Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2017] FWC 6463 of Commissioner Bissett at Melbourne on 11 December 2017 in matter numbers U2017/9857 and U2017/9326.

[1] This matter concerns an appeal by Visy Board Pty Ltd t/as Visy Board (Visy; the Appellant) from a decision of Commissioner Bissett on 11 December 2017[1] (the Decision) to adjourn the unfair dismissal proceedings instituted by Fahim Ahmadyar and Ulben Rustemovski (the Respondents).

[2] The Respondents were employed by Visy. They were dismissed on 4 August 2017 and 23 August 2017, respectively. Each was dismissed for 'organising unlawful industrial action at the Visy Board Dandenong site in the form of overtime bans on afternoon and day shifts from Monday 24 July to Wednesday 26 July [2017]'[2] ('the overtime bans'). The Respondents applied to the Commission, pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act), seeking a remedy in respect of unfair dismissal, in particular, they sought reinstatement and back pay and allege that:

• (i) they did not organise the overtime bans; that is, there is no valid reason for their dismissals; and

(ii) the dismissals were otherwise harsh.[3]

[3] Visy has proceedings on foot in the Federal Court of Australia relating to the overtime bans, and subsequent (but not presently relevant) strike actions.[4] The Federal Court proceedings have been issued against the AMWU, an official of that union and 69 Visy employees (but not Messrs Ahmadyar and Rustemovski). In the Federal Court Visy claims that the respondents in those proceedings contravened a number of civil penalty provisions under the FW Act, by strike action and overtime bans, and seeks the imposition of pecuniary penalties on the respondents. While the Respondents to the present proceedings are not party to the Federal Court proceedings, it is evident from Visy's statement of claim in those proceedings that it alleges that Messrs Ahmadyar and Rustemovski 'directed, authorised and/or organised employees...to not work allocated overtime...'[5]

[4] Neither of the unfair dismissal matters settled at conciliation. Directions were subsequently issued in each matter, as set out below:

1. 'The applicant (Mr Fahim Ahmadyar) is directed to lodge with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent, an outline of submissions and any witness statements and other documentary material the applicant intends to rely on in support of the application in this matter, by no later than noon on Monday, 9 October 2017.

2. The respondent (Visy Board Pty Ltd T/A Visy Board) is directed to lodge with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant, an outline of submissions and any witness statements and other documentary material the respondent intends to rely on in opposition to the application in this matter, by no later than noon on Monday, 30 October 2017.'

3. 'The applicant (Mr Ulben Rustemovski) is directed to lodge with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent, an outline of submissions and any witness statements and other documentary material the applicant intends to rely on in support of the application in this matter, by no later than noon on Monday, 30 October 2017.

4. The respondent (Visy Board Pty Ltd T/A Visy Board) is directed to lodge with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant, an outline of submissions and any witness statements and other documentary material the respondent intends to rely on in opposition to the application in this matter, by no later than noon on Monday, 20 November 2017.' (the Directions)

[5] On 5 October 2017 the Respondents requested that the Commission vacate the Directions pending the conclusion of the Federal Court proceedings. Visy opposed the request.

[6] In the proceedings at first instance it was generally agreed that:

• Messrs Ahmadyar and Rustemovski were dismissed for serious misconduct constituted by their role in organising unlawful industrial action.

• Prior to the termination of their employment Visy had instituted proceedings in the Federal Court of Australia[6] against the AMWU, Mr Michael Bull (a union official) and 69 of its employees employed at the site but excluding Messrs Ahmadyar and Rustemovski.

• In the Federal Court proceedings Visy claims that the respondents to those proceedings contravened a number of civil penalty provisions of the FW Act by organising and/or engaging in strike action and organising and/or imposing overtime bans.
• By the statement of claim filed in the Federal Court Visy alleges that Messrs Ahmadyar and Rustemovski 'directed, authorised and/or organised employees...to not work allocated overtime...'

• The Applicants applied for an adjournment of the unfair dismissal application because of concerns that they will be denied natural justice by being denied a fair and reasonable opportunity to present their cases to the Commission because of the operation of the privilege against self-incrimination in relation to the Federal Court proceedings.[7]

[7] The application for an order vacating the Directions was the subject of a mention before Commissioner Bissett, who directed that written submissions be filed. Messrs Ahmadyar and Rustemovski filed a submission in support of the application, dated 12 October 2017.[8] The submission is supported by a statutory declaration dated 12 October 2017 of Geoffrey Borenstein, a solicitor with Slater & Gordon Lawyers who has carriage of the unfair dismissal applications.[9]

[8] Visy filed a submission opposing the adjournment application, dated 20 October 2017.[10] That submission is supported by a statutory declaration dated 20 October 2017 from Shaun Kieron Kopel, the National Employee Relations manager of Visy.[11]

[9] Messrs Ahmadyar and Rustemovski filed a submission in reply, dated 27 October 2017.[12] That submission is supported by a second statutory declaration from Geoffrey Borenstein.[13]

[10] The Commissioner determined the application on the basis of the written material filed by the parties.

