Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against an order made by Deputy President Cross at Sydney on 21 November 2025 in matter number C2025/9878 - Deputy President made order for production of documents in connection with proceedings at first instance - Stay application - Stay refused.

• [1] The University has filed a notice of appeal in which it seeks permission to appeal and, if permission is granted, to appeal with respect to an order for production made by a member of the Commission under s 590(1) and (2)(c) of the Fair Work Act 2009 (Cth) (the Act).

• [2] The order for production was made in proceedings brought by Dr A under s 365 of the Act being a general protections application involving dismissal. Dr A was employed as a lecturer and Office of National Intelligence (ONI) research fellow at the University until 25 September 2025. Dr A alleges that she was dismissed in contravention of Part 3-1 of the Act. As I understand the application, Dr A alleges that she was dismissed because she exercised workplace rights by making complaints in relation to her employment, to avoid the consequences of what Dr A alleges were failures to manage her contract and because of physical or mental disability. Dr A seeks reinstatement or compensation if reinstatement is not possible.

• [3] The University has raised a jurisdictional objection to the application. It denies that Dr A was dismissed and says that her employment ended by the effluxion of time in accordance with the express end date in her final employment contract. The Full Court of the Federal Court has found, in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, that the Commission is required to determine whether an application was dismissed for the purposes of s 365 of the Act prior to dealing with the dispute under s 368. Accordingly, the application was allocated to Deputy President Cross. The Deputy President made procedural directions and has listed the application for a hearing with respect to the jurisdictional objection on 10 December 2025.

• [4] On 7 November 2025, Dr A filed an application for an order for production to be made under s 590 of the Act. Section 590 relevantly provides:

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC; ...

• [5] The University objected to the application by email communication sent on 10 November 2025. Dr A responded to the University's objection on the same day. The Deputy President subsequently issued an order for production on 21 November 2025. The order requires the production of the following documents:

1. Contract Variation Approvals and Communications: All internal email chains and related HR correspondence concerning the amendment of my employment terms from full-time (1.0 FTE) to part-time (0.5 FTE), specifically covering the period from May 2025 to September 2025. This demand explicitly includes:

• All 'Change of Hours' forms and the approval email by the School Manager (Mrs. Elena Estrina).

• All emails sent to Professor Chun Wang (Head of School) and/or Mrs. Elena Estrina in which they confirmed the new contract end date would be approved following sponsor (Office of National Intelligence) approval.

• All email chains with the Office of National Intelligence (ONI) regarding my contract amendment and their approval, confirming the contract end date of January 25, 2026, and the final report deadline of March 2026.

• All automatic HR email chains regarding the contract end date, including those where the Applicant and A/Prof. Patrick Burr (Line Manager) informed the Respondent in the reply that the contract end date was not September 25, 2025.

2. RGC Communications (End Date & Reports): All emails sent to or from the Research Grants and Contracts (RGC) office that explicitly mention the January 25, 2026, end date, and all correspondence related to my NIPG Project progress reports and deadlines, including the final progress report deadline listed for March 2026. This demand includes any internal screenshots from the RGC system reflecting the correct end date that were emailed to me by RGC staff.

3. Employment History: All signed employment contracts and their corresponding emails and contract variation letters issued since the Applicant's commencement in August 2023.

• [6] On 24 November 2025, the University requested that the Deputy President amend or revoke Parts I and II of the order or list the matter for hearing to determine the proper scope of the order. The Deputy President's associate responded by indicating that the Deputy President was not prepared to revisit his decision to issue the order.

• [7] The University filed its notice of appeal on 25 November 2025. In the notice of appeal, the University sought a stay of the order while the appeal is being heard. The application for a stay was listed before me on the morning of 26 November 2025. The application for a stay was listed urgently given that the order for production requires that the documents be produced on or before 4pm on 26 November 2025. For the reasons that follow, the application for a stay should be dismissed.

• [8] The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1), which provides:

(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.

• [9] The principles applying to the determination of stay applications were not in dispute as between the parties. A commonly cited formulation of the principles is found in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[1]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave 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. Each of the two elements referred to must be established before a stay order will be granted.

• [10] The usual principle applied by the courts, when considering an application for a stay pending appeal, is that "a successful party is entitled to the fruits of his judgment" and there must be "sound reasons" to justify a suspension of that right.[2]

• [11] It is necessary to first consider whether there is a sufficiently arguable case on appeal to justify a stay being granted. In considering a stay application, the Commission will conduct no more than a preliminary assessment of the merits of the appeal, both on the question of permission to appeal and the substantive merits of the appeal. This assessment is necessarily preliminary in nature, given that the Commission will not (at that stage) have the benefit of full argument in relation to the appeal or of having access to, or the opportunity to consider, all relevant materials. That is particularly so where, as here, the stay application is required to be dealt with on an urgent basis.

• [12] The notice of appeal contains two grounds which are as follows:

1. The decision to give Part I and II their current scope is unreasonable in light of the narrow scope of the jurisdictional objection before the FWC.

