The attached document replaces the document previously issued with the above code on 2 June 2020.

[2020] FWCFB 2894

Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against certificate issued by Conciliator P Guilfoyle at Sydney on 20 May 2020 in matter number C2020/468.

[1] Mr Luke Tamu has applied for permission to appeal a decision to issue a certificate pursuant to s 368(3)(a) of the Fair Work Act 2009. While Mr Tamu's notice of appeal, which was filed on 27 May 2019, refers to this decision as having been made by a staff conciliator of the Commission, the certificate in question (certificate) was in fact issued by Deputy President Cross on 20 May 2020. In his notice of appeal, Mr Tamu sought a stay of the decision under appeal and an expedited hearing of his appeal. It is accepted that the appeal has an element of urgency, in that the effect of the issue of the certificate is to trigger the 14 day period in which a general protections court application must be filed under s 370(a)(ii). Accordingly, rather than list the application for a stay, the matter was listed for a hearing to take place on 1 June 2020, three working days after the notice of appeal was filed. Consistent with the treatment of the matter as one involving urgency, Mr Tamu was directed to file an outline of submissions in support of his application for permission to appeal by close of business on 29 May 2020.

[2] The background of the matter is as follows. Mr Tamu was formerly employed by World Vision Australia (WVA). On 28 January 2020, Mr Tamu filed an application for the Commission to deal with a dismissal dispute pursuant to s 365 of the FW Act. In that application, Mr Tamu contended that he had been dismissed by WVA effective from 23 January 2020, and that this dismissal was in contravention of ss 340, 343, 344, 351 and 352 of the FW Act.

[3] Under s 368(1) and s 595(2), the Commission is empowered to deal with a dispute the subject of an application under s 365 by mediation, conciliation, or by making a recommendation or expressing an opinion, but not by arbitration (except by consent and after the issue of a s 368(3)(a) certificate). On 4 February 2020, the matter was listed for a telephone conference before a staff conciliator to be held on 6 April 2020. On 3 April 2020, Mr Tamu sought an adjournment of the conference on the basis that he was unwell and had been required to self-isolate. This request was granted, and the conference was re-listed to occur on 17 April 2020. On 15 April 2020, Mr Tamu sought a further adjournment on the basis that he remained unwell and was located in an area with phone coverage issues. This adjournment request was eventually granted after Mr Tamu produced a medical certificate covering the date of the listing, and the conference was relisted to occur on 20 May 2020. Prior to the conference, a number of items of correspondence passed between Mr Tamu and WVA concerning Mr Tamu's request that WVA produce to him a wide range of documents pertaining to his employment prior to the conference.

[4] On 15 May 2020, Mr Tamu by email confirmed his intention to participate in the conference listed for 20 May 2020. For relevant purposes, his email included the following:

"I refer to the above referenced matter, now scheduled for conciliation on 20/05/2020 and confirm that it's my intention to proceed with conciliation and thank you for your understanding.

As a high priority, I would like only to discuss the matter of my reinstatement at World Vision Australia at conciliation as the organisation appear not to have followed its internal code of resolving conflicts in spite of the fact I have requested numerous times. Further, I was relocated by World Vision Australia to Sydney and I have dependants and furniture to relocate back to Brisbane, if my employment has come to an end.

I note counsel for World vision Australia has indicated he wants to proceed with conciliation on 20th May. I also consent to proceeding with conciliation SAVE I will only discuss reinstatement, as I'm not in a position to discuss other matters or discuss how harsh, unfair and unreasonable the termination was and on what grounds, as the organisation has not provided requested documents to help me to prepare for conciliation.

If reinstatement will not be offered, then I kindly petition for the matter to proceed to full hearing..."

[5] On 18 and 19 May 2020, Mr Tamu in a number of emails objected to the legal representation of WVA at the conference. On the morning of 20 May 2020, Mr Tamu sent the following email to the Commission:

