The Applicant

[2021] FWC 5489

[2021] FWC 5489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.240—Bargaining dispute, s.234—Serious Breach declaration, s.448—Revocation of protected action ballot order

The Applicant
(B2021/710, B2021/711, B2021/717)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 SEPTEMBER 2021

Various Applications made following a decision of the Commission and permission to appeal having subsequently been refused– Applications dismissed pursuant to s.587 of the Fair Work Act 2009– Further Application to vary or revoke the decision pursuant to s.603 of the Fair Work Act 2009 also dismissed.

[1] In a decision made on 19 April 2021 (the Dismissal decision), 1 Commissioner Platt dismissed an unfair dismissal application made by Mr K (the Applicant) pursuant to s.587 of the Fair Work Act 2009 (the Act). The Commissioner held:

“As a result of my finding that a binding settlement had been reached in the terms contained in the transcript, and that inter alia the Agreement prevents the continued pursuit of Mr K’s s.394 application, I find that the substantive application has no prospects of success, and I exercise my discretion pursuant to s.587 to dismiss that application.” 2

[2] In making the Dismissal decision, the Commissioner determined to de-identify the names of the Applicant and the Employer. 3

[3] The Applicant then lodged notices of appeal in which he sought permission to appeal the Dismissal decision. Permission to appeal was refused by the Full Bench in a decision made on 12 August 2021. 4 The Full Bench held:

“[14] We have had full regard to the Appellant’s submissions and appeal grounds. In those submissions the Appellant makes a number of complaints about the conduct of the Respondent and others including the alleged unfairness of his termination. However, this is not a hearing of the alleged unfairness of the Appellant’s termination. The present matter concerns an appeal against a decision that the Appellant had entered into a binding settlement of the matter.

[15] The decision under appeal sets out the relevant law, the circumstances of the matter, how an agreement was reached, the nature of the agreement, and quotes the Appellant endorsing the agreement:

“So they are the terms that I have noted. They are the terms that I have communicated between you. And my understand is that that then represents a resolution. So Mr K, can you confirm that is the case?

MR K: I confirm that’s the case, Commissioner.”

[16] Little or no attempt was made to challenge the actual decision under appeal and to demonstrate that there was a public interest that should persuade us to grant permission to appeal, having regard to issues of fact or law. The Notices of Appeal and submissions, written and oral, do not identify any matter which satisfies the public interest test.

[17] Voluminous material was provided by the Appellant which the Full Bench has considered. Regrettably, the material filed by the Appellant does not address the issue at the heart of this appeal.”

[4] The Full Bench maintained the de-identification of the parties and I will also do so.

[5] Before me are effectively four applications:

1) B2021/710: an application made pursuant to s.240 of the Act for the Commission to deal with a bargaining dispute (the s.240 Application);

2) B2021/711: an application made pursuant to s.234 of the Act for a serious breach declaration (the s.234 Application);

3) B2021/717: an application made pursuant to s.448 of the Act for the revocation of a protected action ballot order (the s.448 Application); and

4) An Application made in a Form F1 application form dated 23 August 2021 which is essentially an application made pursuant to s.603 of the Act for the revocation of the Dismissal decision (the Revocation application).

[6] On 23 August 2021, at which time only the s.240 Application and the s.234 Applications were before me, I caused an email to be sent to the parties in which it was stated:

“The Deputy President notes that one file concerns an application [the Applicant] makes under s.240 of the Fair Work Act 2009 (the Act) and the other is an application made pursuant to s.234 of the Act, in which a serious breach declaration is sought.

Section 240(1) of the Act provides that a bargaining representative for a proposed enterprise agreement may apply to the FWC for the FWC to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute.

Section 234 of the Act provides that a bargaining representative for a proposed enterprise agreement may apply to the FWC for a declaration (a serious breach declaration) under section 235 in relation to the agreement.

Having reviewed the application forms, the Deputy President queries whether it is open to [the Applicant] to make applications of this nature. He is therefore considering whether he should, of his own motion, dismiss [the Applicant’s] two applications under s.587 of the Act because they have no reasonable prospects of success.

