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[2020] FWCFB 6388
Fair Work Commission (Full Bench)
2020-11-27
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision of Deputy President Binet at Perth on 27 October 2020 in matter number C2020/5255.
[1] Mr Scott Tracey has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Binet made on 27 October 2020 in which the Deputy President granted BP Refinery (Kwinana) Pty Ltd (BP) permission to be legally represented in a hearing to occur on 3 December 2020 pursuant to s 596(2)(a) of the Fair Work Act 2009 (FW Act). The decision was contained in a notice of listing for a hearing issued by the Deputy President's chambers on 27 October 2020 (decision). The Deputy President published reasons for this decision on 11 November 2020.[1] Mr Tracey contends in his appeal that the Deputy President erred in a number of identified respects in granting BP permission for legal representation, and that permission to appeal should be granted and the appeal upheld. Mr Tracey also seeks a stay of the decision pending the determination of the appeal.
[2] In circumstances where the current COVID-19 pandemic limits the capacity of the Commission from conducting in-person hearings, the Commission inquired of the parties to the appeal as to whether they were prepared to have the appeal determined on the basis of written submissions and without conducting a hearing. Both parties consented to this course. It was considered that the appeal could be adequately determined without the parties making oral submissions for consideration. Accordingly, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the Fair Work Act 2009 (FW Act).
[3] The basic facts of the matter are as follows. On 7 July 2020, Mr Tracey lodged an application with the Commission pursuant to s 739 of the FW Act to deal with a dispute with BP under the dispute settlement procedure in clause 23 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Agreement 2014 (2014 Agreement). It should be noted that the 2014 Agreement ceased operation on 16 June 2020, when the BP Refinery (Kwinana) Pty Ltd & AWU Operations and Laboratory Employees Workplace Determination 2020 (2020 Determination) took effect. The dispute relates to whether BP failed to re-grade Mr Tracey's work classification under clauses 58.8 and 59 of the 2014 Agreement. The factual and legal background to the dispute involves some complexity, and may be summarised as follows:
(1) From 2017 through to early 2019, there was a long-running dispute at Mr Tracey's workplace concerning bargaining for a new enterprise agreement to replace the 2014 Agreement.
(2) This disputation came to an end when the Commission terminated protected industrial action at the worksite effective from 4 January 2019. The Commission subsequently arbitrated the bargaining dispute pursuant to s 266 of the FW Act.
(3) Mr Tracey was dismissed from his employment with BP for misconduct effective from 18 January 2019, and subsequently lodged an application for an unfair dismissal remedy.
(4) In a decision issued on 2 September 2019,[2] the Deputy President found that Mr Tracey's dismissal was not unfair and dismissed his application. Mr Tracey appealed this decision.
(5) In a decision issued on 28 February 2020,[3] a Full Bench constituted by the same members as this Full Bench granted Mr Tracey permission to appeal, upheld his appeal, and ordered his reinstatement within 14 days of the date of the decision. The Full Bench directed further submissions to be filed concerning any order for compensation for Mr Tracey's lost earnings from the date of his dismissal to the date of his reinstatement.
(6) BP applied for judicial review of the Full Bench decision, and consent arrangements for the stay of the reinstatement order were entered into.
(7) In a decision issued on 22 May 2020,[4] a Full Court of the Federal Court dismissed BP's application for judicial review.
(8) The same day, a separate Full Bench of the Commission issued its arbitral decision concerning the bargaining dispute involving BP, and published a draft determination to give effect to its decision.[5]
(9) Mr Tracey's reinstatement took effect on 3 June 2020, although his first day back at work was not until 8 June 2020.
(10) On 16 June 2020, the 2020 Determination was published and took effect.
(11) On 7 July 2020, Mr Tracey lodged the dispute application the subject of these proceedings. In his application, as amended, he identified the subject matter of the dispute as follows: "This dispute centres around the proposition that BP failed in their duty to re-grade my work classification from OT5 to CT1A in accordance with the 2014 EA1 and the "Operations Training - Certification and Recertification" procedure, in 2018".