[11] In the Decision subject to appeal the Commissioner set aside the Directions.[14]

[12] At paragraph [9] of the Decision the Commissioner set out the principles in relation to an application for a stay of civil proceedings as outlined by Wootten J in McMahon v Gould [15] where his Honour said:

'I approach the decision in this matter with the following guidelines:

(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19);

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson v Bhetcha at 905);

(d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) The court's task is one of "the balancing of justice between the parties" (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905);

(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905);

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). I return to this subject below;

(h) However, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904-5);

(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid at 905);

(ii) the proximity of the criminal hearing (ibid at 905);

(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905);

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton);

(v) whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736);

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735-6);

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;

(1) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v Barton).'

[13] The Commissioner also referred (at [10]) to the observation of Dodds-Streeton J in Websyte Corporation Pty Ltd v Alexander (No.2)[16] (Websyte) in which her Honour observed that in McMahon v Gould, Wootten J did not purport to establish a rigid code, but expressly recognised that the relevant considerations will vary according to the individual case and that the guidelines were not exhaustive.

[14] The Commissioner then refers to a number of decisions in the Commission in which McMahon v Gould has been applied where a stay of proceedings in the Commission has been sought pending the resolution of criminal proceedings.[17]

[15] On appeal no issue is taken with the Commissioner's recitation of the applicable principles (at [9]-[18] of the Decision). Nor is any issue taken with the proposition (at [19] of the Decision) that the Commission has power to adjourn a matter by vacating directions issued, effectively granting a stay on proceedings or with the proposition (at [20] of the Decision) that the consideration of such an application must be undertaken within the statutory framework for dealing with applications for relief from unfair dismissal.

[16] At paragraphs [24]-[30] of the Decision the Commissioner sets out the submission advanced by Messrs Ahmadyar and Rustemovski in support of the application to vacate the directions. Visy's submissions, opposing the application, are set out at [31]-[34] of the Decision.

[17] The graveman of the Decision is set out at [35]-[50]:

'[35] That I have not heard direct evidence from the Applicants as to the prejudice they believe they will suffer or as to their understanding of effect of the grant of the application to vacate may have on the unfair dismissal applications is not relevant. The Applicants are represented and there is no basis to consider they have not been properly advised by their lawyer.

[36] Further, beyond the general prejudice to the Respondent of a delay in hearing the unfair dismissal applications, vague claims of unnamed persons who may be witnesses being marginalised in the workplace are difficult to realistically assess. Further, that union delegates may change it seems to me is part of business and does not create any prejudice to the Respondent.

[37] I do not consider it relevant that the Respondent may not call the named employees in the Federal Court proceedings as witnesses in these proceedings (although I note that the Respondent qualifies this by saying it has no intention to do so "at this time" leaving the option well open to it). The Applicants may seek to call such witnesses and this cannot be ignored.

[38] I do not consider that some injustice may arise to the named employees in the Federal Court proceedings provides grounds to stay the applications. This application is not made on behalf of the named employees in the Federal Court matter - the injustice in the application to vacate directions in the unfair dismissal proceedings must be directed to the parties in the unfair dismissal proceedings. I am satisfied however that the potential implications for the named employees in the Federal Court proceedings does affect this matter as it may limit the capacity of the Applicants to mount a sound defence against the reasons for their dismissal. An injustice arises in this way to the Applicants in the unfair dismissal.

[39] I do accept that it is important that, where an applicant in an unfair dismissal matter seeks reinstatement, this should be determined as quickly as possible. This however needs to be balanced against other competing interests raised by the application to vacate.

[40] It cannot be held against the Applicants that they have made their application for unfair dismissal within time. There is, otherwise, no guarantee that an application made late would be accepted by the Commission an extension of time within which to make an application for unfair dismissal being a discretionary decision of the Commission.

[41] The Applicants have not been in control of the timing of their unfair dismissal applications or the Federal Court proceedings. I am not convinced they should be subject to potential injustice because of that timing. It is, in this respect, unfortunate that the facts in the unfair dismissal case are inextricably bound up in the facts in the Federal Court proceedings but this is of the Respondent's doing and the Applicants should not be disadvantaged by this.

[42] This is an unusual case. The Applicants have not been named in the Federal Court proceedings yet the conduct for which their employment was terminated is highly relevant in the Federal Court proceedings as is evident from the statement of claim of Visy in that matter.