Prior to deciding whether or not [the Applicant’s] applications have no reasonable prospect of success and therefore should be dismissed, the Deputy President has determined to make the following directions:

1. [The Applicant] is to file and serve by 3pm AEST on Monday, 30 August 2021 submissions as to why his s.240 application and s.234 application should not be dismissed because they have no reasonable prospects of success.

2. [The Employer] is to file and serve any material in response to the material of [the Applicant] by 3pm AEST on Monday, 6 September 2021.

3. [The Applicant] is to file and serve any material in reply by 3pm AEST on Thursday, 9 September 2021.

The Deputy President will review the material filed and served by both parties and, having regard to s.593 of the Act, will then determine the two applications based on it.”

[7] After the Applicant proceeded to file the s.448 Application and the Revocation application later on 23 August 2021, I caused a further email to be sent to the parties on 24 August 2021. I advised the parties that they should also address the two further applications in accordance with the directions I had previously made. This prompted the Applicant to respond by email as follows:

“In the interest of saving time, large volumes of submissions where all parties have opted for re-instatement have already been submitted. I would be requesting the commission make a summary decision as per the powers of the commission. Today. 

I would again submit, all parties have already made repeated, voluminous submissions requesting re-Instatement, and has very clearly been the commissions failings that have protracted this matter. These are repeated requests from all parties that were ignored by the commission.

Please make a ruling for re-instatement as of today.”

[8] The Applicant also telephoned my Chambers and communicated that he had no interest in submitting further material. Having considered this and the earlier correspondence from the Applicant, I caused another email to be sent to the parties at 5.03pm on 24 August 2021, stating:

“[The Applicant] has today contacted Chambers by email and telephone and conveyed that he seeks for his applications to be determined without delay, that he requires the question as to whether he should be reinstated and further, that he does not wish to put any material before the Deputy President in relation to these matters.

The Deputy President wishes to advise the parties that he will not be having regard to material submitted in previous matters already decided by the Commission. In determining the applications before him, the Deputy President he will only have regard to material that is filed and served in relation to the applications before him. This includes the material contained within each application form [The Applicant] has already completed.

Having regard to [The Applicant’s] request today, the Deputy President will vary his previous directions, such that [The Employer] will have until 3pm AEST on Monday, 30 August 2021 to file and serve any material in response to the applications made by [The Applicant]. If [The Employer] does not intend to file and serve any material, it is requested to advise Chambers as soon as practicable.

In the event that [The Employer] files and serves material, [The Applicant] will have the opportunity file and serve any material in reply by 3pm AEST on Thursday, 2 September 2021. If, upon reviewing the material (if any) from [The Employer], [The Applicant] elects not to file material in reply, he is requested to advise Chambers so the Deputy President can proceed to determine the applications.”

[9] Section 587(1) of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[10] In written submissions filed in response to my directions, the Employer submits:

1) It has previously been held that the use of the phrase ‘without limiting when’ at the start of s.587(1) of the Act means the Commission is not limited to dismissing an application only if one of the three criteria set out in s.587 is met and the phrase permits the Commission to exercise its discretion in determining whether or not to dismiss an application.

2) An application will be considered frivolous or vexatious if it is so obviously untenable that it cannot possibly succeed, manifestly groundless or does not disclose a course of action.

3) An application will have no reasonable prospects of success if it is manifestly untenable and groundless.

4) The four applications are frivolous or vexatious and, further, have no reasonable prospects of success for the following reasons:

i. the s.240, s.234 and s.448 Applications can only be brought by bargaining representatives to a proposed enterprise agreement – the Applicant is not a bargaining representative to any proposed enterprise agreement with the Respondent – the Applicant therefore does not have jurisdiction to make such applications;

ii. in relation to the s.240 Application, the parties are not in the process of enterprise bargaining and, as such, no bargaining dispute arises – an application to resolve a non-existent dispute cannot succeed, it is manifestly untenable and groundless.

iii. in relation to the s.234 Application, the parties are not in the process of bargaining – an application for a serious breach declaration therefore cannot succeed, it is manifestly untenable and groundless.

iv. in relation to the s.448 Application, not only are the parties not in the process of enterprise bargaining but neither has a protected action ballot order been made, therefore an application to have such an order revoked cannot succeed, it is manifestly untenable and groundless.

v. the general application filed by the Applicant (which he has referred to as a submission when filing the application) does not disclose any discernible cause of action.

