Fair Work Act 2009

s.604 - Appeal of decisions

DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT BELL COMMISSIONER LEE

Application to appeal a decision in matter number C2023/1280 - permission to appeal required - where settlement reached at conciliation - no decision - jurisdictional prerequisites for an application pursuant to s 604 of the Fair Work Act 2009 (Cth) not satisfied - permission to appeal refused.

[1] On 19 May 2023, Mr Md Ziaur Rahman lodged a Form F7 - Notice of Appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act). The Notice of Appeal makes it clear that Mr Rahman seeks to appeal terms of settlement which were agreed to at a conciliation conference convened by the Commission on 5 April 2023. The terms of settlement concerned Mr Rahman's dismissal from the respondent, Owna Corp Pty Ltd, on 20 February 2023.

[2] For the reasons that follow, no "decision" of the Commission exists and accordingly, the jurisdictional prerequisites for an application to appeal a decision pursuant to s 604 of the Act are not satisfied. Further, permission to appeal is refused.

[3] On 8 March 2023, Mr Rahman applied to the Commission pursuant to s 365 of the Act. Mr Rahman alleged that he was dismissed by the respondent in contravention of the general protections provisions in Part 3-1 of the Act.

[4] Consistent with the Commission's power and obligation to deal with disputes (other than by arbitration) where an application is made under 365,[1] a conference was convened on 5 April 2023. The notice of listing provided a hyperlink to the Commission website which (a) identifies that the conference will be administered by an "independent staff conciliator," (b) details the role of a conciliator, and (c) identifies the possible outcomes of a "general protections dismissal," including identifying that where the parties agree to a settlement it "creates a legal contract between the parties."

[5] The respondent filed a response to Mr Rahman's application on 3 April 2023 in which it denied the allegations.

[6] The conciliation proceeded on 5 April 2023. Following the conciliation, the Commission emailed the parties a letter dated 5 April 2023 and titled "Conference outcome." The letter identified the matter, and stated relevantly as follows:

"Thank you for your involvement in the conciliation conference for this case. I confirm that the matter has settled with the substantive elements of the agreement being:

• payment of a gross amount of $4,576.00 (representing 2 weeks' pay), taxed according to applicable law

A draft agreement reflecting the agreed terms and containing the standard terms for such agreements is attached."

[7] Terms of settlement were attached to the email. Relevantly, the agreement contained a counterparts clause to the effect that the agreement was capable of being executed when each party holds a copy of the terms of settlement signed by the other party, even though the signatures of both parties do not appear on the same document.

[8] Mr Rahman responded to the Commission later on 5 April 2023, stating relevantly as follows:

I will sign the paper and send back to you as soon as possible"

[9] On 6 April 2023, Mr Rahman emailed the Commission attaching a signed copy of the terms of settlement, and stating as follows:

[10] Mr Rahman did not copy the respondent into this email.

[11] Later on 6 April 2023, the respondent's representative emailed Mr Rahman requesting a signed copy of the terms of settlement. Mr Rahman responded advising that he had provided his signed terms of settlement to the Commission. The respondent's representative replied, advising Mr Rahman to send all correspondence to the representative as the Commission matter was now closed. Mr Rahman directed his reply email to the Commission, copying in the respondent's representative, stating relevantly as follows:

"Can you pls take care of this email as well as onward ones ?

I do a practicing & performing job like you - guys.

In addition, I like to save my time & energy avoiding any unnecessary contact."

[12] On 12 April 2023, the respondent's representative emailed the Commission seeking a copy of Mr Rahman's signed terms of settlement. The email noted that Mr Rahman had not provided the respondent with a copy, but indicated he had emailed signed terms to the Commission. The Commission provided all parties with a copy of Mr Rahman's signed terms of settlement. Mr Rahman replied to that email stating relevantly as follows:

"I signed the resolution paper mistakenly - sorry for that.

I found the Fairwork Commission's resolution is not lawful at all.

However, I want to take my case to Court for Lawful Remedy

[13] Later on 12 April 2023, the Commission acknowledged Mr Rahman's email and advised that a response would be provided in due course.