[43] Further, regardless of the stated intention of Visy that it does not intend to commence civil penalty provisions against the Applicants, this does not grant the Applicants immunity from such proceedings as proceedings may be instigated by, for example, the Fair Work Ombudsman. This may lead to an injustice for the Applicants in that, in giving evidence in their unfair dismissal hearing, they may expose themselves to penalty provisions of the FW Act.

[44] The Applicants in this matter have had their employment terminated "for organising unlawful industrial action". A potential finding, in determining if the conduct complained of occurred (and hence if there was a valid reason for dismissal), is that the Applicants can only have organised unlawful industrial action if industrial action was taken and it was not properly protected. Whilst the Applicants deny the conduct it seems to me inevitable that the Commission, in deciding if the dismissal was harsh, unjust or unreasonable, may need to consider if the action organised was not protected. In doing so, the Commission may be required to decide if employees of the Respondent took unprotected industrial action. The named employees in the Federal Court proceedings will have evidence I would have thought highly relevant to such a matter.

[45] Given that the named employees have been advised not to give evidence in the unfair dismissal matter on the grounds that they may incriminate themselves, this may lead to an injustice for the Applicants in that it may adversely affect their ability to put forward a robust case in the unfair dismissal hearings.

[46] If the allegations of misconduct, organising in unlawful industrial action, are groundless, no injustice will accrue to the Applicants. This weighs against the grant of the stay. However, in this case, the Applicants may not be able to mount such a defence as the witnesses on whom they seek to rely have indicated that they will not give evidence on the grounds that it may incriminate them.

[47] In reaching my decision I have also taken into account the need to ensure a "fair go all round" is afforded to both the employer and employees. This applies as much to procedure as to other matters relevant in an unfair dismissal. In this respect the Respondent has not convinced me that it would be denied "a fair go" if the application to vacate directions was granted. I consider that any injustice arising directly from the grant of the application to vacate directions will accrue to the Applicants but they have sought that the directions be set aside.

[48] I have also taken into account the potential delay in dealing with the unfair dismissal matters pending the Federal Court matter. Whilst this is regrettable there is no evidence that the delay will be substantial, noting that mediation dates have apparently been set.

[49] For these reasons, and on balance, I am satisfied that an injustice will accrue to the Applicants such that the application to set aside the directions in the unfair dismissal applications should be granted.

[50] An order to this effect will be issued with this decision.'[18]

[18] It is common ground that the Commissioner approached the exercise of her discretion in the following way:

• (i) First, she found that she was required to ensure 'that the Applicants are given every reasonable opportunity to present their best defence against the reasons for dismissal whilst ensuring the applications are not unreasonably delayed';

• (ii) Second, she identified and evaluated prejudice said to arise for each party should a stay be granted; and

• (iii) Third, and ultimately, she equated McMahon v Gould principles as requiring her to identify some injustice that may arise that may adversely affect the Respondent's ability to put forward a robust case in their unfair dismissal applications.

[19] The issue in this appeal is whether the Commissioner erred in the exercise of her discretion.

[20] An appeal under s.604 of the FW Act is by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker. An appeal is not as of right and permission to appeal must first be obtained.[19] 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.[20] However, the fact that the member at first instance made an error is not necessarily sufficient basis for the grant of permission to appeal.[21]

[21] Subsection 604(2) of the FW Act 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.[22] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

'... the public interest might be attracted where a matter raises issues 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.'[23]

[22] Other than the special case in s.604(2) of the FW Act, the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.[24]

[23] The decision subject to appeal is a discretionary decision. In Coal and Allied Operations Pty Ltd v AIRC[25] (Coal & Allied) the High Court addressed the concept of error in the context of an appeal from a discretionary decision, in these terms:

'Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.'[26]

[24] We would also observe that House v The King articulates a further basis upon which error may be established in the exercise of a discretion:

'It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law responses in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.'[27]

[25] Section 400 modifies s.604(2) of the FW Act in relation to a certain category of decisions. It provides:

(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by the FWC under this Part unless FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.'

[26] The reference in s.400(1) to 'this Part' is a reference to Part 3-2 of the FW Act, which is concerned with unfair dismissal. If s.400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the Appeal Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not open for an Appeal Bench to grant permission to appeal on discretionary grounds. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a 'significant error of fact' (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as 'a stringent one.'[28]

[27] The parties were at odds as to whether the Decision was one to which s.400(1) applies.

[28] The Appellant contends that the Decision was a decision under s.589(1), which states:

'The FWC may make decisions as to how, when and where a matter is to be dealt with'.

[29] Subsection 589(1) is in Part 5-1 of the FW Act and on this basis Visy submits that s.400 does not apply.

