Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2021] FWCA 4524 of Deputy President Mansini at Melbourne on 28 July 2021 in matter number AG2021/6101.

[1] The appellant, the United Workers' Union has appealed a decision of Deputy President Mansini made on 28 July 2021 approving the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021[1] (Agreement). Permission to appeal is required. The appellant contends that the decision was in error because the Deputy President could not reasonably be satisfied that the Agreement passed the better off overall test (BOOT) (ss 186(2)(d) and 193(1) of the Fair Work Act 2009 (Cth) (FW Act)), that the Agreement was genuinely agreed to by employees to be covered by the Agreement (ss 186(2)(a) and 188) or that the group of employees covered by the Agreement was fairly chosen (s 186(3)). The appellant also contends that the undertakings accepted in connection with the approval of the Agreement did not address any of these matters. The appellant's notice of appeal was filed outside of the time prescribed by rule 56(2) of the Fair Work Commission Rules 2013, so an extension of time is required for the appeal to proceed.

[2] The appeal is currently listed for further hearing at 12:30 pm on 9 September 2022 in Brisbane. On 25 August 2022 we made orders pursuant to s 590(2) of the FW Act requiring the attendance before the Commission of Darren Latham, Shanshan (Shirley) Li, Suet Ying (Carol) Wu, Jack Nicholson and Ashmit Subedi at that hearing. We also made orders pursuant to s 590(2) directed to the respondent, Hot Wok Food Makers Pty Ltd, and also to Staff Services Employment Pty Ltd, a related entity of the respondent, requiring the production of certain documents evidencing, concerning or referring to the employment of four of the abovementioned individuals.

[3] The circumstances that led us to make these orders are set out in a statement we issued in connection with the appeal proceeding on 9 August 2022[2] and in our decision issued on 18 August 2022[3] rejecting the respondent's application that we each recuse ourselves from further hearing the appeal because of apprehended bias. These need not be repeated. In our 18 August 2022 decision we again requested that the respondent provide information addressing the matters identified in paragraphs [4], [6]-[7] and [10] of our 9 August 2022 statement, by way of a statutory declaration made by a person with the requisite authority and knowledge and to make that person available for cross-examination and any questioning which we might consider necessary at a further hearing of the appeal.[4] By correspondence from the respondent's solicitors dated 23 August 2022, the request was declined.

[4] On 30 August 2022, the respondent commenced a proceeding[5] in the Federal Court of Australia for relief under s 39B of the Judiciary Act 1903 (Cth) and s 21 of the Federal Court of Australia Act 1976 (Cth) in the following terms:

1. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, that in matter C2022/3219, the Second Respondent (constituted by members of a Full Bench) exceeded its appellate jurisdiction and thereby fell into jurisdictional error, by taking steps to formulate and inquire into the matter which is the subject of the appeal other than in relation to the grounds of appeal raised by the First Respondent, including by the invocation of powers under s 590(2) of the Fair Work Act to compel the production of documents and the attendance of persons to give evidence.

2. A writ of mandamus requiring the Second Respondent to hear and determine the First Respondent's application for permission to appeal (and, if permission is granted, its appeal) in matter C2022/3219 under s 604(1) of the Fair Work Act 2009 (Cth) in accordance with law.

[5] On 31 August 2022, the respondent applied for the appeal proceeding to be adjourned pending the determination of the abovementioned Federal Court proceeding. The application to adjourn the appeal proceeding is opposed by the appellant.

[6] In support of its adjournment application, the respondent contends that as the Federal Court proceeding challenges the approach which we have adopted in the appeal proceeding and because the Court will be required to determine whether the Commission has jurisdiction to take the course which we are taking, justice may require an adjournment of the appeal proceeding. This is because:

• The outcome of the Federal Court proceeding will inevitably affect the appeal;

• If the appeal proceeding continues as currently proposed, and the respondent's case for relief is vindicated, the Court will find that the Commission has acted beyond power and any decision will thereby be tainted by jurisdictional error and will be quashed;

• If the relief sought in the Court is granted after we determine the appeal, as the decision will be quashed, the appeal will need to be reheard in accordance with the Court's decision, resulting in costs thrown away and additional cost being incurred by the parties and perhaps also by persons subject to the orders incurred in complying with the orders or challenging the effect of the orders at the scheduled hearing;

1. Although the appeal proceeding and its determination will be delayed, no practical prejudice will result. This is because the Agreement will continue in operation and if ultimately it is set aside by any decision we might make, the remuneration and other entitlements of employees of the respondent will need to be recalculated under the applicable modern awards from the date the Agreement commenced operation.[6]

[7] For the reasons which follow, we reject the respondent's application for an adjournment of the appeal proceeding, and we propose to proceed as scheduled on 9 September 2022.

1. Although the Commission has power to adjourn the appeal proceeding, found in s 589(1) of the FW Act allowing for decisions "as to how, when and where a matter is to be dealt with", the power is a statutory discretion, not an inherent power. The nature of a discretionary power was discussed by the High Court in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission.[7] The discretionary power with which we are here concerned, is one of considerable latitude where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion exercised in the circumstances under which the respondent's adjournment application is made.[8]

[9] Section 577 requires the Commission to perform its function and exercise its powers in a manner that is, inter alia:

• fair and just;

• quick, informal and avoids unnecessary technicalities; and

• open and transparent.