(12) On 10 August 2020, the Full Bench in Mr Tracey's appeal against the unfair dismissal matter issued its decision concerning the amount of compensation to be paid to him consequent upon his reinstatement.[6] The decision included the following (footnote omitted):
"[27] There is a dispute about the classification and rate of pay which would have applied to Mr Tracey if he had not been dismissed. We are satisfied that BP had made a decision, prior to Mr Tracey's suspension on 31 October 2018, that he would be promoted to the classification of CT1A effective from 19 November 2018. However it does not therefore follow that Mr Tracey should be compensated at the rate of pay for the CT1A classification. In the first decision, while we determined that there was no valid reason for Mr Tracey's dismissal and that his dismissal was unfair, we also found that Mr Tracey misconducted himself by using a work computer to show the video to another employee during working hours. While this misconduct was not sufficiently serious to merit dismissal, a reasonable and lawful disciplinary response might have included the revocation of Mr Tracey's promotion to the CT1A classification. Accordingly we will assess compensation by reference to Mr Tracey's pre-existing classification of OT5."
[4] The Deputy President held a conciliation conference in relation to Mr Tracey's dispute application on 31 July 2020. Parties were invited to file submissions as to whether permission should be granted to the parties to be legally represented at the conference. BP sought leave to be represented at the conference and filed submissions to this effect on 27 July 2020. Mr Tracey filed submissions opposing leave being granted to BP on the same day. On 30 July 2020, the Deputy President determined that it was appropriate to grant leave to BP to be legally represented at the conference on the basis that it would enable the matter to be dealt with more efficiently in accordance with section 596(2)(a) of the FW Act and informed the parties of this decision via email. In this email, the Deputy President noted that the parties would need to re-apply for leave to be represented if the matter ultimately proceeds to hearing.
[5] On 31 July 2020, Mr Tracey filed further submissions objecting to the Deputy President's decision to grant leave to BP to be legally represented at the conference. BP filed submissions in reply later that day. The Deputy President then informed the parties the same day that she considered it was not appropriate to disturb her earlier decision of 30 July 2020.
[6] The matter proceeded to conciliation however the dispute was not resolved. The matter was subsequently listed for a hearing on 3 December 2020 (hearing) to determine a number of jurisdictional objections raised by BP, which were formulated by BP as the following five questions:
"1. Do the matters set out in section 2.1 of the Form F10 dated 31 August 2020 (Form F10) give rise to a dispute under clause 16 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations and Laboratory Employees Workplace Determination 2020?
2. Do the matters set out in section 2.1 of the Form F10 give rise to a dispute that can be dealt with by the Commission under s 739 of the Fair Work Act 2009 (Cth) (FW Act) in circumstances where the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Agreement 2014 (2014 Agreement) is no longer in operation?
3. Further or in the alternative, do the matters set out in section 2.1 of the Form F10 dated 31 August 2020 (Form F10) give rise to a dispute under clause 23.1 of the 2014 Agreement?
4. Further or in the alternative, does clause 23.2 of the 2014 Agreement limit the powers that may be exercised by the FWC in dealing with the matters set out in the Form F10 having regard to ss 739(3) and 739(4) of the FW Act?
5. Further or in the alternative, does the relief sought in section 3.1 of the Form F10, as
to what conditions represent 'Company Appointment', invite a decision that is inconsistent with a term of a fair work instrument and therefore, in accordance with s 739(5) of the FW Act, a decision that cannot be made by the Commission?"
[7] The Deputy President issued directions which provided the parties with an opportunity to file submissions should they wish to seek permission to be legally represented at the hearing and any objections to such a request, if made. BP filed submissions seeking permission to be legally represented at the hearing on 17 September 2020 and Mr Tracey filed submissions objecting to BP's application for leave to be represented on 5 October 2020.
[8] The Deputy President's decision to grant permission for BP to be legally represented is contained in a notice of listing issued on 27 October 2020 for the hearing (omitting listing information):
"On the basis that it would enable the matter to be dealt with more efficiently in accordance with s 596(2)(a) of the Fair Work Act 2009 (Cth), the Deputy President has granted the Respondent leave to be represented at the Hearing."
