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[57]
[2017] FWCFB 2812
General information, not legal advice.
Fair Work Commission (Full Bench)
2017-07-07
Original judgment source is linked above.
s.604 - Appeal of decision
The Commonwealth of Australia (Department of Immigration and Border Protection)
Appeal against decision [2017] FWC 1938 of Commissioner Williams at Perth on 10 April 2017 in matter number U2016/13519.
[1] On 26 April 2017 Mr Gregory Gibbens lodged a notice of appeal in which he sought permission to appeal and appealed a decision issued on 10 April 2017[1] by Commissioner Williams (Decision). The Decision arose out of an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) which Mr Gibbens had lodged in respect of his prior dismissal from employment in the Commonwealth Department of Immigration and Border Protection (Department). In respect of the upcoming hearing of that matter, the respondent sought to be represented by lawyers working for the Australian Government Solicitor (AGS). The respondent contended that permission for such representation was not required under s.596(1), because lawyers in the AGS were employees of the Commonwealth of Australia and thus fell within the exception to the requirement for permission in s.596(4)(a). The Commissioner accepted that proposition in the Decision and proceeded on the basis that the respondent did not require permission to be represented by AGS lawyers. The Commissioner also granted an application by the respondent to amend the description of its identity to read "The Commonwealth of Australia (Department of Immigration and Border Protection)". In his appeal Mr Gibbens contends that the Commissioner erred in reaching these conclusions, that the respondent required permission to be represented by AGS lawyers under s.596(1), and that such permission should have been refused.
[2] Concerning the issues of the legal identity of the respondent to Mr Gibbens' unfair dismissal remedy application and whether the respondent required permission to be represented by AGS lawyers, the Decision said:
[3] The substantive application as filed by Mr Gibbens identifies the Respondent as "Department of Immigration and Border Protection".
[4] I accept the submission of the Respondent that the "Department of Immigration and Border Protection" does not have a separate legal identity from the Commonwealth of Australia. I also accept that the correct Respondent in this instance is the Commonwealth.
[5] Consequently for convenience and for clarity I will amend the identity of the Respondent to the application to read "The Commonwealth of Australia (Department of Immigration and Border Protection)". This amendment does not change the legal identity of the employer.
[6] The Australian Government Solicitor (the AGS) submits that lawyers employed at the AGS are employees of the Commonwealth in the ordinary meaning of the term and are Australian Public Service employees under the Public Service Act 1999. As employees of the Commonwealth it is submitted they have a right to appear for and represent the Commonwealth by virtue of section 596(4) (a) of the Fair Work Act 2009 which allows that an employer is not taken to be represented by a lawyer if the lawyer is an employee of that employer. Mr Gibbens disputes this interpretation.
[7**]** I have considered the submissions of both parties and am satisfied that lawyers of the AGS are entitled, as of right, to represent the Respondent being the Commonwealth of Australia (Department of Immigration and Border Protection) and consequently permission from the Commission is not required."
[3] The notice of appeal filed by Mr Gibbens contained 25 grounds of appeal. In support of the grounds, Mr Gibbens made written and oral submissions. The propositions advanced by him may be summarised as follows:
Section 795(1) of the FW Act is engaged and requires, for the purposes of the FW Act and procedural rules that an employer of a public sector employee "must only act through the employee's employing authority acting on behalf of the employing authority." Regulation 6.09 of the Fair Work Regulations 2009 (FW Regulations) provides that the employing authority of a person for the purpose of s.795(1) is the person or body identified in Schedule 6.3 to the FW Regulations. Under item 2 of Schedule 6.3, the employing authority was the Minister assigned to the Department (the "Agency Minister") or the head of the Department (the "Agency Head"). This was a different employer to the employer of AGS lawyers, and therefore the exception in s.596(4)(a) did not apply.
Mr Gibbens had made a number of general protections applications in the Federal Circuit Court, and the Court in those matters had identified the respondent in each matter as the "Minister for Immigration and Border Protection". For consistency this should be the name of the respondent in the proceedings before the Commission.
The Commissioner erred in determining that the Department was not a separate entity to the Commonwealth and that any employee of the Commonwealth had the right to appear for the respondent under s.596(4)(a) by taking a very liberal interpretation of the legislation.
The AGS was a "legal practice owned by the Commonwealth", an incorporated body under the Department of Attorney General, and was therefore a separate entity to the Commonwealth. It had its own enterprise agreement, separate to that of the Department.
The intent of the Fair Work legislation as found in the Explanatory Memorandum to the Fair Work Bill 2009 at paragraph 2291 did not support the Decision.
Section 596(2) of the Act did not give scope for the Commission to exercise permission for representation as those grounds are not applicable in this case.
The Commissioner's decision to include AGS employees as employees of the respondent circumvented the AGS having to have permission to appear under s.596.
• Permission to be represented in these circumstances would unlikely be granted, having regard to the decisions in Warrell v Walton[2] and King v Patrick Projects[3].
