Fair Work Act 2009

s.615A - The President may direct a Full Bench to perform a function etc.

Shrimpton, Melissa v Community Livings Options Inc

Referral to a Full Bench - Fair Work Act 2009 (Cth) - s.615A.

[1] This decision deals with an application to refer a s.369 consent arbitration to a Full Bench. The relevant background may be shortly stated.

[2] On 21 July 2020, Ms Shrimpton (the Applicant) lodged a s.365 application (C2020/5715) alleging that she had been dismissed from her employment with Community Living Options Inc in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (the Act). On 22 October 2020 Commissioner Hampton issued a s.368 certificate that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.

[3] On 5 November 2020, the Applicant lodged a form F8B s.365 application seeking to have the Commission deal with her dismissal dispute by consent arbitration (C2020/8154). The application was not signed by the Respondent.

[4] On 6 November 2020, the Applicant lodged a Form F1 application, to which I will return in a moment.

[5] On 9 November 2020, the Respondent signed and filed the form F8B consenting to arbitration of the general protections dispute. The matter was allocated to Commissioner Platt and a Directions conference held on 13 November 2020.

[6] At the Directions conference the Applicant advised the Commissioner that:

(i) her consent to arbitration before the Commission was only on the basis that the matter be heard by a Full Bench;[1] and

(ii) an application has also been lodged in the Federal Court in respect of the same s.365 application.[2]

[7] On 13 November 2020, the Applicant sought some time to seek legal advice and was granted until 19 November 2020 to seek such advice. I am informed by Commissioner Platt that no further communication has been received from the Applicant.

[8] The Form F1 filed by the Applicant sets out the relief sought, as follows:

3. Ensure procedural fairness, effective remedy in an unusual circumstances which may require precedent to be set

4. Multiple contraventions of the FWC ACT. However, I do not have the knowledge regarding applications to the federal circuit

5. It is in the public's interest to have this case heard, due to the intersect between state and commonwealth legislation

[9] As to the application for a s.582 order I note that s.582(2) provides:

(2) The President may give a direction that is of a general nature, or that relates to a particular matter, to one or more of the following persons:

[10] Section 582 does not deal with the referral of a matter to a Full Bench; the relevant provision is s.615A.

[11] At the directions hearing on 13 November 2020 it emerged that, in substance, the Application was seeking to have the proposed consent arbitration of her s.365 application referred to a Full Bench.

[12] I have read the transcript of the proceedings before Commissioner Platt. The Applicant's submissions in support of the s.615A referral application may be summarised as follows:

• it is an 'unprecedented case regarding underpayment of wages for six years';[3]

• the period of underpayment exceeds the six year limitation period in s.544;[4] and

• there are exceptional circumstances regarding repeated adverse actions throughout the Applicant's employment with Community Living Options.

[13] The Respondent made no submissions in respect of the referral application.

[14] It seems to me that the Applicant faces a preliminary hurdle to the determination of her referral application, namely that there is presently no matter before the Commission which is capable of referral to a Full Bench. This is so because the Commission may only deal with a s.365 dismissal dispute by arbitration if:

'(b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and

(i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days.'[5] (emphasis added)

[15] In this matter the notification by the parties did not comply with the 14 day time period and, to date, the Commission has not granted an extension of time. No application is made to refer the requisite extension application to a Full Bench. Further, and more importantly, the Applicants' agreement to have the matter arbitrated by the Commission is conditional - it is subject to the arbitration being decided by a Full Bench. In my view, for the purposes of s.369(1)(b), an agreement which is conditioned by the dispute being referred to a Full Bench is no agreement at all.

[16] However, in the event that I am wrong about these preliminary issues and in the interests of expedition, I have considered whether I would refer the determination of the dismissal dispute to a Full Bench.

[17] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

[18] The issue for determination is whether I am satisfied that it is in the public interest to refer the s.369 arbitration to a Full Bench. The expression 'in the public interest', when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute.[6]

[19] Sections 577 and 578 of the FW Act are relevant to the exercise of the President's powers under s 615A.

[20] Section 577 provides as follows:

'The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581)."

[21] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and 'equity, good conscience and the merits of the matter'.

[22] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.

[23] I am not satisfied that it is in the public interest that the s.369 arbitration be referred to a Full Bench. None of the matters relied on in support of the referral application enliven the public interest. Further, at least some of those matters may require the exercise of judicial power and are more appropriately dealt with by a court. The referral application is dismissed.

[1] Transcript, 13 November 2020 at PN26-PN31.

[2] Transcript, 13 November 2020 at PN32-PN54.

[3] Transcript, 13 November 2020 at PN66.

[4] Transcript, 13 November 2020 at PN68-PN70.

[5] See Fair Work Act 2009 (Cth) s.369(1)(b) and (c).

[6] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

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