Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2019] FWC 8343 of Deputy President Anderson at Adelaide on 10 December 2019 in matter number AB2019/601 - stay application.

[1] This decision concerns an application for a stay order brought by Mr Igor Grabovsky. The stay is sought pursuant to section 606 of the Fair Work Act 2009 (Act) in connection with an appeal against the Statement and Directions issued by Deputy President Anderson on 10 December 2019[1] (Statement and Directions) made pursuant to section 604 of the Act. Mr Grabovsky seeks a stay of the entirety of the Statement and the Directions.

[2] Section 606 of the Act provides as follows:

• (1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

[3] It is well established that, in deciding whether to exercise its discretion to grant a stay order under section 606(1) of the Act, the Fair Work Commission (Commission) must be satisfied that the appellant has an arguable case with some reasonable prospects of success in the appeal, both in respect of permission to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed.

[4] The matter was listed for hearing before me at 2.00 pm on Tuesday 28 January 2020. Mr Grabovsky appeared for himself. No appearance was entered for the Respondent.

[5] In Mr Grabovsky's Form F7 Notice of Appeal, he indicated that he was seeking a stay of [2019] FWC 7356. Mr Grabovsky confirmed at the hearing that this was an error and that the correct decision he is seeking a stay of is [2019] FWC 8343, being the Statement and Directions.

[6] On 21 October 2019 Mr Grabovsky filed a Form F72 applying for an order to prevent bullying at work pursuant to section 789FC of the Act (Bullying Application). The Commission was named as the employer respondent to the Bullying Application. 25 other persons, comprising 19 members of the Commission, four retired members and two management employees or officers are named as individual respondents to the Bullying Application. A directions hearing in relation to this application, being matter number AB2019/601, proceeded before Deputy President Anderson on 9 December 2019 (Directions Hearing).

[7] During the course of the Directions Hearing, Deputy President Anderson made an ex tempore provisional decision as to representation of the Commission by the Australian Government Solicitor (AGS) (Representation Decision) and an ex tempore decision on recusal (Recusal Decision). Each of these decisions were supplemented and confirmed in the Statement.

[8] The Deputy President's Representation Decision was that:

• the Commission was a non corporate Commonwealth entity and that an employee of the AGS was an officer of the Commonwealth. The exemption in section 596(4)(b) of the Act regarding permission to appear therefore applied;

• the AGS therefore had standing as of right to appear on behalf of the Commonwealth of Australia and in that capacity was able to represent the Commission in the Bullying Application without requiring permission;

• should the Deputy President be wrong on that, if he were required to consider the request for permission, he would grant the request for the purposes of the jurisdictional proceedings as he was satisfied that the jurisdictional issues raised were of a significant level of complexity. Section 596(2)(a) of the Act was therefore made out.

[9] The Representation Decision was made on a provisional basis for the purposes of the Directions Hearing and subsequent proceedings on the application, until further order.

[10] Mr Grabovsky objected to the Representation Decision and made an oral application that the Deputy President recuse himself. The Recusal Decision was that Mr Grabovsky's application for recusal be dismissed on the ground that an objective observer of proceedings would not consider that the Deputy President was unable to bring an independent and unbiased mind to the proceedings as the Representation Decision was not pre-determined or objectively capable of being seen as such, or that he failed to take into account Mr Grabovsky's submission or was objectively capable of being seen as not having done so.

[11] The Statement and subsequent Directions issued by the Deputy President on 10 December 2019 directed the following:

• the Commonwealth of Australia provide written submissions on each of the jurisdictional issues it advances by close of business (5.00pm ACDT) 24 December 2019;

• Mr Grabovsky file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020;

• a person named, if they so wish, to file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020;

• the Commonwealth file a written submission in reply by close of business (5.00pm ACDT) 28 January 2020;

• should the Commonwealth or Mr Grabovsky wish to place further submissions on representation that they do so according to the aforementioned timetable; that is, the Commonwealth by 24 December 2019, Mr Grabovsky by 14 January 2020 and the Commonwealth in reply by 28 January 2020.

[12] Submissions pursuant to these Directions were filed by both the Commonwealth and Mr Grabovsky.

Objection to hearing - no power to determine stay application

[13] At the commencement of the hearing, Mr Grabovsky submitted that I did not have the power to determine his application for a stay of the Statement and Directions. He submitted that the stay application could only be determined by the Full Bench which had been constituted to hear the appeal, or the senior member of that Full Bench. Mr Grabovsky relied upon paragraph 2340 of the "memorandum", which I understand to be a reference to the Explanatory Memorandum to the Act (Explanatory Memorandum) and s 619 of the Act, which deals with relative seniority of Commission members when the Commission is constituted by a Full Bench, to support this contention. Mr Grabovsky required that I either adjourn the hearing or that it be continued by the senior member of the Full Bench.

[14] It is uncontested that I am not a member of the Full Bench constituted to hear Mr Grabovsky's appeal.

[15] I rejected Mr Grabovsky's submission that I did not have the power to determine his application for a stay of the Statement and Directions and made an ex-tempore decision that as a Deputy President of the Commission I was empowered to do so pursuant to section 606(2). Accordingly, I also rejected Mr Grabovsky's adjournment request and his request that the hearing be continued by the senior member of the Full Bench.

[16] My reasons for that decision are as follows.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

• (a) the Full Bench; or

• (b) the President; or

• (c) a Vice President; or

• (d) a Deputy President.

