C2017/5330, Transcript of Proceedings [2017] FWCTrans 481 (13 November 2017)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAMS
COMMISSIONER GREGORY

s.604 - Appeal of decisions

Marel Food Systems Pty Ltd v Hall

(C2017/5330)

Melbourne

10.27 AM, FRIDAY, 3 NOVEMBER 2017

PN1

VICE PRESIDENT CATANZARITI: Thank you. I'll take the appearances.

PN2

MR M PROCTER: If it please the Bench, my name is Procter, initial M. I'm a solicitor and I seek leave. I appear with my colleague, Ms Miller, if it pleases.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr Procter.

PN4

MR M BROWN: May it please the Bench, my name is Brown, initials M H of Reichman Lawyers. I appear on behalf of the respondent similar to the ‑ ‑ ‑

PN5

VICE PRESIDENT CATANZARITI: Thank you. Permission to appear is granted to both legal representatives. This matter is listed only for permission to appeal today. We've read all the material and the submissions that have been put on. We now invite short oral submissions. Mr Procter?

PN6

MR PROCTER: Thank you, Vice President, and I intend to be short. If I can now begin with an apology for not being in a position to bring the matter forward as was earlier suggested to an earlier day but we had other matters in Melbourne this week. I'd rely on those written submissions that you've referred to, Vice President, and I just wanted to make very short points.

PN7

The first point is that Simpson C failed to take into account a material fact. I'll come to that. The second point is that there was no finding of technological fault, and I'll turn to that. And the third point is one where Simpson C – this was a case that was ripe for the Commissioner to explore the merits of the case. I'll address that point as well.

PN8

So the first point is the failure to take into account a material fact. The material fact was the absence of evidence that prevented Mr Hall from bringing his application during the 21 day period. If I can take the Bench, please, to page 17 of the appeal book?

PN9

VICE PRESIDENT CATANZARITI: Yes, we have that, Mr Procter.

PN10

MR PROCTER: There's a summary of the chronology that's set out on the transcript at paragraph numbers 85 through to 97. That begins at page 17 of the appeal book. What we do there is to set out the steps from the time that the dismissal took effect and the actions that Mr Hall took which culminated in him filing an application the night before the 21 days was up. There was no evidence that was led by the applicant to the effect that he was prevented from making or filing an application during the 21 day period up until when he did so at the last minute, the night before it was due. We say the Commission ought to have taken into account the absence of any evidence preventing Mr Hall from making his application earlier. He was adverted to his right to make the application. He was adverted to the time limit and despite all of that there's no evidence as to what prevented him from bringing that application and we say that that was a relevant fact that the Commission failed to take into account.

PN11

VICE PRESIDENT CATANZARITI: But he doesn't do nothing, in this period. He contacts, for example, the legal centre. There are other activities that are occurring.

PN12

MR PROCTER: Quite right. And that ‑ ‑ ‑

PN13

VICE PRESIDENT CATANZARITI: And they're factors that – ultimately it's a discretionary decision of Mr Simpson to weigh all those factors up.

PN14

MR PROCTER: Precisely, yes, Vice President. And we say that conflates 366(2)(a) with (b). So 366(2)(a) looks to the reasons for the delay, and 366(2)(b) talks about any action taken by the person to dispute the dismissal.

PN15

VICE PRESIDENT CATANZARITI: Yes.

PN16

MR PROCTER: What Simpson C does is to conflate the two and to say that a reason for the delay is the activity taken to dispute the dismissal. We say, with respect, that's not the right approach; one needs to look at the reason for the delay. The reason that was advanced was technological fault. I'll come to there being no finding of technological fault but that was the reason that was advanced. We say the reason properly characterised is knowledge of what is required; knowledge of the time limit; no evidence of being prevented to file; a decision to file at the last minute, and then difficulties in so filing. We say that is the reason for the delay, and the activity that Simpson C takes into account where he says at paragraph 24, if I can take you to that; that's on page 4 of the appeal book. This appears under the heading, The Reason for the Delay, which is section 366(2)(a), paragraph 24. Simpson C mentions credible reason twice. We're concerned with the second so called credible reason here. The first credible reason is the so-called technological fault which I'll come to. The second credible reason he says, "detailed below also support my conclusion that he had a credible reason", and he says that the credible reasons were the activities that he undertook to dispute the dismissal. We say there's nothing exceptional about the activities that he undertook to dispute the dismissal; nothing exceptional at all, and perhaps if there was some ‑ ‑ ‑

