Fair Work Act 2009

s.604 - Appeal of decision

Appeals against decision [2023] FWC 65 of Deputy President Asbury at Brisbane on 10 January 2023 in matter number U2021/10323 & ors - appeals not competent - appeals dismissed - matters remitted to Deputy President Asbury.

[1] Mr Brenton Mosca and 23 others (the Appellants) have lodged appeals under s.604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision of Deputy President Asbury (the Deputy President) issued on 10 January 2023 (the Decision).[1] Of the 24 Appellants, Mr Brenton Mosca and 20 others are represented (the Represented Appellants), and 3 are self-represented. The Decision concerned applications brought by the Appellants for unfair dismissal remedies against DP World Sydney Limited and DP World Brisbane Pty Ltd (the Respondents), under s.394 of the Act.

[2] The Deputy President did not dismiss nor grant any of the unfair dismissal applications brought by the Appellants in the Decision. Rather, as agreed between the parties,[2] she only dealt with the question of whether the Respondents had a valid reason for dismissing the Appellants, being that they were in breach of a lawful and reasonable workplace direction. Ultimately, she found that they did.

[3] Directions were set for the filing of material by the Appellants and Respondents on 1 February 2023. The matter was listed for hearing, for permission to appeal and the merits of the appeal, on 6 March 2023. Accordingly, both the Appellants and Respondents filed written submissions, and the Represented Appellants and Respondents made further oral submissions at the hearing. The scope of oral submissions at the hearing was restricted to the question of the competency of the appeals only.

[4] For the reasons that follow, the appeals are not competent, and they are accordingly dismissed.

[5] As we consider that these appeals are not competent, it is unnecessary to set out the factual background and decision under appeal at great length. We briefly summarise the relevant key details below.

[6] The Respondents are operators of stevedoring terminals in Sydney and Brisbane, respectively, and the Appellants were employees of the Respondents. From 21 October 2021, the Respondents introduced a workplace mandate that required employees to be vaccinated against COVID-19 and provide evidence of their vaccination (the Mandate). The Appellants employed at the Sydney location were dismissed on or around 25 October 2021 for being in breach of the Mandate, while the Appellants employed at the Brisbane site were notified and dismissed with effect from 17 November 2021.

[7] The primary question before the Deputy President in the Decision was whether the Mandate constituted a lawful and reasonable direction by the Respondents, and therefore whether the Appellants' dismissal for being in breach of the Mandate was a valid reason for dismissal for the purposes of s.387(a) of the Act. The Appellants submitted, amongst other contentions, that the Respondents failed to comply with consultation requirements under the relevant Work Health and Safety legislation of NSW and QLD and particular clauses of the relevant Enterprise Agreements.[3] The Respondents submitted, amongst other contentions, that the Mandate was reasonable and lawful owing to the nature of the stevedoring business, the critical place of stevedoring in the Australian supply chain, and the significant public interest in protecting terminal operations from disruption.[4]

[8] The Deputy President comprehensively addressed the extensive material tendered by both the Appellants and the Respondents, as well as the significance of the decision in CFMMEU v Mt Arthur Coal[5] and its application to the facts at hand. She ultimately found that:

"[517] After considering at length the evidence and submissions in this case, I have concluded that the Mandate was objectively a valid, sound, and defensible response to the circumstances confronting the Respondents in September 2021. I have also concluded that any failure on the part of the Respondents to consult employees as required by the WHS Acts and the terms of the relevant Enterprise Agreements, does not of itself necessitate a conclusion that a failure on the part of employees to comply with the Mandate was not a valid reason for the dismissal of the Applicants."

[9] Subsequently, and despite the above finding, the Deputy President did not proceed to dispose of the Appellants' unfair dismissal applications. Rather, the Deputy President set out the next steps for the matter to proceed, being that it would be "listed for a further mention to program subsequent proceedings and issue any necessary directions."[6]

[10] On appeal, the Represented Appellants submit that,[7] for the purposes of s 604(1)(a) of the Act, a decision of the Commission includes "any decision of the FWC howsoever described."[8] Moreover, citing Buksh v Ramsay Health Care (Buksh),[9] the Represented Appellants submit that the word 'decision' as it is used in s.598(1) of the Act is unconstrained and intended to have a broad meaning.[10] Contrastingly, the Respondents submit that the Decision under appeal, though labelled as such, has no operative legal effect and only constitutes the reasons given for an ultimate determination of the unfair dismissal applications which has not yet occurred,[11] citing Shop, Distributive and Allied Employees Association v Australian Industry.[12] As such, the Respondents submit that the appeals are not properly formed insofar as they are premature.[13]

[11] We have considered both the written and oral submissions by the Appellants and Respondents, and we have concluded that the Decision is not appealable pursuant to s.604 of the Act. We disagree with the Represented Appellants' contention that the meaning of decision as it is used in s.598(1) of the Act is unconstrained, as this is an erroneous reading of the decision in Buksh. At [17] of Buksh, the Full Bench sets out the following principles:

"[17] There is plainly a question requiring determination at the outset as to whether Mr Buksh's notice of appeal relates to any decision made by any member of the Commission within the meaning of s 598 of the FW Act. Section 598 does not in terms define what a "decision" is, but two interpretative conclusions of relevance may be drawn from the provision:

(1) The first sentence of s 598, and the note which follows the subsection, indicates that "decision" was intended to have a broad meaning and include both substantive and procedural decisions.

(2) The second sentence of s 598(1) makes it clear that outcomes pertaining from dispute resolution processes conducted pursuant to s 595(2) (that is, mediation, conciliation, the making of a recommendation or the expression of an opinion, but not arbitration) are not appealable."

[12] Although we agree with the Represented Appellants that the meaning of 'decision' as it appears in s.598(1) of the Act is broad, we do not consider that this extends to decisions, though published as such, that do not have any operative legal effect. The Decision under appeal cannot be properly described as either a substantive or a procedural decision with operative legal effect. The Decision plainly contains only a finding from the Deputy President that the Respondents had a valid reason for dismissing the Appellants. We note that this constitutes only a part of the assessment of the factors listed in s.387 of the Act that the Deputy President must consider before determining the Appellants' unfair dismissal applications, and we reiterate that this has not occurred to date.

[13] We therefore agree with the Respondents' submission that the appeals are premature. In line with the Full Bench decision in Grabovsky v Fair Work Commission, we consider that the Decision under appeal does not determine any matters on an intermediate or final basis[14] and thus provides no appealable result.

[14] The Appellants advance no competent appeals capable of consideration under s.604 of the Act.

[15] Accordingly, the appeals are dismissed, and the matters will be remitted to Deputy President Asbury for further determination.

Mr L Saunders, of counsel for the Represented Appellants.

[1] [2023] FWC 65 (the Decision).

[5] [2021] FWCFB 6059.

[7] Represented Appellants' Written Outline of Submissions at [5].

[8] Fair Work Act 2009 (Cth), s.598(1).

[9] [2020] FWCFB 4352.

[10] Represented Appellants' Written Outline of Submissions at [7].

[11] Respondents' Written Outline of Submissions at [4]-[8].

[12] [2017] FCAFC 161.

[13] Respondents' Written Outline of Submissions at [14].

[14] [2020] FWCFB 5995 at [35].

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