[9] Mr Tracey lodged his notice of appeal on 29 October 2020, at which point the Deputy President had not yet provided reasons for her decision.
[10] On 11 November 2020, the Deputy President issued an "interim decision"[7], noting the following:
"I had intended to include my reasons for my determination with respect to representation in my written reasons for my decision with respect to the Jurisdictional Objection. However, on Thursday 29 October 2020, Mr Tracey filed an appeal against my decision to grant leave to BP Refinery to be represented at the Jurisdictional Hearing. I therefore provide my written reasons for my determination with respect to representation in this interim decision."[8]
[11] The Deputy President then set out the parties' submissions in respect of legal representation and the relevant section of the FW Act. The Deputy President then turned to the question of whether granting BP permission to be legally represented at the hearing met any of the relevant considerations prescribed in s 596(2) (footnotes omitted):
"[30] I do not accept that the issues to be determined at the Jurisdictional Hearing are simple or straightforward. The Jurisdictional Hearing requires the determination of a number of different jurisdictional objections requiring consideration of a variety of different legal principles and reference to an array of case law.
[31] The submissions of the parties make reference to an assortment of statutory provisions and authorities. Mr Tracey has, subsequently, sought and been granted leave to file additional authorities. Mr Tracey's own submissions run to twenty-seven pages. He has also filed a witness statement of thirteen pages.
[32] Mr Tracey, in fact, concedes in his own submissions that the issues to be determined at the Jurisdictional Hearing "may not be characterised as straight forward" and admits that at least one of the issues "may be considered complex".
[33] I do not agree with Mr Tracey's assertion that the Jurisdictional Objections raised by BP Refinery are on their face entirely devoid of merit. Nor do I accept that the balance of the Jurisdictional Objections are uncomplex or easily disposed of.
[34] BP Refinery's lawyers represented BP Refinery in his related unfair dismissal application, U2019/1141, and in the subsequent appeal filed by Mr Tracey, in C2019/5255. They represented BP Refinery in the conferences held to as an attempt to resolve this Application. They have liaised with Mr Tracey to prepare a summary of the issues to be determined and a statement of agreed facts for these proceedings. They have also prepared concise submissions in response to Mr Tracey's multiple interlocutory applications, and are likely to be well placed to assist the FWC with any procedural issues arising at the Jurisdictional Hearing.
[35] As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd:
'[23] It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.
[24] In the situation currently before me, permission to appear for purposes of any jurisdictional considerations appears to me to be justified. That is, by granting permission for Mr Copeland to appear the efficiency with which the jurisdictional issue is dealt with would be assisted.
[25] It also appears to me that permission to appear in the substantive considerations should be granted to Mr Copeland for other reasons. Where jurisdiction is in question, it is important in any subsequent considerations to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy. In such circumstances, a lawyer familiar with jurisdictional argument would ensure the matter would be dealt with more efficiently than would otherwise be the case.""
[12] The Deputy President concluded by setting out her reasons for her decision to grant BP permission to be legally represented at the hearing pursuant to s 596(2)(a):
"[36] I am satisfied that given the complexity of the issues to be determined at Hearing, their advocacy skill set and their intimate knowledge of the Application (and the events leading to it) that the involvement BP Refinery's legal representatives will enable the matter to be dealt with more efficiently than if BP Refinery relied on its employees to conduct the Jurisdictional Hearing.
[37] Notwithstanding that Mr Tracey does not have legal training, he has prepared detailed submissions both in relation to the Jurisdictional Objection and in support of his multiple applications for Orders for Production, an Order to Attend and an application for 'summary judgement'. My observations of Mr Tracey to date have been that he is more than capable of researching and distilling legal principles, and articulating and responding to complex legal arguments. At the conference and in correspondence with Mr Tracey, BP Refinery's legal representatives appear to be conscious and accommodating of the fact that Mr Tracey is unrepresented. I am therefore, not of the view that granting leave to BP Refinery in circumstances where Mr Tracey is unrepresented will make the Jurisdictional Hearing more complex or lengthier because he is unable to understand the language they use.
