Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against [2025] FWC 3742 of Commissioner Crawford at Sydney on 5 December 2025 in matter number C2025/9011 and decision on 5 December 2025 to issue a certificate under s.368 - permission to appeal refused

[1] Intelligent Monitoring Group Ltd (IMG) has lodged an appeal under s.604 of the Fair Work Act 2009 (Act) against a decision[1] of Commissioner Crawford made on 5 December 2025 in which the Commissioner allowed Ms. Nurcan Bach to amend her application under s.365 to change the name of the respondent (the amendment decision), and a further decision on the same day to issue Ms. Bach a certificate under s 368 of the Act. The matter was listed before us to deal with the issue of permission to appeal only.

[2] In the amendment decision, the Commissioner recorded that Ms. Bach's application form had named the respondent as IMG, and that an employer response form had identified the correct employer as Intelligent Monitoring Solutions Pty Ltd (IMS). The Commissioner stated that Ms. Bach had sought leave to amend her application and that IMS/IMG had opposed this on the basis that allowing the amendment would create a new application and that Ms. Bach would need to seek an extension of time. The Commissioner determined that, consistent with various Commission authority, an application can be amended under s.586 by changing the identity of the respondent without creating a new application. The Commissioner noted that Ms. Bach's solicitor had accepted responsibility for naming the wrong entity, and that it was not the fault of Ms. Bach. He rejected the contention that the error was part of a deliberate strategy of the applicant. The Commissioner concluded that it was clearly appropriate to exercise his discretion to allow Ms. Bach to amend her application to name IMS as the respondent employer.

[3] The decision then noted that the dispute that Ms. Bach had referred to the Commission in her s.365 application had not resolved in a conciliation conference on 5 December 2025, and that the Commissioner would be issuing a certificate to Ms. Bach under s.368, which he did that same day. The certificate confirmed that Ms. Bach had made an application under s.365 against IMS, and that the Commissioner was satisfied that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful. The effect of a certificate is to permit the holder to make a general protections court application within 14 days.

[4] Pursuant to s.607(1) of the Act the Full Bench was of the view that the matter could be adequately determined without persons making oral submissions. The parties indicated their consent to the appeal being conducted without a hearing. The matter has been determined on the papers.

[5] An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment.[2] Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or if the decision manifests an injustice.[3] Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[4] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error.[5] The fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[6] Section 604(1) provides that an appeal may be brought, with permission, against a decision of the Commission by a 'person aggrieved' by a decision. As we observed at the outset, the appellant in this case is IMG. The decision being appealed is the decision to amend the application to substitute IMS for IMG as the respondent to the application and the decision to issue a certificate identifying IMS as the former employer of Ms. Bach which had dismissed Ms. Bach allegedly in contravention of Part 3-1 of the Act. No party ultimately contended that Ms. Bach was ever employed by IMG or that IMG had any role to play in the proceedings below.

[7] The relevant principles in relation to the meaning of the expression 'person aggrieved' are well-established by the authorities. They were referred to and followed by a Full Bench of the Commission in Young v. Construction, Forestry, Maritime, Mining and Energy Union[6]. In that matter, the Full Bench cited with approval the remarks in Argos Pty Ltd v Minister for Environment and Sustainable Development[7] (Argos). In Argos the High Court concluded that the interests of two businesses in a Ministerial decision to approve a development application by a competitor was sufficient to make them a 'person aggrieved' by the decision for the purposes of the Administrative Decisions (Judicial Review) Act 1989 (ACT). The Court also concluded that a leaseholder and lessor to one of the businesses could point only to a less immediate and direct effect[8] of the decision, namely the potential loss of the benefits of the lease if the leaseholder went out of business because of the decision and as such, was not a person aggrieved by the decision.

[8] As to the proper determination of whether a party was a person aggrieved their Honours Hayne and Bell JJ said:

"The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (beyond) its effect on the public at large."[9]

[9] The effect of the Commissioner's decision was to remove IMG as a respondent to the application and to substitute a different entity, namely IMS. IMG had nothing to gain from the original proceedings and its removal as respondent was, by itself, beneficial to IMG. We note however, that there was a relationship between the two entities. According to the F8A response, the shares in IMS were acquired by IMG and Mr. Elks described IMS at the hearing as 'a subsidiary fully owned by the parent company' but 'a standalone legal entity'. The question of the standing of IMG to bring the present appeal was not raised in the submissions and we have not therefore had the benefit of any argument about the point. For present purposes however we are inclined to the view that IMG's interest as a shareholder and parent company of the newly named respondent IMS, is sufficient for IMG to be considered a person aggrieved by the decision since it has a commercial interest in IMS not enjoyed by the general public and the naming of that entity as a respondent had the capacity to affect those interests. We propose to deal with question of permission to appeal on the basis that the appeal has been validly brought by IMG.

