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[2020] FWC 5084
General information, not legal advice.
Fair Work Commission
2020-09-22
Original judgment source is linked above.
s.608 - Referring questions of law to the Federal Court
Application for referral of questions of law to the Federal Court - application refused
[1] This decision concerns an application by Mr Manu Chopra for the referral of questions of law to the Federal Court under s 608 of the Fair Work Act 2009 (Act), and a request by Mr Chopra that I recuse myself from determining that application. Pursuant to ss 582 and 584 of the Act, the President has delegated to me his functions and powers under s 608 and transferred to me Mr Chopra's s 608 application for determination. The questions that Mr Chopra seeks to refer to the Court relate to Part 6-4B of the Act, which concerns workers bullied at work, and the power of the Commission under s 587(1)(c) to dismiss applications that have no reasonable prospects of success.
[2] The background to the referral application is as follows. On 18 December 2019, Mr Chopra made an application in the Commission under s 789FC of the Act, in which he contended that he had been bullied in his capacity as a teacher at Al Siraat College Inc (respondent) by six staff members and also by students. The matter was initially allocated to Deputy President Gostencnik, but Mr Chopra objected to the Deputy President dealing with his matter and it was reallocated to Deputy President Clancy. On 4 February 2020, the respondent filed a response to antibullying application, in which it objected to the application on jurisdictional grounds, including on the basis that Mr Chopra did not meet the definition of a 'worker' because his maximum-term contract had expired on 19 December 2019.
[3] On 6 March 2020, the respondent applied under s 587 for the Commission to dismiss Mr Chopra's anti-bullying application on the grounds that it had no reasonable prospects of success. The respondent said that a necessary condition for the success of the anti-bullying application was the existence of a risk that Mr Chopra would continue to be bullied at work, and that this condition could not be met, because Mr Chopra was no longer employed.
[4] At a mention hearing on 18 March 2020, Deputy President Clancy directed the parties to file written submissions in respect of the respondent's application under 587. The parties complied with these directions. On 23 June 2020, Mr Chopra requested that the Deputy President recuse himself on the basis of comments he made during the mention on 18 March 2020. The Deputy President decided to determine the application under s 587 and the recusal request on the papers.
[5] In a decision dated 2 July 2020[1], the Deputy President declined Mr Chopra's recusal application. Applying the decision of the High Court in Ebner v Official Trustee in Bankruptcy[2] (Ebner), the Deputy President decided that there was no basis for concluding that a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the questions he was required to determine due to the comments he made in the mention hearing.
[6] In the same decision, the Deputy President granted the respondent's application to dismiss Mr Chopra's anti-bullying application under s 587(1)(c). The Deputy President noted that the power of the Commission to make an order to stop bullying is exercisable if the Commission is satisfied that a worker has been bullied at work, and there is a risk that the worker will continue to be bullied at work (s 789FF(1)(b)(i) and (ii)), and that if the latter element is absent, a claim must fail. The Deputy President accepted the respondent's contention that, because Mr Chopra's maximum-term employment contract had ended, and the respondent had no intention of rehiring him, there was no risk that Mr Chopra would continue to be bullied at work. He therefore concluded that Mr Chopra's anti-bullying application had no reasonable prospects of success, and that it was appropriate to exercise his discretion under s 587(1)(c) to dismiss the application.
[7] On 21 July 2020, Mr Chopra lodged a notice of appeal from the Deputy President's decision of 2 July 2020. It has yet to be heard. On 28 July 2020, Mr Chopra lodged his application under s 608.
[8] On 7 September 2020, Mr Chopra asked that I recuse myself from determining his s 608 application. His reason for doing so is connected with the fact that, after several adjournment requests from Mr Chopra, and having reviewed the file, I decided to dispense with an oral hearing and determine the s 608 application on the papers. Mr Chopra then 'insisted' on an oral hearing. In correspondence to Mr Chopra dated 7 September 2020, my associate advised Mr Chopra, on my instructions, that it is for the Commission to determine 'how, when and where a matter is to be dealt with' (s 589(1)), and that the Commission 'is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act' (s 593). Mr Chopra was also advised that the Act does not require a hearing for a s 608 referral application, and that I did not consider one to be necessary in this case. It was further explained to Mr Chopra that the Commission makes procedural decisions based on its best judgement as to what is reasonably required and appropriate in the circumstances, and that it was evident from Mr Chopra's various applications and correspondence that he is very able to express himself in writing and to make written submissions. I allowed Mr Chopra two weeks to file in writing any further submissions he might otherwise have sought to make orally. I also allowed Mr Chopra two weeks to file submissions in support of his recusal application, which I also decided to determine on the papers. Submissions were due by 5.00pm on 21 September 2020. None were filed.
