Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision of Deputy President Clancy at Melbourne on 2 March 2021 in matter C2020/6649.

[1] Ms Bei Zhang has lodged an appeal, for which permission to appeal is required, against a decision made by Deputy President Clancy on 2 March 2021 (2 March decision) in which he declined an application made by her for a decision issued by the Deputy President the previous day not to be published or, alternatively, that Ms Zhang's name be anonymised in that earlier decision.

[2] The background facts of this matter are as follows. On 28 August 2020, Ms Zhang made an application pursuant to s 365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute concerning her dismissal by Wealth for Life Institute Pty Ltd (WFLI), which Ms Zhang alleged occurred in contravention of the general protections provisions in Pt 3-1 of the FW Act. In its Form F8A response to Ms Zhang's application filed on 9 September 2020, WFLI contended that it had not dismissed Ms Zhang and accordingly that Ms Zhang's application was incompetent. In accordance with the decision in Coles Supply Chain Pty Ltd v Milford,[1] because the question of whether Ms Zhang had been dismissed was one which concerned the jurisdiction of the Commission to deal with her application, it was necessary for that question to be determined prior to the Commission exercising any power or function in relation to the matter (although we note that the parties appear to have acceded to a staff member of the Commission conducting a conciliation conference in relation to the matter on 9 October 2020 and the Deputy President conducting a further conference in relation to the matter on 21 December 2020). Directions were made for the filing of evidence and submissions in relation to this question, and it was ultimately the subject of a hearing before the Deputy President on 26 February 2021. Prior to the hearing, on 5 January 2021, Ms Zhang, by email, made an application for the Deputy President to recuse himself on the basis that he might not bring an impartial mind to the matter (that is apprehended bias) arising from his conduct of the conference on 21 December 2020.

[3] On 1 March 2021, the Deputy President issued a decision[2] (1 March decision) in which he, first, declined to recuse himself on the basis of apprehended bias and, second, determined that WFLI had dismissed Ms Zhang. The decision concluded with the Deputy President advising that the matter would be listed for conference in order to explore the possibility of resolution. The decision, as would be expected, named Ms Zhang as the applicant in the matter. It also referred, in the form that it was initially issued, to the following matters:

• allegations made by Ms Zhang of workplace bullying which led to her making an application to the Commission for anti-bullying orders on 17 March 2020;

• allegations made by Ms Zhang concerning three show cause letters issued to her by WFLI, expenses she incurred relating to visa applications, incorrect classification under the relevant award, underpayment of wages, demotion and a decision that she did not have the capacity to return to her original job;

• the main features of WFLI's response to Ms Zhang's allegations;

• correspondence from the chambers of Deputy President Young dated 4 May 2020 which specified the basis upon which Ms Zhang's anti-bullying application was settled, including references to Ms Zhang and another employee of WFLI; and

• an exchange of correspondence concerning whether Ms Zhang had been constructively dismissed.

[4] The Deputy President's 1 March decision was emailed to the parties on 1 March 2021 at approximately 2.31pm. It was not published on the Commission's website at that time. At 3.03pm, Ms Zhang sent an email to the Commission which stated (omitting formal parts):

"I noticed in my name was listed in the title and the contents of the decisions. Can I please apply for not publishing this decision for privacy reasons? Is it possible to use an anonymous name if you have to publish the contents?"

[5] At 5.18pm, the Deputy President's chambers sent an email to Ms Zhang and WFLI in response to Ms Zhang's earlier email which drew their attention to s 601(4) of the FW Act and advised them that they had the opportunity to make any submissions as to why the decision should or should not be published until "12 noon tomorrow". Pursuant to this direction, Ms Zhang lodged a submission at 8.44pm on 1 March 2021. In this submission, Ms Zhang said:

• the 1 March decision was to refuse to issue a certificate under s 368(3)(a), and therefore he had no obligation to publish it under s 601(4) by reason of the operation of s 601(5)(a);

• in any event, s 601(4) did not require the publication of a decision on the website, since it permitted other appropriate means of publication;

• the 1 March decision included Ms Zhang's "credit information" as defined in s 6N(i) of the Privacy Act 1998 (Cth), as well as detailed sensitive information concerning Ms Zhang's real names, employment dates and history, health status, visa status and numerous incidents throughout her employment with WFLI;

• this private information had no public interest or any relationship with the purpose of promoting public accessibility or trust for the Commission, and its disclosure would give rise to the potential misuse of the information, including for identity theft; and

• Ms Zhang did not want the information to have any effects on her future employment.