PN17

VICE PRESIDENT CATANZARITI: No. But doesn't that work the other way; if he did nothing and sat on his hands that would then go against extending time. But what, under that section, you're looking at is what did he actually do, and he did actually do things. Any action taken by the person who disputed the dismissal and in the decision, which I read pretty carefully, he does contact, for example, the company. So there is a chain of events of things that are happening.

PN18

MR PROCTER: Yes. And that all weighs in favour of that discretion under (d), action taken to dispute the dismissal, but in looking at the reason for the delay we say that there was no evidence about him being, say, in the course of making those inquiries him providing an ultimatum to say, "Here's a draft application I propose to make and unless you get back to me before X date". There was nothing about that. Nothing that connected those activities to justify why he oughtn't file an application. He knew the type of application he needed to make. He knew the time limit.

PN19

VICE PRESIDENT CATANZARITI: On one analysis of the way the thing works he's waiting for further correspondence from the company. That's why the time is ticking.

PN20

MR PROCTER: Yes, Vice President. I set that out in that chronology that I mention and ‑ ‑ ‑

PN21

VICE PRESIDENT CATANZARITI: Yes. So ‑ ‑ ‑

PN22

MR PROCTER: Sorry, I cut you off.

PN23

VICE PRESIDENT CATANZARITI: And then at the same time he's also contacting a legal centre. I mean, it's not a case of somebody doing nothing for the 20 days and then on the twenty-first day waking up or the twenty-second day. And there have been decisions where somebody does nothing in the whole period, and then on the twenty-second, twenty-third, twenty-fourth day, the discretion is not exercised in their favour.

PN24

MR PROCTER: We accept all of that, Vice President. We would point to a period of at least six days where there was nothing being done. He knew what had to be done. He knew when it had to be done and there was nothing that was being done, and that has to be, we say, bound up with the reason which is this belief of technological fault. I don't think I can take it any further on that on the first point.

PN25

VICE PRESIDENT CATANZARITI: Yes. You'll also have to persuade us that when one would wish to appeal here what's the public interest in this case as well? It's quite important. What is the public interest in granting permission?

PN26

MR PROCTER: If I might deal with that directly then straight away is the integrity of the Fair Work Commission website, Vice President.

PN27

VICE PRESIDENT CATANZARITI: Yes.

PN28

MR PROCTER: There's a belief that, and this goes to my point too, some kind of belief, it's unclear how, and in fact Simpson C throws his hands up in the air as well at paragraph 23 of his decision at page 4 of the appeal book, he says:

PN29

And for reasons which are not clear from the evidence the electronic application wasn't received.

PN30

There's no finding here – we say, to begin with, the applicant has an onus to make out the exceptional circumstances, and he hasn't made out the onus that he has to demonstrate technological error. If ‑ ‑ ‑

PN31

DEPUTY PRESIDENT SAMS: But why should it be on an employee to make inquiries as to the basis of the technological error? I mean, that's inviting them to go into some very technical analysis of the problem, and we all know that technology fails all the time, and no one ever knows really what has happened, and there's a whole list of activity that he's undertaken on the night before which shows he was communicating with the Commission.

PN32

VICE PRESIDENT CATANZARITI: Exhibited in 860 of the (indistinct).

PN33

DEPUTY PRESIDENT SAMS: Yes, that's right.

PN34

MR PROCTER: Yes. So we'd rely on our written submissions about that. We'd say that there ought to have been a finding of technological fault, and what the finding was was there was no finding. Simpson C said it's not clear from the evidence that there was a problem, or what the problem was.

