FEDERAL COURT OF AUSTRALIA Nguyen v Vietnamese Community in Australia SA Chapter Inc [2017] FCA 1517 Appeal from: Application for an extension of time: Nguyen & Le v Vietnamese Community of Australia SA Chapter Inc [2016] SAIRC 30 File number: SAD 262 of 2017 SAD 263 of 2017 Judge: WHITE J Date of judgment: 13 December 2017 Catchwords: INDUSTRIAL LAW – Applications for extensions of time within which to commence appeals – Applicants wish to appeal from a decision of the Industrial Relations Court of South Australia – whether reasonable explanation for delay – whether there the Applicants would be prejudiced by a refusal of the applications – applications refused. Legislation: Fair Work Act 2009 (Cth) ss 565(1B), 565(1C), 570 Superannuation Guarantee (Administration) Act 1992 (Cth) Long Service Leave Act 1987 (SA) Statutes Amendment (South Australia Employment Tribunal) Act 2016 (SA) s 69(2) Cases cited: Nguyen and Le v Vietnamese Community in Australia SA Chapter Inc [2016] SAIRC 3 Republic of Italy (Ministry of Foreign Affairs and International Cooperation - Adelaide Consulate) v Benvenuto [2017] FCA 940 Date of hearing: 6 December 2017 Registry: South Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 33 Counsel for the Applicant: The Applicants appeared in person with the assistance of an interpreter Counsel for the Respondent: Ms KE Clark Solicitor for the Respondent: Fisher Jeffries ORDERS SAD 262 of 2017 BETWEEN: THINH XUAN NGUYEN Applicant AND: VIETNAMESE COMMUNITY IN AUSTRALIA SA CHAPTER INC Respondent SAD 263 of 2017 BETWEEN: THANH LE Applicant AND: VIETNAMESE COMMUNITY IN AUSTRALIA SA CHAPTER INC Respondent JUDGE: WHITE J DATE OF ORDER: 13 DECEMBER 2017 THE COURT ORDERS THAT: 1. The applications for an extension of time are dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHITE J: 1 This judgment concerns two applications for an extension of time in which to appeal to this Court. 2 The two Applicants were formerly employed by the Respondent, the Vietnamese Community Group in Australia SA Chapter Inc. The Respondent conducts the Vietnamese Community School which is based at the Adelaide Secondary School of English at Croydon Park. It conducts classes only on Saturdays during conventional term times. 3 Following the termination of their employment on 3 February 2014, each Applicant brought proceedings in the former Industrial Relations Court of South Australia (IRCSA) seeking payment of a number of entitlements said to be due under the Educational Services (Schools) General Staff Award 2010 (the General Staff Award), under the Long Service Leave Act 1987 (SA) and under the Superannuation Guarantee (Administration) Act 1992 (Cth). In addition, Mr Nguyen sought an order requiring payment of an amount which the Fair Work Commission (the FWC) had, in the proceedings which he had brought in respect of the termination his employment, ordered to be paid. 4 In the proceedings at first instance before an Industrial Magistrate in the IRCSA, the Applicants were largely unsuccessful: Nguyen and Le v Vietnamese Community in Australia SA Chapter Inc [2016] SAIRC 3. In particular, the Industrial Magistrate found that neither of the Applicants was employed under the General Staff Award. This meant that the rates of pay applicable to their employment were those contained in the safety net set by the Australian Fair Pay and Conditions Standard and, from 1 January 2010, in the National Employment Standards. On the whole, the Industrial Magistrate did not accept the Applicants' evidence as to the extent of the work in which they had engaged. Those findings reflected the Industrial Magistrate's preference for the evidence of the Respondent's witness, Ms Lan. They were accordingly credit based findings. 5 The Industrial Magistrate did, however, uphold the Applicants' claims with respect to long service leave and, in respect of some months of their employment, for payment of the superannuation guarantee levy. In addition, the Industrial Magistrate upheld some of the claims for payments under the Fair Pay and Conditions Standard. 6 The Industrial Magistrate found that he did not have jurisdiction to deal with the claim for payment of the amount which the FWC had ordered to be paid to Mr Nguyen in respect of the unfair dismissal. 7 The appeal by the Applicants to a single judge of the IRCSA was, with one qualification, unsuccessful: Nguyen & Le v Vietnamese Community of Australia SA Chapter Inc [2016] SAIRC 30. The qualification is that the Judge upheld Mr Nguyen's claim for payment of the amount ordered to be paid by the FWC. The Judge made orders which, as I understand it, resolved not only the appeals before him but gave effect to the findings of the Magistrate at first instance. One consequence of this is that the Judge's orders did not distinguish between those which were appropriate at first instance and those which were appropriate to dispose of the appeals. 