Members named in Attachment A to the stop bullying application, the Deputy President considered the immunity provision in s 580 of the Act. 28 The Deputy President concluded that the former and current Members named in Attachment A are protected by s 580 of the Act in performing their functions or exercising powers. Accordingly, the Deputy President dismissed Mr Grabovsky’s application in respect of those named persons.29
[22] As to the balance of the named persons in Attachment A, the Deputy President concluded that Mr Grabovsky’s application failed for want of jurisdiction. 30 In so concluding, the Deputy President found that Mr Grabovsky was not performing work for the Commonwealth of the kind identified in s 7(1) of the Work Health and Safety Act 2011 (Cth) (WHS Act). Accordingly, Mr Grabovsky was not a worker within the meaning of Part 6-4B of the Act, and nor was he “at work” in the relevant sense.31
[23] Having concluded as he did, the Deputy President stated that it was not necessary to determine the balance of the jurisdictional issues raised by the Commonwealth, being that Mr Grabovsky could not have formed a “reasonable belief” of having been bullied at work, the submission that the relief sought by Mr Grabovsky cannot be lawfully ordered, and that there was not a future prospect of bullying at work in respect of former Commission Members. However, the Deputy President observed that each of these jurisdictional objections are not without merit. 32 The Deputy President also determined that it was unnecessary to deal with Mr Grabovsky’s application for interim orders concerning other Commission proceedings.33
Statutory framework
[24] An appeal under s 604 of the 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.34 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[25] 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.35 The public interest is not satisfied simply by the identification of error, 36 or a preference for a different result.37 However, the public interest may 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.” 38
[26] Permission to appeal may otherwise be granted on discretionary grounds. Considerations which have traditionally been 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. 39 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.40 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.41
Appeal of Statement
[27] Mr Grabovsky filed two notices of appeal. The first relates to the Statement. The second deals with the Decision and Order dismissing Mr Grabovsky’s stop bullying application.
[28] In his first notice of appeal, Mr Grabovsky alleges that the Statement is a decision of the Deputy President to “proceed with matter AB2019/601 despite obvious evidences that the FWC’s conduct is against the principals of law and prohibited by the Commonwealth law.” 42 In support of this ground of appeal, Mr Grabovsky contends that:
1. Deputy President Anderson created a juristic environment that is incompatible with procedural, juristic and procedural norms. Further, dealing with the stop bullying application in the manner set out in the Statement benefits the “offenders” and perverts the course of justice. 43
2. The Statement omits the following information, said to be relevant to a determination of the legitimacy of the conduct of “all participants” in the stop bullying application and this Full Bench:
(a) the application for a stay of the 10 December 2019 statement was not dealt with by the Commission in compliance with applicable law and was made without power; 44
(b) the Statement did not address Mr Grabovsky’s objection to the unlawful constitution of the Commission including in the determination of the stay application, which Mr Grabovsky says denied him natural justice; 45
(c) the alleged failure on the part of the Commission in dealing with Mr Grabovsky’s stay application resulted in the unlawful determination of other matters directly relevant to Mr Grabovsky, and this amounted to further misconduct by the persons named in Attachment A to the stop bullying application; 46
(d) the unlawful conduct of the presiding Member in overseeing the first stop bullying appeal, and the unlawfulness of the first stop bullying appeal proceedings which resulted in Mr Grabovsky being denied natural justice; 47
(e) an application was made by Mr Grabovsky to amend the stop bullying application to add a Commission staff member and Commission Members as persons against whom bullying is alleged; 48
(f) the stay decision and the first appeal decision are said to have omitted information provided by Mr Grabovsky in support of his actions and statements; 49
(g) separate applications to stop bullying were made by Mr Grabovsky naming a Commission staff member, Commission Members, representatives from the AGS and the Attorney General as persons against whom bullying is alleged. 50
[29] Having regard to the above matters, we understand that Mr Grabovsky seeks to appeal the Statement on the basis that the omissions from the Statement amounted to “error of facts, error of law and error of determination.” 51
[30] For the reasons that follow, Mr Grabovsky’s first notice of appeal does not concern or relate to any decision made by the Commission, and accordingly there is no competent appeal capable of consideration under s 604 of the Act.