I am writing to inform the Commission that given that the employers legal team wrote to me if I apply for an adjournment today, they would file an allocation of abuse of process. I'm concerned. I'm also concerned greatly in that in spite of the fact I requested for copies of documents to help me to prepare for conciliation in an email copied to the Commission dated 7th and 12th May respectively, I have not received a single complete set of documents. Given that I had been requesting for information from Ms Macrew and Mr Callaghan since June 2019 and Mr Callaghan without much success. This was highlighted in my email dated 12th July also copied to the Commission. I note however, that some payslips were emailed by Counsel for World Vision Australia, With thanks. However, given that they are incomplete as they may not reflect actual hours and the documents I requested to substantiate (Ento records, Waysact (now ever-giving record) and copies of signed documents that payroll used to process each document)I do not have any information to prepare for this conciliation and it seems outright unfair for a full conciliation to proceed today without being provided with copies of documents requested in the first incidence. As a result of not being provided with documents, including any supporting documents to the allegations that Steve put forward in his letter dated 26th June, and the manner in which an "investigation" was conducted solely by one person that I had complained about previously and also using a different procedure of "investigation" to what was used when both Karyn and Steve were investigating another Team Leader in NSW also, who has been in the company for 8 years and actually never went to the field many times (not just one day) as Mr Harris alleged of me, and was acquitted after an "investigation". I would like to view witness statements and also notes of the "disciplinary meeting" on 22nd, given that Karyn told me that I will not get copies of any notes of that meeting, when both Karyn & Elisa rang new on 21 and 22nd when I was still in hospital and in deep pain and undergoing treatment. My only response was via email, which took me almost a day to type with one finger and in pain as I was being told a decision will be made if I fail to respond.

Given the circumstances, I have requested for all documents on my HR File as I cannot be sure what transpired and I kindly request to be provided with all documents on file and copies to the Commission, in order to discuss today other options at conciliation of [sic; if] reinstatement will not be offered today. I would like to resume my work again with World Vision Australia and my last email to Mr Callaghan, Chief of P&C indicated steps I was undertaking so that when I resume work I will be a better person through this experience.

Therefore I look forward to conciliation today to discuss what went wrong and what we could do to make it right. I would want this resolved as soon as possible. If reinstatement is not offered, then this letter should be treated as an application to request a future conciliation after I have been provided with documents by World Vision Australia."

[6] The email attached a medical certificate from Dr Natalie Cook dated 19 May 2020 which certified that "Mr Luke Tamu has a medical condition and will be unfit for work tomorrow".

[7] The conference proceeded on 20 May 2020, but the dispute was not resolved. Consistent with the Commission's usual administrative procedures, the staff conciliator sent a report to the Deputy President concerning the outcome of the conference. This report recorded, among other things, that:

• permission had been granted to WVA for legal representation at the conference;

• Mr Tamu was only prepared to settle the dispute on the basis that he was reinstated in his employment with WVA;

• WVA was not prepared to consider reinstatement;

• both parties agreed that all reasonable steps to resolve the dispute had been or were unlikely to be successful and requested that a certificate be issued, although Mr Tamu also requested that there be a further conference before a member of the Commission.

[8] On 22 May 2020, Mr Tamu sent an email to the Commission requesting an extension of time in which to file a general protections court application, and referred to ill health caused by "consistent...workplace bullying and harassment". He was advised that the Commission's involvement in the matter had ceased with the issue of the certificate. Mr Tamu then sent the following email the same day:

"I'm confused. The meeting on 20th was supposed to be conciliation, which didn't happen as per my email dated /0th [sic, presumably "20th"] to the commission I just wanted to find out at conciliation (on 20th) whether or not reinstatement will be offered.

I asked that question at start, they said "no", then they wanted to drag me into further discussions. At which point conciliation didn't occur at I timed at 2:56. I was also told by the conciliator at the start that there will be no recording and he admitted world vision Legal Counsel, and then asked me if I objected.

Your documents said you conducted a conference call? So I'm confused if conciliation is same as conference call.

[9] On 26 May 2020, Mr Tam sent the following email to the Commission:

"NOTES from what was supposed to be a conciliation meeting, we have redacted content that is confidential.

- On 20th May, At 2:29PM, I received a call from the Conciliator. He had on the phone two lawyers reoresenting World Vision Australia (Kingston Reid) and also Karyn Mackrew ( Senior P & C) and Elisa Lurato ( Head of Retail & Activations) .

-Conciliator explained the reason if the call and also the procedure going forward if matter was not settled.

-He then admitted Legal Counsel for World Vision (I had already raised objection in writing at least twice to FWC). After reading the section and title under which FWC can admit a lawyer, and after having been admitted to represent WVA at conciliation, WVA lawyer said that he had to represent WVA because the matter was complex in that I already had an active case alleging discrimination in VCAT.

-Conciliator then asked me if I OBJECTED, after admission had already been actioned

- I first said before saying anything else if I can get a copy of the transcript following that meeting.

-Conciliator objected and asked me if I was recording I responded, "I'm not recording as that would be illegal."

-Conciliator also checked with Elisa and others if they were recording. She said no.