[6] WFLI lodged a short submission the following morning in which it supported Ms Zhang's non-publication application.

[7] At 12:09pm on 2 March 2021, the Deputy President's chambers sent an email to the parties containing his decision to refuse Ms Zhang's non-publication application (that is, the 2 March decision). In his decision, the Deputy President began by stating the conclusion that s 601(4) of the FW Act applied to the 1 March decision and required the decision to be published on the website as soon as practicable after the decision was made. The Deputy President then referred to s 594(1) of the FW Act, which empowers the Commission to make an order prohibiting or restricting the publication of certain things in relation to matters before the Commission, said "The exercise of such power is discretionary and the question whether to make an order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side", and quoted from the Commission's decision in Amie Mac v Bank of Queensland Limited.[3] The decision then stated:

"In this case Ms Zhang outlined a range of allegations in support of her assertion that she was dismissed and Wealth for Life Institute Pty Ltd challenged this assertion by filing material in response. The nature of the allegations made and the responses given are of a nature routinely put before the Commission and by choosing to litigate the question of whether Ms Zhang was dismissed, they must accept the necessity for the Commission to conduct its proceedings openly and with transparency. The Deputy President's view is that making the order sought by Ms Zhang would undermine the principles of open justice. He considers there is nothing that was put before the Commission that is of a nature that warrants a confidentiality order in order to secure the proper administration of justice save that he will vary the Decision pursuant to s.603(2) of the Act at paragraph [19] before publishing the Decision, so as to remove the details that lay behind the resolution of Ms Zhang's anti‐bullying application in conference on 4 May 2020.

The Deputy President's varied Decision will be forwarded to you shortly and will now also be published on the Commission's website. This concludes the Deputy President's role in the conduct of this dispute and the parties can expect further correspondence from the Commission in relation to a conference."

[8] At 12.11pm on 2 March 2021, the revised version of the 1 March decision was published which, consistent with the passage from the 2 March decision excerpted above, removed the details of the settlement of Ms Zhang's anti-bullying information. The revised 1 March decision was also sent to the parties by email at this time. At 12.49pm, Ms Zhang sent the Deputy President's chambers an email in which she advised that she was considering appealing the 2 March decision, and requested: "Please allow me 21 days to make an application to appeal. I appreciate you hold up the publishing of this decision until the closure of the appeal process". Ms Zhang was advised by email at 3.15pm that the decision had already been published.

[9] Ms Zhang filed her notice of appeal against the decision on 21 March 2021. On 24 March 2021, the Commission issued a certificate pursuant to s 368(3)(a) of the FW Act that it was satisfied that all reasonable attempts to resolve the dispute the subject of Ms Zhang's application (other than by arbitration) had been, or were likely to be, unsuccessful. That ended the Commission's role with respect to Ms Zhang's application.

[10] Ms Zhang's notice of appeal contained four grounds of appeal. However her written submissions filed in support of her appeal pursuant to the Commission's appeal directions referred to five grounds of appeal. At the appeal hearing, we granted permission for Ms Zhang's grounds of appeal to be taken as amended in accordance with her written submissions.

[11] The first ground of appeal was that the Deputy President had not given Ms Zhang sufficient time to file written submissions in support of her non-publication application (in effect, half a day only), and she therefore had not been given an adequate opportunity to be heard in circumstances where she was not represented by a lawyer and had no access to any legal advice.

[12] The second ground of appeal was that there was a reasonable apprehension of bias on the part of the Deputy President, in that the 1 March decision was published before Ms Zhang filed her submission, the Deputy President "rush[ed] to judgments adverse to the Appellant" and did not allow Ms Zhang to appeal the 2 March decision or "stay the order until the appeal."

