Fair Work Act 2009

s.604 - Appeal of decision

United Protestant Association of NSW Ltd T/A UPA

Appeal against a decision [ [2018] FWC 2920] in matter number C2017/7037 and a decision [ [2018] FWC 2751] in matter number AG2017/5218 - permission to be represented - s.596 Fair Work Act 2009 - permission to appeal refused.

[1] Mrs Inna Grabovsky has applied for permission to appeal, and appeals, against two decisions issued by Commissioner Johns in which the Commissioner granted the United Protestant Association of NSW Ltd T/A UPA (UPA) permission to be represented by a lawyer pursuant to s.596 of the Fair Work Act 2009 (the Act). The decisions subject to appeal relate to two different, but related matters.

[2] The first decision[1] was made in matter C2017/7037, which concerns an application under s.739 of the Act for the Commission to deal with a dispute arising under The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017 (the Dispute Decision). The second decision[2] arose in matter AG2017/5218, which concerns an application for approval of an enterprise agreement titled The UPA NSWNMA and HSU NSW Enterprise Agreement 2017-2020 (the Agreement Decision).

[3] The two matters were listed together for the purpose of hearing the representation issue.

[4] An appeal under s.604 of the 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.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission. At the conclusion of the hearing of the appeal we informed the parties that we had decided to refuse permission to appeal and would publish our reasons in due course. These are those reasons.

[5] We propose to briefly summarise the two decisions before turning to the appeal.

[6] The hearing in respect of UPA's application for permission to be represented by a lawyer took place on 19 February 2018. The Commissioner's decision was issued on 24 May 2018.

[7] On 5 February 2018 the Commissioner issued orders, on application by Mr Grabovsky, for the following to attend the hearing on 19 February 2018:

• Stephen Walkerden, General Manager UPA; and

• Helga Buckley, HR Advisor, performHR.

[8] The Commissioner also issued orders for the production of certain documents sought by Mr Grabovsky.

[9] At [11] of the Dispute Decision, under the heading 'Legal Principles', the Commissioner sets out an extract from a recent decision, Shaka v Apple Pty Ltd.[4] We return to this extract later.

[10] The Commissioner then sets out the submissions of the parties (at [12] to [25]), before turning to consider whether at least one of the requirements in s.596(2)(a) to (c) was satisfied. At [26] the Commissioner notes that the Form F10 filed by Mrs Grabovsky raises a number of matters to be considered in the substantive proceedings including matters relating to:

(c) the interplay with the National Employment Standards,

(e) alleged violations of the Work Health and Safety Act 2011,

(g) what is said to be "new prima facie evidence" (noting that Mrs Grabovsky pursued a dispute resolved in C2014/3313 and C2014/6273),

(i) an alleged unconstitutional limitation on the power to arbitrate workload management issues, and

(j) alleged unlawful terms in the Current Agreement.

[11] At [27] the Commissioner notes that UPA also foreshadowed a jurisdictional objection to Mrs Grabovsky's application. At [28] to [29] of the Dispute Decision the Commissioner sets out his conclusion in respect of the requirement specified in s.596(2)(a):

'[28] What is clear from all of the material that has been filed in this matter is that both the foreshadowed jurisdictional objection and the substantive Dispute Matter are invested with complexity. That complexity is not the fault of any party. It is just that complexity is inherent in this matter. That complexity is to be found in the need to consider the application of the Current Agreement, the scope and power of the disputes settling procedure and whether, in relation the Dispute Matter the Commission has already heard and determined the issues in dispute. That issue itself requires a careful consideration of the facts in the matters that have been determined in earlier decisions and the facts now said to exist in relation to the Dispute Matter.

[29] For these reasons I am satisfied that the Dispute Matter is invested with complexity. Further, I am satisfied that I will be assisted in the efficient conduct of the matter if I allow UPA to be represented by a lawyer.'

[12] At [30] to [34] the Commissioner addresses the requirement specified in s.596(2)(b), finding that:

• UPA has no internal industrial function and no internal human resource function (at [30]);

• if Ms Cox was required to represent UPA the Commissioner was not satisfied that she would do so in a manner that has an 'impressive effect' or which is 'powerful in effect'. As the Commissioner put it: 'As a professional working in aged care Ms Cox's skills and competencies lay elsewhere. But they are not in industrial advocacy' (at [31]);

• the Commissioner made the same observation of Mr Walkerden and also noted that 'he is likely to be a witness in that matter with all the complications that arise with the joint advocate/witness role' (at [32]); and

• at [33], 'This is not a situation where UPA is seeking to be represented better by a lawyer than it could be by able internal resources. I am satisfied that those internal resources do not exist at all'.

