Applicant v The Australian Federal Police T/A Australian Federal Police
[2023] FWC 1227
•25 MAY 2023
| [2023] FWC 1227 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Applicant
v
The Australian Federal Police T/A Australian Federal Police
(SO2023/17)
| COMMISSIONER SPENCER | BRISBANE, 25 MAY 2023 |
Application for an order to stop bullying – objection to application for legal representation – section 596 representation by lawyers and paid agents – section 596(2)(a) satisfied - representation granted.
This decision relates to an application, filed by the Applicant, pursuant to section 789FC of the Fair Work Act 2009 (Cth) (the Act). The Australian Federal Police (AFP/the Respondent/ the employer) made application to be represented pursuant to section 596 of the Act by solicitors of MinterEllison. It was set out that the legal representative would also represent the named persons, as set out in the Applicant’s Form F72. In this decision by consent, the Applicant and the named persons have been deidentified. The presentation of such is the subject of further submissions in relation to the substantive decision. The Applicant raised an objection to the Respondent having legal representation in this matter. The Applicant is self-represented in these proceedings. This decision only relates to the matter of legal representation.
The matter is listed for a two-day hearing, in Cairns on 20 and 21 June 2023. The Respondent filed a form F53 applying for permission to be granted legal representation and, pursuant to the Directions, provided submissions in support of their application. The Applicant objected to the legal representation in correspondence to the Commission and provided submissions in support of the objection.
Legislation
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.
…
The Commission only needs to find that one of the sub-sections above is satisfied to exercise its discretion to grant permission for a party to be represented. The satisfaction of one of these conditions is not determinative but enlivens the Commission’s discretion as to whether permission to be represented should be granted.[1]
Summary of Respondent Submissions
The Respondents’ legal representative submitted, taking into account the nature of the allegations, pursuant to section 596(2)(a), the matter could be dealt with more efficiently or effectively, if they were granted leave to appear for the Respondents.
With regard to section 596(2)(a) they submitted that complexity is not a precondition to granting permission but must be considered.[2] They submitted that this matter involves issues of complexity and/or that representation will assist in dealing with the matter more efficiently, given:
(a) the Applicant has raised a number of serious allegations against Senior Members of the Australian Federal Police and the outcome of a public decision has the potential to impact the public’s perception of the integrity, reputation and its confidence in the Australian Federal Police’s service;
(b) the reputations of the Senior Members are also at stake, in circumstances where the
Applicant has made, and must intend to pursue, serious allegations against them. MinterEllison’s involvement will assist in ensuring that the hearing is managed respectfully and, consistent with fairness and justice, in a way which does not unnecessarily damage personal reputations;
(c) certain allegations relate to operational or management decisions of the Australian Federal Police’s members which involve the application of the Australian Federal Police Act 1979 (Cth) (AFP Act) in conjunction with a comprehensive framework of the Australian Federal Police’s Policies, Code of Conduct, National Guidelines and Commissioner’s Orders;
(d) the Applicant’s Form F72 application, and in correspondence sent to the Commission in relation to this application, raise allegations either on behalf of others or about persons who are not named in this application;
(e) the Respondents have raised a jurisdictional objection to the application that certain
allegations of bullying were reasonable management action carried out in a reasonable
manner;
(f) it is anticipated that the Applicant will seek to rely on a number of documents which she has obtained through the course of her employment or through a Freedom of Information process or other processes, some of which are likely sensitive in nature and subject to confidentiality and secrecy provisions contained in the AFP Act; and
(g) the Commission may benefit from submissions on the legal issues which arise in relation to all these matters.[3]
With regard to section 596(2)(b) the Respondent’s representative submitted that while the Australian Federal Police has a small number of legally qualified staff with experience in industrial and workplace matters, it is unable to effectively represent itself with the resources it has available.[4] It was submitted pursuant to section 596(2)(c), it would be unfair not to allow legal representation. Further, it was set out that the representative “would take great care, as it always does, to ensure that the Applicant’s interests are not prejudiced by the manner of representation and the firm has vast experience in managing proceedings in a fair and respectful manner when opposing parties are not legally represented.”[5]
Finally, MinterEllison submitted “in the circumstances, the factual, legal and procedural complexity of the matter and the need for the issues in this matter to be managed efficiently warrants legal representation. The Respondents respectfully submit that this is not a matter where it would be fair to require the Respondents to defend its position without specialist legal representation.”[6]
Summary of Applicant Submissions
The Applicant submitted that the Respondent should not be granted legal representation for several reasons. Firstly, that the Respondent has in-house legal resources,[7] which they have utilised in the conciliation conferences prior to proceeding to hearing. She noted that in-house legal staff are likely to be more familiar with the Respondent’s internal policies and procedures as relevant to the current matter.[8]
Secondly, that the Respondent’s argument as to the AFP’s capacity to represent the organisation was surprising as she argued that she had managed to represent herself through the process to date, taking into account her personal circumstances of family and full-time work commitments.[9] Thirdly, she went on to allege that the Respondent had not been ‘frank’ with the Commission in summarising the matter or the Applicant’s actions in prior conciliation conferences. She submitted that the distance of the Respondent’s in-house legal resources from the bullying allegations had led to some ‘misinformation’ being provided to the Commission, and that further distance of an external legal representative for the hearing could compound this issue.[10]
Consideration
The Respondent has sought permission pursuant to sections 596(2)(a) or (b), or (c).