[38] Having considered the submissions of the parties and being satisfied that the requirements in sub section 596(2)(a) of the FW Act have been met I consider it appropriate in all the circumstances to exercise my discretion to grant leave to BP Refinery to be represented by a lawyer because I am satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter."
[13] Mr Tracey's grounds of appeal as stated in his amended notice of appeal are, in full, as follows:
The Deputy President erred by granting the Respondent leave to be represented at the 3 December 2020 Jurisdictional Hearing on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and therefore made a number of errors of the type identified in House v The King and Buck v Bavone.
The Appellant submits that there are 6 grounds of appeal as the Deputy President erred in exercising her discretion to grant BP permission to be represented having regard to the objects of the Act and the proper construction and application of s.596(€2) of the FW Act.
Appeal Ground 1 - The Deputy President erred by making a determination that was not reasonably available to her on the asserted facts.
Appeal Ground 2 - The Deputy President erred by failing to provide adequate reasons to support the conclusions she reached in her decision.
Appeal Ground 3 - The Deputy President erred by incorrectly relying on principles outlined in authorities whose circumstances were disparate to this matter.
Appeal Ground 4 - The Deputy President erred by allowing extraneous or irrelevant matters to guide or affect her decision.
Appeal Ground 5 - The Deputy President erred by failing to correctly evaluate and give the appropriate weight to the conditions relevant to the criteria in s.596(2).
Appeal Ground 6 - The Deputy President erred by failing to properly and duly consider, and correctly apply the principles outlined in authorities whose circumstances were apposite to this matter.
[14] In respect of the first appeal ground, Mr Tracey submits that it was not reasonably available to the Deputy President on the facts that the matter would be dealt with more efficiently through the grant of permission for legal representation to BP. Mr Tracey submits that the Deputy President had mischaracterised the matter as complex, failed to accurately identify the jurisdictional issues which render it complex and recognise that a matter is not complex merely because it involves jurisdictional issues. In summary, Mr Tracey submits that in her decision the Deputy President has:
selectively quoted and misrepresented his submissions in regards to the complexity of the matter and identified the wrong jurisdictional issues on the misapprehension Mr Tracey is pursuing his dispute application under the 2014 Agreement - which is no longer in effect - rather than the 2020 Workplace Determination;
• failed to consider or acknowledge relevant authorities provided by Mr Tracey such as Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd;[9]
[15] In regards to the second appeal ground, Mr Tracey submits that the Deputy President did not provide adequate reasons for the conclusions reached in her decision in failing to articulate what issues were being determined, what "tipped the balance" in BP's favour and reasons for the rejection of his submissions. Mr Tracey submits that it may be inferred that because the Deputy President reduced her decision to writing after the appeal was lodged on 29 October 2020, she had the capacity to "mould" or formulate her reasons for the decision in response to the notice of appeal, and that this amounts to a significant denial of procedural fairness. Mr Tracey submits that a number of inconsistencies and errors in the Deputy President's decision support this, such as the reference to "efficiency due to the complexity of the matter" in the written decision whereas there was no mention of this in the unpublished decision, the Deputy President's reference to the unpublished decision as a "proposed decision" in the written decision where it was first expressed as a final decision, and her failure to mention the binding settlement agreement reached by the parties or their correspondence in the written decision. Mr Tracey also submits that the Deputy President's failure to identify the correct jurisdictional matters in issue, acknowledge his submissions with regards to the skill and experience of BP's lawyers or respond to his submissions in respect of specific authorities suggest she had not read his submissions and thus affects the ability to discern if she has based her decision on the matters at hand.
[16] In regards to the third ground of appeal, Mr Tracey submits that the Deputy President erred by incorrectly relying on CEPU v UGL Resources Pty Ltd (Project Aurora)[10] in the decision, as this case turned on its own facts none of which are analogous to the facts at hand. Mr Tracey further submits that lawyers and members of the Commission alike have erroneously treated CEPU v UGL Resources as a "universal authority" for granting legal representation whenever jurisdictional issues are agitated, and that this is an incorrect interpretation of the ratio decidendi in the decision.
