s.604 - Appeal of decisions

Appeal against decision [2024] FWC 3596 of Deputy President Boyce at Sydney on 30 December 2024 in matter number U2024/12864 - Application for unfair dismissal remedy - Application purportedly dismissed under s 587 of the Fair Work Act 2009 (Cth)- Failure to comply with direction to file evidence and submissions - Applicant with limited English language skills - Applicant sought extension of timetable to obtain legal advice - Request for extension refused - Applicant denied procedural fairness - Whether reasonable basis existed to dismissal application - Whether open to dismiss unfair dismissal application under s 587 on grounds of non-compliance with directions - Specific power to dismiss unfair dismissal application under s 399A- Permission to appeal granted - Decision quashed.

[1] This appeal concerns a decision to dismiss an application before the Fair Work Commission ostensibly on grounds of want of prosecution because of a failure to comply with a procedural direction made by the Commission. The decision involved an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act) made by Meiyun Xue (Ms Xue or the appellant) in relation to her dismissal by Serco Australia Pty Limited.

[2] Ms Xue's application for permission to appeal and to appeal from the decision dismissing her application was heard by the Full Bench of the Commission on 10 March 2025. At the conclusion of the hearing, the Full Bench announced its decision to grant permission to appeal, allow the appeal, quash the original decision and order and remit the matter to another member of the Commission for hearing. Ms Xue's application should never have been dismissed. Orders to that effect were made on that day. These are the reasons of the Full Bench for those orders.

[3] Ms Xue had been employed by Serco for 18 years as a catering assistant at the Villawood Immigration Detention Centre in Sydney prior to her dismissal. Ms Xue is a woman of Chinese descent. Her first language is Mandarin, and she speaks limited English. Serco is a large multinational company operating in the defence, health, justice, immigration, migration, customer service and transport industries. Serco's Australian subsidiary, Ms Xue's former employer and the respondent to this appeal, employs approximately 2,400 people.

[4] On 15 October 2024, Ms Xue received a letter from Serco terminating her employment. The letter stated that, after 18 years of employment, Ms Xue's English literacy levels did not permit her to meet the inherent requirements of the catering assistant role. The letter indicated that Ms Xue's last day of employment was that day.

[5] Ms Xue filed an application for an unfair dismissal remedy on 28 October 2024. On 15 November 2024, Serco filed its response to the application. The file was allocated to Deputy President Boyce on 5 December 2024. No case management conference or directions hearing was conducted. The first communication from the Deputy President's chambers in relation to the application was an email sent on 11 December 2024 containing a Notice of Listing and directions. The application was listed for hearing on 28 February 2025. Relevantly, orders 2 and 3 of the directions issued on 11 December read as follows:

[2] By 4.00pm AEST on Monday, 23 December 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of her substantive unfair dismissal claim.

[3] By 4.00pm AEDT on Wednesday, 8 January 2025, the Respondent must file with the

Commission and serve upon the Applicant an outline of submissions, witness statements, and

any documents in in opposition to the Applicant's substantive unfair dismissal claim

[6] At 3:50pm on Friday 20 December 2024, Ms Xue sent an email that to the Deputy President's chambers in the following terms:

Good afternoon, This is Meiyun Xue, I write this email for additional time for preparing the required documents. Because I am currently seeking legal advice from Legal Aid NSW, which will have a two-week closedown over Christmas, soresuming [sic] operations on 6 January 2025.So can I have more time for the all documents.

[7] At 10:49am on Monday 23 December 2024, the Deputy Presidents' chambers responded to Ms Xue's message with the following email:

The Deputy President does not grant the request for an extension for filing your materials.

The Directions in this matter were issued on 11 December 2024 (see attached). Parties do not have a right for legal representation or advice. Hence, a request based upon an absence of legal representation is not a reason for an extension to be granted.

Further, you have provided no information or evidence of steps taken to date to obtain legal representation, and did not contact Chambers until one business day before the due date of your materials to seek this extension.

Directions must be complied with or the proceedings will be dismissed. You therefore have until 4:00PM AEDT today to file your materials.

[8] On 5 December 2024, Serco had filed a Form F53 indicating that it was being represented by Baker McKenzie Solicitors in the proceedings and naming its partner, Paul Brown, as the nominated contact person. The email of 23 December 2024 was copied to a representative of Serco, Theodore Glavis, but not to Baker McKenzie and, we were informed, did not come to the attention of Serco's solicitors.

[9] On Tuesday 24 December 2024 and without the benefit of the Deputy President's email of 23 December 2024, Mr Brown wrote to the Deputy President's chambers by email in the following terms:

We act for the Respondent, Serco Australia Pty Limited in the above matter and refer to the Orders of the Fair Work Commission issued 11 December 2024.