[9] Applying the decision of the High Court in Ebner, referred to above, I consider that there is no basis to conclude that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to determine, namely Mr Chopra's referral application, because of my decision to determine his s 608 application on the papers, or for any other reasons. I decline to recuse myself. I now consider the referral application.
[10] Mr Chopra asks the Commission to refer to the Court the following six questions, which are set out in his written submissions as follows (footnotes omitted):
"1. On the proper construction of the anti-bullying statutory scheme in s.789FC to s.789FH of the Fair Work Act 2009 (Cth) (the FW Act), once an applicant with standing who is a worker properly makes an application pursuant to s.789FC, and then the respondent in response immediately makes an application for summary dismissal pursuant to s.587(1)(c) as was done in this proceeding:
(a) was the test adopted by the FWC in this proceeding the correct test, specifically, that the onus is on the non-moving party, the Applicant, to satisfy the FWC that the requirement of s.789FF(1)(b)(ii) must be met prior to any hearing or any evidence being tendered or any testimony being led or any cross-examination being done to resolve the obvious disputed questions of material fact and disputed questions of law, or
(b) is it the correct test that the onus is on the moving party, the Respondent, to prove via evidence to a 'definite and certain conclusion' that there is no risk of future bullying at work and that it is manifestly hopeless that the applicant could prove that his s.789FC application has any reasonable prospects of success if taken to a hearing, and so, since his application is bound to fail after the hearing, it should be dismissed now.
(b) Should this decision have been made under s.789FF itself after a hearing with the factual disputes regarding s.789FF(1)(b)(ii) settled via evidence and testimony and cross-examination, and in turn, the disputed questions of law resolved based on the factual findings and oral submissions, regarding whether or not there is a future risk that the worker will return to work and so continue to be bullied at work?
(b) If Yes, then could the FWC, without denying the applicant natural justice, have determined this question without any evidence or testimony or cross-examination or hearing merely because it was classified as a jurisdictional objection, as was done by the Deputy President in this proceeding?
(b) Exactly as it did in this proceeding, in the past six years in the above proceedings initiated pursuant to s.789FC, did the FWC properly invoke its discretion under s.587(1)(c) of the FW Act consistent with Spencer3 before it could summarily dismiss the proceeding?
(c) In the past six years in the above proceedings, was it an error for the FWC to create an absolute rule such that if a worker with standing makes an anti-bullying application pursuant to s.789FC, and is subsequently 'dismissed' or his employment 'ends', then the worker loses his right to continue prosecuting his anti-bullying application and his application is dismissed pursuant to s.587(1)(c) by the FWC, as it did in this proceeding? If Yes, has the FWC created different classes of workers such that a volunteer or a permanent casual who can 'return' to work meets the requirements of s.789FF(1)(b)(ii),4 but a full-time permanent ongoing employee whose employment is terminated after making an anti-bullying application does not?"
[11] The principles that are relevant to the Commission's consideration of an application under s 608(1) for the referral of a question of law to the Court were summarised in Grabovsky v United Protestant Association of NSW Ltd[3] as follows:
"[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one 'of law'; and second, the question must be one 'arising in a matter before the Commission'.
[53] As to the meaning of the expression 'a question of law arising in a matter before the FWC' in Hamzy v Tricon International Restaurants and another [[2001] FCA [2001] FCA 1589; 1589, 115 FCR 78] the Full Federal Court held that a question does not 'arise', within the meaning of what is now s 608(1), 'unless it pertains to an issue that actually exists'. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman's Union of Australia [(1925) [1925] HCA 27; 36 CLR 442] in support of this proposition:
"It is manifestly impossible for this Court or any other Court to 'hear and determine' a question so as to give it the character of a conclusive judgment, unless that question 'arises' so as necessarily to enter into the legal determination of the matter upon the facts stated. Remote or merely possible relation of the question of law to the facts is not enough to make the question 'arise' in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of 'arising'."
[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146 [(1998) 82 FCR 391].
[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s 577 of the FW Act provides that the Commission must perform its functions and exercise its powers in a manner that:
(b) is quick, informal and avoids unnecessary technicalities; and
(d) promotes harmonious and cooperative workplace relations."[4]
[12] The discretion conferred by s 608 should also, where possible and appropriate, be exercised so as to avoid undue delay in the determination of matters before the Commission.
[13] In my view, there is real doubt as to whether all of Mr Chopra's questions and sub-questions are ones that fall within s 608. In particular, I do not see how questions 1(a) or 6(c) can be said to arise in the proceedings. As to the former, there is no indication that the Deputy President considered Mr Chopra carried any onus in the proceeding. As to the latter, I do not consider that the Commission has established an 'absolute rule' of the kind referred to in the question.