1. The University submits that the FWC erred by failing to take into account relevant considerations. These considerations were:

1. The scope of what was relevant to the dispute before the FWC; and
2. The public interest in not issuing an Order to Produce which would require the production of confidential communications with the Office of National Intelligence (ONI) where they are not immediately relevant to the jurisdictional objection being heard by the FWC.

• [13] Based on a preliminary and necessarily superficial assessment, I am satisfied that there is an arguable ground of appeal. However, I do not consider that the ground is strong, particularly when the requirement to obtain permission to appeal is considered.

• [14] The first difficulty the University may encounter is that the appeal concerns a discretionary decision of an interlocutory nature to order a person to produce documents under s 590(1) and (2)(c). Courts and tribunals have consistently said that caution is to be exercised before leave (or permission) to appeal is granted with respect to decisions concerning matters of practice and procedure.[3] The Commission has similarly said that appeals against interlocutory procedural decisions of a discretionary nature are to be deprecated and will rarely be the subject of a grant of permission to appeal.[4]

• [15] In OSM Australia Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FWCFB 77, the Full Bench explained the justification for that approach as follows:[5]

The reasons for the reluctance of courts and tribunals to grant permission or leave to appeal from discretionary decisions on matters of practice and procedure are not difficult to discern. Interlocutory appeals will almost always delay the resolution of proceedings, cause additional cost and vexation for the parties and occupy more of the time and resources of the court or tribunal concerned. The Commission, in particular, is required to perform its functions in a manner that is, among other things, "fair and just" and "quick, informal and avoids unnecessary technicalities". Compliance with that instruction will often favour refusal of permission to appeal with respect to an appeal from a procedural decision.

• [16] The considerations which militate against permission to appeal being granted in this type of matter are substantial and represent a formidable obstacle to the University being successful on appeal. In my view, those considerations are likely to have even greater force in the case of an application under s 365 of the Act. The function of the Commission dealing with a general protections dispute involving dismissal under s 365 of the Act is limited to endeavouring to resolve the dispute other than by arbitration. The Commission is only required to determine a jurisdictional objection for the purpose of assisting the parties to settle the dispute. It would be doubly unfortunate if that process was interrupted, or additional cost or inconvenience caused, by interlocutory appeals.

• [17] The grounds of appeal are also likely to encounter some difficulties. The first ground contends that the scope of the documents required to be produced in Part I and II of the order is unreasonable in light of the nature of the jurisdictional objection. In short, the University says that the question of whether Dr A was dismissed or her employment ended by the effluxion of time turns on the contractual documents. In this respect, the University refers to Alouani-Roby v National Rugby Leave Ltd [2024] FCAFC 161 and Roberts v TasTAFE [2025] FWCFB 3. The University says that the documents required to be produced could not cast light on that question.

• [18] The decisions in Alouani-Roby and Roberts v TasTAFE suggest that whether an employee was employed for a specified period of time for the purposes of s 386(2)(a) or was dismissed for the purposes of s 386(1) is likely to depend on the terms of the contract between the employer and the employee. However, ascertaining the true contractual relation between the parties might require an investigation which goes beyond the ostensible contractual document. For example, the Full Bench explained in Aboriginal Hostels Ltd v McCue [2025] FWCFB 189:[6]

The fact that an employee is ostensibly employed under a written contract of employment which contains a specified end date might not be the extent of the inquiry necessary to ascertain the true contractual position of the employee. It is possible that the contract may be vitiated by misrepresentation, fundamental mistake in relation to its subject matter or terms, misrepresentation or unconscionability, duress or coercion, illegality or because the contract is a sham. In other cases, the conduct of the parties may give rise to a variation to the contract, the abandonment of the contract and its replacement or an estoppel that precludes the employer from relying on the strict terms of the contract. Ms McCue referred to the decision of the Full Court in Fisher v Edith Cowan University (No 2) [1997] IRCA 98; (1997) 72 IR 464 where it was said:

There may also be termination of the employment at the initiative of the employer and not pursuant to the mutual will of the parties if the terms of a fixed period contract have been varied in the course of performance of the contract, or the contract has been abandoned and replaced by another agreement, or the employer has engaged in conduct or representations which estop the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated. In those circumstances an employee may show that reliance by the employer upon the purported effluxion of a period of time for employment is, in fact, termination of the employment at the employer's initiative.

• [19] It is difficult, given the limited material available to me, to form any clear view as to whether that type of argument may be available to Dr A. I accept that, although consideration of whether Dr A has been dismissed may encompass consideration of contractual variation, sham or estoppel, it is arguable that communications not involving Dr A herself are of limited relevance. However, the University may encounter difficulties in convincing a Full Bench that it was not open to the Deputy President, in exercising the broad discretion under s 590(1) to inform himself as he considered appropriate, to form the view that the documents sought were potentially relevant to determining whether Dr A had been dismissed or her employment came to an end in accordance with the ostensible terms of the contract governing her employment. The first ground is arguable but not necessarily strong.