It would appear that the Applicant has failed to comply with Order (2) in that we are aware of no Outline of Submissions, Witness Statements and/or documents filed and served by the Applicant by 4.00 pm AEST 23 December 2024.

It remains the intention of our client to defend this Application. The Respondent will file its evidence and Submissions in accordance with Order (3) by 8 January 2025. However, in the event of the Applicant seeking an extension to Order (2), we would respectfully ask that Order (3) be extended by a similar period to any permitted delay.

A copy of this correspondence has been sent to the Applicant.

[10] Although noting the apparent non-compliance with the directions, Mr Brown did not ask the Deputy President to dismiss Ms Xue's application. To the contrary, Mr Brown indicated that Serco would file evidence and submissions in accordance with order 3 irrespective of whether Ms Xue filed any further materials. Serco simply sought an extension of the period it had to file its evidence and submissions if an extension was granted to Ms Xue. It did not suggest it had any objection to an extension being granted.

[11] Without any further communication with the parties, the Deputy President issued a decision on 30 December 2024 and made an order dismissing Ms Xue's application.[1] In his decision, the Deputy President extracted s 587 of the Act and referred to a 2011 decision of Commissioner Gooley.[2] Under the heading "Consideration", the Deputy President said:

[9] As the Applicant has made no attempt to comply with Direction [1] and/or the Show Cause Email, and has failed to contact the Commission or otherwise explain their noncompliance, I have decided to dismiss their Application.

[10] In dismissing the Applicant's Application, I find that the Applicant's non-compliance with Direction [1] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.

[11] Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

[12] On 2 January 2025, Ms Xue wrote to the chambers of the Deputy President in the following terms:

I have received the email notifying me of the dismissal of my matter.

I would like to apologise for the request of an extension. English is not my first language and I am an older person, so technology is not easy for me.

I missed all the email until it's too late and was not able to understand what I was reading. I was able to understand that I had a hearing date but was not aware that I needed to provide documents prior to the hearing.

Please give allow another chance for me to get another hearing.

[13] The Deputy Presidents chambers responded with the following email:

Because your case has been dismissed, the Deputy President no longer has any powers to deal it. The file is closed.

In short, no further steps can be taken by the Deputy President as he is now "functus officio" in respect of your case.

Chambers does not intend to engage in any further communication with you about this matter.

[14] Ms Xue subsequently filed a notice of appeal on 7 January 2025. Ms Xue's grounds of appeal were as follows:

My case was dismissed because I was not able to compliant with Directions to serve documentations to the Commission before 4pm on 23rd December 2024. My circumstances lead me to not be able to provide the required documentations. I have very limited English reading/ comprehension skills. When I received the email from the Commission, I had asked my daughter in law to read it and translate it for me. She only read the first attachment which notified me of the hearing date set by the Commission. We both missed the 2nd attachment which had the Directions. It wasn't until the 21st of December when I showed my niece the email that we realized there were Directions and submissions to be made. At that point, and even currently, I do not have a legal representative (I am applying for LegalAid; which will take another 3 weeks or so before I am notified if I am eligible). The Directions outlined that I needed to provide an outline of submissions; which I assumed will need to be written by somebody with a Legal background, along with any other documents in support of my unfair dismissal claim. I had tried to ask my niece to write up an outline of submissions but she did not know what an outline of submissions is suppose to be. I asked my close friends if anybody could recommend a lawyer. But by that stage, I only had minimal time before the due time for my submission. I could not manage to find a lawyer. It was days before Christmas and most lawyer/ legal places were closed. I felt that I had no other choice than to ask for more time in order to provide the adequate documentations.

[15] Ms Xue appeared for herself at the hearing of the appeal with the assistance of an interpreter provided by the Commission and was accompanied by her daughter. Ms Xue was distressed at times during the hearing. Mr Brown appeared, with permission, for Serco. The Full Bench appreciates the assistance he was able to provide, and the respect shown to Ms Xue during the hearing.

[16] The Full Bench is satisfied it is appropriate to grant permission to appeal to Ms Xue pursuant to s 604(1) of the Act. Ms Xue has been wrongly denied the opportunity to pursue her case, and her application was dismissed without there being reasonable grounds for that step to be taken and without her being afforded procedural fairness. Those facts justify permission to appeal being granted. The decision of the Deputy President also raises issues of general application as to the approach to be adopted by the Commission when considering whether proceedings should be dismissed at a preliminary stage on grounds of non-compliance with directions, including in the context of unfair dismissal proceedings. The issues presented by Ms Xue's appeal are important to the practice of the Commission generally and, particularly, in circumstances in which there have been a number of instances of proceedings being dismissed at a preliminary stage without proper justification.[3] Those issues should be considered by the Full Bench.