[30] The Respondents submit that s.400 does apply because the Decision was made in and in relation to a matter arising under Part 3-2 of the FW Act.[29]

[31] It is not necessary for us to resolve this issue. We have proceeded on the basis that the Appellant is correct and that s.400(1) of the FW Act does not apply. As will become apparent, applying the test proposed by the Appellant (see [21]-[22]) above) we have not been persuaded to grant permission to appeal. It necessarily follows that permission would also be refused in the event that s.400(1) applied, as it applies a more stringent test.

[32] It is not in dispute that Visy is a 'person aggrieved' by the Decision, within the meaning of s.604(1) of the FW Act.

[33] The Decision subject to appeal is an interlocutory or procedural decision. The characterisation of the decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged such appeals on the basis that they may prolong the proceedings and increase costs.[30]

[34] It is convenient to deal first with the Respondent's submission that a number of the arguments advanced by the Appellant were not put to the Commissioner at first instance (see [21], [27], [28], [37], [43] and [45] of the Respondent's Outline of Submissions).

[35] During the course of oral argument, counsel for Visy made it clear that the Appellant was not relying on these arguments (i.e. those put on appeal but not put at first instance) to establish error, rather, they were advanced in the event that the Commission found error (on some other basis) and proceeded to a rehearing of the matter.[31] Further, counsel also conceded that the following arguments had not been put to the Commissioner at first instance:[32]

• the Respondents are the moving parties (at [18] - [19] of the Appellant's Outline of Submissions); and

• no adverse inferences can be drawn (at [27] of the Appellant's Outline of Submissions).

[36] Counsel for Visy rejected the Respondent's submission that a number of other arguments advanced by the Appellant were not put to the Commissioner at first instance. Counsel referred to a number of passages from Visy's submissions at first instance in support of the proposition that these issues were raised at first instance, either directly or by inference.[33] We have considered the passages referred to and we are not persuaded that the arguments set out below were put, or were put with sufficient particularity, in the proceedings at first instance:

• the proposition (in the last two sentences at [20] of the Appellant's Outline of Submissions) that the correct approach would have been to acknowledge a prima facie disposition against a stay due to the hypothetical nature of the exercise and then to consider what procedural measures could have been adopted to ameliorate any privilege issue that may arise;

• the Federal Court proceedings are not criminal proceedings (at [21] - [22] of the Appellant's Outline of Submissions);

• the Respondents have substantially waived their privilege (at [22] - [33] of the Appellant's Outline of Submissions); and

• the privilege could have been managed (at [34] - [35] of the Appellant's Outline of Submissions).

[37] We have proceeded on the basis that the Appellant's submissions referred to at [35] and [36] above are not relied on to establish error and only become relevant in the event we find (on some other basis) that the Commissioner erred, and we proceed to a rehearing.

[38] We now turn to the Appellant's submissions on the question of permission to appeal. In support of its contention that permission to appeal should be granted, Visy submits:

• the issues in the appeal raise matters of importance and general application;[34]

• the public would benefit from appellate guidance as to the proper application of the McMahon v Gould line of authority, in light of the statutory context underpinning the unfair dismissal regime in the FW Act;[35] and

• the Decision manifests an injustice and is counter intuitive.[36]

[39] The Appellant's submissions in respect of the McMahon v Gould principles and decisions made under the FW Act are set out at [12]-[16] of Visy's Outline. In summary, Visy submits that:

• ➢ The Commission has power to stay proceedings (in s.589(1)) but that power is statutory not inherent and is to be exercised in the context of the FW Act.

• ➢ The FW Act requires (at s.577 and 578) that the Commission is to perform its function and exercise its powers in a certain way (e.g. that 'is fair and just') and to take into account the objects of the FW Act and, relevantly, the objects of Part 3-2.

➢ The 'ultimate question' in applying McMahon v Gould is whether there 'has been demonstrated such a real risk of injustice to the defendant that the court would be justified in denying the plaintiff his fundamental right to a hearing in the ordinary course' (citing De Simone v Benvol Constructions and Development Pty Ltd). [37]

➢ The Commission must answer that ultimate question within its decision-making rubric under the FW Act and in order to do so, the Commission is required to identify the risk of injustice and assess whether it is real or merely notional. The risk must be of such a magnitude to justify denying Visy 'a hearing in the ordinary course' - a disposal of the proceeding quickly, giving emphasis to reinstatement, whilst providing a fair go all round.