[4] The respondent submitted that the exception in s.596(4)(a) plainly applied. The proper respondent was the Commonwealth of Australia, and AGS lawyers were employees of the Commonwealth. Section 795(1) had no application because, at the time of the lodgment of his unfair dismissal remedy application and afterwards, he was not a public sector employee. The provision only applied when an act of the employer of a public sector employee, acting in that capacity, was involved. Alternatively, the respondent submitted, even if s.795(1) was applicable and modified the operation of s.596, item 2 of Schedule 6.3 to the FW Regulations also allowed any APS employee to be authorised by the Agency Head to act as a public sector employee's employer. That could include an AGS lawyer.
[5] The respondent agreed with Mr Gibbens that permission to appeal should be granted, because the appeal raised an issue of broad application to any proceedings before the Commission in which an Australian Government department sought to be represented by AGS lawyers. We accept that this broader issue does arise in the appeal, at least in relation to unfair dismissal proceedings before the Commission, and we are satisfied that it would be in the public interest to grant permission to appeal in order have this issue resolved at the Full Bench level. Accordingly, permission to appeal must be granted under s.604(2).
[6] Mr Gibbens' appeal raises three questions:
(1) What is the proper identity of his former employer for the purpose of his unfair dismissal remedy application?
(2) Does the exception in s.596(4)(a) to the requirement in s.596(1) for the permission of the Commission for representation by lawyers apply in respect of the representation of the respondent by AGS lawyers?
(2) Does s.795(1), operating in conjunction with reg.6.09 and Schedule 6.3 of the FW Regulations, apply such as to modify the answers to (1) and (2)?
[7] We will deal with each of these questions in turn. In relation to the first question, Mr Gibbens was, immediately prior to his dismissal, employed in the Department to perform border security functions at Perth Airport. It is not in dispute that he was engaged as an employee in the Australian Public Service (APS) pursuant to s.22 of the Public Service Act 1999. The respondent contends specifically that Mr Gibbens was employed on a non-ongoing basis to perform duties which were irregular and intermittent pursuant to s.22(2)(c) of the Public Service Act. It is not clear whether this contention is in dispute,
[8] The Department is not itself an entity with legal personality. Commonwealth departments are established pursuant to s.64 of the Australian Constitution by orders of the Governor-General in Council. The Commonwealth of Australia is a body politic established under the Commonwealth of Australia Constitution Act 1900 (Imp).[4] Under s.7 of the Public Service Act, the Department is an "Agency", and its Secretary is an "Agency Head". Section 22(1) empowers the employment of person in the APS as follows:
(1) An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency.
[9] Thus the proper characterisation of Mr Gibbens' former employment is that he was an employee of the Commonwealth, engaged on the Commonwealth's behalf by the Secretary of the Department for the purposes of the Department. We consider that the Commissioner was correct in identifying the proper respondent to be the Commonwealth of Australia, and its description as "The Commonwealth of Australia (Department of Immigration and Border Protection)" is in accordance with the usual practice in this Commission.
[10] In relation to the second question, s.596 deals with the circumstances in which persons may be represented by lawyers and paid agents in proceedings before the Commission. The section relevantly provides:
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
[11] Section 40A(1) of the FW Act provides that the Acts Interpretation Act 1901, as in force at 25 June 2009, applies to the FW Act. As at that date, s.22(1)(a) of the Acts Interpretation Act provided that in any Act, unless the contrary intention appears, that "expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual".[5] Accordingly (in the absence of any expression of a contrary indication), the Commonwealth when appearing in a matter before the Commission is a "person" for the purposes of s.596.
[12] The relevant effect of s.596(4)(a) is that the Commonwealth does not need permission for legal representation when represented by a person who is an employee or officer of the Commonwealth. Mr Gibbens submitted that AGS lawyers were not employees or officers of the Commonwealth on the basis, as earlier stated, that the AGS was an "incorporated body under the Department of Attorney General, and was therefore a separate entity to the Commonwealth". Mr Gibbens provided no legal or evidentiary support for that proposition, and it is not a correct statement of the current position, as is made clear in Pt.VIIIB of the Judiciary Act 1903. Part VIIIB makes provision for the existence and functions of "AGS lawyers", who are defined in 55I to include the Australian Government Solicitor (the office of whom is established by s.55J and who must under s.55J(b) be a person in the Attorney-General's Department who is engaged under the Public Service Act 1999) as well as any person:
(i) whose name is on the roll of barristers and solicitors of the High Court kept under the Rules of Court, or the roll of barristers, solicitors, barristers and solicitors or legal practitioners of the Supreme Court of a State or Territory; and
(ii) who is a person in the Attorney-General's Department who is engaged under the Public Service Act 1999; and
(iii) who ordinarily performs work for clients of the AGS under the supervision or direction of the AGS.
[13] Section 55Q of the Judiciary Act sets out the functions, right and privileges of an AGS lawyer acting in that capacity.