5) The Commission should exercise its discretion under s.587 of the Act, on its own initiative, and dismiss the applications.

[11] On 30 August 2021, the Applicant sent an email to my Chambers at 2.26pm which stated:

“I don’t believe it is in the public interest for this commission to be repeatedly be giving the respondent undue favours, allowing them to repeatedly change their mind and influence an impartial tribunal. 

I have waited very patiently for a very long time for this commission to agree that hearing personal matters between staff is actually grossly unfair and aiding one party to sexually humiliate someone is even worse. 

Which it has done, agreeing that this was unacceptable and inappropriate. Again, I was put into a position by the commission and the respondent where this was made to be the situation. I would stare [sic] that having sniggering commissioners and “we can’t compensate you for humiliation” Did not fill me with confidence. 

I would state that I was fired for no reason, forced into industrial action, ignored for months. 

This wasn’t an “act” for me, these things have legitimately happened and I couldn’t even be present for my own mock hearing, “cause it was funnier” Well it wasn’t funny. It was heartbreaking and a completely profound waste of my life. 

This commission had repeatedly taken all the wrong advice, made all the wrong choices, and had volumes of complaints to validate my concerns. 

I would be humbled if this commission would rectify the horrible injustice I have faced, as it must know that businesses and governments are not meant to be run this way. At all. Under law and your own policy. 

I would also submit that again, the respondent has gone from “re-instaement” to “no chance of success” during the same period of time the Commission has admitted that itself was the one responsible for “bullying me”, during the period of time that I could have returned sooner. 

This commission needs to let me go back to work, without delay. 

I doubt even [name redacted] would contest that. 

I send this hoping this commission finally makes a ruling in my favour, as it has hindered me greatly, ignoring valid responses, and treated my employment like a joke to be laughed about for 5 minutes while I’ve suffered for months on end, needlessly. 

That was my job you took from me. I loved my job. I did nothing wrong. I deserve it back. 

Again, my arguments are public interest. 

I would also note process and good faith bargaining being a legitimate requirement under the Act, which was not met, and therefore should be nullified based on that alone. 

Again, I just want to go back to work tomorrow.”

[12] A further email was sent by the Applicant at 2.49pm, stating:

“I would also note that under the Act and the Law, purgery [sic] is actually legitimate grounds for dismissal of an application, of which the respondent is genuinely guiltily of committing during these hearings. 

I would also submit that as grounds for re-Instatement, and a default ruling. 

If the commission accepts, I would be seeking my job back today, as I have my uniform ready, and have waited literally months to go back to work.”

[13] On 1 September 2021, the Applicant telephoned my Chambers and advised that he wanted to return the money “forced” into his bank account. He asserted his appeal was ignored by the Commission and that he was forced into a settlement by the Commission. The Applicant requested details of the Employer’s bank account so that he could return the money and again requested that he immediately be reinstated.

Consideration

[14] I will deal firstly with the s.234 Application and the s.240 Application. These provisions fall within Part 2-4 of Chapter 2 of the Act which deals with enterprise agreements and which has the stated objects outlined in s.171 of the Act. Further, they fall within Division 8 of Part 2-4, which deals with the Commission’s role in facilitating enterprise bargaining. The facts giving rise to these applications do not involve enterprise bargaining and neither the Applicant nor the Employer are bargaining representatives. As such neither party has standing to apply to the Commission for a serious breach declaration (pursuant to s.234 of the Act) and nor do they have standing to make application pursuant to s.240. This being the case, the s.234 Application has no reasonable prospects of success and it is not open for the Employee to make an application pursuant to s.240 of the Act. I am therefore persuaded I should exercise my power under s.587(1)(c) of the Act and dismiss the s.234 Application and that I should exercise the general discretion inherent in s.587 of the Act and dismiss the s.240 Application.

