s.603 - Application to vary or revoke a FWC decision

Application to revoke decision [2022] FWC 3029 of Commissioner Williams at Perth on 18 November 2022 - stay application - s.589 - stay order granted.

• [1] On 9 December 2022, Australian Ceramics Engineering Pty Ltd (the Applicant) filed a Form F1 - Application, making an application pursuant to s 603(2)(b)(i) of the Fair Work Act 2009 (Cth) (the Act) to revoke a decision of this Commission in Archer v Australian Ceramics Engineering Pty Ltd (the Decision).[1] In the Decision, Commissioner Williams concluded that Mr Archer, the Respondent in this application, had been unfairly dismissed within the meaning of s 386 of the Act and consequently ordered the Applicant to pay compensation in the amount of $34,200 before tax (the Order).[2]

• [2] In addition to seeking the revocation of the Decision (the Revocation Application), the Applicant has sought that the Order for compensation be stayed pending a determination of its Revocation Application. It is this aspect of the application that this decision addresses.

• [3] Before turning to legal principles, it is first necessary to address the context of the application. The Applicant submitted that it initially corresponded with the Commission in relation to Mr Archer's unfair dismissal application and a jurisdictional objection to the application between 5 and 20 May 2022. After this time, however, it claims it was not aware of, and accordingly did not respond to, any further correspondence, and did not file any materials in respect of its jurisdictional objection or at all with respect to the originating unfair dismissal application. It followed, said the Applicant, that it was unaware of, and accordingly did not appear at, the hearing on 28 October 2022. Essentially, it appears that part of the Applicant's argument in support of the Revocation Application is that it had been led astray by a rogue HR practitioner.

• [4] Returning to the relevant legal principles, it is apparent from the terms of s 606(1) of the Act that the power to stay a decision under this section is not at large and is not a power that applies generally to all decisions. Under s 606(1), a stay order may only be made in relation to a decision subject to appeal (under s 604) or a review (under s 605).[3]

• [5] However, this does not in turn mean that the Commission is without authority to order a stay in circumstances where the application is not one of an appeal or review but is an application for a decision to be revoked under s 603 of the Act. As was observed in Esso Australia Pty Ltd (Esso), it is uncontroversial that s 589(1) of the Act confers on the Commission a power to make decisions 'as to how, when and where a matter is to be dealt with'.[4] Further, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (BHP Coal), it was expressed that the Commission has the jurisdiction and power under s 589(1) of the Act to make procedural decisions and orders to stay applications.[5] Whilst BHP Coal was successfully appealed,[6] that conclusion in the decision was left undisturbed.

• [6] In Esso, it was considered that the power in s 589(1) to make a decision as to how, when and where a matter is to be dealt with, was sufficiently broad to encompass a decision that Esso's application under s 225 of the Act not be dealt with until judgment was delivered in a judicial review proceeding. It was explained that the exercise of the power to make such a decision was clearly discretionary. In this respect, the judgment of the High Court in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission was cited,[7] and the following extract relied upon:

"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decisionmaker is required to make a particular decision if he or she forms a particular opinion or value judgment.[8]

• [7] However, the discretion is not at large. It is to be exercised in a statutory context. The Commission is required to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities, and is open and transparent.[9] In performing its functions and in exercising its powers in relation to a matter, including under ss 603 or 589 of the Act, the Commission must take into account the objects of the Act, and any objects of a relevant part of the Act, equity, good conscience and the merits of the matter.[10] The Commission is also required to act judicially.[11]

• [8] In the case before me, the application has been made in the context of Mr Archer successfully prosecuting his unfair dismissal application and having been awarded a not insignificant compensatory amount. In his Order accompanying the Decision, Commissioner Williams ordered that:

A. In accordance with the Decision issued by the Fair Work Commission [ [2022] FWC 3029] on 18 November 2022, Australian Ceramic Engineering Pty Ltd is ordered to pay the amount of $34,200 less taxation to Mr Ryan Archer, within 21 days of the date of this order.

• [9] Whilst I am content to conclude based on the totality of circumstances, circumstances which I have more thoroughly examined below, that on balance the interests of justice favour that the stay order sought be granted pursuant to s 589(1) of the Act, the Applicant pursues the relevant order pursuant to s 589(2) of the Act. Consequently, my consideration extends to this provision which allows the Commission to make interim decisions in relation to a matter before it.

• [10] The principles governing the making of interim orders are well established.[12] For interim orders to be granted, the applicant bears the onus of satisfying the Commission that a serious issue with a reasonably arguable case is to be determined, that it may suffer prejudice that cannot be adequately remedied if the interim order is not granted, and that the balance of convenience favours the orders sought. The required assessment by the Commission will necessarily be of a preliminary nature only.

• [11] The aforementioned principles were stated by the High Court in Australian Broadcasting Corporation v O'Neill[13] in the following terms:

(a) there is a serious question to be tried (merits of the application);

(b) the person seeking the interlocutory order is likely to suffer injury for which another available remedy will not be an adequate remedy (prejudice to the applicant); and

(c) the balance of convenience favours the granting of an interim injunction (balance of convenience).[14]

• [12] For the purpose of this application, those principles are adopted and applied.