[31] In the Statement, the Deputy President said that he would proceed to determine the question of representation of the Commonwealth by the AGS, and the Commonwealth’s jurisdictional issues raised in response to Mr Grabovsky’s stop bullying application. The Deputy President reserved his decision in respect of these matters.
[32] Section 598 of the Act addresses the meaning of decisions of the Commission. Sub-section (1) provides that:
“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).”
[33] A Full Bench in Mr Ben Buksh v Ramsay Health Care t/a Peninsula Private Hospital 52made two key observations in respect of this provision. Firstly, the term “decision” includes both substantive and procedural decisions. Secondly, mediation, conciliation, recommendation or the expression of an opinion (but not arbitration) are not appealable.53
[34] Consistent with the observations of the High Court in Australian Broadcasting Tribunal v Bond,in the context of judicial or administrative proceedings a decision: 54
“…ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand…”
[35] The Statement is neither a procedural nor substantive decision. It does not determine any matters on an intermediate or final basis. The Statement does not dispose of the application in any respect. Rather, it was a statement to the parties as to how the Deputy President would proceed to determine the Mr Grabovsky’s stop bullying application.
[36] Accordingly, there is no decision capable of appellate review. Mr Grabovsky’s appeal of the Statement fails.
Appeal of Decision
[37] The contentions of error alleged by Mr Grabovsky in respect of the Decision are not confined to the matters raised in the second notice of appeal. Mr Grabovsky’s Submission of Appeal – Affidavit separately identifies alleged errors in the Decision. The appeal is determined by reference to each of these documents.
[38] In his second notice of appeal, Mr Grabovsky raises the following appeal grounds:
1. The Commission has failed to execute its statutory functions by not attending to the matters raised in the first notice of appeal in a timely manner.
2. The Decision contains an error of law and was erroneously determined. It is submitted by Mr Grabovsky that the Deputy President made false and misleading statements, misinterpreted the law, falsified information including by omission, and tampered with evidence relied upon by Mr Grabovsky.
3. Mr Grabovsky contends that the Deputy President did not address the substantive matters raised in the stop bullying application. Further, the Deputy President exceeded his jurisdiction by determining a question of law which ought to have been referred to the Federal Court.
4. The Decision is a fraudulent instrument that protects the Commission Members named in the stop bullying application.
5. The Deputy President had a conflict of interest in dealing with Mr Grabovsky’s stop bullying application. Mr Grabovsky contends that the Deputy President was in fact a named person to his stop bullying application.
[39] We understand that the contentions of error raised by Mr Grabovsky in his affidavit supplement appeal ground two. Mr Grabovsky submits in his affidavit that the Deputy President erred in respect of the following matters: identification of the Commonwealth as a respondent, application of ss 596 (representation), 580 (protection of Commission Members), 789FC(2) (definition of worker), 789FF(1) (risk of future bullying), and the Deputy President’s alleged failure to consider the jurisdictional objections raised by Mr Grabovsky.
Appeal ground one
[40] By appeal ground one, Mr Grabovsky contends that his application to appeal the Statement is unresolved. However, Mr Grabovsky’s appeal of the Statement is dealt with in this decision. As earlier concluded, the Statement is not a decision capable of being appealed. Nor does this ground of appeal allege error in respect of the Decision. In any event, no appealable error arises from the Deputy President proceeding to determine Mr Grabovsky’s application for an order to stop bullying in accordance with the process described in the Statement.
[41] Appeal ground one is rejected.
Appeal ground two
[42] For the reasons that follow, appeal ground two fails.
