Angelo Coco v Thuringowa Enterprise Centre Incorporated T/A the North Queensland Small Business Development Centre

[2013] FWC 9734

[2013] FWC 9734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Angelo Coco
v
Thuringowa Enterprise Centre Incorporated T/A The North Queensland Small Business Development Centre
(U2012/16902)

COMMISSIONER SPENCER BRISBANE, 11 DECEMBER 2013

Application for unfair dismissal remedy - objection to legal representation - s.596 representation by lawyers and paid agents.

[1] This decision relates to an application, filed by Mr Angelo Coco (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). A conference was convened in this matter on Wednesday, 11 December 2013, at which the Applicant raised an objection to the Respondent having legal representation in this matter. This decision relates to the matter of permission to appear only.

[2] The Applicant is self-represented in these proceedings, although it is noted that the Applicant has had a support person present consistently throughout the number of conferences in this matter. This support person is legally qualified and is in fact a Senior Partner of a law firm, although this support person is not formally on the record as a representative of the Applicant, he has however provided assistance in prior matters between the parties.

[3] The Respondent has been legally represented in these proceedings by Mr Brendan Gaeta, Partner of Connolly Suthers Lawyers.

[4] The Applicant contended that none of the circumstances in which the Fair Work Commission (the Commission) may grant permission for a person to be legally represented were in issue in this matter.

[5] The relevant provisions of the Act are set out in s.596(1) and (2):

“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.

...”

[6] At the Directions conference the Respondent outlined that the provisions of s.596 of the Act have been met. That is, the matter had some complexity, particularly in terms of the sensitive nature of some material and issues, and that the Applicant was endeavouring to raise matters that did not pertain to s.394 of the Act. Accordingly the Respondent submitted that the Applicant was endeavouring to widen the scope of the proceedings and that matters of relevance to the proceeding would be required to be assessed. For these reasons, and given that the matter prior to the hearing commencing had already involved a protracted process (having initially been filed in late 2012), in which he had represented the Respondent, and the Applicant’s support person (who Mr Gaeta described as being a significantly experienced lawyer), had assisted the Applicant. Accordingly it was submitted that, given the issues of complexity and relevance in the matter, the Hearing could be conducted more efficiently, if permission was granted for the Respondent’s lawyer to appear. In addition, it was stated, that legal representation would also be warranted on the basis of fairness between the parties, given the representation that has been relied upon to date.

Consideration

[7] The intent of the Parliament regarding the question of representation is expressed in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill’s introduction in 2008:

“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

.…2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[8] The Federal Court in Warrell v Walton 1 considered the matter of permission to appear, pursuant to s.596 of the Act. Justice Flick stated:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008...” 2

[9] The application of s.596 of the Act, allows the Commission to exercise a discretion to grant permission in formal proceedings, however, as set out, this is not automatic, the discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case, against the legislative tests. 3

[10] It is considered that given the length of the Representation by Mr Gaeta prior to today’s conference, the proceedings will be able to deal with such issues more efficiently given the subject of continuing discussions between the parties. Further, to deny the Respondent permission to be legally represented, at this stage of these lengthy proceedings, would prejudice the Respondent.

[11] I consider there is some complexity to the matter, and the need for fairness and efficiency on the current facts and circumstances supports legal representation on this occasion.

[12] In reaching this conclusion I have also taken into account the involvement of the Applicant’s support person who, while not formally on the record as the Applicant’s representative, has been present at almost all listings in this matter to date, is a senior legal practitioner and has assisted the Applicant in the matter. To refuse the Respondent permission would be unfair, taking into account the fairness between both parties in these circumstances.

[13] Accordingly, on the specific facts and circumstances of this matter, to allow for an efficient, fair and effective hearing of matters of some potential complexity, the Respondent will be granted permission to appear at the Hearing in this matter.

[14] I Order accordingly.

COMMISSIONER

 1 [2013] FCA 291.

 2   Ibid at [24]-[25].

 3   Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

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