8 In the case of Mr Nguyen, the Judge entered judgment in the sum of $4,614.56 inclusive of interest and in addition ordered payment of a superannuation entitlement of $428.95. The precise composition of those amounts is not clear. It is perhaps implicit in the Judge's order that all other aspects of Mr Nguyen's appeal were dismissed. 9 In the case of Ms Le, the Judge entered judgment in the sum of $675.54 inclusive of interest and ordered payment of a superannuation entitlement of $219.97. Again, it is not clear how the sum of $675.54 was derived and it may be implicit that the Judge dismissed all other aspects of Ms Le's appeal. 10 Both orders were made in the IRCSA on 25 October 2016. 11 In the belief that their appeals against the judgment of the Judge in the IRCSA lay to the Full Bench of the IRCSA, the Applicants commenced appeals in that Court within the 21 day period prescribed for the lodgement of such appeals. However, that course of action was misconceived because the effect of s 565(1B) and (1C) of the Fair Work Act 2009 (Cth) (the FW Act) is that an appeal of the present kind lies only this Court: Republic of Italy (Ministry of Foreign Affairs and International Cooperation - Adelaide Consulate) v Benvenuto [2017] FCA 940. 12 The IRCSA was dissolved with effect from 1 July 2017: s 69(2) of the Statutes Amendment (South Australia Employment Tribunal) Act 2016 (SA). The jurisdiction of the IRCSA which is presently relevant is now exercised by the South Australian Employment Tribunal (the SAET). 13 The lack of jurisdiction of the SAET to hear and determine the appeals went unrecognised until 28 March 2017 when the Full Bench raised the issue with the parties. The matter was then adjourned to give the parties the opportunity to consider the position. By reason of the ill health of one member of the SAET, the Full Bench did not reconvene until 25 September 2017 at which time it held that the appeals to the Tribunal were incompetent and struck them out. 14 Eight days later, on 3 October 2017, the Applicants lodged the present applications for an extension of time in which to appeal. Consideration 15 On applications of this kind, the Court generally has regard to five considerations: the length of the extension sought; the explanation for the appeal not having been commenced in time; the prejudice to the respondent if the extension of time is granted; the prejudice to the applicant if he or she is precluded from pursuing the appeal; and the interests of justice more generally. 16 The Applicants seek substantial extensions of time (about one year). Their explanation for the delay in commencing the appeal in this Court is understandable. They are unrepresented litigants and were unaware that their appeal lay to this Court rather than to the Full Bench of the IRCSA or the SAET. Furthermore, their misconception went unrecognised by the present Respondent in the IRCSA until the question of jurisdiction was raised by the Full Bench on 28 March 2017. The decision of this Court in Benvenuto was delivered on 11 August 2017. The Respondent conceded, quite fairly, that the Applicants do have a reasonable explanation for the delay. 17 The Respondent opposes the grant of the extensions of time. It contends that it will be prejudiced if the extension is allowed. That prejudice is said to lie mainly in the expense which the Respondent will incur in defending the appeals. That expense may be irrecoverable having regard to the terms of s 570 of the FW Act. The prejudice to the Applicants 18 As in many cases of this kind, the critical matter bearing upon the exercise of the discretion to extend time is the prejudice to the Applicants if the extensions are refused. This depends upon whether they lose the opportunity to pursue appeals on grounds which are reasonably arguable. 19 The grounds stated in the Applicants' respective draft notices of appeal are identical. They are: 1. The Respondent didn't state the truth; what the Respondent stated contradicts what the Respondent has said in the past. 2. The concluding statements were … based on lies and deception from the Respondent, without any evidence, while we (the Appellants) had evidence which wasn't looked at thoroughly. 3. The wages we were paid was at a rate less than the casual rate stated in the Law. 20 Although Grounds 1 and 2 are unparticularised, they can reasonably be understood as a challenge to the credit based findings of the Industrial Magistrate concerning the extent of the Applicants' work. On an appeal to this Court, the Applicants would have to establish that there had been error by the Industrial Court Judge in his consideration of the appeal against the Industrial Magistrate's findings. They do not establish that error simply by repeating the same matters which they agitated before the Industrial Court Judge. 