Fair Work Act 2009

s.604 - Appeal of decision

Appeal under s.604 of the Fair Work Act 2009 (Cth) against decision [2021] FWC 1888 of Commissioner Williams in Perth on 8 April 2021 in matter number C2021/314 - whether independent contractor covered by general protections - whether dismissed - no arguable case of error - permission to appeal refused.

[1] John Grass had an arrangement with the NSW Chinese Tennis Association Incorporated to work as a tennis coach. Over the course of 2020, disputes arose about his capacity to provide coaching services and the Association's conduct. On 18 November 2020, Mr Grass applied to the Commission for stop bullying orders under section 789FC of the Fair Work Act 2009 (the Act) (the bullying application[1]) and for the Commission to deal with a general protections dispute under section 372 (the first general protections application[2]). A conference in relation to the first general protections application was held on 11 December 2020. Conferences were held in relation to the bullying application on 4 February 2021 and 1 April 2021.

[2] On 20 January 2021, Mr Grass applied to the Commission to deal with another general protections dispute, this time under section 365 of the Act (the second general protections application[3]). This followed advice to Mr Grass in a conference dealing with the first general protections application that his agreement with the Association had been terminated.

[3] A conference to deal with the second general protections application was scheduled for 12 February 2021 but did not proceed because the Association objected to the application on jurisdictional grounds. On 8 April 2021, Commissioner Williams dismissed[4] the second general protections application after finding at paragraph [12] of the decision that Mr Grass was "not an employee dismissed by his employer" and was "not able to make an application under section 365 of the Act" (the Decision).

[4] Mr Grass seeks permission to appeal and appeals the Decision on the basis that section 365 of the Act applies to a "person" who has been dismissed, and independent contractors are persons for the purposes of the Act. The question is whether permission to appeal should be granted.

[5] We have decided not to grant permission to appeal. These are our reasons.

[6] In the Decision under appeal, the Commissioner was dealing with a jurisdictional objection and was required to determine whether Mr Grass was an employee who had been dismissed. This was a question of jurisdictional fact. It is necessary for us to decide whether the Commissioner reached the right conclusion about whether Mr Grass was an employee and whether he was dismissed,[5] not simply whether the Commissioner's ultimate finding was reasonably open to him.

[7] In Sammartino v Commissioner Foggo[6], a Full Court of the Federal Court noted the approach to be taken by a Full Bench of the former Australian Industrial Relations Commission in an appeal from a decision concerning whether a worker was an employee at law:

"[9] On an appeal from such a decision, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King (supra). In dealing with the appeal, the Commission is under a duty to consider all of the proven facts and those facts that have been admitted, and any inferences to be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which its decision might depend. If, in undertaking any of these tasks, it finds that the Commissioner has made an error of law or an error of fact, it can exercise its powers under s 45(7).

[10] It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts or on the law than that arrived at by the primary decision-maker. Further, what must be shown in order to succeed on an appeal will plainly have a bearing on whether leave should be granted."

[8] Full Benches of this Commission have accordingly proceeded in appeals of this type on the basis that it is necessary to determine whether the primary decision-maker's conclusion concerning the existence or otherwise of an employment relationship was correct.[7]

[9] Section 365 of the Act allows a person who has been dismissed to apply to the Commission for it to deal with a dispute about the dismissal. A dispute under section 365 is a dispute about the allegation that a person was dismissed in contravention of the general protections in Part 3-1 of the Act, from sections 334-378.

[10] In the Act, the word 'person' takes its meaning from section 22(1)(a) of the Acts Interpretation Act 1901 (Cth), as in force on 25 June 2009.[8] It includes individuals, corporate entities and bodies politic. Both an employee and a contractor can be a 'person' for the purposes of the Act.

[11] However, section 365 applies to a person who has been 'dismissed'. Only an employee can be dismissed for the purposes of the Act. This is because the word 'dismissed' is defined in section 12 of the Act, and takes its meaning from section 386 of the Act, which is as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

[12] As can be seen, each of the scenarios described in section 386 - termination of employment on the employer's initiative; forced resignation due to the employer's conduct; the end of a fixed-term employment contract; the end of a formal training arrangement such as a traineeship or apprenticeship; a demotion - arise from an employment relationship. A person who is not in an employment relationship cannot be dismissed within the meaning of section 386.

[13] It is also noted that in the Explanatory Memorandum to the Fair Work Bill 2008 when referring to s.365 at Item 1478 reference is made to the dismissed 'employee'.

[14] That is not to say that the general protections do not apply to independent contractors whose contracts have been terminated. Adverse action is defined in section 342 of the Act and includes the termination of a contract between principal and independent contractor. A contractor alleging that termination of their contract was in contravention of the general protections can apply to the Commission to deal with a general protections dispute under section 372 of the Act. They can also apply directly to the court. This is subject to any other limitation on the right to apply, including section 725 of the Act which prohibits multiple actions.

[15] Unlike an application made under section 365 of the Act, the Commission is not required to issue a certificate in relation to an application made under section 372. A general protections court application that does not involve dismissal can be made whether the matter has first been dealt with by the Commission or not.

[16] As noted above, there is only one ground of appeal, which is that Commissioner Williams made an error when deciding that Mr Grass, an independent contractor, was not entitled to apply to the Commission under section 365 of the Act in relation to his arrangement with the Association.

[17] There is no dispute that Mr Grass was not an employee of the Association. His relationship with the Association was either one of independent contractor, or volunteer member, or both. For the reasons already stated, the absence of an employment relationship means that Mr Grass was not (because he could not have been) dismissed by the Association for the purposes of the Act. He was not entitled to make the second general protections application. On the face of the record, the Commissioner's decision to dismiss his application on this basis was correct.

[18] An appeal under section 604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker.[9] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[19] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is "in the public interest to do so". In _GlaxoSmithKline Australia Pty Ltd v Makin,[10]_a Full Bench identified some of the considerations that may attract the public interest:

"... 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."[11]

[20] 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.[12] That the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[21] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[13] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[22] This is not a case where any matter of public interest or of general importance or application arises. It turns on the application of established legal principles to the particular facts of the case. There is no arguable case of error in the decision. Further, no injustice or counter intuitive result is manifest. Mr Grass remains in the same position as he was before the dismissal of his second general protections application - which is that he can make a general protections application (not involving dismissal) to the court if he wishes.

[23] The Commissioner's conclusion that Mr Grass was not dismissed by the Association was correct. It was not an error on a jurisdictional fact. We are not satisfied, for the purpose of section 600(2) of the Act, that it would be in the public interest to grant permission to appeal and we are not persuaded that it is otherwise appropriate to exercise our discretion to grant permission to appeal in this case.

[24] Permission to appeal is refused.

[4] [2021] FWC 1888

[5] Voros v Dick [2013] FWCFB 9339 at [11]; Asia Pacific Cleaning Services Pty Ltd v Cook [2013] FWCFB 5320 at [24].

[6] Sammartino v Commissioner Foggo [1999] FCA 1231.

[7] Voros v Dick [2013] FWCFB 9339 at [11], Asia Pacific Cleaning Services Pty Ltd v Cook [2013] FWCFB 5320 at [5].

[8] Fair Work Act 2009 (Cth), s.40A

[9] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.

[10] [2010] FWAFB 5343 [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

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

[13] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

Printed by authority of the Commonwealth Government Printer