Tafese Eshetu Bizuneh v Australian Electoral Commission
[2023] FWCFB 114
•4 JULY 2023
| [2023] FWCFB 114 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Tafese Eshetu Bizuneh
v
Australian Electoral Commission
(C2023/842)
| VICE PRESIDENT CATANZARITI | SYDNEY, 4 JULY 2023 |
Appeal against the grant of permission to the Respondent to be represented by a lawyer or paid agent by Deputy President Cross at Sydney on 15 February 2023 in matter number C2022/8116 – permission to appeal refused.
Background
On 20 February 2023, Mr Tafese Eshetu Bizuneh (Mr Bizuneh) lodged a Form F7 Notice of Appeal in relation to a decision made on 15 February 2023 by Deputy President Cross (Decision). In the Decision, the Deputy President granted permission for the Australian Electoral Commission (AEC) to be represented by a lawyer under s.596 of the Fair Work Act 2009 (Act). The Decision was made in connection with an application by Mr Bizuneh under s.365 of the Act for the Commission to deal with a general protections dispute involving dismissal (the general protections application).
The general protections application was filed out of time. The matter was before the Deputy President for hearing on 23 February 2023 on the question of whether to allow additional time for Mr Bizuneh to make his general protections application pursuant to s.366(1)(b) of the Act.
The Decision (and accompanying reasons) was issued in the form of an email, and states as follows:
“Deputy President Cross has considered the request made by the Respondent to be represented by a lawyer, and has considered the submissions of both parties. This request is granted on the basis that the matter would benefit from the involvement of legal practitioners for the efficient conduct of the matter.”
On 20 February 2023, the Decision was stayed by order of Justice Hatcher pending the hearing and determination of this appeal or further order of the Commission and the hearing before the Deputy President was vacated.
This matter was listed for permission to appeal only. On 20 February 2023, directions were set for the filing of material by the Appellant and the matter was listed for hearing on 4 April 2023. The Appellant filed written submissions on 22 March 2023. On 27 March 2023, the Appellant consented for the matter to be determined on the papers without the need for a formal hearing or oral submissions, and the listing was subsequently vacated. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.
We have decided to refuse permission to appeal. Our reasons are set out below.
Principles on appeal
An appeal under section 604 of the Act is an appeal by way of rehearing.[1] An appeal may only be made with the permission of the Commission. 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.[2]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[3] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Further, the Decision is a discretionary interlocutory decision. Courts and tribunals have generally discouraged interlocutory appeals for reasons including that they may prolong the proceedings, increase costs, and have limited utility.[4]
Grounds of appeal, and the public interest
Mr Bizuneh has raised five grounds of appeal in his Form F7 Notice of Appeal, which we summarise below:
The grant of permission to the AEC was against s.596 of the Act;
The AEC has its own human resources and legal departments with unprecedented expertise and unlimited resources. Granting permission in that context is against the spirit and objective of the Act;
The AEC is not non-English speaking, or a small business. It does not pass or meet the test or circumstances where the Commission might grant permission let alone for an organisation, even just for a person to be represented, per the note to s.596(2) of the Act;
Mr Bizuneh is unemployed, unrepresented and from a non-English speaking background. Granting permission to the AEC is a tragic miscarriage of justice; and
It is unfair and unprocedural to grant permission to the AEC to be represented retrospectively, having regard to their lawyers filing of submissions on 27 January 2023 and 31 January 2023.
On the question of public interest, Mr Bizuneh relies on the decision of the Federal Court of Australia in Warrell v Walton[5] and a submission to the effect that the AEC should not be allowed to be represented by a private legal firm, when it has its own legal and human resources departments, and legal expenses are an “area targeted” in the federal government’s October 2022 budget to reduce its “nearly one trillion dollars debt and 39.6 billion dollars deficit”.
Consideration
Under section 596 of the Act, and except in making a written submission in a modern award or minimum wages matter or otherwise as provided by the Fair Work Commission Rules 2013 (the Rules), a person may be represented by a lawyer or paid agent in a matter before the Commission only with the permission of the Commission. Permission may only be granted if:
It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)), or
It would be unfair not to allow the person to be represented because the person is unable to represent themselves effectively (s.596(2)(b)), or
It would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter (s.596(2)(c)).
Rule 12 of the Rules makes clear that permission is only required when a party participates in a conference or hearing in relation to a matter. For purposes other than participating in a conference or hearing, parties do not require permission. Mr Bizuneh complains that the Decision had an “unfair and unprocedural” retrospective effect because it allowed, he said, the AEC’s lawyers to file written submissions prior to the Decision itself (Ground 5). The AEC did not require permission to engage legal representation for the purpose of making submissions to the Commission ahead of a conference or hearing. Accordingly, we do not agree with Mr Bizuneh that the Decision had any retrospective effect.
Grounds 2, 3 and 4 imply that the discretion to grant permission to be represented by a lawyer or paid agent is confined to situations where a person is from a non- English-speaking background, or is a small business, or where the opposing party has more resources or sought permission to be represented. Section 596 contains no such limitations and we also disagree with Mr Bizuneh on Grounds 2, 3 and 4.
On the question of fairness, s.596(2)(c) allows the Commission to grant permission if it would be unfair not to allow a person to be represented, either because they are unable to represent themselves effectively or taking into account fairness as between the parties. As a matter of discretion the Commission might decline to give permission to one party (assuming at least one ground under s.596(2) has been satisfied) because it would be unfair to another party. However, there is no reason to read s.596 as requiring the Commission to refuse permission to one party because doing so might operate unfairly on the other party.
It is apparent from the Decision that permission was granted to the AEC to be represented by a lawyer under s.596(2)(a) of the Act, on the basis that permission would promote the “efficient conduct of the matter”. In our view, and while the Deputy President’s reasons for decision were shortly stated, the Decision was an orthodox exercise of the discretion conferred by s.596 and one that was reasonably open on the materials before the Commission.
The Decision was made in the context of an application for permission to be represented that was before the Deputy President, and in respect of which each party had made written submissions. Those submissions pointed to a complex procedural and factual history in the matter, including separate Federal Court proceedings in which the AEC had been represented by the same lawyers. In the Commission, the AEC expressly sought permission to be represented under s.596(2)(a). The question was resolved after the Deputy President took s.596(2)(a) into account and considered that it was satisfied. No arguable case of appealable error is disclosed.
We do not consider that this is a case where any matter of public interest or of general importance or application arises. The Decision is not inconsistent with the decision in Warrell v Walton. Whether it is a prudent financial decision for the AEC to incur legal expenses in relation to the general protections application is a matter for the AEC. It is not a matter that bears on the exercise of discretion under s.596, or that enlivens the public interest in this particular case. There is, for example, no evidence that the AEC is incurring expenses it either cannot meet or is not authorised to incur. Despite Mr Bizuneh’s assertions to the contrary, no injustice or counter intuitive result is manifest.
For these reasons, we are not satisfied that it is in the public interest to grant permission to appeal. We are not persuaded that there is any other proper basis upon which to grant permission to appeal.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
22 March 2023, for the Appellant.
[1] This is so because on appeal the Commission has power to receive further evidence, pursuant to section 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[2] Wan v AIRC (2001) 116 FCR 481 at [30].
[3] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[4] See In re the will of F.B. Gilbert 91946) 46 SR (NSW) 318 at 323; Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Ltd Print PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2012] FWAFB 6907; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Spectrum Community Focus v Valenzuela [2017] FWCFB 4524.
[5] [2013] FCA 291
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