[10] IMG's notice of appeal puts forward three principal grounds, each with a number of sub-grounds. The grounds are lengthy, difficult to follow and at times incoherent. The first ground contends that the Commissioner erred in law by exercising his discretion under s.586 to amend the application without determining what IMG submitted were 'statutory prerequisites'. We will not recite these matters. It suffices to say that we perceive no arguable basis to contend that any of these matters had to be determined prior to the Commissioner's decision to allow the amendment. In particular, although s.725 prohibits multiple dismissal-related applications of certain kinds, and Ms. Bach had also lodged an unfair dismissal application, her s.365 application was filed first, and was therefore unaffected by s.725.

[11] The first ground of appeal also contended that the Commissioner somehow 'misinterpreted' s.368, but we have difficulty in understanding how the ground is arguable in the face of a certificate that records the Commissioner's satisfaction that all reasonable efforts to resolve the matter had been or were likely to be unsuccessful, which is the statutory trigger for the issuing of a certificate. In what appears to be a repetition of the second ground referred to below, IMG also contended that there was a failure by the Commissioner to consider if all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful where IMS was not party to the dispute and was not directed to attend before the Commission. For the reasons set out below we see no arguable case of appealable error in this ground.

[12] Further, IMG contended that the Commissioner had misinterpreted s 596 and failed to have regard to 'statutory time frames.' As best we can apprehend the argument, IMG contends that the Commissioner erred in allowing Ms. Bach to make submissions and representations to the Commission through legal representatives prior to those representatives formally being granted permission to represent Ms. Bach on 6 November 2025. These arguments are misconceived and do not take account of provisions of s.596(1) of the Act and Rule 13(1) of the Fair Work Commission Rules 2024 the latter of which refers to permission for participating 'in a conference or hearing' relating to a matter. The ground does not present any arguable case of appealable error in the Commissioner's amendment decision or the decision to issue the certificate.

[13] The second ground of appeal contended that the Commissioner made an error of fact by determining that IMS had even been present at the hearing, when that entity was not represented by a lawyer or paid agent under s.596 and was not directed to attend the proceeding; and that the Commissioner was wrong to state that IMS opposed the amendment because in fact IMS was not a party to the original proceeding. However, the F8A employer response form to Ms. Bach's application was submitted by IMS. It was signed by Mr. Jason Elks who indicated, in confirming his authority to sign the form, that he was an 'IMS board advisor'. The notice of listing was sent to Mr. Elks, and he attended the proceeding before the Commissioner, but then told the Commissioner that he was now a representative of IMG and not IMS. In these circumstances, we see no arguable case of any error by the Commissioner.

[14] The second appeal ground also contended that the Commissioner was wrong to record that the respondent believed that amending the application would create a new application. But this contention merely quibbled with the Commissioner's wording. The relevant point raised before the Commissioner was that Ms. Bach should make a new application, and that such an application would then be out of time and she would need to seek an extension of time, whereas amending the original application, which was tantamount to creating a new application, would obviate the need to do so. It appears to us that, despite the wording at [3], the Commissioner understood the argument and nevertheless considered that it was appropriate to allow the amendment. This ground does not raise an arguable case of error by the Commissioner.

[15] The third appeal ground advanced by IMG was that the Commissioner failed to afford IMS procedural fairness, because IMS was never served with the application and did not attend the hearing. IMS apparently makes no complaint about a denial of procedural fairness to it since it has not appealed the decision. Nonetheless there is no arguable case of a denial of procedural fairness in circumstances where it was IMS that in fact responded to Ms Bach's application by filing its employer response form, which was signed by Mr Elks who then attended the proceeding.

[16] The notice of appeal and submissions do not present any arguable case of appealable error in the Commissioner's decision. The Commissioner approached the question of whether to allow the amendment to the application in the usual way. An applicant named the wrong respondent because of an oversight by her solicitor, and a correction was allowed under s 586, as commonly occurs. Further, a certificate was issued under s 368 recording the Commissioner's satisfaction of matters that compelled the issuance of a certificate. We are not satisfied that it is in the public interest to grant permission to appeal. None of the matters referred to in Makin is present in this case and the public interest is not engaged in any other way. Nor do we consider that there is any reason to grant permission to appeal on general discretionary grounds.

[17]

[1] [2025] FWC 3742.

[2] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 (Makin) at [44].

[3] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[4] Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82].

[5] Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204.

[6] [2022] FWCFB 222.

[7] [2014] HCA 50, 254 CLR 394.

[8] Ibid at [62] per Hayne and Bell JJ.

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