Identification of the respondent
[43] Mr Grabovsky contends that the Deputy President erred by misidentifying the Commission as a respondent to his stop bullying application. 55 Mr Grabovsky states that the respondents to the application are the individually named persons.56
[44] The Deputy President did not err by identifying the Commonwealth, as represented by the Commission, as a respondent to Mr Grabovsky’s stop bullying application. The application names the Commission as the employer/principal as the organisation that employs or engages the persons named in the application as allegedly having engaged in bullying behaviour. Pursuant to the Fair Work Commission Rules 2013 (Rules), the employer/principal is regarded as a responding party in that it must lodge a response to the stop bullying application. 57 The Commonwealth did so in compliance with the Rules. While Mr Grabovsky seeks a response from the named persons, that has no bearing upon the status of the Commonwealth as a respondent to his application. In contradistinction to the requirement upon an employer/principal, we note that the Rules do not require a response to a stop bullying application from the persons named.58
[45] We discern no error in respect of the Decision as it relates to this matter.
Representation
[46] Mr Grabovsky submits that the Commonwealth’s representation by the AGS is prohibited by the “Constitutional postulates of Separation of Powers.” 59 It is contended that the submissions made by the AGS in the appeal of the Decision must be disregarded in any determination made by the Commission on the basis that they are unlawful and inadmissible.60 Mr Grabovsky further submits that the AGS is not permitted to act on behalf of the Commonwealth in the absence of a grant of permission from the Commission. He says that the AGS failed to comply with the mandatory requirement to file and serve a notice of representative commencing to act.61
[47] As to the Deputy President’s alternative decision to grant permission to the AGS pursuant to s 596(2) of the Act, Mr Grabovsky states there was no discretion available to the Deputy President to do so. 62
[48] There was no error in the determination made by the Deputy President in respect of representation.
[49] The Commonwealth is a respondent to the stop bullying application. AGS lawyers are employed by the Commonwealth. 63 The Full Bench in Gibbens v The Commonwealth of Australia (Department of Immigration and Border Protection)64 determined that s 596(4)(a) of the Act applies to the AGS in representing the Commonwealth:65
“The requirement that AGS lawyers be engaged under the Public Service Act means they must be engaged (like Mr Gibbens was) under s.22 of that Act, since it is that provision which empowers the engagement of APS employees by Agency Heads on behalf of the Commonwealth. AGS lawyers are therefore employees of the respondent (that is, the Commonwealth) engaged by the Secretary of the Attorney-General’s department to work in that department. Accordingly, unless its operation is modified or restricted by some other provision of the FW Act, s.596(4)(a) applies, and the respondent does not require permission to be represented by an AGS lawyer.”
[50] We reject Mr Grabovsky’s contention that the provision of legal services by the AGS offends the separation of judicial power under the Australian Constitution. Firstly by s 55(N)(1) of the Judiciary Act 1903 (Cth), the AGS may provide legal and related services to or for the Commonwealth or a body established by a Commonwealth Act or regulations. 66 We accept that the AGS acts on instructions from the administrative entity headed by the General Manager, which is part of the executive. Secondly, the Commission is not a court and does not exercise the judicial power of the Commonwealth.
[51] Having regard to these matters, Mr Grabovsky’s contention that the AGS is not permitted to act on behalf of the Commonwealth is plainly wrong. The AGS was not required to provide notification of the fact that it represents the Commonwealth in the manner contented by Mr Grabovsky.
[52] In any case, pursuant to theRules, the AGS did not require a grant of permission so as to make submissions in response to Mr Grabovsky’s application. 67 Accordingly, there is no basis for concluding that the AGS’ submissions in respect of Mr Grabovsky’s stop bullying application are “unlawful and inadmissible.” In the circumstances, it is unnecessary to consider the Deputy President’s alternative conclusion granting permission pursuant to s 596(2)(a) and (b) of the Act.
Protection of former and current Commission Members
[53] Mr Grabovsky submits that the immunity provision in s 580 of the Act does not provide immunity or any other form of protection to the former and current Commission Members named in his stop bullying application. 68 Mr Grabovsky contends that this is because the Commission Members have deliberately refused to perform their functions or exercise their powers in accordance with Commonwealth law, and as a consequence s 580 is rendered inapplicable.69 Further, Mr Grabovsky contends that the Commission is not a court, and as such his application for stop bullying is not classified as a suit for the purposes of s 580 of the Act.