[17] In regards to the fourth appeal ground, Mr Tracey submits that the Deputy President relied on extraneous or irrelevant matters in reaching her decision, such as considering BP's previous experience and familiarity with the litigation in determining "efficiency", Mr Tracey's "voluminous submissions", his capacity to represent himself and his conduct during the proceedings. On the other hand, Mr Tracey also submits that the Deputy President in focusing on these matters failed to acknowledge "the nature of the 'efficiency'" relevant to her discretion to grant legal representation.
[18] In regards to the fifth appeal ground, Mr Tracey submits that the Deputy President erred in misevaluating and failing to give appropriate weight to the conditions relevant to the criteria in s 596(2) of the FW Act, in particular her failure to take into account relevant considerations in the sense discussed by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[11] Mr Tracey submits that this includes the Deputy President's failure to give appropriate weight to his clarification concerning the relevant jurisdictional issues, the fact BP is a large multi-national organisation with in-house capacity and expertise to represent themselves and his submission that BP have on occasion been obstructionist and thus impaired the ability for the matter to be dealt with efficiently.
[19] In regards to the sixth ground of appeal, Mr Tracey submits that the Deputy President's decision was inconsistent with a number of decisions of the Commission concerning s 596 of the FW Act, including in the following respects:
her approach to establishing if BP was unable to represent itself efficiently;
her consideration of complexity in taking into account the volume of the submissions and extraneous and jurisdictional issues, in establishing that BP were unable to represent themselves efficiently;
failing to identify the jurisdictional issues to be determined for the purposes of establishing efficiency with regards to complexity over convenience;
failing to establish facts when matters were contested;
incorrectly according weight to the knowledge and work done by BP's lawyers, rather than the size and resources of BP, in her assessment of efficiency under s 596(2)(a); and
failing to properly identify the correct jurisdictional issues at hand in the application.
[20] Mr Tracey contends that the grant of permission to appeal would be in the public interest because:
the decision manifests an injustice or the result is counter-intuitive to the expected outcome and existing Commission authorities on the matter, therefore manifesting an injustice;
the appeal raises important questions of principle and general application concerning when leave may be granted to appeal interim or interlocutory decisions in respect of granting or denying a party permission to be represented, especially considering that authorities across multiple jurisdictions are "not comprehensive";
the Commission has an obligation to properly test unsupported or disputed claims that employees do not have the level of knowledge, skill and experience to represent a party as efficiently or effectively as when permission for representation is granted;
• it raises the question of whether previous work done by a representative is a relevant consideration to determining efficiency and effectiveness under s 596 of the FW Act when the principles outlined in NSW Bar Association v McAuliffe[12] are taken into account;
[21] In support of his stay application, Mr Tracey submits that irreversible prejudice to him will be occasioned if a stay is not granted and that the grant of legal representation to BP at the hearing will create a substantial imbalance to Mr Tracey as a self-represented litigant and fundamentally change the dynamics of the hearing. If Mr Tracey is unsuccessful at the hearing, his opportunity to have the dispute arbitrated is "essentially finished" whereas any inconvenience caused to BP in the refusal to grant permission for legal representation would be offset by BP's right to appeal as well as their ability to prepare for the hearing with the assistance of in-house lawyers or Human Resources personnel.