PN35

VICE PRESIDENT CATANZARITI: Yes, but he doesn't say that there was not a problem, which is the problem in itself. You're trying to enliven the public interest on that point saying, well, because of the Commission's website that's a public interest point. I don't quite follow how there isn't a public interest.

PN36

DEPUTY PRESIDENT SAMS: It's very much in the Commission's interest to find out the problem but I'm not sure that it attracts the public interest.

PN37

MR PROCTER: As I say, we'd rely on the written submissions. Our submission is that there needed to be a finding of technological fault and there wasn't, and that's as far as we can take it.

PN38

VICE PRESIDENT CATANZARITI: Yes. Anything further?

PN39

MR PROCTER: The third is the merits, and I appreciate that there's an uphill battle on the merits argument because there's authority that Simpson C refers to that says it's not necessarily the convenient appropriate place to examine the merits in an extension of time matter. But I wanted to make this submission; that the authority that Simpson C relies on there in relation to the merits is Syme and ENI Industries. That's at paragraph 42 of the decision, and where I'm going with this point is to say that in matters of a general protection application the High Court in BHP Coal and the CFMEU has said that the evidence of a decision maker is enough to exculpate the respondent from the general protections application to prove the motivation for the decision by evidence directly from the decision maker.

PN40

The authorities which are relied on for the proposition that it's not appropriate to explore the merits in an extension of time matter start with Syme and ENI Industries and that was whether or not the applicant was an employee of the respondent. It involved significant factual contest on whether that person was an employee of the respondent, and cited as an authority to not explore the factual contest in that decision was a Full Bench decision in Kyvelos v Champion Socks AIRC FB ‑ ‑ ‑

PN41

VICE PRESIDENT CATANZARITI: But, Mr Procter, we also have Full Bench decisions here that say that on a normal 365 the Commissioner cannot make any decision. We're limited to limit the extension of time and then the jurisdiction stops. That's the starting point right, so if the matter is not settled before, in the absence of consent arbitration, we're not able to determine the merits. So how you will wind that back and say well, yes, let's form a view on the merits in an extension of time case, and that a decision is a 2013 Full Bench decision which really limits the role of the Commission in relation to 365s.

PN42

MR PROCTER: If I can make this submission; that that decision was made before the High Court decision in BHP Coal and the CFMEU where the High Court says that the evidence of the decision maker was sufficient to discharge ‑ ‑ ‑

PN43

VICE PRESIDENT CATANZARITI: No, that's a different point, Mr Procter. The Commission's power on a 365, not what happens ultimately in the Federal Court or the Federal Circuit Court, the Commission has no power to deal with the merits of a 365, and that is very clear. We are not able to actually determine the merits of any 365 in the absence of consent arbitration and so when we're issuing the certificates in the normal course of matters there's a conciliation; these days it's principally a telephone conciliation; if the conciliation is unsuccessful then all the person has to satisfy themselves is that, "Reasonable attempts to settle the matter are not going to happen and therefore I issue the certificate"; correct. We're not dealing with what are the merits of the case in the sense of saying this case has got a good – you're going to win the case. You can express if you wish to on the certificate say, "In my view there were no reasonable prospects", but that's as far as you can go. It doesn't mean you're determining the merits. You can't determine the merits in this jurisdiction, and that 2013 decision has been followed since then.

PN44

MR PROCTER: I have nothing further then unless I can be of further assistance?

PN45

VICE PRESIDENT CATANZARITI: Thank you. Mr Brown?

PN46

MR BROWN: Thank you, Commissioner. Section 366(2)(a) of the Act talks about a reason for the delay in filing the application. The appellant submits the respondent was required to explain why he was prevented from filing the application. Our submission is that that's misconceived. Neither "reason" nor "prevent" are defined in the Act and they should therefore be given their natural and ordinary meaning. The Macquarie definition of reason encompasses:

PN47

A statement and justification or explanation for a belief or action.

PN48

The Macquarie definition of prevent encompasses:

PN49

To keep from occurring or to hinder.