[14] On 20 April 2023, the respondent's representative emailed the Commission attaching Mr Rahman's signed terms of settlement (dated 6 April 2023) and the respondent's signed terms of settlement (dated 19 April 2023), and stated relevantly as follows:

"We confirm that the parties attended a conciliation conference on 5 April 2023, where a binding agreement was reached. Subsequently, the agreement was put into writing and both parties have signed Fair Work Commission Terms of Settlement. We have attached a copy of the signed Terms of Settlement for your reference.

It is the Respondent's intention to comply with the executed Terms of Settlement and we expect that the Applicant will do the same.

We understand that the Applicant has raised concerns about signing the deed 'by mistake.' It is our position that an agreement was made on 5 April 2023 at the conciliation, the written deed was signed by the Applicant on 6 April 2023 and [then] sent a subsequent email to the Commission/Respondent indicating he had 'signed by mistake' on 12 April 2023 (6 days later). The agreement was entered into voluntarily by both parties during the conference, and it is binding from 5 April 2023. The Respondent will now act on the agreement made on 5 April 2023."

[15] At the hearing, the respondent's representative advised that, on 28 April 2023, Mr Rahman received payment, in full, from the respondent in accordance with the terms of settlement.

[16] Also on 28 April 2023, Mr Rahman sent three emails to the Commission and the respondent's representative.

[17] The first email stated relevantly as follows:

"As I confirmed - I did not agree to the resolution - managed by [conciliator] as well as it should not be revealed by Fairwork to my respondents - representative

Rather it is my unprofessional mistake because of scenarios. I expected lawful remedies which were rejected before [conciliator] who was clearly sided with my employer - out of blue !

# one year employment at least or equivalent - Full time, high income annual rate

# 2009 act says - Employer can not void contract at all at any time without valid reasons - which didn't happen in my scenarios as well as employer- owna's scenario.

I like to verify my law understanding by court - when I see fair-work panel member has insufficient knowledge of Law as well as not sufficiently neutral.

[18] The second email stated in full as follows:

"To be clear, I mean it by " my signature by mistake on resolution paper " - should not be revealed by Fairwork to my respondents - representative - when I am not agreed to."

[19] In the third email, Mr Rahman sent a partial copy of his terms of settlement, commencing with the counterparts clause and concluding with the section wherein his signature was placed.

[20] The Commission emailed the parties on 2 May 2023, stating relevantly as follows:

"I refer to the above matter and below correspondence

As both parties have signed the terms of settlement in this matter, the Commission is unable to issue a certificate.

The matter remains closed and no further action will be taken.

Any disputes in relation to a signed agreement, can only be disputed in a court of competent authority."

[21] Mr Rahman replied on 5 May 2023, advising, relevantly, as follows:

"Thank you for your conclusive official email I was looking for - The matter remains closed and no further action will be taken.

However, I repeat - I did not agree as well as I signed wrongly based on my scenarios as I mentioned a couple of times.

I find it - serious unauthorized action done by Fair-work commission staff members who have no clear knowledge about their actions & related laws.

As I know - fair-work is limited - cannot abuse/force any resolution. In addition - I can correct my mistakes , withdraw signed or unsigned resolutions any-time.

I want to explain further in Court. I find now - Fairwork's entire team who are informed , is part of corrupting benefits with Owna - key people."

[22] On 19 May 2023, Mr Rahman filed his Form F7 Notice of Appeal.

[23] Sections 604(1) and (3) of the Act are, in full, as follows:

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

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

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

(3) A person may appeal the decision by applying to the FWC.

[24] It is a jurisdictional prerequisite to the Commission granting permission to appeal, and to the competency of an application to appeal, that the putative appellant appeal a "decision" of the kind prescribed by s 604(1).

[25] The relevant authorities with respect to what constitutes a "decision" for the purposes of s 604 of the Act were recently considered by a Full Bench of the Commission in CPSU v ABC.[2] The Full Bench identified that "a decision is the operative exercise of a power, with legal force or effect."[3] A decision is to have such force and effect, or legal consequences, as is given to the decision by the law pursuant to which it was made.[4]

[26] In his Notice of Appeal, Mr Rahman identifies a conciliator of the Commission as the relevant decision maker and identifies the date of the "decision" as 5 April 2023.[5] Mr Rahman describes the decision as he is appealing in the following terms:[6]

3.1. The Respondent will pay to the Applicant the amount of $4,576.00 gross (representing 2 weeks' pay), taxed as per applicable law, within 7 days of the Applicant and the Respondent signing these terms of settlement.

