Legal Research
Cases
Appellant v Respondents

Appellant v Respondents

Case [2014] FWCFB 4297 30 June 2014

No judgment structure available for this case.

Type to search within this case.

[2014] FWCFB 4297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Appellant
v
Respondents
(C2014/5033)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER RYAN

MELBOURNE, 30 JUNE 2014

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Appellant v Respondents

Details

AGLC: Appellant v Respondents [2014] FWCFB 4297
Case: [2014] FWCFB 4297
Decision Date: 30 JUNE 2014

CaseChat Overview and Summary

The appeal concerns a decision made by Deputy President Kovacic at Melbourne on 24 June 2014 in matter number AB2014/1169, where the Deputy President dismissed an application for permission to be represented by legal counsel in proceedings before the Fair Work Commission. The appellant, who is the applicant in the original matter, sought representation by a lawyer in the proceedings, a request that was denied by the Deputy President. The respondents to the appeal were the original respondents in the matter before the Fair Work Commission, who opposed the appellant's application for legal representation.

The central legal issue before the court was whether the appellant had established grounds warranting permission to be represented by a lawyer. The appellant argued that the complexity of the legal issues and the potential consequences of the proceedings justified the need for legal representation. The respondents contended that the appellant had not demonstrated a sufficient basis for requiring representation, and that the proceedings were not overly complex to necessitate legal assistance.

The court considered the criteria for granting permission to be represented, which includes whether the applicant has a case of sufficient complexity or importance to warrant legal representation, and whether the applicant has a reasonable prospect of success in the proceedings. The court found that the appellant had not demonstrated that the case was of sufficient complexity or importance to warrant legal representation. The court also noted that the appellant had not shown a reasonable prospect of success on the merits of the case. Consequently, the court dismissed the appeal, upholding the decision of the Deputy President to deny the appellant's application for legal representation.

Orders