[14] However, even if it were accepted that the Commission's discretion under s 608 is enlivened in respect of each of the questions raised, I am not persuaded that I should exercise my discretion to refer any of them to the Court, for the following reasons.
[15] First, Mr Chopra's questions contend or imply that the Deputy President's decision of 2 July 2020 was affected by legal or factual error. There is substantial overlap between the questions sought to be referred to the Court and the fifteen grounds of Mr Chopra's notice of appeal against Deputy President Clancy's decision. In this regard, the s 608 application explicitly states that the questions of law that are sought to be referred to the Court are those which are described in the notice of appeal. Mr Chopra's application effectively seeks to have the Court hear the substance of his appeal instead of the Commission. It is not the Court's role to hear appeals from decisions of members of the Commission. The purpose of s 608 of the Act is to refer to the Court questions of law for determination in appropriate cases, not to involve the Court in a de facto appeal process. A person aggrieved by a decision of the Commission can appeal that decision to a Full Bench under s 604 of the Act.
[16] Secondly, Mr Chopra stated in his written submissions that one important reason why the Court, rather than the Full Bench in his appeal, should determine his questions is the principle of 'nemo judex in causa sua'. This Latin phrase means 'no one judges his own case'. It reflects a principle of natural justice otherwise known as the 'bias rule'. Mr Chopra's contention is that he considers that no Full Bench of the Commission can properly consider the questions he raises, because they challenge the approach of the Commission itself, as reflect in its case law. In particular, Mr Chopra said that two Full Bench decisions in 2015 had endorsed the approach taken by Deputy President Clancy in his anti-bullying case which Mr Chopra contends to be erroneous. Mr Chopra says that the Full Bench that will hear his appeal should not determine the correctness of decisions of the institution of which it is part, because this would amount to the Commission sitting in judgment of itself.
[17] I reject these contentions. First, it is the statutory duty of a Full Bench in an appeal under s 604 to review the correctness of a decision of the Commission. That is the purpose of the Commission's internal appeal function. Secondly, if a Full Bench determines that a decision of a previous Full Bench is incorrect, it is free to depart from it. Thirdly, Mr Chopra's reliance on the bias rule is misplaced, because the Commission is not adjudicating its own matter ('causa sua'), but a matter involving other parties. Fourthly, the application of the bias principle, which concerns both actual and apprehended bias, requires firstly the identification of what it is alleged that might lead a decision-maker to decide a case other than on its merits (for example, some interest of the decision-maker), and secondly an articulation of the logical connection between that matter and the feared deviation from merit-based decision making.[5] Mr Chopra contends that this connection is the existence of Full Bench decisions that are contrary to his argument, which he believes the Full Bench in his appeal will follow. But the existence of particular case law cannot sensibly be considered a matter that would lead the Full Bench to decide the appeal other than on the merits. There cannot therefore be any logical connection between this matter and a feared deviation from merit based decision-making. Actual or perceived bias simply has nothing to do with the matter. Mr Chopra says that certain Full Bench decisions are wrong. His appeal will allow him to challenge the correctness of those decisions.
[18] Thirdly, Mr Chopra says that his questions raise a 'primary issue', namely that the Commission does not have power under s 587 to dismiss an application unless it has reached a final conclusion that it is 'manifestly hopeless', which in the context of an anti-bullying application would require a finding that there was no risk of future bullying. But s 587(1)(c) does not say that the Commission can dismiss an application only if it has 'no prospects of success'. It says that the Commission can dismiss an application if is has 'no reasonable prospects of success'. I consider that Mr Chopra's 'primary point' lacks intrinsic merit. It is in any event a question that can be considered by the Full Bench in his appeal.
[19] Mr Chopra also says that he raises important questions of whether the applicant in an anti-bullying matter should be required to convince the Commission not to dismiss the application under s 587, and what opportunity the applicant should be given to resist a motion under s 587, including whether an evidentiary hearing should be conducted. Any merit these questions might have can be considered by the Full Bench in his appeal.
[20] Another consideration telling against the referral of the questions to the Court is that it would likely involve undue delay in the determination of Mr Chopra's appeal, the listing of which would likely be deferred pending the Court's decision. The delay would be undue, because in my view there is simply no good reason for it.
[21] In my opinion, there are no discretionary considerations favouring the referral to the Court of the questions raised by Mr Chopra. The appropriate course is to refuse the referral application, and for Mr Chopra's appeal to be determined by the Full Bench. The appeal will allow Mr Chopra's contentions of error to be considered and will permit him to mount his challenge to the correctness of previous Full Bench decisions.
[22] The referral application under s 608 is refused.
[5] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8]
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Manu Chopra
Al Siraat College Inc & Ors [2020] FWC 5084
(2000) 205 CLR 337