[54] By s 580 of the Act, “An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.” In respect of this provision, the Explanatory Memorandum to the Fair Work Bill 2008 states: 70
“FWA is an independent statutory agency. To enhance the independence of FWA Members and provide them with freedom to make decisions, clause 580 provides that an FWA Member has the same protection and immunity as a Justice of the High Court in performing his or her functions or exercising his or her powers, including immunity from suit and immunity against the disclosure of certain information.”
[55] As the High Court determined in Re East; Ex parte Nguyen, the term “suit” is not intended to be understood in a narrow sense. 71 Rather, the immunity from a suit protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity.72 In Mr Grabovsky’s stop bullying application, which is a civil suit, he alleges that former and current Commission Members are not observing applicable laws and not exercising their statutory duties in a reasonable manner, and this amounts to bullying.73 However, it is in the exercise of such statutory power or function that former and current Commission Members are protected by s 580 of the Act. Immunity is not foregone merely because Mr Grabovsky is dissatisfied with the outcome of the Commission proceedings dealt with by the relevant Members concerned.
[56] No appealable error arises from the findings made in the Decision regarding s 580 of the Act.
Definition of worker
[57] Mr Grabovsky challenges the finding in the Decision that he is not a worker for the purposes of the stop bulling provisions of the Act. Mr Grabovsky submits that his submissions in respect of this matter were not taken into consideration by the Deputy President. 74 In support of his position, Mr Grabovsky relies upon “Acts of the Parliament (FWA and WHS Acts).” He says that the Deputy President set a “deliberately false criteria” in upholding the jurisdictional objection made by the AGS.75
[58] Mr Grabovsky submits that to be a worker he is not required to prove that “by assisting his wife with her proceedings before the Commission, he was working for the Commission or working for his wife with respect to a business or undertaking conducted by her.” 76 Mr Grabovsky contends that he is a person of a “prescribed class” within the meaning of s 7(1)(i) of the WHS Act because he carried out work by participating in a process before the Commission in a manner prescribed by the law. This included filing applications in the Commission, making submissions, attending Commission proceedings, and performing work before Commission Members who held a duty to attend to the results of his work.77 Mr Grabovsky contends that he was bullied by the persons named in the course of undertaking the work as described.78
[59] Part 6-4B of the Act allows “a worker who is being bullied at work to apply to the FWC for an order to stop that bullying.” 79 The term “worker” is defined in s 789FC(2) of the Act to have the same meaning as in the WHS Act.80 By s 7(1)(i) of the WHS Act, “a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as…a person of a prescribed class.”
[60] We do not accept Mr Grabovsky’s contention that the Deputy President did not address the question of whether Mr Grabovsky was a worker by reference to his submissions. The Deputy President specifically dealt with Mr Grabovsky’s contention that he is a person of a prescribed class in the Decision. The Deputy President relevantly found that the Work Health and Safety Regulations 2011 (Cth) do not prescribe classes of persons for the purposes of s 7(1)(i) of the WHS Act such that Mr Grabovsky could be regarded as a person of a prescribed class. 81 In any case, Mr Grabovsky’s contention that the Deputy President set a false criteria in applying s 7(1) of the WHS Act is rejected. Application of the provision necessitates an assessment of whether “a person carries out work in any capacity for a person conducting a business or undertaking.” This is precisely what the Deputy President did.82 No error in the Decision arises in this respect.