[22] The Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[13] There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[23] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[14] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[15] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
"... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[16]
[24] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[18] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[19]
[25] We are not satisfied in this case that the grant of permission to appeal would be in the public interest such as to require the grant of permission in accordance with s 604(2), nor are we satisfied that permission to appeal should be granted on discretionary grounds. The decision made by the Deputy President was an interlocutory one concerning legal representation at a hearing specifically concerned with the five jurisdictional questions raised by BP, which we have set out above. Although the last issue is not in truth a preliminary jurisdictional issue, the other issues raised clearly involve questions of legal complexity. The first three questions are difficult ones involving the broader issue of how dispute resolution mechanisms are to operate where a dispute arises under an enterprise agreement which ceases to apply prior to the Commission being able to determine the dispute. This issue has been the subject of three recent Commission Full Bench decisions which are arguably not consistent with each other, namely BlueScope Steel (AIS) Port Kembla Pty Ltd v AWU and Ors,[20] Battye v John Holland Pty Ltd (JHPL) t/as Territoria Civil [21] and Simplot Australia Pty Ltd v AMWU.[22] Most recently, one aspect of the issue was the subject of analysis by the Federal Court of Australia (Colvin J) in Maersk Crewing Australia Pty Ltd v CFMMEU (No 2).[23] The fourth question is whether clause 23 of the 2014 Agreement, on its proper construction, authorises the Commission to arbitrate disputes brought to it under that clause once the nominal expiry date of the agreement has passed. On a very preliminary basis, we can express the view that clause 23 is not textually straightforward and requires proper analysis in accordance with the principles of construction of industrial instruments.
[26] In these circumstances, we do not consider it to be reasonably arguable that it was not reasonably open for the Deputy President to consider that the jurisdictional prerequisite for the grant of permission for legal representation in s 596(2)(a) - namely that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter - was made out or to exercise her discretion in favour of granting permission. The complexity of the issues involved would clearly make available the conclusion that the legal representation of a party seeking permission would likely assist her in the task of reaching a legally correct determination of the jurisdictional issues.
[27] Having regard to these matters, we do not consider that Mr Tracey's appeal grounds have sufficient merit to justify the grant of permission to appeal. We have effectively dealt with the first appeal ground, but two matters may be added:
(1) the criterion in s 596(2)(a) is whether the grant of permission for legal representation would enable the matter to be dealt with more efficiently, not whether it would enable the party seeking to be legally represented to be represented efficiently; and
(2) we consider it to have been a relevant consideration that BP was legally represented in the other proceedings involving Mr Tracey, given that they interrelate with the current matter and that BP's legal representatives would likely be familiar with the relevant aspects of the earlier proceedings.
[28] In relation to the second appeal ground, we consider that the Deputy President has, in her reasons published on 11 November 2020, adequately set out the basis upon which she determined to grant BP permission for legal representation. The assessment of the adequacy of the reasons must necessarily proceed upon the basis that the decision was an interlocutory one and that reasons were issued for the purpose of Mr Tracey being able to properly exercise the facility of an appeal under s 604. In relation to the third ground of appeal, the decision in CEPU v UGL Resources[24] was relevant to, although not determinative of, the issue of whether to grant permission for legal representation in this case, and was treated by the Deputy President as such. We have effectively disposed of the fourth ground of appeal in paragraph [27](2) above. As to the fifth ground of appeal, we do not consider that the matters identified by Mr Tracey were necessarily relevant such that the Deputy President was required to consider them in order for her exercise of the discretion not to miscarry. As to the sixth ground of appeal, we consider that the Deputy President approached the exercise of the discretion in an orthodox manner that was not contrary to established principle.
[29] We do not consider that Mr Tracey's appeal raises any question of novelty or general application concerning the interpretation or application of s 596(2). The principles applicable to the grant of legal representation under the FW Act have been well established in decisions of the Federal Court of Australia and Full Benches of this Commission and do not require reiteration or reanalysis in this appeal.
[30] For the reasons given, we refuse permission to appeal.
Determined on the basis of written submissions filed by the Appellant.
[3] [2020] FWCFB 820, 293 IR 170
[12] [2014] FWCFB 1663, 241 IR 177
[13] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[14] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]
[15] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review_; Coal & Allied Mining Services Pty Ltd v Lawler_ [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[16] [2010] FWAFB 5343, 197 IR 266 at [27]
[17] Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]
[18] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[19] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[20] [2018] FWCFB 856, 273 IR 138
Printed by authority of the Commonwealth Government Printer
Scott Tracey
BP Refinery