3.2. The dollar amount specified in these terms of settlement will be paid by the Respondent by electronic funds transfer into the Applicant's nominated financial account.

[27] At the hearing, Mr Rahman said he intended not to appeal the terms of settlement, but rather that he was seeking a lawful remedy, or rightful verdict, or rightful outcome. Further, Mr Rahman submits that the law had not been applied, and that he was not happy with what had transpired. Mr Rahman also said that he wanted to verify his understanding of the law with the Commission before going to a court.

[28] We do not consider Mr Rahman has appealed a decision, nor do we consider any decision to have been made with respect to his application pursuant to s 365 of the Act.

[29] An application pursuant to s 365 of the Act concerns a general protections dispute involving a dismissal. The Commission must deal with the dispute (other than by arbitration).[7] This may be by mediation or conciliation, or by making a recommendation or expressing an opinion.[8] Upon satisfaction that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, the Commission must issue a certificate to that effect.[9] Further, the Commission must advise the parties if it considers that arbitration under s 369, or a general protections court application in relation to the dispute would not have a reasonable prospect of success. The issuance of a certificate is, in most cases, a necessary antecedent to the making of a general protections court application.[10]

[30] With the exception of disputes going to the Commission's jurisdiction, procedural matters and the general powers and obligations of the Commission, this represents the scope of the authority which the Act confers on the Commission where an application under s 365 is made.[11] It is only the issuance of a certificate pursuant to s 368(3)(a) upon which legal consequences are attached, and so represents the only relevant "decision" the Commission will make in this context. The validity of a certificate may be challenged in a court,[12] though unsurprisingly, no occasion has arisen for a Full Bench of the Commission to consider such a challenge.

[31] A failure to act, or a wrongful denial of, or failure to exercise, jurisdiction can be a jurisdictional error.[13] It follows that a failure to issue a certificate pursuant to s 368(3)(a) may amount to an error going to the Commission's jurisdiction and may, in the right circumstances (discussed below at [37]-[38]), be appealable pursuant to s 604 the Act. But that is not what has occurred here.

[32] Having received a competent application made pursuant to s 365 of the Act, the Commission in this matter held a conference where the dispute was conciliated or mediated in accordance with ss 368(1), 592 and 595(2). In so doing, the Commission acted in accordance with the Act.

[33] The parties reached an agreement during this conference. The terms of the agreement were sent to the parties, together with a letter identifying the substantive elements of the settlement. The existence, validity and performance of the settlement agreement are not the subject of this decision.

[34] Where a settlement is reached by way of a private agreement between parties to a dispute, the recognition by the Commission that the matter is finalised is not immediately a "decision." It is a mere administrative step bearing more similarity to the receipt of a notice of discontinuance than the operative exercise of a power, with legal force or effect.

[35] In the circumstances of this matter, as per the email set out above at [20], a staff member of the Commission (as opposed to a statutorily appoi[14]ed Member)14 emailed the parties on 2 May 2023. The email advised that each party had signed the terms of settlement, and so the Commission was unable to issue a certificate.

[36] The "FWC" for the purposes of the Act does not consist of persons who do not hold office. It follows that persons who do not hold office cannot make decisions that may be the subject of an appeal pursuant to s 604(1)(a) of the Act,[15] unless a delegation is made. The power to issue, or refuse to issue, a certificate under s 368(3)(a) cannot be delegated.[16] In this respect, the 2 May 2023 email amounts to no more than a statement of the Commission's view that the matter was finalised in circumstances where an executed agreement was received.