Risk of future bullying
[61] Mr Grabovsky disagrees with the Deputy President’s observation that there is no future prospect of bullying at work in respect of former Commission Members. Mr Grabovsky submits that this is because there remains “fraudulent official instruments” issued by such named persons. 83
[62] As is apparent from [60] of the Decision, the Deputy President did not consider it necessary to determine the other jurisdictional objections raised in response to the application, including the submission that there is no prospect of future bullying by former Commission Members. It follows that the observation made by the Deputy President in respect of this matter did not have any bearing upon the Deputy President’s conclusion that Mr Grabovsky’s stop bullying application fails for want of jurisdiction. 84 This observation does not concern or relate to any decision made by the Deputy President. Accordingly, Mr Grabovsky’s contention of error does not give rise to a competent basis to appeal the Decision.
Jurisdictional issues
[63] Mr Grabovsky contends that the Deputy President erred by failing to consider his jurisdictional objections. These objections concern the Deputy President’s authority to deal with his application, the validity of the AGS in filing responsive submissions, the identity of the Commonwealth as a respondent and the legitimacy of the first appeal decision. 85 Further, Mr Grabovsky contends that the Deputy President erred by determining that his application failed for want of jurisdiction.86
[64] Any challenge to the legitimacy of first appeal decision is not a matter which could properly be determined by the Deputy President. There is no error as contended by Mr Grabovsky as it relates to this matter.
[65] The balance of Mr Grabovsky’s objections as described at [63] were dealt with by the Deputy President in the Decision. Indeed, Mr Grabovsky alleges error in respect of the Deputy President’s findings regarding these matters, which we address at [43]-[52], [64] and [73] of this decision. Accordingly, there is no basis to Mr Grabovsky’s contention that the Deputy President failed to consider these matters and therefore erred.
[66] Finally, Mr Grabovsky’s contention that the Deputy President erred in dismissing his stop bullying application cannot be sustained. The Deputy President’s conclusion that the application failed for want of jurisdiction was based on the findings regarding ss 580 (protection of FWC Members) and 789FC(2) (definition of worker). As earlier noted, Mr Grabovsky’s challenge to these findings has been rejected.
Appeal ground three
[67] At [58] of the Decision, the Deputy President concluded that the stop bullying application fails for want of jurisdiction. Mr Grabovsky’s contention that the Deputy President erred in so concluding is rejected immediately above. In this context, the Deputy President was not required to further deal with the application. Accordingly, Mr Grabovsky’s contention that the Deputy President erred by not addressing the substantive matters raised in the stop bullying application must fail.
[68] Further, by appeal ground three, Mr Grabovsky contends that the issue of representation concerns “issues of the Commonwealth law and the Constitution.” Mr Grabovsky contends that in determining this matter, the Deputy President exceeded his jurisdiction. 87
[69] Mr Grabovsky’s contention is without merit. As observed by the High Court in Re Cram and Others; Ex Parte The Newcastle Wallsend Coal Company Proprietary Limited, 88“…there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments”in discharging arbitral functions. A tribunal such as the Commission may form an opinion on a matter of interpretation in arbitral proceedings. In doing so, this “does not in itself amount to a usurpation of judicial power.” The Deputy President was entitled to determine the question of representation by the AGS under s 596 of the Act in exercising the Commission’s functions and powers.89 It follows that an appeal in respect of this matter cannot be sustained and therefore fails.
[70] Having regard to the above, appeal ground three is rejected.
Appeal ground four
[71] Mr Grabovsky contends that the Decision is a fraudulent instrument because it omits essential information concerning various applications and submissions he made during the course of the stop bullying application. These submissions reflect Mr Grabovsky’s dissatisfaction with the Commission and other stakeholders. 90 Mr Grabovsky submits that by not addressing these matters, the Decision is fraudulent and misleading and the Deputy President has acted unreasonably.91
[72] The submissions which Mr Grabovsky contends are omitted from the Decision have no relevance to the matters before the Deputy President for determination. Indeed, Mr Grabovsky fails to identify how these submissions were material to the Deputy President’s consideration of the matters dealt with in the Decision.
[73] To the extent that Mr Grabovsky’s submissions bear upon the Deputy President’s ongoing management of the stop bullying application, this is addressed in the Decision. 92
[74] Mr Grabovsky’s contention that the Decision omits information essential for understanding his application is misconceived. Appeal ground four is rejected.
