and Rolando Xavier v The Trustee for Clipper Pearls Unit Trust T/A Clipper Pearls Pty Ltd

[2014] FWC 4771

[2014] FWC 4771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marcelino da Costa Oliveira;
Saturnino Soares; and
Rolando Xavier
v
The Trustee for Clipper Pearls Unit Trust T/A Clipper Pearls Pty Ltd
(U2013/14424) (U2013/14427) (U2013/14428)

COMMISSIONER WILLIAMS PERTH, 18 JULY 2014

Termination of employment - representation.

[1] This decision concerns an application made by The Trustee for Clipper Pearls Unit Trust T/A Clipper Pearls Pty Ltd (the respondent) to be represented by a lawyer at the hearing of these three applications.

[2] Section 596 of the Fair Work Act 2009 (the Act), set out below, says that the Fair Work Commission (the Commission) may grant permission for a party to be represented by a lawyer or paid agent but only if one or more of the circumstances in sections 596 (2) (a), (b) or (c) of the Act apply.

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[3] The term “paid agent” used in section 596 is defined in section 12 of the Act as follows:

“paid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter.”

Submissions

[4] In support of the respondent’s application to be represented by a lawyer at the hearing of these applications it is submitted that it would be unfair and prejudicial to the respondent if the applicants are allowed to be represented by an agent, Mr Austin, when the respondent is not allowed to be represented by their lawyer who has been instructed in this matter since February of this year.

[5] The respondent submits that there will be complexity in the hearing of these matters as a consequence of the jurisdictional objections raised by the respondent based on the assertion that the dismissal of each of the three applicants was a genuine redundancy within the meaning of the Act.

[6] The respondent submits that there may be further legal complexity as consequence of the applicants’ representative foreshadowing further potential claims in recent correspondence.

[7] The respondent also submits that in addition to the legal complexity further complexity exists because the hearing involves three applicants and each of the applicants have been permitted to provide their evidence by telephone which will also necessitate cross examination by telephone.

[8] The respondent submits that the respondent employs a small number of people and none have the skills to effectively represent the respondent at the hearing. The respondent’s Human Resource Manager whilst being an experienced human resource manager is not experienced in conducting proceedings in the Commission and also is to be a witness on behalf of the respondent.

[9] The applicants in reply object to the respondent being represented by a lawyer and through their agent Mr Austin submit that the applicants are Timorese Nationals who have no financial capacity to obtain legal representation.

[10] Secondly it is submitted on behalf of the applicants that Mr Austin is not receiving any fee nor is he charging the applicants for his representation and so he is not a paid agent.

[11] On behalf of the applicants it is submitted that the respondent employs over 40 persons including a Human Resource Manager and it is asserted it also has In-House Legal Counsel. Reference is made to the fact that the respondent’s Human Resource Manager has been involved in one prior hearing in the Commission as has Mr Austin.

[12] Generally it is submitted that it would be unfair to the applicants for the respondent to be allowed to be represented by a lawyer.

Consideration

[13] Having considered the submissions I observe firstly that there is no evidence that Mr Austin, whom each of the applicants has notified the Commission is to represent them in the hearing of these matters, is charging or receiving a fee to represent the applicants. Consequently I find that Mr Austin is not a paid agent within the meaning of section 12 of the Act and so is able to represent the three applicants in the hearing of these matters without the permission of the Commission.

[14] In terms of the complexity of the matters, the respondent from the outset has objected to each of the applications on the ground that there is no jurisdiction for the Commission to find that the dismissals were unfair because each dismissal was a case of genuine redundancy. I accept that this jurisdictional objection involves some level of complexity, involving legal argument and necessitating the interpretation of the legislation and the consideration of relevant case law.

[15] Further there will inevitably be some practical complexity in the conduct of this hearing, firstly because the parties have agreed that the three applications will be heard together, secondly because at the request of the applicants they will not be attending the hearing in person but will each give their evidence by telephone necessitating their cross examination to be conducted by telephone and finally it is likely that some translation of the applicants’ evidence will be required given the applications filed indicated that an interpreter would be necessary at the conciliation stage so assumedly this will also be necessary for the hearing.

[16] Consequently I find that there will be significant complexity in these matters and consequently permitting a lawyer to represent the respondent in each of the applications will enable these matters to be dealt with more efficiently.

[17] If the Commission does not allow the respondent to be represented by a lawyer the respondent will be obliged to have one of their existing staff have carriage of the hearing. There is no evidence before the Commission that would support a conclusion that the respondent through their existing staff are readily able to represent themselves effectively. The Human Resource Manager referred to in the submissions appears to have had prior experience of at least one Commission proceeding but there is no evidence to support the view that he is sufficiently experienced to be able to effectively conduct a hearing on behalf of the respondent. There is no evidence as to the experience and capacity of whomever the person is that the applicants describe as “In-House Counsel”.

[18] As Senior Deputy President Richards explained in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd (Project Aurora) [[2012] FWA 2966] with reference to section 596:

“[16] It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[17] In this definitional context, it might not be unusual for a person to be unable to represent himself, herself or itself “effectively”.”

[19] It is clear then that even though a party may be able to represent itself adequately or satisfactorily this falls short of representing itself “effectively” and in such circumstances legal representation may be permitted by the Commission.

[20] I am not satisfied the staff of the respondent are able to represent it in a hearing to the extent of creating a striking impression or having a powerful effect.

[21] In this instance I am satisfied that it would be unfair not to allow the respondent to be represented by a lawyer because it is not otherwise able to represent itself effectively.

[22] Having founded that the conditions referred to in section 596 (2)(a) and (b) of the Act are present in these matters my decision is that permission for the respondent to be represented by a lawyer in each of these applications will be granted.

COMMISSIONER

Final written submissions:

Respondent, 14 July 2014.

Applicant, 15 July 2014.

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