In relation to the grounds of efficiency and complexity, the Respondent has referred to the view of Deputy President Sams that in most cases of complexity, representation will be of assistance to the Commission.[11] The Applicant in this matter relies upon a number of allegations to substantiate the alleged bullying conduct, and the Respondent has foreshadowed they dispute these reasons as a matter of fact. Further, the Respondent has referred to a jurisdictional objection pursuant to section 789FD(2) of “reasonable management action carried out in a reasonable manner.” The submissions continue that the matter will be dealt with more efficiently in that representation will enable the factual disputes to be dealt with efficiently, and to focus the dispute on issues relevant to the Commission’s determination.[12]
As put generally by Deputy President Sams:[13]
‘…the prospects of a case being run more efficiently and focused on the relevant issues to be determined is more likely where competent legal representation is involved.’
The Explanatory Memorandum to the Fair Work Bill’s introduction in 2008 relevantly reads as follows:
“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.”
In addition, the Explanatory Memorandum contains the following commentary in its regulatory analysis section:
“r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will be a higher bar set for representation. Permission for representation will only enable the matter to be dealt with more efficiently or fairly...it is envisaged that in most cases legal representation will not be necessary.”
The application of section 596 of the Act allows the Commission to exercise discretion to grant permission for legal representation in proceedings, however, 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[14] and a consideration of fairness between the parties.
In ASC Pty Ltd v AWU, Deputy President Gostencnik observed that:[15]
“…the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result.”
In considering the grant of legal representation, the Commission is required to establish that the prescribed conditions exist prior to exercising the discretion to grant permission.[16] Accordingly, if the prescribed conditions are considered to be in existence, the discretion to grant permission for a person to be represented by a lawyer or paid agent will be exercised in favour of the party. This assessment of the prescribed conditions is an objective exercise. The submissions of both parties on legal representation have been taken into account and weighed against the factual matrix and context of the matter.
There is some complexity in the current matter, as the matter involves an assessment of the facts and evidence in relation to a series of allegations underpinning the Applicant’s Stop Bullying application, in relation to officers of the AFP.
With respect to the issue of fairness between the parties, the Commission’s role is to provide a fair process and accordingly the Commission has control of the process and the conduct of these proceedings. In addition, the statements of the lawyers regarding exhibiting fairness between the parties have been taken into account. This is a matter where Directions have been set to enable the filing of material pertaining to the issues central to the bullying application. The Applicant’s material with a volume of documents, submissions and evidence from potentially 18 witnesses in total. The hearing is listed across two days in person in Cairns, with a further day via Microsoft Teams. No criticism is directed at either party in relation to such, parties are entitled to present their cases before the Commission as they see fit.
In these circumstances, it is considered that legal representation will assist the efficient conduct of the matter to allow for the consideration of the matters relevant to the alleged bullying in an orderly manner, noting there is some complexity to the matter (across the series of documents and witnesses), on the materials as filed. It is recognised that the Applicant is self-represented, and this will be given appropriate consideration to ensure a fair process is afforded at the hearing. A consent process was put in place (arising from the directions conference) to enable the Applicant to seek procedural guidance from my Associate.
Therefore, to assist in the efficient conduct of the matter, in the circumstances of some complexity, the Respondent, pursuant to section 596(2)(a) of the Act, is granted permission to be represented by a lawyer at the hearing for this matter. The Commission is responsible for providing a fair process to both parties, and the procedure will be controlled by the Commission, allowing for the equitable presentation of both cases.
Conclusion
As set out, legal representation is granted pursuant to section 596(2)(a).
I Order accordingly.
COMMISSIONER
[1] CEPU & Ors v Northern SEQ[2016] FWC 4736 at [13]-[14].
[2] Warrell v Walton [2013] FCA 291 at [24].
[3] Respondent Submissions on Representation at [3].
[4] Respondent submissions on Representation at [6].
[5] Respondent Submissions on Representation at [9].
[6] Respondent Submissions on Representation at [12].
[7] Applicant Submissions on Representation at point 1.
[8] Applicant Submissions on Representation at point 2.
[9] Applicant Submissions on Representation at point 3.
[10] Applicant Submissions on Representation at points 6-7.
[11] Applicant v Respondent [2014] FWC 2860 at [20]; see also [2021] FWC 3178 at [34].
[12] Applicant v Respondent[2014] FWC 2860 at [18], [27].
[13] Applicant v Respondent [2014] FWC 2860 at [20]; see also [2021] FWC 3178 at [34].
[14] Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.
[15] [2014] FWC 544 at [16].
[16] [2021] FWCFB 268.
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