[17] The Full Bench determined to quash the decision to dismiss Ms Xue's application for an unfair dismissal remedy for a number of reasons. The first reason is that Ms Xue was denied procedural fairness. The Commission is required to act judicially, and the principles of natural justice apply to proceedings before the Commission.[4] What that means is that the exercise of the Commission's jurisdiction is conditioned by the requirements of procedural fairness. A decision made without affording the parties procedural fairness will exceed the jurisdiction of the Commission.

[18] What procedural fairness requires in any particular case will vary depending on the circumstances. The basic requirement is that a party must have a reasonable opportunity to present their case. For example, in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516, the Full Court of the Federal Court recently explained:[5]

Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26].

[19] Procedural fairness at least requires that a party be heard prior to the Commission taking a step to determine an application contrary to their interests. That includes a decision to dismiss a party's application at a preliminary stage without a hearing or determination on the merits. The capacity of a dismissed employee to apply for an unfair dismissal remedy is an important right conferred by the Act and a significant protection for employees. Dismissal of an application results in the extinguishment of an applicant's right to have their application for relief orders under beneficial legislation heard and determined according to law.[6] The exercise of that right should not be lightly curtailed by proceedings being dismissed at a preliminary stage. A party must have a fair opportunity to put their case to the decision-maker for consideration on all matters material to the decision before the decision is made.[7]

[20] Ms Xue received no such opportunity. In the decision, the Deputy President described the email from his chambers sent on 23 December 2024 as the "Show Cause Email". That description is not apt. The email of 23 December 2024 did not ask Ms Xue to show cause why her application should not be dismissed or provide any opportunity for her to do so. The email informed Ms Xue that the request for an extension of the period to file her submissions and evidence had been refused and that "[d]irections must be complied with or the proceedings will be dismissed. You therefore have until 4.00PM AEDT today to file your materials".

[21] The consequences for Ms Xue if she did not comply with the original directions were suddenly and significantly changed. The Deputy President's email essentially converted the original direction into a guillotine order. Ms Xue then had five hours and eleven minutes to prepare and file written submissions and evidence or, she had been informed, her application would be dismissed. The Deputy President did not invite Ms Xue to make submissions as to whether her application should be dismissed if she was unable to comply with the unamended directions, did not conduct any form of hearing prior to dismissing the application and afforded Ms Xue no opportunity to be heard in relation to that question.

[22] Ms Xue was denied procedural fairness, and there can be no suggestion that the denial of procedural fairness was not material. The decision must be quashed for that reason. The decision states that Ms Xue "has failed to contact the Commission or otherwise explain her non-compliance".[8] Ms Xue was not asked to explain her non-compliance. Plainly, if Ms Xue had been provided with an opportunity to explain her non-compliance, there was a realistic possibility of a different outcome.[9]

[23] The second reason for allowing the appeal is that there was, in our opinion, no reasonable basis upon which the Deputy President could have dismissed Ms Xue's application for want of prosecution. The decision states that Ms Xue made "no attempt to comply with Direction [1] and/or the Show Cause Email" and that her non-compliance was "wholly unexplained".[10] Neither statement is correct. Ms Xue's email of 20 December 2024 explained that she could not comply with Direction [1] because she needed additional time to prepare her materials and obtain legal advice from the Legal Aid Commission of New South Wales, and that her attempts to obtain legal assistance had been delayed by a closedown period for Legal Aid over Christmas. She had taken steps to attempt to comply with the directions and provided an explanation as to why her efforts had been delayed before the deadline expiry. The Show Cause email did not impose any separate obligation on Ms Xue and did not seek any separate explanation. The Deputy President misapprehended the facts and failed to take into account the explanation Ms Xue had provided for seeking an extension of time.

[24] The Deputy President's decision not to grant the extension sought by Ms Xue is not strictly the subject of appeal. This procedural decision nonetheless directly led to the dismissal of the application and it might be inferred from the email of 23 December 2024 that the Deputy President did consider Ms Xue's explanation. If that is so, in our opinion, the two reasons given for refusing the extension to the timetable were unsound. The Deputy President said that an absence of legal representation is not a reason for an extension to be granted because parties do not have a right to legal representation or advice. Although there is no right to representation at a hearing before the Commission,[11] a person is entitled to seek legal advice. In Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307, for example, Jessup J observed:[12]

Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.