[13] On the basis of the above findings the Commissioner concludes, at [34],:

'[34] For these reasons I am satisfied that it would be unfair not to allow UPA to be represented because it is unable to represent itself effectively.'

[14] At [35] to [37] the Commissioner addresses the requirement specified in s.596(2)(c). At [35] the Commissioner notes that Mrs Grabovsky is represented by Mr Grabovsky who he described as 'an experienced litigant ... [who] is a more than competent advocate on behalf of his wife'. At [26] the Commissioner notes that he is not satisfied that UPA has the same ability. On the basis of these findings the Commissioner concludes, at [37]:

'[37] Consequently, I am satisfied that it would be unfair not to allow UPA to be represented taking into account fairness between UPA and Mr Grabovsky. My finding in relation to this criterion might be different if Mrs Grabovsky was self-represented. However, she is not. In fact she has made no appearance before me.'

[15] At [38] the Commissioner states that having been satisfied as to the requirement in s.596(2)(a), (b) and (c) the discretion to grant permission is enlivened and he decided to exercise that discretion to grant UPA permission to be represented by a lawyer.

[16] On 11 April 2018 the Commissioner advised the parties that he had decided to grant UPA permission to be represented by a lawyer in the agreement approval matter. On 24 May 2018 the Commissioner published his reasons for that decision, stating (at [13]):

'[13] Having considered all that was submitted in relation to the 2017-2020 Agreement approval matter I was satisfied that the 2017-2020 Agreement approval was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I granted the UPA permission to be represented. I did so pursuant to section 596(2)(a) of the FW Act.'

[17] It is relevant to note that on 29 March 2018, Mr Grabovsky wrote to the Commission stating,

(i) he no longer opposes UPA being represented, assuming the UPA will "execute corresponding formalities in compliance with the law";

(ii) he will not object if the UPA will be represented in this matter by a reputable barrister; and

(iii) he will not object if the other parties to the 2017-2020 Agreement are represented by lawyers.

[18] The Commissioner refers to this correspondence at [10] of the decision. We raised this correspondence with Mr Grabovsky during the appeal hearing and he responded that he subsequently withdrew his consent to UPA being represented by a lawyer in the matter AG2017/5128.[5] The document Mr Grabovsky is referring to, in which he says he withdrew his consent, is dated 1 June 2018 and states:

'However, after careful consideration of Decision 2751 and wording of the Reason for Decision 2920, the Applicant is withdrawing her consent and she is opposing any representation of the UPA (by a lawyer or paid agent) in any matter as of the date of this Application.'[6]

[19] It is apparent that the purported 'withdrawal of consent' took place well after the Commissioner had made his decision to grant UPA permission to be represented by a lawyer.

[20] The fact that an application for permission to be represented is not opposed does not relieve the Commission of the obligation to satisfy itself of the existence of one or more of the requirements in s.596(2)(a) to (c) and, in the event of being so satisfied, determining whether to exercise the discretion conferred by s.596(2). But the fact that permission was not opposed is relevant to our consideration of whether permission to appeal should be granted.

[21] The Appellant's Notice of Appeal sets out four grounds of appeal:

'1. The Commission had been guided by irrelevant factors.

2. The Commission did arrive to its decision in error of facts and in error of determination.

3. The Commission was acting upon the wrong principles

4. In arriving to its decision, the Commission was acting outside its jurisdiction.'

[22] In the Notice of Appeal the Appellant contended that all of the grounds of appeal are of public interest 'because they are addressing the systematic misuse of law by the Commission', but, as we shall see, ultimately only advanced submissions in respect of grounds 1 and 3.

[23] The Appellant also submits that we should 'refrain from using authority (precedents)'; on the following basis:

'The FWC is the authority and must determine the [any] issues in accordance with the statute and circumstances of the current matter before the FWC, refraining from leaning on opinions of judicial officers who were acting in different matters where the circumstances, (version and type) statute and general attitude to the events could be (and almost always are) different in each individual case'.

[24] We reject the proposition that we should determine the matter without regard to authority. The Commission is, of course, bound to apply relevant judgments of the Federal Court and the High Court.

[25] Further, as the High Court has observed, justice requires consistency in decisions unless a difference can be articulated and applied:

'The law must keep an order and form which admit of practical application, for justice requires both consistency in decisions and discrimination between cases on bases that can be articulated and applied.'[7]

[26] Although the Commission is not bound by principles of stare decisis it has generally followed previous Full Bench decisions. In another context three members of the High Court observed in Nguyen v Nguyen:

'When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasion upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585 per Aickin J at 620 et seq.'[8]

[27] The public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Commission.[9]

[28] As mentioned earlier, this decision concerns whether permission to appeal should be granted. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so.' Permission to appeal may otherwise be granted on discretionary grounds.