[40] We would observe at the outset that the Appellant's case appears to proceed on the basis that the Commissioner was bound to apply McMahon v Gould. When this issue was raised during the course of oral argument counsel for Visy acknowledged that the McMahon v Gould principles do not establish a rigid code and that the considerations that bear upon any decision to grant a stay will vary according to the individual case.[38] Further, counsel accepted that the McMahon v Gould line of authority might be of some assistance by way of broad guidance but each case must be determined on its own circumstances having regard to the statutory framework and the obligation to act fairly.[39] Counsel did not seek to confine the discretion exercised by the Commissioner such that it can only be exercised in accordance with the McMahon v Gould guidelines.[40]

[41] Yet despite these concessions, counsel for Visy later sought to argue that the Commissioner had erred at [47] of the Decision, when she said 'I consider that any injustice arising accrues to the applicants', on the basis that was 'not the test'. Counsel submitted:

'So we say that's not the test. The test principally - and this is something that we do press upon from the McMahon v Gould factors - is there needs to be an assessment of whether the risk of injustice is real or notional. It's not a search for potential injustices that may arise, that may adversely affect the particular matters.'[41]

[42] For the reasons which follow we are not persuaded that the Commissioner was bound to apply McMahon v Gould.

[43] In McMahon v Gould Wootten J had to decide whether a civil proceeding brought by a liquidator against the defendant in respect of acts done by him as a director should be stayed until the determination of criminal proceedings involving the same subject matter pending against the director. Wootten J identified as 'guidelines' a series of matters to consider in determining the exercise of the discretion to stay the civil proceeding. The circumstances in the present matter are quite different - it is the applicants who are seeking the 'stay' and the discretion being exercised is a statutory, not an inherent power. In any event it appears to be common ground that the McMahon v Gould 'guidelines' do not purport to establish a rigid code and that the consideration that bear upon a decision to stay a proceeding will vary according to the individual case (see Websyte at [115]).

[44] It may be noted that in De Simone the Victorian Court of Appeal observed (at [7]):

'The McMahon v Gould guidelines have been applied in Australian courts many times... Often the case will be determined without express reference to the guidelines but by reference to the justice of the situation, and in that sense such cases follow the McMahon v Gould line of authority.'[42]

[45] It is important to bear in mind that the Commissioner at first instance was exercising a general discretion. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission[43] the High Court made the following observations about the nature of 'discretion':

'"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.'[44] [Emphasis added]

[46] The discretion exercised in the present case was only confined by the subject matter and objects of the FW Act and, as such, the decision maker had considerable latitude as to the decision to be made.

[47] In such circumstances the McMahon v Gould principles may be of some assistance, by way of broad guidance, but each case must be determined having regard to its particular circumstances and to the statutory framework within which the discretion is to be exercised. The discretion was required to be exercised having regard to the Commission's central obligation to provide a fair hearing to parties in proceedings before it. Such an obligation arises directly from s.577(a) of the FW Act, which directs the Commission to perform its functions and exercise its powers in a manner that 'is fair and just', and from the implied obligation to act judicially.[45] One aspect of the duty to act judicially is the obligation to afford a party a reasonable opportunity to allow his or her case to be put.[46]

[48] In our view the rigid application of the McMahon v Gould guidelines in the present context may also operate to inappropriately confine the exercise of the Commission's discretion. As Bowan LJ observed in Gardner v Jay: [47]

'When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the act or the Rules do not fetter the discretion of the Judge why should the court so do.'[48]

[49] Elevating any of the McMahon v Gould guidelines into a 'test' to be satisfied as a condition precedent to the exercise of the Commission's discretion - as the Appellant appears to contend - also serves to obfuscate the Commission's primary obligation, to ensure that the parties are afforded a fair hearing. Ultimately the relevant question is: what does justice require in the circumstances?

[50] We would also observe that the approach we have described is entirely consistent with the Respondents' contentions in the proceedings at first instance. At paragraph 11 of their submissions in support of the adjournment application the Respondents submit:

'The central reason for the adjournment application is the Applicants' concern that they will be denied natural justice by being denied a fair and reasonable opportunity to present their cases to the Commission because of the operation of the privilege against self-incrimination in relation to the Federal Court proceedings'.

[51] Turning back to the submissions before us, the Appellant contends, among other things, that the discretion in the present matter miscarried as it was not exercised in accordance with relevant legislative purpose and, in particular, that the Decision has frustrated the discharge of the obligation to determine the matter quickly:

'Being an object of Part 3-2, the Parliament has indicated a public interest in the quick disposition of unfair dismissal applications. That public interest ought to count against a stay. The Commission below paid no regard to this interest. The Commission's analysis of the prejudice occasioned on Visy by delay was merely described as "general." The evidence before her was that pleadings had been exhausted, and mediation was set for 22 February 2018. Thus, the Federal Court proceeding will not have progressed beyond mediation, approximately 6 months after the date of dismissal. This time period, together with the steps required to complete the Federal Court proceeding (including any appeal), was dismissed as "insubstantial." No person that takes into account Visy's and the public interest can reasonably arrive at this conclusion. The indefinite stay that was ordered has frustrated the discharge of the obligation to determine this matter quickly.'[49]