[37] Upon recognition that the dispute the subject of the s 365 application has been resolved, the Commission's jurisdiction to deal with the matter is ostensibly at an end. This is so because the conditions in s 368(3)(a) could never be satisfied and a certificate could never issue.[17] Further, the common law concept of accord and satisfaction may arise whereby the current cause of action is "extinguished" and replaced with a new cause of action based on the agreement.[18] In both cases, an interrogation of the existence of the settlement agreement[19] and the satisfaction of a claim by the provision of the consideration set out in the accord will often be necessary.[20]

[38] In any event, having considered its jurisdiction to be at an end on the basis of a fact in existence (i.e., an effective settlement agreement), and not the exercise of a statutory power, the Commission retains jurisdiction to decide on a challenge to that conclusion. The ordinary course to be adopted where a party challenges the validity of a settlement would be for a Member of the Commission to decide on the challenge in writing,[21] whether that decision is expressed in a formal publication or otherwise.[22] Unless and until a decision is made to resolve that challenge, there is no "decision" to appeal.

[39] For the reasons given, no "decision" of the Commission exists. Accordingly, the jurisdictional prerequisites for an application to appeal a decision pursuant to s 604 of the Act are not satisfied.

[40] We have also considered whether Mr Rahman's Notice of Appeal seeks, in effect, for the Commission to continue to deal with his general protections dispute under s 368 and that the "decision" he seeks to appeal is the Commission's purported failure to do so. If that is Mr Rahman's intention, permission to appeal is refused. Mr Rahman's Notice of Appeal discloses no matter we consider is in the public interest,[2] nor is there any other reason we consider it would be appropriate to grant leave in all the circumstances. Permission to appeal in those circumstances is refused.

[1] Fair Work Act 2009 (Cth) s 368(1)

[2] CPSU, the Community and Public Sector Union (090V) v Australian Broadcasting Corporation T/A ABC [2023] FWCFB 91

[3] Ibid at [29] citing Shop, Distributive and Allied Employees Association v Australian Industry Group (2017) 253 FCR 401; [2017] FCAFC 161 at [75]- [76]; Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees' Union (2015) 230 FCR 565; [2015] FCAFC 11 at [33]- [40]

[4] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23] citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [46]

[7] Fair Work Act 2009 (Cth) s 368(1)

[8] Fair Work Act 2009 (Cth) s 595(2)

[9] Fair Work Act 2009 (Cth) s 368(3)(a)

[10] Fair Work Act 2009 (Cth) s 370; Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [32]

[11] See, Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]

[12] Bridges v Norling (t/as iTravel Forster) [2016] FCCA 212 at [35]- [57]; Knight v Visionstream Australia Pty Ltd [2017] FCA 1513; see also, Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [75] citing Forbes v Petbarn Pty Ltd [2018] FCA 256 at [65]- [66]

[13] Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [11]; Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [12]; see also, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [80] citing Ex parte Hebburn Ltd; Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420

[14] Fair Work Act 2009 (Cth) Pt 5-1 Div-5

[15] Fair Work Act 2009 (Cth) ss 12 ("Fair Work Commission" and "FWC"), 575 and 598(1)

[16] Fair Work Act 2009 (Cth) s 625

[17] See, eg, MacFarlane v AECOM Australia Pty Ltd [2021] FWCFB 1343; Mccaffrey v Transdev Melbourne [2015] FWC 3400; Naorin v Nationwide News Pty Ltd [2018] FWC 6996

[18] Australia Postal Corporation v Gorman & anor [2011] FCA 975; (2011) 196 FCR 126 at [31]- [33]; see also, Lewer v Australian Postal Corporation [2023] FWCFB 56; Kelly Thomas v Western Scaffold Pty Ltd [2020] FWC 2051

[19] See generally, Subeg Singh v Sydney Trains [2017] FWCFB 4562

[20] See generally, Zivkovic v Parke [2022] VSCA 43 at [77] citing Osborn v McDermott [1998] 3 VR 1, VR 7-8 and 10

[21] Fair Work Act 2009 (Cth) s 601(1)(a) and Pt 3-1

[22] Fair Work Act 2009 (Cth) s 601(4), (5)(a) and (6), noting, however, that a decision may also be produced dismissing the application pursuant to s 587 of the Act engaging publication requirements; see, Lewer v Australian Postal Corporation [2023] FWCFB 56 at [56]- [57]

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