• [13] With respect to there being a serious question to be tried, the context is clearly one where the Applicant has made an application under s 603(2) of the Act regarding Mr Archer's unfair dismissal application and the resulting Decision and Order. The Applicant submitted that it would present evidence that, as a matter of procedural fairness, it is appropriate for the Commission to exercise its broad discretion to revoke the Decision under s 603(2), particularly in circumstances where:

(a) the Applicant was unaware of any requirements or directions of the Commission in the unfair dismissal proceedings after 5 June 2022, and subsequently was unable to file any further materials in relation to the proceedings, or participate in the hearing;

(b) the Applicant was misled by a temporary HR contractor, who was acting without authority, in relation to the progress of the proceedings;

(c) had the Applicant been aware of the proceedings, it would have filed evidence and submissions, appeared at the hearing, and cross examined Mr Archer, which would have materially changed the outcome of the Decision; and

(d) a number of factual findings have been made by the Commission which are inaccurate on the basis that all relevant material was not before the Commission at the time of the hearing and Decision, and that Mr Archer's evidence was otherwise untested by the Applicant.

• [14] Turning to the merits of the Applicant's case, the Applicant observed that its response to the unfair dismissal application was meritorious and its prospects of success in the event that the Revocation Application is granted are strong. On this front, the Applicant pressed that in the Decision, Commissioner Williams held:

• (a) The Applicant had a valid reason for the dismissal;[15]
• (b) Mr Archer was notified of the reason for dismissal;[16]
• (c) Mr Archer was afforded an opportunity to respond to the dismissal;[17]
• (d) Mr Archer was not refused a support person;[18]
• (e) the reasons for the dismissal were not related to Mr Archer's performance;[19]
• (f) the procedures followed in effecting the dismissal were consistent with the size of the business and the presence of a HR management specialist;[20] and
• (g) Mr Archer could have been redeployed into the workshop but was not, and accordingly the dismissal was unreasonable.[21]

• [15] The Applicant submitted that upon review of Mr Archer's materials filed on 12 August 2022 in support of his unfair dismissal application, it is evident that Mr Archer presented a very narrow and incomplete version of events, which the Applicant says are inaccurate. The Applicant explained that it would present compelling evidence at the hearing of the Revocation Application through Mr Paul Devine, the Applicant's Managing Director, that, among other things:

(a) no commitment in relation to redeployment was ever made to Mr Archer by any person at the Applicant with authority to make such a commitment;

(b) the Applicant considered options for redeployment but determined that this was not a viable alternative given the inherent requirements of Mr Archer's contracted role and the significant reduction in pay that this would result in;

(c) in any event, Mr Archer declined to attend every meeting at which redeployment was able to be discussed and refused to engage meaningfully with the Applicant's attempts to consult with him in relation to his ongoing employment; and

(d) there is simply no connection between Mr Archer's allegations of 'unethical situations' and the Applicant's decision to terminate Mr Archer's employment, and no allegations of 'unethical situations' are capable of substantiation. Further, Mr Archer refused to provide the Applicant with any information which would have enabled it to comprehensively investigate his allegations.

• [16] In light of the Applicant's submissions and there having been no argument pressed to the contrary by Mr Archer, who incidentally is agreeable to the grant of a stay, I have concluded that there is a serious question to be tried in the Revocation Application.

• [17] In the event that the Revocation Application is granted, and the orders proposed by the Applicant are made, and the Applicant is successful upon subsequent rehearing of the originating unfair dismissal application, Mr Archer will clearly not be entitled to any payment pursuant to the Order.

• [18] If the stay application is successful, and I grant the stay order, but the Applicant is not successful in the Revocation Application or the subsequent rehearing of the originating unfair dismissal application, Mr Archer will remain entitled to compensation pursuant to the Order, plus interest. The Applicant has assured that it will not have any financial difficulty paying that amount.

• [19] The Applicant submitted that with all due respect to Mr Archer, it cannot be satisfied that it would be able to recover the amount from Mr Archer without recourse to further proceedings if compensation is paid to Mr Archer before any new determination as to the originating unfair dismissal application is made. Further proceedings and the recovery of compensation paid to Mr Archer may be futile if the money has already been spent by that time, at significant cost to the Applicant. In the circumstances, I am content to find that if the stay order sought is not granted, there is a likelihood of the Applicant suffering injury with no other available remedy being adequate.

• [20] As observed, Mr Archer, through his representative, has confirmed by email dated 19 December 2022, that he does not oppose the stay application or the stay order sought.

• [21] Finally, given Mr Archer does not oppose the making of the stay order sought, and for the reasons already detailed, I am satisfied that the balance of convenience favours the making of the stay order.

• [22] As a result, the Decision and Order of compensation made by the Commission shall be stayed pending determination of the Revocation Application. An order[22] to that effect issues concurrently with this decision.

[1] [2022] FWC 3029 (Decision).

[2] PR747981.

[3] Grabovsky v United Protestant Association of NSW Ltd [2015] FWC 5161, [18].

[4] [2018] FWC 6244, [10] (Esso), quoting Fair Work Act 2009 (Cth) s 589(1).

[5] [2014] FWC 9205, [1], citing Construction, Forestry, Mining and Energy Union (105N) v BHP Coal Pty Ltd [2014] FWC 7282.

[6] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FWCFB 2020.

[7] [2000] HCA 47; (2000) 203 CLR 194.

[8] Esso (n 4) [10], quoting ibid 204-5 [19] (Gleeson CJ, Gaudron and Hayne JJ).

[9] Fair Work Act 2009 (Cth) s 577.

[10] Ibid s 578.

[11] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552; Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513, 519; Coal and Allied Mining

Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78, 83 [25].

[12] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 68 [19] (ABC); Wills v Marley (2020) 298 IR 254.

[14] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 785, [5].

[22] PR749099.

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