PN50

The appellant points to no case law why prevention applies in the context of interpreting and applying section 366(2)(a) as opposed to providing a reason for the delay.

PN51

The Commission in granting a time extension must find there existed exceptional circumstances to take into account all of the matters articulated in section 366(2). These matters are not only considered individually but also collectively and consideration is given to whether collectively they establish exceptional circumstances. It's our submission that in coming to the decision the Commission took into account collectively the matters it was required to by section 366(2).

PN52

It's our submission that the appellant put forward a reason why he did not file the application within time. If we look at paragraphs 23 and 24 of the decision at first instance and the decision itself as a whole the Commission considered, and I'll go back to that, in Shaw, which is heavily relied upon, the Full Bench decision, by the appellant, sure the plurality at paragraph 12 commented that:

PN53

The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

PN54

That test must be applied to the facts in each individual case. So that if we look at paragraphs 23 and 24 of the decision at first instance, and the decision itself as a whole, the Commission considered what had taken place during the 21 day period including but not limited to the issue associated with the unsuccessful lodgement of the general protections application on the evening of 4 July. The Commission has noted, and as the Bench has noted also, the Commission noted at paragraph 39 that the respondent actively attempted to dispute the dismissal and this was a consideration in its favour therefore it's our submission the Commission clearly took into account collectively the matters it's required to under section 366(2). The Commission's discretion was exercised correctly.

PN55

The proper testing sure is did the Commission take into consideration what had taken place during the 21 day period when it exercised its discretion to find there was an acceptable explanation or reason for the whole of the period as to why the general protections application was not filed by 4 July. Apart from the reason versus prevention distinction the appellant seeks to read it, and it's our submission, that the appellant seeks to read into the Shaw test the requirement that any explanation about what took place during the 21 day period addressed not just that period as a whole, not just each day of that period, but taking it to its extreme were asked to basically account for an hour by hour blow which we accept the appellant's submissions on that point, and that's not what Shaw required.

PN56

In any event one reason why the respondent did not file his application within the time was because he was prevented from doing so because the technological issues beyond his control in respect of the Commission website portal despite the appellant's submission there was evidence of technological failure. Paragraphs 96 to 105 of the respondent's witness statement evidence his interactions with the Commission's website. As the Bench has noted attachment D to his statement is a print screen image of his computer history evidencing his interaction with that website on evening of 4 July.

PN57

The respondent's witness statement is evidence that on 4 July he experienced difficulty in uploading his application to the website, but it appeared the application was finally processed and accepted. On 4 July when he exited the Commission's website he was asked to complete an online survey. He completed the online survey. On 5 July he was contacted by the Commission about that survey. This was evidence which was before the Commission at first instance. There were no submissions made during the hearing that the problems in uploading the application to the Commission's website portal were due to incompetence on the part of the respondent, and the appellant, in its submission, refers to Officeworks Ltd v David Parker. So therefore and in this instance our submission is that there was evidence before the Commission in respect of the technological issues and there was no submission and there's no evidence made of the fact that we were somehow responsible for the inability for it to be filed.

PN58

Pursuant to section 590(1) of the Act the Commission may inform itself in relation to any matter before it in any manner that it considers fit or appropriate and therefore the Commission was entitled to rely upon the evidence of the respondent about the technological issues to find exceptional circumstances existed. Accordingly it's our submission that there was evidence of technological failure upon which the Commission could rely notwithstanding the comments which may have been made at paragraph 23 in the decision.

PN59

In the circumstances therefore we believe that the public interest is not engaged in the circumstances so permission to appeal should be declined.

PN60

VICE PRESIDENT CATANZARITI: Yes.

PN61

MR BROWN: If I can be of further assistance?

PN62

VICE PRESIDENT CATANZARITI: Thank you. Nothing further, thank you. Mr Procter?

PN63

MR PROCTER: Nothing in reply, thanks.

PN64

VICE PRESIDENT CATANZARITI: The decision will be reserved and the Commission is adjourned.

ADJOURNED INDEFINITELY                                                        [10.50 AM]