Fair Work Act 2009

s.604 - Appeal of decisions

Australian Concert and Entertainment Security Pty Ltd

Application for a stay under s 606 - award of costs against paid agent under s 401 - no arguable case of error, or of public interest - stay application refused

• [1] Michael Alkan has applied for a stay under s 606 of the Fair Work Act 2009 (the Act) in connection with an appeal that he has lodged under s 604 against a decision of Deputy President Slevin dated 19 June 2025 ( [2025] FWC 1696). In his decision, the Deputy President determined that, while representing Sabir Ejaz in an unfair dismissal matter, Mr Alkan caused the respondent, Australian Concert and Entertainment Security Pty Ltd (ACES), to incur costs because of his unreasonable acts or omissions, as contemplated by s 401(1A)(b)). The Deputy President concluded that Mr Alkan had conducted himself unreasonably in connection with a conciliation conference, including by insisting that his client would 'bypass' conciliation if the respondent did not make an offer prior to the conciliation, and then by failing to attend the conciliation. The Deputy President further determined that Mr Alkan had failed to provide his client with a copy of a settlement offer from the respondent, and had unreasonably failed to give adequate advice to his client about the consequences of rejecting the offer. The Deputy President also found that it was unreasonable for the applicant to discontinue his unfair dismissal application on the eve of the hearing, and that Mr Alkan had advised his client to instruct him to do so. In this regard, the Deputy President found that the matters that had led to the discontinuance involved nothing new, and ought to have been considered much earlier. In a further decision dated 4 July 2025 ( [2025] FWC 1922) the Deputy President decided to make an order requiring Mr Alkan to pay ACES $28,952.20. An order of that date required Mr Alkan to pay ACES this amount within 14 days.

• [2] The principles that apply to the determination of stay applications in respect of appeals under s 606 of the Act are well established. The practice of the Commission is to adopt the test laid down in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639. Before granting a stay, the Commission must be satisfied that the appeal presents an arguable case, with some reasonable prospects of success both in respect of permission to appeal and the merits, and that the balance of convenience weighs in favour of a stay. In considering whether there is an arguable case, the Commission's assessment is necessarily a preliminary one, as the Commission will not have had the benefit of hearing the appellant's full argument (see Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [9] per Hatcher VP).

• [3] The decision under appeal in this matter was made under s 401, which is found in Part 3-2 of the Act, and therefore s 400 applies to the appeal. Section 400(1) states that the Commission must not grant permission to appeal from a decision made under that Part unless it considers that it is in the public interest to do so. Further, s 400(2) provides that, to the extent that an appeal is brought on a question of fact, an appeal can only be made on the ground that the decision involved a 'significant' error of fact. It will be necessary to take these provisions into account in assessing whether the appeal presents an arguable case for the purposes of the stay application.

• [4] Mr Alkan's notice of appeal contains 3 very general grounds. First, he submits that the Deputy President erred in awarding costs in circumstances where no exceptional circumstances existed pursuant to s 611(1). Secondly, he contends that the Deputy President erred in granting permission for the respondent (the costs applicant) to be represented by a barrister and a solicitor when Mr Alkan was self-represented, because this created unfairness. Thirdly, he submits that the Deputy President took into account irrelevant considerations and failed to take account of relevant considerations, and that the decision was 'tainted' by a reasonable apprehension of bias.

• [5] The first ground of appeal is not arguable. The Deputy President's decision was made under s 401, not s 611, and in any event s 611 makes no reference to exceptional circumstances. The second ground of appeal is not arguable either. It is a bare assertion without a rationale. There is nothing necessarily unfair about a party being granted permission to be represented if the other party is unrepresented. Further, Mr Alkan is in the business of representing clients in the Commission. One would expect that a person who claims to be able to adequately represent others could adequately represent himself.

• [6] The third ground of appeal asserts that the decision is affected by categories of error without identifying what the actual errors are. The notice of appeal does not state what irrelevant matters were taken into account, or what relevant matters were not considered. Mr Alkan briefly referred to some of these matters at the stay hearing. They appear to overlap with contentions in the notice of appeal regarding the public interest, which I address below. Mr Alkan does not explain his statement that there is a 'reasonable apprehension of bias'. This is a ground for a member's recusal, not a ground of appeal.