[29] Other than a special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that a substantial injustice may result if permission is refused.[10]

[30] 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.[11] 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.[12]

[31] The Appellant submits that the 'public interest' for the purpose of s.604(2) is defined as:

'Any deed, whether tangible or ethereal, actual or implied that effects or might effect the wellbeing or rights of the large number of people or public at large constitutes the public interest'.

[32] The definition proposed by the Appellant is unhelpful; the public interest is not a concept which lends itself to precise definition.[13] As the High Court observed in O'Sullivan v Farrer:[14]

'the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable...'

[33] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest and warrant the grant of permission to appeal:

'... the public interest might be attracted where a matter raises issues 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.'[15]

[34] We agree with the above observation. We turn next to the relevant legislative provisions. Section 596(1) and (2) provide as follows:

'(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.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

[35] Subsection 596(1) provides that a person 'may' be represented in a matter before the Commission by a lawyer or paid agent 'only' with the permission of the Commission.[16] Subsection 596(2) provides that the Commission may grant permission 'only if' it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word 'may' makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

[36] Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

[37] While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:[17]

'It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.'

[38] For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party's legal team might represent the party in proceedings.[18]

[39] In relation to both a finding as to whether one of the circumstances in s.596(2)(a) to (c) exists, and the exercise of the discretion conferred, it is not sufficient for an appellant to invite the Appeal Bench to simply substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[19]

'The manner in which an appeal against an exercise of discretion would be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'

[40] The Appellant only advanced submissions in respect of appeal grounds 1 and 3 and he only did so by reference to the Dispute Decision.

[41] It is submitted that the Commissioner was 'guided by irrelevant factors'. Specifically, it is contended that the Commissioner erred in taking into account whether UPA had internal human resource management expertise. Mr Grabovsky referred to paragraphs [16] and [33] of the Dispute Decision, which state:

'[16] Mr Grabovsky called Mr Walkerden to give evidence. Mr Walkerden confirmed that,

a) UPA is a company limited by guarantee, that he is UPA's General Manager and a member of the board of directors since 1995;[20]

b) he is effectively the CEO of UPA;[21]

c) UPA engages performHR in relation to HR and industrial relations matters, including the Dispute Matter and the 2017-2020 Agreement Matter;[22]

d) UPA has no internal HR function;[23] and

e) there is an agreement between UPA and performHR for the provision of its services.

[33] This is not a situation where UPA is seeking to be represented better by a lawyer than it could be by able internal resources. I am satisfied that those internal resources do not exist at all.'

[42] We reject the submission put on appeal. In considering, for the purpose of s.596(2)(c), whether it 'would be unfair' not to allow UPA to be represented, 'taking into account fairness between [UPA] and other persons in the same matter', it was relevant to have regard to the internal resources available to UPA. No arguable case of error has been established with respect to this ground of appeal.

[43] It is contended that the Commissioner acted upon 'the wrong principles'. This submission is based on the Commissioner's reliance on Skaka v Apple Pty Ltd (Skaka)[24] and in particular the following passage from that decision:

'[8] The granting of permission under section 596 involves a two-step process. The first is that there must be satisfaction that at least one of the criteria in section 596(2) is satisfied. The consideration required by this first step "involves the making of an evaluative judgment akin to the exercise of discretion".[25] The second is that the discretion conferred by section 596(2) must be exercised in favour of the applicant for permission.'[26] (emphasis added).

[44] The proposition put by the Appellant appears to be that the underlined words expose an error of principle, namely that permission to be represented must be granted if one of the requirements in s.596(2)(a) to (c) is satisfied. The proposition put in the last sentence of the above passage from Skaka is infelicitously expressed but, in context, is not erroneous. Read as a whole, the passage is simply observing that s.596 involves a two step process in which the establishment of one or more of the circumstances in s.596(2)(a) to (c) (the first step) is the condition precent to the exercise of the discretion in s.596(2) to grant permission to be represented (the second step). The passage is not advancing the proposition that once one of the s.596(2)(a) to (c) circumstances is established the Commission is required to grant permission to be represented.

[45] Further, in the Dispute Decision it is apparent that the Commissioner did not err in the manner suggested by the Appellant. Indeed, having been satisfied as to the existence of the circumstances in s.596(2)(a) to (c) the Commissioner asks himself the question: 'should I exercise the discretion conferred by section 596(2) in favour of the applicant (in this case UPA)?' The Commissioner then answers the question posed, at [38] of the Dispute Decision:

'I am satisfied that each of sub-sections 596(2)(a), (b) and (c) are enlivened, in the overall exercise of my discretion, I am satisfied that UPA should be represented in this matter by a lawyer.'

