Fair Work Act 2009

ss.615, 615A(2) - Application for the President to direct a Full Bench to perform a function

Application for referral of unlawful termination application under Fair Work Act 2009 (Cth) s 773 to a Full Bench - Fair Work Act 2009 (Cth) ss 582, 615 and 615A - application refused.

• [1] On 22 December 2023, Antoinette Lattouf (applicant) applied under s 773 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with an unlawful termination dispute in respect of her employment by the Australian Broadcasting Corporation (respondent). In her application, the applicant contended that the respondent had terminated her employment on 20 December 2023.

• [2] On 4 January 2024, the matter was allocated to Deputy President Boyce. On 5 January 2024, the Deputy President listed the s 773 application for conference on 18 January 2024, pursuant to s 776 of the FW Act.

• [3] On 10 January 2024, the applicant filed an amended application in which she alleged, among other things, that the termination of her employment was unlawful because the substantial and operative reasons for the termination included her political opinion and/or race.

• [4] On 15 January 2024, the respondent filed its response to the application as amended. In its response, the respondent objected to the application on jurisdictional grounds, namely that the applicant was entitled to file a general protections court application and was therefore barred by s 723 of the FW Act from filing an unlawful termination application.

• [5] On 18 January 2024, the first conference took place before the Deputy President as listed.

• [6] On 22 January 2024, the respondent filed an amended response to the application, in which it raised a further jurisdictional objection to the effect that it had not terminated the applicant's employment on 20 December 2023 or at all. Rather, the respondent had opted not to require the applicant to perform duties on 21 and 22 December 2023, and her casual employment came to an end on 22 December 2023, with the applicant receiving payment for all five shifts she was originally engaged to perform (18-22 December 2023 inclusive).

• [7] On 23 January 2024, the Deputy President issued directions for the filing of submissions and evidence in order to determine the respondent's jurisdictional objections, and listed the application for hearing in respect of these objections on 8 March 2024. The Deputy President granted short extensions to the applicant's and respondent's reply deadlines for filing on 19 and 23 February 2024 respectively.

• [8] On 7 February 2024, the applicant applied for an order requiring the respondent to produce documents. On 8 February 2024, the respondent objected to the production of some of those documents and so the matter was listed for hearing on 13 February 2024. On 16 February 2024, the Deputy President ordered that the respondent was to produce only those documents to which it had not objected.[1]

• [9] On 26 February 2024, the applicant applied under ss 615 and/or 615A of the FW Act to have her s 773 application, including the respondent's jurisdictional objections, dealt with by a Full Bench of the Commission. The applicant contends, in summary, that:

• The swift resolution of the jurisdictional objections and the substantive issues in dispute are fundamental to achieving a just outcome. The applicant is suffering ongoing loss and damage as a result of her alleged termination, and she seeks reinstatement and vindication of her reputation.

• If the respondent's jurisdictional objections are upheld by a single member and her s 773 application is therefore dismissed, the applicant intends to appeal that decision. Enduring multiple proceedings would necessarily take longer, thereby weakening 'the vindication that might ultimately be achieved' in respect of her reputation.

• Given the applicant intends to appeal the first-instance decision if it is in the respondent's favour, and that she anticipates the respondent would appeal a first‑instance decision in her favour, it would be more efficient to refer the jurisdictional objections to a Full Bench for determination in the first instance.

• Whether the applicant has been dismissed will also arise for consideration in proceedings the applicant has commenced in the Federal Court in respect of the respondent's alleged contravention of the ABC Enterprise Agreement 2022-2025 (EA proceedings). If the applicant's s 773 application progresses to the Federal Court, it is likely that it will be heard together with the EA proceedings. Therefore, any delay in determining the jurisdictional objections in respect of the s 773 application would also delay the EA proceedings.

• • The jurisdictional objections raise significant questions of law, such as when a casual employee's employment is terminated for the purposes of s 773 of the FW Act, the application of s 723 of the FW Act and the proper application of Krcho v University of New South Wales[2] (Krcho).