-I then objected to Legal Council for WVA being admitted and said that there was no active case in VCAT against WVA as an order had been issued to that effect. I said, " the matter was not complex."

- I also asked Conciliator if he has received my medical certificate filed with FWC via email [email address removed]

- He said," I can't see your certificate, if you filed a certificate then I can't proceed with this conciliation.'

- I said, "I wish I had a lawyer representing me today. My lawyer was threatehed and having Legal counsel in these conciliation when I'm sick and without a lawyer would further deprive me."

- The Conciliator asked me what outcome I wanted at conciliation. I replied, 'i wanted Reinstatement only." At which stage I asked, "

- Conciliator asked me if I can participate in another conciliation if this one didn't work. I said " yes" and added this was also put forward in writing to FWC on 20/05/2020.

- Conciliator asked Counsel for WVA if they would participate in another conciliation, he said no.

- Counsel for WVA said, " my client will not be reinstating Mr Tamu."

- Counsel for WVA added" unless Mr Tamu has other offers."

-i said, " thats Ok" They (WVA) knew I was only interested in knowing one thing: whether reinstatement was possible or not given that they have not provided me with requested documents.

- Conciliator asked Counsel for WVA if they were OK for FWC to issue me with a certificate. He said, "yes."

I thanked all of them, said bye and exited the call timed 2:56.

The above discussions were not of a confidential nature as all 6 of us were joined together on one call.

As stated, we have made redactions and have removed 8 minutes of confidential discussions. If anyone disputes the record, let them email a copy of what transpired by COB 26/05/2020."

[10] As earlier stated, Mr Tamu lodged his notice of appeal on 27 May 2020.

[11] Mr Tamu's grounds of appeal were as follows:

• - The decision is appealed because on 20/05/2020. I filed a medical certificate with the Commission. The Conciliator seemed not to have noted the certificate on file and when the appellant requested the Conciliator if he had seen the certificate, he said that he didn't seem to have it on file and if I had submitted a certificate, then he would not proceed with the mediation.

• - Since the appellants case against World Vision Australia is a matter of public interest, he appeals against the decision to issue a certificate, and it cannot be said with absolute confidence that all reasonable steps to resolve issues at mediation had been made and unsuccessful, also compounded with the fact that there seems to have been almost no mediation, as a result of refusal by the World Vision's legal team to produce documents that should have otherwise been produced in June/July 2020 to help the applicant prosecute a mediation.

• - The applicant has attached to this application notes of the meeting. The attached notes of the meeting are actually not confidential as these were matters that were discussed when Four World Vision people were on the phone, the Conciliator and the applicant. The confidential matters discussed (8 minutes) have been redacted. The entire meeting lasted 27 minutes instead of the two hours that had been scheduled by the Commission.

• - The applicant was told he won't get copies of transcript and therefore compiled notes, and consistent with the applicant's understanding, the Commission retains or is supposed to retain transcripts of conciliation (except contents that are confidential), so that if there are any issues, the Full Bench can listen to the transcript and figure out what transpired.

[12] He contended in his notice of appeal that the grant of permission to appeal would be in the public interest because: "As per Section 400 (1) of the FW Act, the matter is of public interest and hence this urgent application".

[13] Mr Tamu did not file a written outline of submissions in accordance with the Commission's direction. A few minutes before the commencement of the hearing, he emailed a written submission to the Commission. This submission was almost entirely concerned with the merits of Mr Tamu's dispute with WVA. The only propositions relevant to the issue of the certificate and the appeal grounds were as follows:

"The Conciliator, having arrived at a correct decision that if the appellant had filed a sick certificate for 20/05/2020, then he would not proceed with conciliation made an error of fact when he deviated and a certificate was issued. The appellant had filed for sick and was sick on 20/05/205 and the relevant action would have been to adjourn the meeting, which in effect seems not to have taken off.

There also appears to have been errors in process and the interpretation of the law, regarding admitting Counsel. Admitting Counsel for World Vision Australia (WVA) in the first incidence and then requesting the appellant to object. Any objection would have been counter-productive.

There was material presented to FWC via email which was at hand and copies of emails dated 7th May and 12th May requesting for sets of documents from the respondent before any conciliation could proceed.The respondent was well aware that the appellant only had one question regarding return to work on 20th, which had been communicated in writing and the right action for respondent to have done would be to send an email and either indicate they would not discuss return to work or provide the documents requested to enable the appellant to prepare for conciliation. At the face of it, the appearance of four representatives for WVA at conciliation, without any attempts to provide material that has been requested for a year may have been aimed at derailing conciliation.