Appeal ground five
[75] Mr Grabovsky contends that there was a conflict of interest in the Deputy President determining his stop bullying application, and the alleged conflict is evident in [22] to [26] of the Decision. 93
[76] In the first appeal decision, it was determined that the Deputy President was correct in concluding that an objective observer would not reasonably apprehend that the Deputy President was unable to bring an independent and unbiased mind to the determination of the stop bullying application. 94 While Mr Grabovsky separately sought to include the Deputy President as a named person to the application, no such amendment was granted.95
[77] To the extent that Mr Grabovsky’s submissions continue to restate concerns of apprehended or actual bias, these submissions merely relate to his dissatisfaction with the outcome of his stop bullying application. This does not give rise to a reasonable apprehension of bias on the part of the Deputy President. 96 Further, Mr Grabovsky’s submissions do not support his contention of actual bias. It follows that appeal ground five cannot be sustained and therefore fails.
Permission to appeal the Decision
[78] Mr Grabovsky contends that the grant of permission to appeal the Decision is in the public interest. In support of his position, Mr Grabovsky relevantly submits that the conduct of the Commission in respect of his stop bullying application discloses a serious misappropriation of Commonwealth law. Mr Grabovsky says that it is in the public interest to expose alleged misconduct by the Commission and prevent such misconduct from further occurring. Mr Grabovsky also says that it is in the public interest to prevent the circulation of a criminal instrument.
[79] There is no basis to grant permission to appeal the Decision, either in the public interest or on discretionary grounds. Permission to appeal is refused.
Disposition of appeals
[80] For the above reasons and having regard to the conclusions reached, we dismiss Mr Grabovsky’s appeal against:
(1) the Statement (PR717969) issued by Deputy President Anderson on 31 March 2020; and
(2) the Decision [2020] FWC 3164 of the Deputy President on 19 June 2020 and Order PR720259 of the same date.
DEPUTY PRESIDENT
Determined on the basis of written submissions filed by the parties.
Printed by authority of the Commonwealth Government Printer
<PR724385>
1 PR717969
2 [2020] FWC 3164
3 PR720259
4 Mr Grabovsky submissions dated 12 August 2020 at pp.5 and 6
5 Igor Grabovsky v Fair Work Commission[2020] FWCFB 1014 (First appeal decision) at [6]-[9]; see also Mr Igor Grabovsky v Fair Work Commission[2019] FWC 8343, Directions PR715005
6 First appeal decision at [38] and [39]
7 Statement at [11] and [12]
8 Ibid at [13] and [14]
9 Ibid at [15]
10 Decision at [64] and [66]; Order PR720259
11 Mr Grabovsky Submission of Appeal – Affidavit dated 16 September 2020 (Grabovsky affidavit) p.96 at [10.72]
12 Ibid p.94 at [10.66(iv)]
13 Ibid p.96 at [10.74]
14 Grabovsky affidavit p.96 at [10.72], p.97 at [10.75], p.98 at [10.76] and [10.77], p.99 at [10.80]; see also Letter from Mr Grabovsky dated 12 August 2020 at pp.3-4
15 Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39]
16 Grabovsky affidavit p.96 at [10.74]
17 [2000] HCA 63; (2000) 205 CLR 337 at [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ
18 Ibid at [8]
19 Ibid p.77 at [10.1(iii)]
20 Decision at [1] to [5]
21 Ibid at [7]
22 Ibid at [9]-[24]
23 Ibid at [26]
24 Presumably an intended reference to s 596(2)(a), Statement [2019] FWC 8343, PR715004 at [29] and [30]
25 Decision at [31]
26 Ibid at [30]
27 Ibid at [32] and [33]