[10] Section 578 requires the Commission, in performing its functions and exercising its powers in relation to a matter, to take into account, inter alia, the objects of the Act, equity, good conscience and the merits of the matter.

1. In this context, the relevant issue in deciding whether an adjournment of the appeal proceeding should be ordered is ultimately a question of what justice requires in the circumstances[9] - that is, whether the interests of justice would be best served by an adjournment of the appeal proceeding pending the determination of the Federal Court proceeding. The Commission's obligations under ss 577 and 578 must be taken into account in answering this question.

[12] The commencement by the respondent of the Federal Court proceeding does not operate as a stay of the appeal before us. The respondent does not seek any order from the Court that the appeal be stayed or that we be restrained on an interlocutory basis from further proceeding to hear and determine the appeal. Nor does the respondent seek an expedited hearing before the Court. The Commission's statutory duty to determine the appeal proceeding quickly and in a manner that is fair and just, taking into account the merits of the appeal, is therefore unaffected.

[13] The respondent's contention that the outcome of the Federal Court proceeding will inevitably affect the appeal is not correct and assumes a particular outcome in the appeal proceeding. There is no warrant for assuming that the matters which might be the subject of evidence during the scheduled hearing on 9 September 2022 will ultimately have a particular bearing on any decision we make or that any decision we make will rely solely or even predominantly on such evidence.

[14] Moreover, even if matters that might be raised in evidence do ultimately having a bearing on the outcome of the appeal proceeding, the appeal might also, independently or separately, be determined on one or more bases that have already been argued. If one or more of these bases underpinned any appeal decision to quash the approval decision, then success by the respondent in the Federal Court proceeding would likely not result in the quashing of the appeal decision nor in a rehearing of the appeal.

[15] The appeal proceeding will very likely be determined well before the Federal Court proceeding will have been heard, much less determined. The respondent will thus be at liberty to commence any further proceeding in the Court in connection with the appeal decision, and to apply to join that proceeding with the current Court proceeding, or alternatively to apply to amend the current Court proceeding in light of the appeal decision. This would enable the Court to consider the whole of the controversy. Moreover, armed with our appeal decision, the respondent might consider whether the current Federal Court proceeding is necessary or has become inutile.

[16] We also do not accept that if the appeal proceeding and its determination is delayed, that no practical prejudice will result. This is only correct if the appellant fails in the appeal proceeding. If the appeal is ultimately successful and the Agreement is set aside, practical injustice resulting from delay may occur on several bases. Two examples will suffice. First, employees of the respondent currently covered by the Agreement who have signed voluntary hours agreements will continue to work unsociable hours without penalty rates for which the applicable modern awards provide. The prospect of obtaining some backpay in the distant future does not ameliorate the benefit forgone by such employees of being paid the appropriate modern award rates for such hours now worked, particularly given the current economic climate. Second, there is no certainty that each employee who is affected will still be employed by the respondent at some future date that the Agreement is ultimately set aside or that at that time such employees can be located so that payments for any underpayment may be made to them. Any back payment may thus not find its way to some employees otherwise entitled to receive it. More generally, the grant of the adjournment will lead to an indeterminate and, we consider, undesirable period of uncertainty as to the rights and obligations of the respondent and its employees as compared to the certainty which an expeditious determination of the appeal is likely to produce.

[17] Whilst we accept that some additional costs might be incurred if the adjournment is not granted, it is equally likely that some additional costs might be avoided, for the reasons we have earlier set out, if we proceed to hear and determine the appeal proceeding as scheduled.

[18] We note that the appellant has not, in support of its adjournment application, made any submissions as to the merits of its Federal Court application or even contended that it is reasonably arguable. This weighs against the respondent's adjournment application.

[19] In the circumstances we consider that the interests of justice would be best served by proceeding to hear and determine the appeal proceeding. The application for an adjournment is therefore refused.

[20] As to the hearing scheduled for 9 September 2022, we intend that the following procedure be adopted for the examination of any person who has been required by order to attend and who attends before the Commission. After the person giving evidence has taken an oath or affirmation, examination of the person would take place as follows:

• the respondent will be given the first opportunity to examine the witness;

• the appellant may then examine/cross-examine (as appropriate) the witness;

• members of the Full Bench may next ask any questions as necessary;

• the appellant may seek permission to ask further questions in cross-examination in relation to any responses to questions that may be asked by the members of the Full Bench;

• the respondent may then re-examine the witness.

[21] Any party may raise any perceived issue or difficulty with the proposed procedure at the commencement of the hearing.

[2] [2022] FWCFB 151

[3] [2022] FWCFB 158

[5] Hot Wok Food Makers Pty Ltd (ACN 058 494 447) v United Workers Union & Anor (file number QUD296/2022)

1. [6] Respondent's submissions in support of its adjournment application, 1 September 2022, at [4]-[11]
2. [7] [2000] HCA 47; 203 CLR 194 at [19]
3. [8] Ibid; see also Visy Board Pty Ltd v Rustemovski & Anor [2018] FWCFB 1255 at [46]
4. [9] Visy Board Pty Ltd v Rustemovski [2018] FWCFB 1255 at [49]

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