Given that no full conciliation commenced on 20th May 2020, the appellant petitions the Full Bench to grant permission to appeal as a matter of public interest."

[14] An appeal under s 604 of the FW 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.[1] There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:

• (1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.

[15] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[2] The public interest is not satisfied simply by the identification of error[3], or a preference for a different result.[4] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issue 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..."[5]

[16] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[6] 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.[7] 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.[8]

[17] We do not consider that permission to appeal should be granted in this case because Mr Tamu's appeal grounds and the further proposition raised in his appeal submission are entirely lacking in merit. In particular:

(1) The material before us does not support the proposition that Mr Tamu was unable to properly participate in the conciliation conference because of illness. Although the email sent by Mr Tamu to the Commission on 20 May 2020 prior to the conciliation conference attached a medical certificate, that certificate only specified that Mr Tamu was unfit for work on 20 May 2020, and said nothing about his medical condition being such as to render him unfit to participate in a telephone conference (which did not require him to leave his place of residence). In any event, in the same email Mr Tamu confirmed that he wanted to participate in the conciliation conference in order to resolve the dispute as soon as possible. He did not apply for an adjournment either in that email or upon the commencement of the conference, and the staff conciliator's report[9] about the conference as well as Mr Tamu's own notes confirm that he was able to fully participate in the conference. To the extent that Mr Tamu implicitly raises the proposition that he had a medical condition which permitted to participate in the conference only for the purpose of discussing his reinstatement, that proposition is obviously untenable.

(2) The proposition that Mr Tamu needed WVA to produce a range of documents in order for him to properly participate in the conciliation conference also lacks merit. It has not been demonstrated to us that the documents were necessary for or relevant to the purpose of Mr Tamu endeavouring to reach a settlement of his dispute with his former employer, and indeed we infer that he sought the documents for the purpose of arguing the merits of his case rather than settling it.

(3) It is abundantly clear that Mr Tamu took the position at the conference that he would settle the dispute only on the basis that he was reinstated to his former employment with WVA. He was entitled to hold that position. However, WVA took the position that it was not prepared to consider Mr Tamu's reinstatement, and it was equally entitled to hold that position. WVA apparently indicated that it was prepared to consider other options for settlement, but Mr Tamu was not prepared to consider this. In circumstances where the parties to the dispute held such fixed positions, it is not surprising that no settlement could be reached and that the conference only lasted for a relatively short period.

(4) Mr Tamu did request that a further conciliation conference be conducted by a member of the Commission, but he had no right to such a conference, and it is apparent that this was opposed by WVA, which wanted the s 368(3)(a) certificate to be issued forthwith. Given the fixed positions of the parties, it was reasonably available to be concluded that a further conference would serve no purpose and would be unlikely to resolve the dispute.

(5) No relationship has been demonstrated or is apparent between the fact that permission was granted pursuant to s 566(2)(a) for WVA to be legally represented at the conference and the issue of the s 368(3)(a) certificate.

[18] Consideration as to whether a certificate should be issued under s 368(3)(a) requires the making of an evaluative judgment as to whether "all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, successful". Once the Commission is satisfied as to that matter, the certificate must be issued. We consider that it was reasonably open to the Deputy President to reach a state of satisfaction that all reasonable attempts to resolve the dispute between Mr Tamu and WVA had been or were likely to be unsuccessful. We do not consider that it is arguable that the Deputy President's satisfaction as to this matter was legally unreasonable.

[19] The appeal raises no issue of legal principle, general importance or wider application. We do not consider that the grant of permission to appeal would be in the public interest, nor do we consider that we should exercise our discretion in favour of the grant of permission to appeal.

[20] Accordingly permission to appeal is refused. We remind Mr Tamu that, since the s 368(3)(a) certificate was issued on 20 May 2020, he only has today and tomorrow (3 June 2020) left to file a general protections court application in the Federal Court of Australia or the Federal Circuit Court of Australia unless an extension of time is granted pursuant to s 370(a)(ii) of the FW Act.

[1] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[2] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210, 64 ALJR 87, 89 ALR 71 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398, 275 ALR 408 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ_; Coal & Allied Mining Services Pty Ltd v Lawler and others_ [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[3] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review_; Coal & Allied Mining Services Pty Ltd v Lawler_ [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[5] [2010] FWAFB 5343, 197 IR 266 at [27]

[6] Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 159 ALR 1, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]

[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[8] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[9] A copy of this report was provided to the parties prior to the hearing of the application for permission to appeal, and Mr Tamu's attention was drawn to it at the hearing. He did not contest its accuracy.

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