Application by Anthony Gilbert Hicks
[2024] FWC 605
•7 MARCH 2024
| [2024] FWC 605 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.229—Bargaining order
Application by Anthony Gilbert Hicks
(B2023/1343)
Application by Retail and Fast Food Workers Union Incorporated T/A Retail and Fast Food Workers Union Incorporated
(B2024/78)
| COMMISSIONER LIM | PERTH, 7 MARCH 2024 |
Application for permission to be represented –s.596 – permission granted
Background
The parties to this matter are currently in negotiations for the proposed Woolworths Supermarkets Agreement 2023 (Agreement). The parties are:
Mr Anthony Hicks, an independent bargaining representative and applicant in matter B2023/1343;
The Retail and Fast Food Workers Union Incorporated (RAFFWU), the applicant for matter B2024/78;
Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (Woolworths), the respondent for both matters;
The Shop, Distributive and Allied Employees’ Association (SDA);
The Australian Workers’ Union (AWU); and
The Australasian Meat Industry Employees’ Union (AMIEU).
On 6 December 2023, Mr Hicks applied to the Commission for bargaining orders pursuant to s 229 of the Fair Work Act 2009 (Act) (Hicks Application). On 1 February 2024, RAFFWU applied to the Commission for bargaining orders arising from the same set of negotiations (RAFFWU Application). All parties have consented to the two applications being dealt with together.
In accordance with the directions issued for both matters, the SDA has sought permission to be represented in the matters by Warren Friend KC of counsel and Woolworths has sought permission to be represented by Matthew Minucci of counsel and Ashurst Australia. Mr Hicks objects to the granting of permission.
Relevant legislation
Pursuant to section 596 of the Act, a person may be represented in a matter before the Commission by a lawyer or paid agent only with permission of the Commission. Section 596 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 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.”
Submissions
3.1 Woolworths
Woolworths submits that the Commission should permit Woolworths to be legally represented pursuant to s 596 of the Act for the following reasons:
Efficiency and complexity (section 596(2)(a))
The Hicks and RAFFWU Applications involve contested facts and evidence as to the nature of the bargaining process between the parties. This will necessitate cross-examination of witnesses. The matters also potentially raise complex legal issues about the correct interpretation and application of sections 228 and 230 of the Act.
Whilst there is substantial overlap between the two matters, each of the Applications rely on different grounds and seek bargaining orders in different terms. This introduces a further element of complexity.
A necessary consequence of a lawyer’s paramount duty to the Commission is that a grant of permission to appear may aid the Commission’s inquiry as much as it assists the lawyer’s client.[1]
Fairness between the parties (section 596(2)(b) and (c))
Woolworths is a large employer. However, the mere size of a business is not a decisive consideration in determining a party’s capacity for self-representation.[2]
Woolworths does have internal lawyers and industrial relations professionals. However, they do not have experience in appearing at contested hearings of applications for the Commission to deal with jurisdictional objections of this nature or classification disputes. They also do not regularly conduct advocacy in the Commission.
Woolworths submits that the circumstances of these matters merit the Commission exercising its discretion to permit Woolworths to be legally represented.
3.2 The SDA
The SDA submits that permission should be granted on the basis it would enable the matter to be dealt with more efficiently, taking into account its complexity and that permission should be granted as a matter of fairness.
The SDA further submits that:
(a)The matters involve complex issues concerning the conduct of bargaining, including the question of whether bargaining must always be conducted in joint meetings of all bargaining representatives.
(b)There is likely be additional complexity arising from the fact that two applications are to be heard at the same time.
(c)The Commission will be assisted in the efficient consideration of the matter by focussed submission presented by a legally trained advocate.
3.3 Mr Hicks
Mr Hicks submits that the circumstances of this matter do not satisfy the legislative requirements for permission to be granted by the Commission. Further, that the circumstances do not merit the Commission exercising its discretion to permit Woolworths or the SDA to be legally represented.
Mr Hicks submits that the explanatory memorandum to the Fair Work Act Bill 2008 states that:
(a)The Commission is intended to operate efficiently and informally.
(b)Persons dealing with the Commission would generally represent themselves.
(c)In many cases, legal or other professional representation should not be necessary for matters before ethe Commission.
(d)In granting permission, the Commission would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.[3]
Mr Hicks relies on Flick J’s decision in Warrell v Walton,[4] where His Honour stated at [24] – [25]:
(a)A decision to grant or refuse permission for a party to be represented cannot be properly characterised as a mere procedural decision.
(b)It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.
(c)It is apparent that a party in a matter before the Commission must normally appear on their own behalf.
(d)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.
(e)The satisfaction of any requirement is the condition precedent to the subsequent exercise of the discretion conferred by s 596(2)(a)
Mr Hicks further contends that the Commission is obligated under s 577 to perform its functions and exercise its powers in a manner that is fair and just. It is hard to see how this can occur when one party is self-represented and the other is represented by counsel. When cross-examining witnesses, for example, the former may have difficulties while the latter will not.