28 Ibid at [35]
29 Ibid at [36]-[43]
30 Ibid at [58] and [59]
31 Ibid at [44]-[57]
32 Ibid at [60]-[63]
33 Ibid at [65]
34 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] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
35 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
36 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
37 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 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
38 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
39 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 at 220; Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [26]
40 Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30]
41 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
42 Mr Grabovsky notice of appeal dated 19 April 2020 (first notice of appeal) at 2.1
43 Ibid Attachment A p.1
44 Ibid Attachment A p.1 at (i)
45 Ibid Attachment A pp.1 at (ii)
46 Ibid Attachment A p.1 at (iii)
47 Ibid Attachment A p.2 at (iv), (vii) and (viii)
48 Ibid Attachment A p.2 at (v) and (vi)
49 Ibid Attachment A p.2 at (ix)
50 Ibid Attachment A pp.2 and 3 at (x)
51 Ibid Attachment A p.3
52 [2020] FWCFB 4352
53 Ibid at [17]
54 Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [27], 170 CLR 321 at p.335
55 Grabovsky affidavit pp.101-102 at [11.3], p.103-104 at [11.6], p.104 at [11.7]
56 Ibid p.103 at [11.5], p.112 at [11.19]
57 Rule 23A(1)
58 Rule 23A(3)
59 Grabovsky affidavit p.58 at [5.25.5]
60 Ibid p.62 at [5.30]
61 Ibid p.48 at [5.1], pp.51-53 at [5.12]- [5.17], p.111 at [11.19(i)]
62 Ibid p.112 at [11.19]
63 Pursuant to s 55I of the Judiciary Act 1903 (Cth), the AGS and AGS lawyers must be persons in the Attorney-General’s Department who are engaged under the Public Service Act 1999 (Cth). Persons engaged under the Public Service Act 1999 (Cth) are employees of the Commonwealth, see ss 6(1), 22(1) and 72(1)(d)
64 [2017] FWCFB 2812; see also Knight v Commonwealth of Australia (Australian Criminal Intelligence Commission)[2017] FWCFB 3896 at [8]-[14]
65 [2017] FWCFB 2812 at [14]
66 ss 55N(1)(a) and 55N(1)(d) of the Judiciary Act 1903 (Cth)
67 Rule 12
68 Grabovsky affidavit p.31 at [3.4]
69 Ibid p.31 at [3.4], p.32 at 3.7, pp.34-35 at [3.11], pp.122 at [11.21]
70 Commonwealth House of Representatives, Explanatory Memorandum, Fair Work Bill 2008, [2254]
71 Re East; Ex parte Nguyen (1998) 196 CLR 354
72 Ibid at [30]
73 Appeal book (C2020/5259) dated 16 September 2020 document 43 at Attachment C
74 Grabovsky affidavit pp.106-107 at [11.11(i) and (ii)], p.126 at [11.24]
75 Ibid pp.129-130 at [11.25]
76 Ibid p.130 at [11.25]; Decision at [52]
77 Grabovsky affidavit pp.130-131 at [11.25]
78 Ibid p.131 at 11.25
79 s 789FA of the Act
80 Note, but does not include a member of the Defence Force
81 Decision at [56]
82 Ibid [52]-[55]
83 Grabovsky affidavit pp.137-138 at [11.27]
84 Decision at [62] and [63]
85 Grabovsky affidavit p.137 at [11.26]
86 Ibid p.138 at [11.28]
87 Ibid p.105 at [11.8(viii)]
88 (1987) 163 CLR 140 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ at 149
89 Construction, Forestry, Mining and Energy Union (CFMEU) v Wagstaff Piling Pty Ltd (2012) 203 FCR 371 per Buchanan and Katzmann JJ at [21]
90 Grabovsky affidavit p.28 at [2.16]
91 Ibid p.28 at [2.17], p.29 at [2.20], p.47 at [4.38], p.53 at [5.16], p.137 at [11.26]
92 Decision at [22]-[26]
93 Grabovsky affidavit p.85 at [10.28], see also pp.80-81 at [10.16]
94 First appeal decision at [34]
95 Grabovsky affidavit p.85 at [10.27], p.94 at [10.66(iv)]
96 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] and [8]
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