Appellant v Respondents
[2014] FWCFB 4297
•30 JUNE 2014
[2014] FWCFB 4297 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Respondents
(C2014/5033)
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against decision [[2014] FWC 4198] of Deputy President Kovacic at Melbourne on 24 June 2014 in matter number AB2014/1169 – permission to be represented
[1] The Appellant, being the Applicant at first instance, has lodged an appeal with the Fair Work Commission (the FWC) against a decision 1 of Deputy President Kovacic. In the decision the Deputy President granted permission for three Respondents to be represented by a lawyer in respect of an application made by the Appellant under s.789FC of the Fair Work Act 2009 (Cth) (FW Act). The application seeks an order of the FWC to stop bullying (the bullying application).
[2] Section 596 of the FW Act provides as follows:
“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 employersthat 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] Section 596 of the FW Act was considered in Warrell v Walton. 2In Warrell, Flick J said:
“24 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’.
[4] In deciding to grant permission for the three Respondents to be represented by a lawyer, the Deputy President said:
“[2] In this case, the Applicant, a medical practitioner, provides medical services to one of the Respondents, a health and community services provider located in regional Victoria. The relationship is governed by a services contract between that Respondent and a company of which the Applicant is the sole director and secretary and the sole provider of services. A number of issues going to the performance of the contract have been raised by the parties and remain unresolved, despite the parties having participated in mediation conducted by an independent party...
[5] In their Form F73 - Response from an employer/principal to an application to stop bullying, submitted on 17 April 2014, the Respondents expressed a number of jurisdictional objections to the application. The jurisdictional objections raised by the Respondents are:
- the person making the application does not meet the definition of a ‘worker’;
- the worker is not working in a ‘constitutionally covered business’;
- the application has no reasonable prospects of success; and
- the worker was subject to reasonable management action, carried out in a reasonable manner...
[14] The jurisdictional objections raised by the Respondents in this matter raise a number of potentially complex issues. Key among these is whether the Applicant meets the definition of ‘worker’. The complexity around this aspect stems from the nature of the relationship between the parties, with the contractual relationship being between one of the Respondents, i.e. the health and community services provider, and a legal entity which is different to the Applicant but of which the Applicant is the sole Director and secretary and sole provider of services on behalf of. The other potentially complex issue raised by the Respondents’ jurisdictional objections is whether or not the health and community services provider is a ‘constitutionally covered business’ for the purposes of Part 6-4B of the Act. The complexity around this issue goes to the legal status of this Respondent which is established under Victorian state legislation. More particularly, the complexity flows from the need to consider that legislation and relevant jurisprudence on the issue of ‘constitutionally covered business’.
[15] Considered together, the complexity attaching to these issues supports a finding that representation would assist the Commission in dealing with the jurisdictional objections more efficiently than would be the case if both parties were self represented. A further consideration supporting such a finding is the relative newness of both the Act’s bullying jurisdiction; Part 6-4B of the Act only commenced operation on 1 January 2014. This is compounded by virtue of the fact that the broader definition of ‘worker’ reflected in Part 6-4B of the Act is drawn from national work health and safety legislation which itself only came into operation on 1 January 2012.
[16] Also relevant is the Respondents’ submission highlighting their lack of familiarity with employment law and/or the workings of the Commission. In circumstances where the threshold issues to be determined in this matter are the jurisdictional objections raised by the Respondents and given the complexity attached to some of those jurisdictional objections, the application to be represented raises issues of fairness to the Respondents in circumstances where it is argued that they would not be able to effectively argue these jurisdictional objections because of their lack of familiarity with the jurisdiction. While I have no doubt that as senior managers, the Respondents could certainly ‘explain their actions and policies’, to use the Applicant’s language, the need for them to do so only arises if and when the Commission is required to deal with the merits of the application. However, before that point is reached, the jurisdictional objections raised by the Respondents need to be dealt with and as noted above those jurisdictional objections raise a number of complex issues.
[17] Taken together, the above supports a finding that the grounds set out in ss.596(2)(a) and (b) have been met in this matter.
[18] Further, in deciding to exercise the discretion available to the Commission to grant permission to the Respondents to be represented by a lawyer, I was also mindful of the following:
- dealing with the jurisdictional issues efficiently would, if those objections are not upheld, enable the substance of the bullying application to be dealt with more expeditiously which is to the Applicant’s advantage;
- should the matter ultimately proceed to dealing with the merits of the application, I do not consider that legal representation will of itself result in greater formality in the proceedings than would otherwise be the case; and
- the Act also requires the Commission to have regard to fairness for all parties, not solely one party at the expense of the other party/parties
Conclusion
[19] For all these reasons, I considered that the requirements of s.596 of the Act had been met and granted the Respondents permission to be represented by a lawyer.” 3
[5] It is apparent that in deciding to grant the three Respondents permission to be represented by a lawyer, the Deputy President was satisfied as to the jurisdictional prerequisite to the exercise of his discretion. In this regard, he found the grounds set out in ss.596(2)(a) and (b) had been met, essentially having regard to the potentially complex issues raised in the jurisdictional objections of the three Respondents to the bullying application and the three Respondents lack of familiarity with employment law and/or the workings of the FWC in circumstances where complex jurisdictional objections needed to be dealt with by the FWC.
[6] The Deputy President then decided to exercise his discretion to grant permission to the three Respondents to be represented by a lawyer because he considered it would enable the bullying application to be dealt with more expeditiously, would not result in any greater formality than would otherwise be the case and having regard to fairness for all parties.
[7] The Deputy President’s approach was consistent with that set out in Warrell.
[8] The Appellant submitted the Deputy President in effect automatically granted the three Respondents permission to be represented by a lawyer. We think it is apparent from the Deputy President’s decision that this submission is unfounded.
[9] The Appellant also submitted that the jurisdictional objections to his bullying application are not complex. We are not persuaded there was any error in the Deputy President being satisfied the jurisdictional prerequisite to the exercise of his discretion was met, having regard to his conclusions about the complexity associated with the jurisdictional objections. That the FWC may have to deal with complex jurisdictional objections in the absence of a party or parties being represented by a lawyer or paid agent does not preclude the FWC being satisfied as to the jurisdictional prerequisites in s.596(2).
[10] The Appellant went on to submit that it was unfair and unjust to allow the three Respondents to be represented by a lawyer when he was not so represented. We think it is apparent that, in the exercise of his discretion to grant permission to be represented, the Deputy President had regard to matters of fairness and justice to the Appellant, including that it would enable the bullying application to be dealt with more expeditiously to the Appellant’s advantage, the affect on the formality of the proceedings and fairness for all parties.
[11] For the reasons we have given, we are not persuaded the Deputy President’s decision is affected by appealable error. Nor are we satisfied it is in the public interest or otherwise for us to grant permission to appeal. We refuse permission to appeal and, to the extent necessary, dismiss the appeal. An order 4 to that effect is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Hearing details:
2014.
Melbourne.
June 27.
1 Applicant v Respondents,[2014] FWC 4198.
2 [2013] FCA 291.
3 Applicant v Respondents, [2014] FWC 4198.
4 Appellant v Respondents, PR552531.
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