[25] In some circumstances, a delay resulting from a party seeking to obtain legal advice may justify an extension of the time allowed for submissions and evidence to be filed. This may have been such a case. Serco had already filed a notice indicating it was being represented by a large law firm. Ms Xue is an individual with limited English language skills, no legal training or experience and who had worked for a long period as a catering assistant. If Ms Xue had obtained legal representation, it was overwhelmingly likely she would have been granted permission to be represented. The Deputy President was wrong to regard attempts by Ms Xue to obtain legal advice or representation as being incapable of justifying a variation to the timetable.

[26] The other reason given by the Deputy President for not granting the extension sought was that Ms Xue had "provided no information or evidence of steps taken to date to obtain legal representation". Mr Xue was not asked to provide information or evidence as to the steps she had taken to obtain legal advice. In light of the Deputy President's view in relation to legal representation, it is also unclear how such information or evidence could have made a difference to the Deputy President's decision to refuse to extent the timetable.

[27] In addition, the dismissal of Ms Xue's application on grounds of want of prosecution was a serious step that should not have been taken lightly and required balancing various considerations.[13] These considerations are likely to at least include (to the extent relevant):[14]

• (a) whether, on balancing the prejudice to the respective parties by making or not making such an order, the interests of justice demand that the application be dismissed;

• (b) any explanation offered by the applicant who is in default of the directions for the delay in proceeding and the degree to which that party was personally to blame for any delay (as opposed to delay on the part of a representative);

• (c) the prejudice to the applicant deprived of the opportunity to pursue an otherwise valid claim and to seek relief potentially available under the Act to that party in the Commission;

• (d) whether the applicant's non-compliance with directions is suggestive of an unwillingness to, or lack of interest in, seriously pursuing the proceedings to their conclusion;

• (e) the degree of prejudice caused to other parties to the proceedings and whether the other parties have taken steps to secure progress in the proceedings or, rather, sat on their hands in the face of non-compliance; and

• (f) any inconvenience or disruption that has been caused to the operations of the Commission, including whether the non-compliance is likely to result in delay in the disposition of the proceedings or require hearing dates to be vacated.

[28] The Deputy President did not consider any of those matters. Ms Xue's application was due to be heard two months later, Serco did not complain of any prejudice or suggest it could not contest the application by reason of Ms Xue's default, there was no immediate threat to the hearing date, and no disruption had been caused to the business of the Commission. Ms Xue's request for an extension of time and attempts to obtain legal representation indicated an intention on her part to prosecute the proceedings. Had these circumstances been considered, there was no reasonable basis upon which Ms Xue's application could have been dismissed.

[29] Although the Deputy President referred to the application being dismissed for "want of prosecution", it appears that the only basis for this finding was Ms Xue's failure to comply with a single direction issued by the Deputy President. We emphasise that the dismissal of proceedings before the Commission is not a step that should be taken merely to punish a non-compliant applicant and should only occur where it is warranted having regard to the type of considerations referred to above.

[30] The third reason is that the power relied upon by the Deputy President to dismiss Ms Xue's application did not support the order he made. The Deputy President referred to s 587(3)(a) of the Act. Section 587 provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

[31] To the extent that the reasons for dismissal of the application include a failure to comply with directions, s 587 must be considered in conjunction with s 399A. Section 399A confers a specific power to dismiss an unfair dismissal application at a preliminary stage, including in circumstances where an applicant has unreasonably failed to comply with directions made by the Commission. Section 399A is in the following terms:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[32] The power under s 399A is subject to conditions. The introductory words to s 399A(1) require that the applicant must have "unreasonably" failed to comply with a direction or order of the Commission. Non-compliance, without unreasonableness, does not enliven the power to dismiss an application. Section 399A(2), together with the words "subject to subsection (2)" in s 399A(1), make clear that the power is exercisable only on application by the employer and not on the Commission's own motion.

[33] Section 399A(3) indicates that the section does not limit when the Commission may otherwise dismiss an application. If the Commission has a power to dismiss a proceeding derived from another source, that power is not limited by s 399A. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth), which introduced s 399A, explained:[15]

166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC's general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC's power to dismiss an unfair dismissal application under new section 399A.

[34] As such, s 399A does not preclude the Commission dismissing an application for an unfair dismissal remedy under s 587(1) if the circumstances permit a finding that the application was not made in accordance with the Act, is frivolous or vexatious or has no reasonable prospects of success. It is possible that the conduct referred to in s 399(1)(a)-(c) might support a conclusion an application is frivolous or vexatious or has no reasonable prospects of success.[16]

[35] However, it is not possible to imply into s 587(1) a power to dismiss an application for an unfair dismissal remedy solely because of non-compliance with directions in light of the specific requirements of s 399A. The principle of construction in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 is relevant. In that matter, Gavan Duffy CJ and Dixon J said:[17]

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument' which might otherwise have been relied upon for the same power.