[52] Further, Visy notes that the Respondents seek reinstatement and submits that reinstatement is the primary remedy for unfair dismissal; and that for reinstatement to be administered appropriately and fairly, applications for unfair dismissals must be determined quickly. Delayed unfair dismissal applications are said to prejudice the ability of the employer and employee to return to the workplace in the previous position on terms no less favourable. Visy contends that the Commissioner erred in not giving more weight to these considerations:

'The Commissioner below identified this as a factor that might count against a stay, but merely balanced it against other McMahon v Gould factors that she identified. The Commissioner did not go further and consider the obvious prejudice occasioned on Visy if reinstatement was in fact ordered. The Commissioner did not go further and consider that the claim for lost pay accrues each day the proceedings are stayed.

Nor did the Commissioner pay heed to the emphasis this consideration requires. In light of the objects of Part 3-2 (and the mandatory obligation to take into account those objects), the correct approach was to treat this consideration as a central and governing one. The failure to do so was in error.'[50]

[53] The Commissioner refers to the issue of reinstatement at paragraph [39] of the Decision:

**'**I do accept that it is important that, where an applicant in an unfair dismissal matter seeks reinstatement, this should be determined as quickly as possible. This however needs to be balanced against other competing interests raised by the application to vacate.'

[54] The weight to be accorded to this consideration was a matter for the Commissioner.

[55] Further, we do not accept that the Commissioner erred in the manner contended by the Appellant, indeed it seems to us that to the extent the delay in the finalisation of the unfair dismissal applications may create difficulties in relation to any order for reinstatement, the burden of that would fall on the Respondents rather than Visy. It seems to us that the delay would provide Visy with an argument against reinstatement, which it potentially would not have absent the adjournment.

[56] As to the proposition that the discretion was not exercised in accordance with the legislative context we note that the Commissioner addresses the objects of Part 3-2 and the issue of delay at paragraphs [20]-[23], [36] and [47]-[48]:

'[20] The consideration of the application before the Commission must be undertaken within the statutory framework for dealing with applications for relief from unfair dismissal.

[21] The unfair dismissal provisions are found in Part 3-2 of the FW Act. The objects of Part 3-2 are at s.381 of the FW Act. They state:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(b) to establish procedures for dealing with unfair dismissal that:

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

[22] It is therefore necessary to consider the current application and to apply the principles outlined above within a framework that recognises and balances competing needs, does not introduce unnecessary delay but provides for a fair go all round in its process.

[23] I take from this a need to ensure, in my decision, that the Applicants are given every reasonable opportunity to present their best defence against the reasons for dismissal whilst ensuring the applications are not unreasonably delayed.

[36] Further, beyond the general prejudice to the Respondent of a delay in hearing the unfair dismissal applications, vague claims of unnamed persons who may be witnesses being marginalised in the workplace are difficult to realistically assess. Further, that union delegates may change it seems to me is part of business and does not create any prejudice to the Respondent.

[47] In reaching my decision I have also taken into account the need to ensure a "fair go all round" is afforded to both the employer and employees. This applies as much to procedure as to other matters relevant in an unfair dismissal. In this respect the Respondent has not convinced me that it would be denied "a fair go" if the application to vacate directions was granted. I consider that any injustice arising directly from the grant of the application to vacate directions will accrue to the Applicants but they have sought that the directions be set aside.

[48] I have also taken into account the potential delay in dealing with the unfair dismissal matters pending the Federal Court matter. Whilst this is regrettable there is no evidence that the delay will be substantial, noting that mediation dates have apparently been set.'

[57] We are not persuaded that the Commissioner erred in the manner contended by the Appellant. The Commissioner plainly had regard to the legislative context in the exercise of her discretion. The Appellant's complaint is really directed to the weight the Commissioner attributed to certain matters and to the outcome. We are not persuaded that the Commissioner erred in the exercise of her discretion (see [23] above); nor are we persuaded that a 'substantial wrong' has occurred in the sense articulated in House v The King (see [24] above). Nor are we persuaded that any of the other submissions advanced by the Appellant are such as to warrant (either individually or collectively) the grant of permission to appeal. We now turn to briefly deal with some of those submissions.

[58] First, Visy submits that there is no civil penalty or criminal proceeding on foot that concern the Respondents. On that basis it is put that the McMahon v Gould exercise is presently hypothetical and that this ought to have strongly influenced the Commissioner's reasoning.

[59] Contrary to the submission advanced by Visy, the Statement of Claim in the Federal Court proceeding alleges, at paragraphs 16 and 55, that the Respondents 'directed, authorised and/or organised employees who were allocated to work the Evening Shift and Evening Overtime that day to not work that Evening Overtime and to not work allocated overtime until further notice'. These allegations provide a direct overlap with the unfair dismissal applications in relation to the alleged 'valid reason' for the termination of the Respondents' employment.