[13] The third ground of appeal was that the Deputy President made errors of fact. Ms Zhang referred in her submissions to her employment, visa and health situations, and said that the limited time given to her to file submissions made it "impossible for the Appellant to seek legal advice or produce any further evidences to support her claim how the publication of the order made by Deputy President Clancy would likely endanger her employment or her health". Ms Zhang also contended that the Deputy President did not address in his 2 March decision the facts and concerns identified in her submissions, and did not consider Ms Zhang's situation or the sensitive information involved in the previous anti-bullying matter.

[14] The fourth ground was that the 2 March decision was disharmonious compared with other decisions dealing with similar matters. In this respect, Ms Zhang submitted that the deletion from the 1 March decision of the details of the anti-bullying settlement was inconsistent with the decision in Amie Mac, and was not appropriate because it was "in the public interest [for the settlement details] to have a deterrent effect on those who engaged with bullying behaviour".

[15] The fifth ground was that, in concluding that s 601(4) applied to the 1 March decision, the Deputy President did not address Ms Zhang's contention that the effect of s 601(5)(a) was that s 601(4) was not applicable.

[16] Ms Zhang submitted that permission to appeal should be granted because:

• the appeal raised issues of importance or general application, in that she was not given a fair opportunity to be heard, she had previously made complaints against the Deputy President and it was necessary to maintain the Commission's fairness and transparency;

• the 2 March decision manifested an injustice in that it was not fair to publish her real name, health status, visa status and working issues in public in disregard of her objections; and

• the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters, in that he did not consider s 601(5)(a) of the FW Act, did not apply the case law principles in her matter and did not set out reasons why he decided to publish her real name and private information for open justice purposes.

[17] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[4] There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 relevantly provides:

• (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

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

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

[18] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error[6], or a preference for a different result.[7] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[8]

[19] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[9] 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.[10] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[11]

[20] We do not consider that it would be in the public interest to grant permission to appeal in this case, nor do we consider that there are discretionary grounds justifying the grant of permission to appeal. Firstly, the appeal is against an interlocutory procedural decision. Permission to appeal would rarely be granted in relation to a decision of this nature. In this case, the substantive proceeding before the Commission in relation to which the interlocutory ruling was made came to an end with the issue of the s 368(3)(a) certificate on 24 March 2021. The varied version of the 1 March decision has been published on the Commission's website since 2 March 2021, and beyond various speculative statements advanced by Ms Zhang, there is nothing before us to suggest that the publication of the decision has had any adverse impact on anybody. Commission decisions are not directly searchable simply by placing the name of an applicant employee and/or respondent employer in a search engine;[12] there needs to be a specific search of the Commission's website or another legal database containing the Commission's decisions. Accordingly, publication of a decision does not lead to the degree of potential public scrutiny that Ms Zhang apprehends. In these circumstances, the appeal is too deficient in significance and utility to justify the grant of permission.

[21] Secondly, the appeal grounds are lacking in sufficient merit to justify the grant of permission to appeal once the statutory context and the applicable principles are identified. The relevant effect of s 601(1) and (4) of the FW Act was that the 1 March decision had to be published, on the Commission's website or by any other means which the Commission considered appropriate, "as soon as practicable" after the decision was made. We note at this point that the Commission does not utilise any method of publication other than upon its website, and no alternative means of publication was suggested by Ms Zhang. Section 601(5) exempts some categories of decisions from the publication requirement, but the 1 March decision did not fall into any of these categories. In particular, and contrary to Ms Zhang's submission, the 1 March decision was not a decision to issue, or refuse to issue, a certificate under s 368(3)(a), since it was concerned solely with whether Ms Zhang had in fact been dismissed by WFLI and whether there was a reasonable apprehension of bias on the part of the Deputy President. Accordingly, it did not fall within the exception to the s 601(4) obligation contained in s 601(5)(a).