[14] The requirement that AGS lawyers be engaged under the Public Service Act means they must be engaged (like Mr Gibbens was) under s.22 of that Act, since it is that provision which empowers the engagement of APS employees by Agency Heads on behalf of the Commonwealth. AGS lawyers are therefore employees of the respondent (that is, the Commonwealth) engaged by the Secretary of the Attorney-General's department to work in that department. Accordingly, unless its operation is modified or restricted by some other provision of the FW Act, s.596(4)(a) applies, and the respondent does not require permission to be represented by an AGS lawyer.
[15] In relation to the third question, Mr Gibbens submitted in effect that the operation of s.596(4) was modified in relation to a "public sector employee" by s.795(1) of the FW Act. Section 795 relevantly provides:
795 Public sector employer to act through employing authority
(1) For the purposes of this Act and the procedural rules, the employer of an employee (a public sector employee ) employed in public sector employment must act only through the employee's employing authority acting on behalf of the employer.
(2) For the purposes of this Act and the procedural rules, anything done by or to a public sector employee's employing authority acting on behalf of the employee's employer is taken to have been done by or to the employer (as the case may be).
(3) Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory.
(4) Public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily, and whether full-time or part-time):
(a) under the Public Service Act 1999 ...
(6) An employing authority of an employee is the person prescribed by the regulations as the employee's employing authority.
[16] Regulation 6.09 of the FW Regulations provides:
6.09 Public sector employer to act through employing authority--meaning of employing authority
For subsection 795(6) of the Act, the employing authority of a person mentioned in an item of Schedule 6.3 is:
(a) the person or body mentioned in the item as the employing authority; or
(b) each person or body mentioned in the item as the employing authority.
An APS employee, within the meaning of the Public Service Act 1999, performing duties or employed in a particular Agency as defined in the Public Service Act 1999
The Public Service Minister, within the meaning of the Public Service Act 1999
The Agency Minister, within the meaning of the Public Service Act 1999
The Agency Head, within the meaning of the Public Service Act 1999
An APS employee, within the meaning of the Public Service Act 1999 , authorised by the Agency Head
[18] Although not fully articulated by Mr Gibbens (who was self-represented) in his submission, the argument advanced appears to be that, for the purpose of his unfair dismissal remedy application, the Commonwealth was required by s.795(1) to act through the relevant employing authority, which (by virtue of reg.6.09 and Schedule 6.3) meant the Minister for or the Secretary of the Department. These were different employing authorities than for AGS lawyers in the Attorney-General's Department. Section 795(1) applied for all purposes of the FW Act, including s.596, so the argument ran, so that for the purposes of s.596(4), AGS lawyers were not employed by the respondent employing authority.
[19] It is far from clear that s.795(1) could be read as having any application or relevance to s.596. The scope of operation of the provision was considered by the Federal Court (Katzmann J) in Dahler v Australian Capital Territory[6], in connection with an application for costs arising from an issue concerning the proper identification of the respondent employer. The Court expressed a provisional view about the operation of s.795 without determining the issue as follows:
"I am far from convinced that s 795 has any bearing on who the employer is for present purposes or how the employer should be named in the present case. The section appears to deal with who has the authority to act on behalf of the employer and whose acts bind the employer. It does not appear to go any further. The Explanatory Memorandum to the Fair Work Bill (to which Ms Keys was referred by Ms Banks in her email of 7 November 2013) tends to support this view. But whether or not Ms Keys or the ACT Government Solicitor is correct need not be determined on this application..."[7]
[20] We likewise hold considerable doubt as to whether s.795(1) is to be interpreted as potentially affecting the identification of the proper respondent, or a lawyer's employer, for the purpose of s.596(4)(a). However it is not necessary for us to reach a final conclusion about this, because it is clear for a different reason that s.795(1) could have no application to any aspect of Mr Gibbens' unfair dismissal remedy proceedings. As the respondent submitted, any application which s.795(1) has is confined to the actions of an employer vis-à-vis its public sector employee. Mr Gibbens is of course not a public sector employee, and has not been since the termination of his employment prior to the lodgment of his unfair dismissal remedy application. We can identify no basis to read s.795(1) as being applicable to the conduct of the Commonwealth as the respondent to proceedings in which the applicant is its ex-employee. Therefore we reject the proposition that s.795(1) operates to modify the identity of the respondent or the application of s.596(4)(a) in this case.
[21] For the reasons given, we consider that the Commissioner was correct in his identification of the proper respondent and in determining that the respondent did not require the Commission's permission to be represented by AGS lawyers. We order as follows:
[2] [2013] FCA 291; 233 IR 335
[4] Williams v The Commonwealth [2012] HCA 23, 248 CLR 156 at [154] per Hayne J
[5] The equivalent provision in the current Acts Interpretation Act is s.2C(1).
Printed by authority of the Commonwealth Government Printer
Gregory Gibbens
The Commonwealth of Australia