21 The reasons of the Industrial Court Judge indicate that he engaged in a detailed review of each of the Applicants' claims and of the evidence bearing on them. There is no evident error in the manner in which he discharged his appellate task, and the Applicants did not point to any, beyond expressing their dissatisfaction with the Judge's findings. In my opinion, these grounds do not raise a reasonably arguable claim of error. 22 The third ground seems to raise, albeit obliquely, the finding in the IRCSA concerning the applicability of the General Staff Award. 23 As previously noted, the Applicants' principal claim in the IRCSA was that their employment was covered by the General Staff Award. As the Award name implies, this Award applies to the support staff in schools and not to teachers. That is in any event made plain by cl 4.7(a) which provides: This award does not apply to: (a) a teacher engaged as such … 24 Ms Le's claim was that she was employed by the Respondent as a teacher. Mr Nguyen's claim was that he was employed as a teacher and as a supervisor. The Industrial Magistrate's finding was that Mr Nguyen was employed as a Relief Teacher: at [153]. Mr Nguyen has not challenged the correctness of that finding. 25 These circumstances by themselves suggest that the Applicants' claims that the General Staff Award applied to their employment with the Respondent do not have reasonable prospects of success. There are other indications to the same effect. 26 Clause 4.1 of the General Staff Award provides that, subject to some provisions which are not presently material, the Award "covers employers in the school education industry throughout Australia and their employees employed in the classifications contained in Schedule B to the exclusion of any other modern award". 27 Thus, there are two requirements for the application of the General Staff Award: that the employees be engaged in "the school education industry" and that the particular employee be employed in one of the classifications contained in Schedule B. 28 Considerable attention was given in the IRCSA to the first of these elements. The term "school education industry" is defined in cl 3.1 of the Award to mean (relevantly) "the provision of education … in a school … registered and/or accredited under the relevant authority in each state or territory … including all operations of the school. …". The focus in the IRCSA was on whether or not the Respondent was "registered and/or accredited under the relevant authority" in South Australia. At both levels in the IRCSA, it was found that the Respondent was not so registered or accredited. The Applicants' grounds of appeal do not challenge that finding. 29 However, even if that issue was resolved in favour of the Applicants, they would face difficulty in satisfying the second of the two identified limbs. That is because it is apparent that, as teachers, they were not employed in any of the classifications in Schedule B. Those classifications are defined in some detail in an ascending hierarchy. On any reasonable view, they do not include teachers. Instead, the classifications encompass occupations such as teacher aide, teacher assistant, childcare assistant, outside school hours assistant, preschool assistant and others performing non-teaching work in a school. Furthermore, as already noted, cl 4.7 of the General Staff Award provides expressly that it does not apply to "a teacher engaged as such". That being so, it does not seem reasonably arguable that, on the unchallenged findings of the IRCSA, either Applicant was employed in a classification to which the General Staff Award applied. 30 This means that the Applicants will not be able to show that they should have been paid in accordance with the General Staff Award nor, as alleged in Ground 3, that they were paid less than the casual rate required by the law. In turn, it means that they will not suffer prejudice if the extensions of time are refused. The interests of justice more generally 31 Both Applicants emphasised the injustice which they perceive has been done to them in the IRCSA and which they contend will be perpetuated if leave to appeal is refused. They may well continue to have these perceptions. But applications of the present kind must also be determined in accordance with the law. It is for the Applicants to establish the circumstances indicating that an appropriate exercise of the discretion will be to grant the extensions. In particular, this requires that they show that they will be prejudiced in a relevant way if the extensions of time are not granted. They have failed to do so. Conclusion 32 Accordingly, although the circumstances in which the Applicants came to be out of time are understandable, the proper order is that each of the applications for an extension of time in which to appeal is refused. 33 For these reasons, each of the applications for an extension of time is dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 13 December 2017