[17] I consider the language of section 606(2) to be clear and unambiguous. Subsection (d) of section 606(2) expressly provides that an order for a stay under section 606(1) may be made by a Deputy President. The use of the conjunction "or" at the end of each of subsections (a), (b) and (c) results in each of the persons listed in section 606(2) being provided in the alternative. There is no requirement in section 606(2) that those persons be a member of the Full Bench hearing the appeal to which the stay application relates. Further, subsections (c) and (d) refer to "a" Vice President and "a" Deputy President. This is to be contrasted with the use of the word "the" in subsection (a). Each of the persons listed in section 606(2) is, therefore, able to exercise the power to order a stay under section 606(1) including, pursuant to section 606(2)(d), any Deputy President of the Commission.

[18] Accordingly, I find that as a Deputy President of the Commission I am able to determine Mr Grabovsky's application for a stay of the Statement and Decision pursuant to section 606(2)(d) of the Act.

[19] I note that until the commencement of the Fair Work Amendment Act 2012 (Cth) (Amending Act) on 28 June 2013, section 606(2) of the Act provided as follows:

• (2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

  • (a) the Full Bench; or

  • (b) the person who has seniority under section 619 in relation to the appeal or review

[20] Schedule 8 Item 1 of the Amending Act repealed paragraph 606(2)(b) and substituted the following paragraphs:

[21] Accordingly, until 28 June 2013 the power to order a stay under section 606(2) was only able to be exercised by the Full Bench hearing the appeal or the most senior member of that Full Bench, as determined by section 619 of the Act. However, that is no longer the applicable legislative framework. Mr Grabovsky appears to be relying upon a legislative provision which has been repealed and the paragraph of the Explanatory Memorandum in support of that repealed legislative provision.

[22] Mr Grabovsky objected to my decision in relation to the construction of section 606(2) as "ludicrous" and made an oral application that I recuse myself. He submitted that my decision in relation to section 606(2) and my refusal to adjourn the proceeding or require it be conducted by the senior member of the Full Bench to hear his appeal demonstrated that I was incompetent and corrupt and, further, was a continuation of the bullying by members of the Commission as asserted in his Bullying Application.

[23] I made an ex-tempore decision dismissing the application for recusal. Firstly, I do not consider my alleged incompetence to be a ground for recusal. Secondly, I was not otherwise satisfied that an objective observer of proceedings would consider that I was unable to bring an independent and unbiased mind to the proceedings on the bases asserted by Mr Grabovsky.

[24] Despite being invited on multiple occasions to do so, Mr Grabovsky declined to address me or make any submissions in support of his application for a stay of the Statement and Directions. This refusal was based upon Mr Grabovsky's view that I lacked the power to determine his application and, as such, he considered I was a stranger to the proceeding. I informed Mr Grabovsky that in the absence of any submissions from him in support of his application, I would proceed to determine the application on the basis of the material currently before the Commission. It was uncontested that that material was limited. Notwithstanding that, Mr Grabovsky continued to decline to address me or make any submissions in support of his application.

[25] Mr Grabovsky's Notice of Appeal raises seven grounds of appeal;[2] being that, in arriving at the Statement and Directions Deputy President Anderson:

• (a) made false and misleading statements;

• (b) misappropriated the law;

• (c) acted in breach of the fundamental principles of law;

• (d) acted outside of the Fair Work Commission's jurisdiction;

• (e) "tampered with evidence (denied the obvious, misrepresents the facts, etc.)"

• (f) "created a juristic environment that is incompatible with the procedural, juristic and judicial norms and is attempting to proceed in dealing with the matter in this environment for ill purposes and for the benefit of the offenders listed in the Applicant's application."

[26] The Notice of Appeal further provides the following in relation to the grounds of appeal:

"Decision [2019] FWC 8343 and the Directions based on this fraudulent official document are coercing the Appellant to accept the violation of the law of the Commonwealth as a legitimate act.

I do have a full understanding of the illegitimate nature of a fraudulent official document(s) issued by Anderson DP and therefore I must perform my citizen's duty and I exercise my rights of the Citizen of Australia to stop Deputy President Peter Anderson (and other members of the FWC) violating the law of the Commonwealth."[3]

[27] The grounds of appeal are not matters that are to be determined in the present proceedings. Rather, the question to be determined is whether the Statement and Directions issued by the Deputy President on 10 December 2019 should be stayed. The purpose of examining the grounds of appeal is to consider whether they disclose an arguable case of error, with some reasonable prospect of success on appeal.

[28] As already set out, Mr Grabovsky declined to address me or make any submissions in relation to any of the grounds of appeal contained in the Notice of Appeal. There is no articulation in the Notice of Appeal as to how Mr Grabovsky contends that the grounds of appeal are made out. In my view, therefore, there is no material before me upon which it could be concluded that the grounds of appeal disclose an arguable case of error, with some reasonable prospect of success on appeal. Further, I am unable to identify any other basis upon which the Statement and the Directions disclose an arguable case of error, with some reasonable prospect of success.

[29] Given my finding in relation to the grounds of appeal it is unnecessary for me to consider whether the balance of convenience weighs in favour of the Statement and Directions being stayed.

[30] The application for a stay is dismissed.

[1] [2019] FWC 8343, PR715004, 10 December 2019

[2] Form F7 dated 18 December 2019, paragraph 2.1

[3] Form F7 dated 18 December 2019, paragraph 2.1

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