[60] Further, we agree with the Respondents submission that the Federal Court proceedings concern them because:

'...there is no reasonable doubt that the other employees of Visy who the Respondents would wish to call as corroborating their claims in the unfair dismissal applications, and who have been made respondents in the Federal Court proceedings by Visy, would be clearly exposed to self-incrimination in the Federal Court proceedings if they gave evidence and subjected themselves to cross-examination in the unfair dismissal applications.

The evidence of those other employees is important in the unfair dismissal applications as it will address the reason for the Respondents' dismissal, namely whether the Respondents organized unlawful industrial action in the form of overtime bans on afternoon and day shifts.

The evidence before the Commissioner was that those employees would not give evidence on the basis that they may incriminate themselves and expose themselves to a civil penalty. Visy's submission overlooks the position of the other employees as potential witnesses for the Respondents.'[51]

[61] Second, Visy submits that the Commissioner's conclusion that the possible witnesses would give 'highly relevant' evidence was pivotal to the Decision and that that conclusion was erroneous. The evidence in question was said to relate to whether or not those witnesses engaged in unprotected industrial action comprising of overtime bans. The Commissioner deals with this issue at paragraphs [44] and [45] of the Decision:

'[44] The Applicants in this matter have had their employment terminated "for organising unlawful industrial action". A potential finding, in determining if the conduct complained of occurred (and hence if there was a valid reason for dismissal), is that the Applicants can only have organised unlawful industrial action if industrial action was taken and it was not properly protected. Whilst the Applicants deny the conduct it seems to me inevitable that the Commission, in deciding if the dismissal was harsh, unjust or unreasonable, may need to consider if the action organised was not protected. In doing so, the Commission may be required to decide if employees of the Respondent took unprotected industrial action. The named employees in the Federal Court proceedings will have evidence I would have thought highly relevant to such a matter.

[45] Given that the named employees have been advised not to give evidence in the unfair dismissal matter on the grounds that they may incriminate themselves, this may lead to an injustice for the Applicants in that it may adversely affect their ability to put forward a robust case in the unfair dismissal hearings.'

[62] Visy submits that the Commissioner's conclusion that the respondents in the Federal Court proceedings could provide 'highly relevant' evidence cannot be sustained given that:

• the fact that there was a failure to perform overtime is 'somewhat admitted';

• the Commission has already found the industrial action was being collectively engaged in at the relevant times, when it issued the s.418 orders; and

• time and wage records, considered collectively, will be far more probative of whether or not a collective overtime has been engaged in, compared to witness accounts.

[63] On this basis Visy submits that the probative value of the proposed witness evidence should have counted against a stay, rather than in favour of it.

[64] We disagree. The asserted valid reason for the Respondents' dismissal was the organising of unlawful industrial action in the form of overtime bans. The critical issue is whether the Respondents did in fact 'organise' other employees to take the bans. That is also the conduct which is alleged in the Federal Court proceedings. It seems to us that the evidence of the other employees who are alleged to have taken the unlawful industrial action is directly relevant to the issue of who organised them to do so.

[65] Finally, the Commissioner took into account the possibility that the Fair Work Ombudsman might commence proceedings against the Respondents, raising the possibility that they might expose themselves to penalty proceedings by giving evidence in the unfair dismissal proceeding. At paragraph [42] to [43] of the Decision the Commissioner says:

'[42] This is an unusual case. The Applicants have not been named in the Federal Court proceedings yet the conduct for which their employment was terminated is highly relevant in the Federal Court proceedings as is evident from the statement of claim of Visy in that matter.

[43] Further, regardless of the stated intention of Visy that it does not intend to commence civil penalty provisions against the Applicants, this does not grant the Applicants immunity from such proceedings as proceedings may be instigated by, for example, the Fair Work Ombudsman. This may lead to an injustice for the Applicants in that, in giving evidence in their unfair dismissal hearing, they may expose themselves to penalty provisions of the FW Act.'

[66] Visy submit that the prospect of proceedings being instigated against the Respondents is an extreme hypothetical which should not have attracted the McMahon v Gould balancing exercise. Those principles are exercised if concurrent criminal (or civil penalty) proceedings are on foot. Visy also submits that more importantly, the tactical advantages of not giving evidence in the unfair dismissal proceedings for a future and hypothetical Fair Work Ombudsman proceeding is not a relevant McMahon v Gould consideration and that taking this into account was in error.

[67] As we observed earlier, the Commissioner was under no obligation to apply the McMahon v Gould guidelines. Further, the Commissioner did not err in taking this matter into account.