• The above reasons attract the public interest, but if this is not considered to be the case, the matter should still be referred to a Full Bench pursuant to the broad discretion conferred by s 615 of the FW Act.

• [10] This decision determines the applicant's ss 615/615A application.

• [11] I note that as of 27 February 2024, the parties had filed all their material in relation to the respondent's jurisdictional objections in accordance with the Deputy President's directions of 23 January 2024 as amended. The material filed includes one witness statement made by the applicant and seven witness statements upon which the respondent will rely. The s 773 application currently remains listed for hearing in relation to the respondent's jurisdictional objections on 8 March 2024.

• [12] Sections 615 and 615A of the FW Act relevantly provide:

1. The President may direct a Full Bench to perform function etc.

(1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

Note: The President gives directions under section 582. ...

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) For the purposes of paragraph (1)(a), 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;

• [13] It is well-settled that s 615(1) of the FW Act confers a broad discretion upon me to direct that a function or power be exercised by a Full Bench of the Commission.[3] The section does not expressly specify any factors I must take into account in exercising that discretion.

• [14] By contrast, s 615A(1) requires me to direct that a matter be dealt with by a Full Bench, on application made by a person specified in s 615A(2), if I am satisfied that it is in the public interest to do so. 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.[4]

• [15] For the reasons which follows, I am not satisfied that it would be in the public interest for a Full Bench to be directed to deal with Ms Lattouf's application, nor do I consider that such a direction should be made on discretionary grounds.

• [16] First, I do not consider that referral to a Full Bench is likely to meet the applicant's desire for the efficient disposition of her application. As the position currently stands, the respondent's jurisdictional objections are listed for hearing on 8 March 2024, one week away, and the parties have filed the evidence upon which they seek to rely together with full written submissions. Therefore, on the current course, the jurisdictional objections will be determined expeditiously. If they are dismissed, the Commission will then be in a position to conduct the dispute resolution process required by s 776(1) soon thereafter. Alternatively, if the matter is referred to a Full Bench, I do not anticipate that a hearing can be arranged for some months having regard to the current weight of business before the Commission.

• [17] Second, I do not place much weight on the contention that the applicant will appeal any adverse decision and therefore the matters should go straight to a Full Bench. In the context of an application made pursuant to s 615 and/or s 615A, contentions of this nature are likely to be seen as self-serving. As a general proposition, I would expect any party with the benefit of experienced legal advisors to carefully consider any first-instance decision that has been made, including the reasons therefor, before deciding to appeal a decision. Further, the applicant may be successful in resisting the jurisdictional objections (noting that it has filed submissions characterising at least the second of the objections as 'hopeless'), in which case it will not need to appeal. Whether the respondent would appeal an adverse decision is merely for speculation at this stage. It might not choose to do so since, if the matter eventually comes before a court for determination following the issue of a s 776(3)(a) certificate, the court will not be bound by any decision the Commission makes and the respondent will be at liberty to raise any challenges to jurisdiction again.

• [18] Third, I do not consider that the jurisdictional objections raise any issue of general legal significance requiring determination by a Full Bench. The question of whether the respondent terminated its employment relationship with the applicant is to be determined on the particular facts of the matter and the application of conventional legal principles. As to the second objection, this may plainly be determined by reference to the Full Bench decision in Krcho.[5] I do not consider that any question as to the 'proper understanding' of Krcho arises in this matter.

• [19] Ms Lattouf's application under ss 615 and 615A of the FW Act is refused.

[1] [2024] FWC 423.

[2] [2021] FWCFB 3908, 309 IR 1.

[3] Application by Lucas [2023] FWC 888 at [5]; Application by Monash University [2023] FWC 611 at [6]; Application by Le [2022] FWC 269 at [9].

[4] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

[5] [2021] FWCFB 3908, 309 IR 1.

Printed by authority of the Commonwealth Government Printer