[36] This principle of construction was further explained in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 in the following terms:[18]

As was explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, the relevant principle of construction has been identified by using a number of different terms. These have included whether the two powers are the "same power" or are with respect to the "same matter", or whether the general power encroaches upon the same subject matter exhaustively governed by the special power. But the central question is whether "the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power".

[37] As we have explained, if an application is frivolous or vexatious or lacks reasonable prospects of success, s 587(1) provides a power to dismiss the application, including where such a finding is available because of a failure of the applicant to file material in accordance with directions or attend a hearing. That power is preserved by s 399A(3). It is not possible, however, to rely on s 587(1) to dismiss an unfair dismissal application simply because of a failure to comply with directions in circumstances in which such a power is expressly conferred in s 399A and is subject to conditions.

[38] The Act only intends that the capacity of the Commission to dismiss an unfair dismissal application on grounds of non-compliance with directions is only to be available on application by the employer and where the applicant has behaved unreasonably. In this respect, the Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) indicated:[19]

162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

163. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

• an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
• an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

[39] Ms Xue's application was not dismissed on application by Serco. Despite being represented by experienced solicitors, Serco made no such application. Although the Deputy President asserted that the failure of Ms Xue to comply with Direction [1] was "wholly unsatisfactory", he does not appear to have turned his mind to whether she had behaved unreasonably. For this reason also, it was not open to the Deputy President to dismiss Ms Xue's application.

[40] Finally, Serco's written submissions in relation to the appeal contained an application for the Commission to dismiss Ms Xue's application under s 399A(2) of the Act by reason of her failure to comply with directions and orders of the Commission relating to the application. For the reasons we have already given, the Full Bench was not persuaded that Ms Xue acted unreasonably in failing to comply with the directions issued by the Deputy President and, even if she had acted unreasonably, was not persuaded it was appropriate to exercise its discretion to dismiss Ms Xue's application having regard to the whole of the circumstances.

[41] For these reasons, the Full Bench ordered that permission to appeal be granted, the appeal be allowed, the decision and order of the Deputy President quashed and that Ms Xue's application be remitted to another member of the Commission.

P Brown, Partner, Baker McKenzie Solicitors, for Serco Australia Pty Ltd.

[1] Xue v Serco Australia Pty Limited [2024] FWC 3596.

[2] Tomas v Symbian Health [2011] FWA 5458.

[3] See, for example, Priestley v Blackfisch Films Pty Ltd [2025] FWCFB 40.

[4] R v Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552; Enterprise Flexibility Agreements Test Case (1995) 59 IR 430 at 444; Viavattene v Health Care Australia [2013] FWCFB 2532 at [28]; Opal Packaging Australia Pty (t/as Opal Fibre Packaging) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2024] FWCFB 330 at [22].

[5] Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516 at [147] (Logan, Rangiah and Goodman JJ).

[6] Micheletto v Korowa Anglican Girls' School [2003] AIRC 1391 at [14]; Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31].

[7] See Hempenstall v Minister for Home Affairs [2020] FCAFC 216 at [39] and, in the context of s 399A, Lockyear v Cox [2021] FWCFB 875 at [56]- [57] and Cole v Roy Hill Station Pty Ltd (t/a Roy Hill Station) [2019] FWCFB 2925 at [42].

[8] [2024] FWC 3596 at [9].

[9] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30]- [31] (Kiefel CJ, Gageler and Keane JJ); Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [1] (Kiefel CJ, Keane and Gleeson JJ).

[10] [2024] FWC 3596 at [9] and [10].

[11] Fair Work Act 2009 (Cth), s 596(1).

[12] Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 at [142] (Jessup J) in finding that seeking legal advice constitutes an enquiry in relation to employment within the meaning of s 341(1)(c)(ii) of the Act. See also Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 at [65] (Katzmann, Jackson and Mortimer JJ).

[13] Priestly v Blackfisch Films Pty Ltd [2025] FWCFB 40 at [32]- [33].

[14] Ibid at [29]-[33] referring to Hoser v Hartcher [1999] NSWSC 527 at [20]- [30].

[15] Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) at [166].

[16] See, for example, Viavattene v Health Care Australia [2013] FWCFB 2532 at [7]- [8].

[17] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J).

[18] Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [84] (Gummow, Hayne, Crennan and Bell JJ) referring to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [59] (Gummow and Hayne JJ).

[19] Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) at [162]-[163].

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