[46] No arguable case of error is established in respect of this ground of appeal.

[47] As mentioned earlier, the Appellant confined his submissions to grounds 1 and 3, and only did so by reference to the Dispute Decision. No particular submissions were advanced in relation to the Agreement Decision and, as we have noted, at the time that decision was made Mr Grabovsky had not withdrawn his opposition to UPA's application to be represented by a lawyer in those proceedings.

[48] During the course of the appeal hearing, on two separate occasions,[27] Mr Grabovsky's attention was drawn to the fact that in addition to the circumstances in which permission to appeal must be granted (namely, if the Commission is satisfied that it is in the public interest to do so), permission to appeal may otherwise be granted on discretionary grounds - including that an arguable case of error has been established such as to warrant the reconsideration of the decision on appeal. Mr Grabovsky made it clear that he did not wish to identify other arguable grounds:

I establish in my submission that those two grounds are of public interest to be heard on appeal ... And that's what I need.'[28]

[49] In any event, we do not consider that the Appellant has made out an arguable case of error in respect of any of the grounds of appeal as applied to either decision.

[50] For completeness, we make three final brief observations. The first is about Mr Grabovsky's complaint about what he asserts was the Respondent's 'breach of law' which occurred when he attempted to personally serve documents relating to the appeal at the Respondent's registered office.

[51] Mr Grabovsky asserts that employees of the Respondent tried to physically prevent him from entering the Respondent's registered office and that he 'had to apply force protecting himself from physical assault inflicted by members of the UPA'. Mr Grabovsky asserts that the Respondent's actions constitute both civil and criminal offences and seeks certain directions from the Commission in relation to these matters.

[52] The matters raised and the relief sought are beyond the scope of this appeal and the Commission's powers under the Act.

[53] Second, Mr Grabovsky raised a number of concerns regarding the stay proceedings associated with these appeals. These matters have been overtaken by our decision in respect of the appeals.

[54] Finally, we note that in the Dispute Decision reference is made to CFMEU v AGL Resources Pty Limited (Project Aurora)[29] and, in particular, to the proposition that the expression 'unable to represent himself, herself or itself effectively' in s.596(2)(b) means that the person must be unable to represent themselves in a manner that creates a 'striking impression' or which has an 'impressive' effect or which is 'powerful in effect'. No issue was taken with this aspect of the Dispute Decision on appeal and for that reason we do not express a concluded view on the question. However we do not wish to be taken to approve the proposition put. In our view it is plainly preferable to adhere to the language of s.596, rather than placing what is, with respect, an unnecessary and unhelpful gloss on the words used.

[55] For the reasons given we are not satisfied that it is in the public interest to grant permission to appeal. Further, having regard to the grounds of appeal and Mr Grabovsky's submissions we do not identify any arguable case of appealable error on the part of the Commissioner. We are not satisfied that the decisions subject to appeal are attended with sufficient doubt such as to warrant their reconsideration on appeal; nor are we persuaded that substantial injustice may result if permission to appeal is refused.

[56] Permission to appeal is refused.

[1] [2018] FWC 2751.

[2] [2018] FWC 2920.

[3] This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4] [2018] FWC 2696.

[5] Transcript 25 July 2018 at PN60-PN90.

[6] Request to revoke and vary decisions and directions dated 1 June 2018 at page [4].

[7] Gala v Preston [1991] HCA 18; (1991) 172 CLR 243, 262.

[8] Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 269. Also see R v Moore; ex parte Australian Telephone and Phonogram Officers' Association [1982] HCA 5; (1982) 148 CLR 600 (11 February 1982).

[9] Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C; Cetin v Ripon Pty Ltd (T/as Parkview Hotel) (Cetin) (2003) 127 IR 205 at [48].

[10] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481.

[11] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

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

[13] See generally Wheeler C, (2006) 'The Public Interest We Know It's Important, But Do We Know What It Means', Australian Institute of Administrative Law, Forum 48 pp 12-25.

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

[15] [2010] FWAFB 5343; 197 IR 266 at [24]- [27].

[16] The exceptions in s.596(3) and the procedural Rules are not relevant for present purposes.

[17] Warrell v Watson [2013] FCA 291 at [24].

[18] NSW Bar Association v McAuliffe [2014] FWCFB 1663; Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [32].

[19] Coal and Allied Operations Pty Ltd v A.I.R.C [2000] HCA 47; (2000) 203 CLR 194 at [19].

[20] Transcript 19 February 2018 at PN103.

[24] [2018] FWC 2696.

[25] Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19].

[26] Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36].

[27] Transcript 25 July 2018 at PN153-PN160 and PN308-PN321.

[29] [2012] FWA 2966.

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