s.604 - Appeal of decision

Appeal against Deed of Release in matter number C2024/8448 before Commissioner Ryan - settlement reached at conciliation conference before Commissioner - no decision - appeal not competent.

[1] On 20 March 2025, Ms Anna Ridniak lodged a Notice of Appeal under s 604 of the Fair Work Act 2009 (Cth). In the Notice of Appeal, Ms Ridniak described the decision or order that she was appealing as follows:

"Decision reached at conciliation on 8 January 2025, recorded by the Commission as a binding settlement agreement. The decision required signing a Deed of Release provided by Respondent's Representatives."

[2] We have concluded that there is no decision of the Commission that can be appealed, and so the application for permission to appeal is not a valid application. Our reasons follow.

[3] On 22 November 2024, Ms Ridniak made a general protections application to the Commission pursuant to s 365 of the Act. On 8 January 2025, Commissioner Ryan held a conciliation conference in relation to the application. Both parties were legally represented at the conciliation. It is not in dispute that a settlement was reached between the parties at the conciliation conference. At the conclusion of the conciliation conference, the Commissioner recorded the terms of settlement as binding.

[4] After the conciliation conference, the Commissioner's chambers emailed the parties and relevantly stated that the matter was resolved "on the basis of the binding settlement" reached in the conference, which would be reflected "in a more fulsome way in a Deed of Release to be drafted by the Respondent's Representative (see Masters v Cameron - Category 1)." The email concluded that the matter in the Commission had been closed.

[5] On 17 January 2025, the Respondent's representatives sent a deed of release to Ms Ridniak's representative. On 11 February 2025, Ms Ridniak's representative ceased to act for her. The Respondent's representatives then sent the deed of release directly to Ms Ridniak. As at the date of the permission to appeal hearing, Ms Ridniak has not signed and returned the deed of release.

[6] We held a permission to appeal hearing on 7 May 2025. Ms Ridniak represented herself. On request, the Commission provided a Russian interpreter to assist Ms Ridniak. The Respondent was legally represented, with permission. We heard oral submissions from both parties.

[7] Section 604(1) of the Act provides as follows:

• (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 under the Registered Organisations Act by the General Manager (including the delegate of the General Manager)

may appeal the decision, with the permission of the FWC.

[8] Section 598 of the Act is headed Decisions of the FWC. It relevantly says in s 598(1) that a decision does not include an outcome of a process carried out in accordance with s 595(2) (which deals with the Commission's power to deal with disputes):

• (1) 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 a statement under section 188B (which deals with principles on genuine agreement in enterprise agreements) or an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes).

[9] The note to s 598(1) provides examples of decisions that the Commission makes:

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where matters to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

[10] Section 598 describes other decisions of the Commission, which are not relevant to this matter. In brief, they relate to decisions to vary instruments (s 598(2)), and decisions described as an order that must be made as an order (s 598(3)) and decisions that may be made as an order (s 598(4)).

[11] An earlier Full Bench in Buksh v Ramsay Health Care T/A Peninsula Private Hospital[1] (Buksh) said that while s 598 does not define what a decision is, two conclusions can be drawn from it, being as follows:[2]

• (1) 'decision' is intended to have a broad meaning and includes both substantive and procedural decisions; and

• (2) outcomes from dispute resolution processes conducted pursuant to s 595(2) - being mediation or conciliation, making a recommendation or expressing an opinion - are not appealable.

[12] Buksh predated an amendment to s 598, which now also makes clear that the Statement of Principles published under s 188B of the Act is not appealable.

[13] Having received from Ms Ridniak a competent application under s 365 of the Act, the Commission held a conference where the dispute was conciliated or mediated in accordance with s 368(1), which requires that the Commission deal with the dispute other than by arbitration. A note to this section refers to s 595(2). In doing so, the Commissioner acted in accordance with the Act.

[14] The conciliation conference on 8 January 2025 was a process conducted under s 595(2) of the Act for the purposes of dealing with Ms Ridniak's general protections application. As the Notice of Appeal identifies, the outcome of that conference was a binding settlement between the parties, that the Respondent's representative was to reflect more fulsomely in a deed of release prepared by them. The settlement reached between the parties at the conference is not a decision of the Commission that can be the subject of an appeal under s 604 of the Act. It follows that the appeal is not competent.

Interests of justice would not favour extension of time in any event

[15] Even if the appeal was in relation to a decision of the Commission, Ms Ridniak's Notice of Appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2024.[3] The grounds of appeal do not raise any arguable contention of appealable error, nor engage the public interest.[4] It follows that the interests of justice would not favour the grant of an extension of time in any event. In relation to the contention that the deed of release does not fully reflect the settlement terms reached during the conciliation conference, it is apparent that these matters have not been communicated to the Respondent by Ms Ridniak (nor were they earlier communicated by her representatives). Presumably, it remains open to Ms Ridniak to engage directly with the Respondent's representatives regarding her concerns with the deed, or alternatively, sign and return the deed of release.

[16] We do not consider it arguable that Ms Ridniak was denied procedural fairness or was not able to participate meaningfully in the conference. Ms Ridniak did not request an interpreter in her application nor at the conciliation conference, and was represented at the conference. Ms Ridniak's complaints about her representatives, who were practising solicitors, are not sustainable grounds of appeal and may be more appropriately directed to the relevant regulatory authority for investigation into any alleged breach of professional standards. Ms Ridniak's submissions related to her substantive application simply demonstrate a desire to ventilate the underlying matter and are not appropriate for dealing with as part of an appeal.

[17] For the above reasons, there is no decision of the Commission that can be appealed by Ms Ridniak. So, her application for permission to appeal a decision under s 604 of the Act is not competent and is dismissed on that basis.

Mr T Woodland of Minter Ellison, for the Respondent

[1] [2020] FWCFB 4352

[3] Rule 128(2) of the Fair Work Commission Rules 2024

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

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