Nick Belan v National Union of Workers NSW Branch

[2016] FWC 8125

[2016] FWC 8125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.615A(2)—Application for the President to direct a Full Bench to perform a function

Nick Belan
v
National Union of Workers NSW Branch
(U2016/7463)

JUSTICE ROSS, PRESIDENT MELBOURNE, 11 NOVEMBER 2016

Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 582 and 615A. Application refused.

[1] Mr Nick Belan (the Applicant) has applied for a direction pursuant to s.615A of the Fair Work Act 2009 (Cth) (the Act) that a matter be referred to a Full Bench of the Commission. The relevant facts may be shortly stated.

[2] On 6 June 2016 the Applicant filed an application for an unfair dismissal remedy. In accordance with directions made by the Commission on 9 September 2016 the Respondent filed and served its evidence on 17 October 2016. The Respondent’s evidence includes transcript of evidence that the Applicant gave under compulsion to attend and give evience to the Trade Union Royal Commission (‘the TURC transcript’). The Respondent relies on admissions made by the Applicant in the TURC transcript to support the Respondent’s contention that the Applicant had engaged in misconduct.

[3] The Trade Union Royal Commission was established pursuant to the Royal Commissions Act 1902 (Cth) and s.6DD of that Act provides as follows:

(1)  The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

(a)  a statement or disclosure made by the person in the course of giving evidence before a Commission;

(b)  the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 2 or subsection 6AA(3).

(2)  Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act.

[4] The Applicant objects to the tender of:

(a) the TURC transcript;

(b) any of the Respondent’s documents that rely on the admissions made by the Applicant in the TURC transcript,

and will apply to exclude these documents from the Respondent’s evidentiary case on the basis that this offends s.6DD.

[5] The Respondent contends that this Commission is not a ‘court’ within the meaning of that word in s.6DD of the Royal Commissions Act 1902(Cth) and hence the TURC material is admissible.

[6] The Applicant seeks to have the following question to be referred to a Full Bench of this Commission for determination: Is the Fair Work Commission a ‘court’ for the purposes of s.6DD of the Royal Commissions Act 1902?

[7] Section 615A of the 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.

[8] The issue for determination is whether I am satisfied that it is in the public interest to refer the matter 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. 1

[9] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under ss 394 and 615A.

[10] Section 577 of the FW Act 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).’

[11] 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’. 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.

[12] The Applicant submits that it is in the public interest for the matter to be determined by the Full Bench for the following reasons:

(i) the question is a defined matter that can be dealt with succinctly;
(ii) the question has potentially broad ramifications for employees and others who gave evidence at the Trade Union Royal Commission, or other Royal Commissions, in employment-related contexts;
(iii) the Respondent has indicated (at a directions hearing before DP Dean on 1 November 2016) that it would seriously consider appealing the decision were a single member determine the matter adversely to the Respondent, and there is a public interest in reducing the number of stages through which a matter must be litigated; and
(iv) it is a question that requires determination prior to any hearing in any event, as the availability or otherwise of the TURC transcript to the Respondent in these proceedings affects the entire conduct of the case. Referral to the Full Bench will avoid the need for interlocutory appeal proceedings.

[13] The matter at issue is the proper construction of s.6DD of the Royal Commissions Act 1902 (Cth). While it appears that this issue has not yet been determined in the Commission, I note that it has been the subject of some consideration in the Administrative Appeals Tribunal. 2

[14] I have considered the material, including parties’ oral submissions. I am not persuaded that it is in the public interest to refer the application to a Full Bench. The referral of the question posed will not necessarily resolve the issue in dispute. For example, if the Full Bench determines that the Commission is not a court then the admissibility of the TURC material would be a matter for the discretion of the member at first instance. Any such discretionary decision may be the subject of an appeal, as may any decision on the merits of the substantive application. Given the range of possible permutations considerations of efficiency and expedition lead me to conclude that the appropriate course is to have this application determined by a single Member. The parties may seek to have the question posed in the referral application dealt with as a threshold issue in the proceedings before Deputy President Dean.

[15] As I am not satisfied that it is in the public interest to direct a Full Bench to hear and determine the matter, the s.615A application must be dismissed.

PRESIDENT

 1   O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ

 2   See Steigers Meat Supply (Aust) Pty Ltd v Australian Meat and Liverstock Corporation, No. V83/482, AAT Decision No. 6028, 2 November 1984 per Deputy President Thompson

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