• [20] The second ground of appeal is that the Deputy President failed to take into account relevant considerations being the scope of the relevant dispute and the asserted public interest in not requiring the production of confidential communications with the ONI. I do not consider that this ground gives rise to an arguable basis for the appeal. The Deputy President did not produce reasons for his decision to issue the order for production. He was not required to do so having regard to s 601 of the Act and it is not unusual for that course to be adopted. The question of the relevance of the documents sought was raised in the University's objection to the order on 10 November 2025. It is difficult to accept that an inference should be drawn that the Deputy President did not have regard to that matter. The asserted confidential nature of communications involving the ONI was not raised in the University's objection on 10 November 2025 or its request for the Deputy President to reconsider the order on 24 November 2025. In those circumstances, I do not consider that it is arguable that the Deputy President erred by failing to consider a matter that was never raised with him.

• [21] Even if there is a sufficiently arguable case on appeal, it is necessary to consider whether the balance of convenience favours granting a stay. Granting a stay would likely require that the hearing of the University's jurisdictional objection be vacated and that resolution of the objection will be considerably delayed. That course would prolong the stress and anxiety to all concerned caused by the litigation, inconvenience the Commission and other litigants before the Commission by requiring relisting of the matter and increase the costs and inconvenience associated with the proceedings. Those considerations do not favour a stay being granted.

• [22] Some cost and inconvenience may be caused to the University in producing the documents sought in the order for production. That would be cost and inconvenience which could be avoided if a stay is granted and the appeal is then successful. That is a matter that is relevant to take into account. However, no evidence is before the Commission that substantial difficulty will be experienced in producing the documents. The University is obviously a large and well-resourced institution. In the circumstances, I cannot give that matter great weight. It appears to me that the University will not be prejudiced in the litigation. If the documents produced are not relevant, the University can object to the documents being admitted into evidence in the event that Dr A seeks to tender the documents. That matter will need to be determined by the Deputy President.

• [23] Whilst, on one view, refusing a stay might be said to render the appeal nugatory because the documents will be required to be produced, that takes a narrow view of the appeal. In United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FWC 2839, the President dealt with an application for a stay pending an appeal from the making of an order for production. His Honour recorded that the UFU submitted that a stay should be granted because otherwise the appeal would be rendered nugatory and said:

This submission may be accepted only in the narrow sense that the Trust Deed will have to be produced (to the Commission, not FRV) and disclosed to the single person nominated by FRV if a stay is not granted. However, the ultimate purpose of orders for production of documents is the use of the documents in the proceedings in question. The Commissioner has made no determination as to whether the Trust Deed should be admitted into evidence or otherwise used in the proceedings, and the UFU's rights in this respect are maintained if a stay is not granted. The UFU did not otherwise identify any substantive prejudice which will arise if a stay is not granted. Its assertion that the Trust Deed is confidential lacked content in that it was not explained what about it is actually confidential or what prejudice to the UFU might flow from its production in accordance with the Order.

• [24] The same view should be taken in this matter. Given that the University can subsequently object to any documents it produces being admitted into evidence, I do not accept that it will be caused substantial prejudice by being required to produce the documents now.

• [25] The matter that has caused me most concern in relation to the stay application is the fact that the order seeks the production of communications between the University and the ONI. It is asserted that the communications are confidential, and it is contrary to the public interest for them to be produced where they are not relevant. In this respect, I note that the order for production only seeks the production of communications regarding the amendment to Dr A's contract. Although the University has suggested those communications may contain sensitive information and, given the content of the Form F8A response by the University that would seem to be possible, no evidence has been provided that production of those communications would be injurious to the public interest or touch upon matters of national security. If that is the case, I would have expected the University to object to the production on grounds of public interest immunity and to put evidence before the Deputy President and before me to establish the genuineness of its concerns.

• [26] In any event, the order for production only requires the documents to be produced to the Commission. If the communications involving the ONI contain sensitive information or touch on matters of national security, it is open to the University or the ONI to object to Dr A being given access to some or all of the documents and to seek confidentiality orders under ss 593 or 594 of the Act. For example, the Commission can make an order under s 594(1)(c) prohibiting or restricting the publication of matters contained in documents lodged with the Commission. Breach of such an order could constitute an offence under s 675(1) of the Act. This is the appropriate mechanism through which to address any concerns that the documents referred to in the order for production contain sensitive or confidential information.

• [27] For these reasons, although one of the grounds of appeal is arguable, I am not satisfied that the balance of convenience favours a stay being granted. The application for a stay is dismissed.

M Caille, legal counsel, and B Remen, lawyer, for the University

[1] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 at [5].

[2] McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369 at 374; Philip Morris (Australia) Pty Ltd v Nixon [1999] FCA 1821 at [17].

[3] See, for example, Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; State of New South Wales v Meredith [2024] NSWCA 287 at [22].

[4] Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3]; Kennedy v Qantas Ground Services Pty Ltd [2019] FWCFB 6094 at [29]; You v CSIRO [2020] FWCFB 3804 at [23]; Smith v Reward Interiors Pty Ltd [2021] FWCFB 6031 at [8]; Woodside v Australian Workers' Union [2022] FWCFB 168 at [21]- [22]; Santos WA Energy Ltd v Whittaker [2024] FWCFB 231 at [10].

[5] OSM Australia Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FWCFB 77 at [16].

[6] Aboriginal Hostels Ltd v McCue [2025] FWCFB 189 at [43].

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