• [7] It is possible to glean from the public interest submissions in the notice of appeal various other contentions of error. Mr Alkan states that the Deputy President erred by concluding that it was unreasonable of him to advise his client to bypass conciliation. But he does not say why this conclusion was not open to the Deputy President. Mr Alkan submits that the Deputy President was wrong in 'several instances' to make adverse conclusions and findings about the appropriateness, quality and correctness of his advice to his client. But he does not identify these 'instances' or explain why the relevant conclusions or findings are affected by error or were not open to the Deputy President on the evidence.

• [8] Mr Alkan states that the Deputy President proceeded on the basis that decisions made independently by his client should be treated as his own decisions for the purposes of the costs proceeding, whereas these decisions were those of his client, and were merely informed by his advice. However, as the Deputy President explained in his decision, Mr Alkan's client was paying him in the belief that Mr Alkan had some expertise and would provide sound advice. The advice of Mr Alkan that informed his client's actions was plainly relevant to the costs application. No arguable error is apparent in the Deputy President's consideration of this matter. Similarly, Mr Alkan submits that the Deputy President held him liable for his client's decision to discontinue the application. But in fact the Deputy President carefully considered the conduct of Mr Alkan surrounding the discontinuance and concluded that he had advised his client to instruct him to discontinue the application at that time. These findings and conclusion appear to me to have been entirely open to the Deputy President.

• [9] Mr Alkan states that 'key findings' of the Deputy President were based on inferences and motives without clear evidence, but he does not identify these key findings. Mr Alkan says that the Deputy President was wrong to characterise his conduct in relation to the settlement offer as unreasonable because there was evidence indicative of a contrary conclusion. But I do not consider it to be arguable that the Deputy President's factual findings were not available on the evidence or that his conclusions were not open to him. Mr Alkan disagrees with the Deputy President's conclusions and findings, but that does not speak to any error.

• [10] Mr Alkan states that the Deputy President failed to determine that permission to appear had been granted under s 596 in respect of the unfair dismissal proceedings. But the transcript for the hearing on 8 August 2024, which the appellant did not attend, records that the Deputy President granted the respondent permission to be represented under s 596. Permission for representation was also granted at earlier proceedings. Mr Alkan states that an order for costs in the amount of some $29,000 was disproportionate in the absence of any finding of bad faith or dishonesty on his part. However, these are not preconditions to the exercise of the discretion to award costs under s 401, nor is there any reason why an order of the scale in question should only be made in those limited circumstances.

• [11] Mr Alkan submits that his appeal engages the public interest because the Deputy President's decision will have a chilling effect on 'proper advocacy' before the Commission. I disagree. The Deputy President concluded that Mr Alkan acted unreasonably in various respects in connection with the conduct or continuation of the matter and that this caused the respondent to incur costs, as contemplated by s 401. Such a decision could not logically be said to have a chilling effect on proper advocacy. It may remind representatives that their conduct in unfair dismissal matters needs to be reasonable, but this is wholly desirable.

• [12] Mr Alkan may be able to articulate a better case in his submissions in respect of permission to appeal. However, based on what is before me, I do not consider that the appeal presents an arguable case in respect of permission to appeal or the merits. The grounds of appeal do not present an arguable case that the decision of the Deputy President is affected by error, and an appeal cannot succeed in the absence of error (see Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). Further and in any event, I perceive nothing in the appeal that could engage the public interest for the purposes of s 400(1) of the Act.

• [13] It is not necessary to consider the balance of convenience, however I will record briefly that I am not persuaded that this favours Mr Alkan. He states generally that a payment order in this amount creates a serious financial burden for any paid agent, but advances no case of hardship. Mr Alkan asserts that if a stay is not granted, the repayment of the funds might be contested or uncertain in the event that the appeal is successful. But this is mere speculation. There is no reason in this case to apprehend a concern that the money could not be returned to Mr Alkan in the event that his appeal were successful. The balance of convenience requires a consideration of the interests of the parties in the subject matter of the stay and the implications of the different outcomes that could emerge from the appeal. There is no presumption that the balance of convenience will necessarily favour a party that has been ordered to make a payment to another.

• [14] The application for a stay is refused.

J. McLean of counsel for Australian Concert and Entertainment Security Pty Ltd

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