[22] The publication requirement in s 601(4) may be affected by the exercise of the power in s 594(1)(d) of the FW Act to prohibit or restrict the publication of the whole or any part of a Commission decision or reasons in relation to a matter on confidentiality grounds. It may also be affected by the exercise of power under s 593(3)(c) to prohibit or restrict publication of the names and addresses of persons appearing at a hearing. As the Deputy President stated in his 2 March decision, correctly in our view, the exercise of power in this respect is informed by the need to give paramount consideration to the principle of open justice, and departure from this principle will only usually be permitted where not to do so would defeat the proper administration of justice. The potential for embarrassment, distress or damage to reputation will not usually be a sufficient basis by itself for the making of confidentiality orders under ss 593(3) or 594(1): Amie Mac v Bank of Queensland Limited.[13]

[23] We turn now to the specific appeal grounds. In respect of the first appeal ground, we consider that the Deputy President was correct to require submissions concerning Ms Zhang's non-publication application to be filed, and to determine that application, in an expedited fashion. Having made the 1 March decision, the Deputy President was subject to a statutory requirement to publish the decision as soon as practicable. The Deputy President refrained from publishing the decision until he determined Ms Zhang's application (contrary to her assertion otherwise). As it turned out, although Ms Zhang was given until noon on 2 March 2021 to file her submissions in support of the application, she was able to do so on the evening of 1 March 2021. Ms Zhang suggested in her appeal submissions that had she had more time, she might have been able to provide medical evidence to support the application in order to demonstrate, as we understand it, the psychological distress which publication of the 1 March 2021 decision might cause her. We do not consider that such evidence could conceivably have justified the making of an order under s 594(1)(d). We consider that, in the circumstances, it is not arguable that Ms Zhang was denied a reasonable opportunity to advance her case in support of a non-publication order.

[24] The second appeal ground concerning a reasonable apprehension of bias is entirely without merit. Ms Zhang's earlier contention of an apprehension of bias on the part of the Deputy President was rejected in the 1 March decision and, not surprisingly, the decision was not the subject of any appeal in this respect given that the Deputy President found in Ms Zhang's favour on the jurisdictional question of whether she had been dismissed. As we have already stated, the Deputy President acted appropriately in dealing with Ms Zhang's non-publication application in an expedited fashion given the requirement imposed upon him by s 601(4), and the fair-minded lay observer would not consider that this demonstrated any potential lack of impartiality on his part. The Deputy President had no power himself to grant a stay of his decision pending a potential appeal of that decision and, in any event, he made no operative order which was capable of being stayed. Accordingly, no perception of a potential lack of impartiality could reasonably arise in that circumstance.

[25] In relation to the third ground of appeal, no error of fact has been identified in Ms Zhang's submissions. We consider that the Deputy President properly addressed Ms Zhang's case in the 2 March decision. That case could not succeed under the principles which the Deputy President correctly applied.

[26] Ms Zhang's fourth ground of appeal appears to be inconsistent with the rest of her case on appeal, in that she contends the Deputy President erred in removing from the 1 March decision the details of the settlement of her earlier anti-bullying application including personal details relating to her and another person. We consider that the Deputy President acted appropriately in removing the terms of settlement of another matter from a decision that was about to be published. The principles stated in Amie Mac were plainly not applicable to this, since Amie Mac concerned the publication of findings made concerning bullying allegations in a final decision arising from a fully contested hearing. Those principles have no relevance to the question of the publication of the terms of a private settlement.

[27] The fifth ground of appeal has no merit for the reasons explained in paragraph [21] above.

[28] Permission to appeal is refused.

Mr M Champion of counsel on behalf of the respondent.

[1] [2020] FCAFC 152, 300 IR 146

[2] [2021] FWC 1096

[3] [2015] FWC 774, 247 IR 274 at [6]- [7]

[4] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[5] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ_; Coal & Allied Mining Services Pty Ltd v Lawler and others_ [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

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

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[8] [2010] FWAFB 5343, 197 IR 266 at [27]

[9] Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]

[10] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[11] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[12] They may be searchable indirectly if they have been the subject of a media report on a website.

[13] [2015] FWC 774, 247 IR 274 at [6]- [9]

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