[15] As regards the s.448 Application, I observe that s.448 of the Act falls within Division 8 of Part 3-3 of Chapter 3 of the Act which deals with protected action ballots. The facts giving rise to the s.448 Application the Applicant has made do not involve a protected action ballot and nor is there a protected action ballot order in existence. This being the case, the s.448 Application has no reasonable prospects of success and I am persuaded I should exercise my power under s.587(1)(c) of the Act and dismiss the s.448 Application.

[16] This leaves the Revocation application, which arises out of the application made in a Form F1 application form dated 23 August 2021. I have discerned from reviewing the Form F1 that the Revocation Application is an application made pursuant to s.603 of the Act for the revocation of the Dismissal decision.

[17] Section 603 of the Act relevantly provides:

“Varying and revoking the FWC’s decisions

603 (1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

603 (2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.”

[18] The Full Court of the Federal Court in Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd (Esso) 5 establishes that the discretionary power under s.603of the Act is broad and, apart from the decisions that are excluded by s.603(3) (not relevant for present purposes), not subject to any other express limitations. It is said that the power in s.603(1) should have a broad, flexible operation.

[19] The Full Court stated that there may be circumstances in which the discretionary power under s.603 properly should not be exercised because the applicant for the order is a person who is aggrieved by the decision and should pursue an appeal under s.604. 6 In this case, the Applicant has already pursued an appeal under s.604 of the Act and for the reasons I have outlined above at [3], the Full Bench refused to grant the Applicant permission to appeal.

[20] I have had regard to the fact that the Employee has already exercised his right to pursue an appeal against the Dismissal decision under s.604 of the Act. I have noted the observations of the Full Bench that little or no attempt was made by the Employee to challenge the actual Dismissal decision or to demonstrate that there was a public interest that should persuade it to grant permission to appeal. I have also noted that the Full Bench observed that voluminous material was provided by the Applicant but concluded the material did not address the issue at the heart of the appeal.

[21] When s.603 was considered by the President of the Commission in Grabovsky v United Protestant Association of NSW Ltd T/A UPA (Grabovsky), 7 Justice Ross stated:

“As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.” 8

[22] Having regard to the circumstances before me, I do not consider it would be a proper exercise of the discretionary power under s.603 of the Act to vary or revoke the Dismissal decision because the Employee has already had the opportunity to litigate an appeal against the Dismissal decision and to put his material and arguments before the Full Bench in that appeal.

[23] Further, I consider the Revocation application amounts to an attempt to appeal a Full Bench Decision. The Act does not provide for appeal of a decision of a Full Bench of the Commission to a single member of the Commission. Instead, a person aggrieved by a decision of a Full Bench of the Commission may seek judicial review of the decision in the Federal Court of Australia, pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.562 and 563 of the Act. While the Full Court in Esso identified overlap between ss.603 and 604 of the Act, it did not in any way suggest that separate proceedings should lie under each provision to prosecute the same arguments.

[24] In summary, I decline to exercise the discretionary power under s.603 of the Act in circumstances where a Full Bench of the Commission has considered the question of permission to appeal in relation to the Dismissal decision and determined that permission should be refused. The proper course for the Employee, if he remains aggrieved by the Full Bench decision, is to seek judicial review in the Federal Court of Australia. It also remains open to the parties to observe the terms of the agreement that Commissioner Platt has previously found they reached.

Conclusion

[25] As outlined above:

a) I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the s.234 Application on the basis that it has no reasonable prospects of success.

b) I am persuaded that I should exercise the general discretion inherent in s.587 of the Act and dismiss the s.240 Application,

c) I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the s.448 Application on the basis that it has no reasonable prospects of success.

d) I decline to exercise the discretionary power under s.603 of the Act to vary or revoke the Dismissal decision.

[26] The Applications are therefore dismissed and an Order to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2021] FWC 2132.

 2 Ibid at [26].

 3 Ibid at [28].

 4   [2021] FWCFB 3162.

 5 [2019] FCAFC 26.

 6 Ibid at [74].

 7   [2015] FWC 5161.

 8   Ibid at [39], citing Metwally v University of Wollongong [1985] HCA 28 at paragraph [7].