[68] The balance of the Appellant's submissions are similarly without merit. They either proceed on the erroneous assumption that the Commissioner was bound to apply the McMahon v Gould guidelines and that any failure to do so constitutes error; or they mischaracterise the Decision. The decision subject to appeal must be read as a whole and considered fairly. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:[52]

'The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the interference of an error of law.'

[69] As mentioned earlier, this is an appeal from an interlocutory procedural decision. Such appeals are usually discouraged. We do not consider, for the reasons we have stated, that the Appellant has demonstrated a proper basis either in the public interest or otherwise for permission to appeal to be granted. In particular, we are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that the Appellant has established an arguable case of error in relation to the Decision or that there are any other considerations that warrant the grant of permission to appeal. Accordingly, permission to appeal is refused.

[1] [2017] FWC 6463.

[2] See letters of termination of employment attached to the Form F2 of each Respondent.

[3] See Form F2 application forms filed by each Respondent, dated 25 August 2017 and 11 September 2017.

[4] See generally the Statement of Claim in VID842/2017; Appeal Book at pp. 34-58.

[5] Statutory declaration of Geoffrey Borenstein 12 October 2017, Attachment GB-4 at paragraphs 16 and 55.

[7] See paragraphs [2]-[10] of Respondents' submission dated 12 October 2017 and paragraph [2] of Applicant's submission dated 20 October 2017.

[14] [2017] FWC 6463; PR598575.

[15] (1982) 7 ACLC 202.

[16] [2012] FCA 562.

[17] See Sanford v Austin Clothing Company Pty Ltd t/as Gaz Man, Print S8287; Howarth v Mornington Peninsular Shire Council, Print S0138; Morton v Lardner Mechanical Repairs Pty Ltd, [2016] FWC 3982; French v The Good Guys Discount Warehouse (Australia) Pty Ltd t/as Good Guys O'Connor, [2017] FWC 3545 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, [2014] FWC 9205.

[18] [2017] FWC 6463 at [35]- [50].

[19] Section 604(1) Fair Work Act 2009 (Cth).

[20] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[21] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27].

[22] GlaxoSmithKline Australia Pty Ltd v Making [2010] FWAFB 5343 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

[23] [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[24] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.

[25] [2000] HCA 47; (2000) 174 ALR 585.

[26] Ibid at [21] per Gleeson CJ, Gaudron and Hayne JJ citations omitted.

[27] (1936) 55 CLR 499 at 505.

[28] [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

[29] In support of this proposition the Respondents cite Australian Postal Corporation v Gorman and another [2011] FCA 975; (2011) 196 FCR 126 at [37] per Besanko J and Spectrum Community Focus Limited v Valenzuela [2017] FWCFB 4524 at [3].

[30] See In re the will of F.B. Gilbert 91946) [1946] NSWStRp 24; 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; Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Ltd Print PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2012] FWAFB 6907; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Spectrum Community Focus v Valenzuela [2017] FWCFB 4524.

[31] Transcript of proceedings, 5 February 2018 at [146]-[154].

[32] Transcript of proceedings, 5 February 2018 at [155].

[33] Transcript of proceedings, 5 February 2018 at [155]-[163].

[34] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[35] Appellant's outline of submissions, 22 January 2018 at [7].

[36] Transcript of proceedings, 5 February 2018 at [94].

[37] [2010] VSCA 231; (2010) 30 VR 200.

[38] Transcript of proceedings, 5 February 2018 at [198]-[203].

[42] [2010] VSCA 231; (2010) 30 VR 200 at [7].

[43] [2000] HCA 47; (2000) 174 ALR 585.

[45] Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519.

[46] Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd [1993] HCA 18; (1993) 67 ALJR 389 at 390. Also, see generally Re Australian Railways Union and others; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17 at 23-24.

[47] (1885) 29 ChD 50 at [58].

[48] Applied in Evans v Bartlam [1937] AC 473 at 488 per Lord Wright and cited with approval in Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596 and Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297. Also see JJ Richards and Sons Pty Ltd v FWA [2012] FCAFC 53 (20 April 2012) at [30] per Jessup J (with whom Tracey J agreed) and at [63] per Flick J (with whom Tracey J agreed); Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Ors [2015] FWCFB 210 at [58]-[59]. Also, see Evans v Bartlam [1937] AC 473; Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596; Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] VicRp 83; [1992] 2 VR 505; Dix v Gims Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 301-302 per Brooking J (with whom Fullager and Tadgell JJ agreed); Esso Australia Pty Ltd v AMWU [2015] FWCFB 210 at [58]- [59].

[49] Appellant's Outline of Submissions, 22 January 2018 at [37].

[51] Respondent's Outline of Submissions, 1 February 2018 at [23]-[25].

[52] (1996) 185 CLR 259 at 291.

Printed by authority of the Commonwealth Government Printer