Efficiency and complexity (section 596(2)(a))
Mr Hicks submits that Woolworths and the SDA have overstated the complexity of the present matters. They do not involve complex jurisdictional or technical matters, and in Mr Hicks’ submission, the issues relating to sections 228 and 230 are fairly conventional. The facts of the matter are also largely uncontested and no complexity arises from two (very similar) applications being heard together.
It is also unlikely that external legal representation will aid the Commission with the efficient conduct of this matter as Woolworths and the SDA already employ competent in-house legal and industrial representatives. Mr Hicks further submits that a key consideration under s 596(2)(a) is the complexity of the subject matter of the proceedings.[5]
Fairness between the parties (section 596(2)(b) and (c))
Woolworths is Australia’s biggest private sector employer. It has a large in-house counsel as well as substantial employee relations and workplace relations team. Mr Hicks submits that these divisions have 163; 67; and 8 employees respectively. Woolworths have significantly understated the capabilities, capacity, experience and effectiveness of their employees. Mr Hicks submits that there are Woolworths employees with advocacy experience who have appeared before the Commission.
Mr Hicks submits that the SDA is Australia’s second largest trade union. As a registered organisation, one of its regular activities is to appear before the Commission in dispute arbitrations and it employs staff to perform this function.[6] No unfairness will arise if the SDA is not legally represented.
Whether the Commission should exercise its discretion
Mr Hicks submits that granting Woolworths and the SDA permission to be represented would be extremely unfair to him and to RAFFWU. I do note that RAFFWU have not filed any objection to Woolworths’ and the SDA’s requests under s 596 of the Act.
Mr Hicks submits that he is a 20-year-old Woolworths employee. Except for one year of law school, he does not have any legal experience and does not have the significant resources or in-house counsel that other parties have.
In summary, Mr Hicks submits that Woolworths and the SDA are seeking permission to be legally represented for mere convenience and preference. The circumstances of the matters do not satisfy the legislative requirements for the Commission to grant the parties’ requests. It would also be appropriate for the Commission to decline to exercise its discretion to permit the parties to be legally represented.
Consideration
The assessment of whether permission should be granted pursuant to s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration of this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’.[7]
It is only where the first step is satisfied that the second step of the process is enlivened. The second step involves a consideration as to whether in all of the circumstances the Commission should exercise its discretion in favour of the party seeking permission. The satisfaction of any of the requirements prescribed in s 596(2(a) – (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.[8]
I now turn to consider the matters in s 596(2) in the context of the present case.
The first is whether the grant of permission would enable the matter to be dealt with more efficiently, taking into account its complexity. I do not accept Mr Hicks’ submission that these matters do not involve complexity.
Briefly, the background of the applications and matters in dispute can be summarised as follows:
(a)The six parties are currently in negotiations for the proposed Agreement. The notice of employee representational rights was issued in December 2022.[9]
(b)There have been separate bargaining meetings between Woolworths, the SDA and AWU; Woolworths and RAFFWU; and Woolworths and Mr Hicks.
(c)In summary, Mr Hicks and RAFFWU have raised varying contentions regarding how the bargaining meetings have been conducted; the information that has been provided to them during the negotiations; and how Woolworths’ may proceed to ballot relevant employees. The AMIEU supports Mr Hicks’ and RAFFWU’s applications.
(d)Woolworths and the SDA object to the two applications. The AWU objects to parts of the applications.
I am satisfied that the matters are complex. The parties are in contention over several factors, including Woolworths’ conduct; what significance should be attributed to various actions (or non-actions); and the relevance of any industrial history. There is also complexity arising from the fact that there are two applications seeking different orders, and from the number of parties involved.
For completeness, I also do not accept that a matter must be complex to satisfy s 596(2)(a). As stated by the Full Bench in Singh v Metro Trains Melbourne[10] at [13]:
“Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly, the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied. But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.” (emphasis added)
I find that the navigation of the matters will be dealt with more efficiently with counsel.
In relation to Woolworths’ submission that it would be unfair not to allow Woolworths representation because it is unable to represent itself effectively, I have had regard to the fact that Woolworths is an extremely large and well-resourced company. Though Woolworths submits that it does not have employees who are equipped to represent them in the matter, there was no probative evidence provided for me to properly accept that submission given that it was contested by Mr Hicks.
I have considered Mr Hicks’ submission that it would be manifestly unfair for Woolworths and the SDA to be granted leave given their size; resources; and the experience disparity between himself and counsel. This is not something that should not be considered lightly. However, I find that this consideration is balanced by the fact that both Mr Friend KC, Mr Minucci and Ashurst Australia are bound by the duty to assist the Commission.
In summary, I am satisfied that granting permission to Woolworths and the SDA to be represented by counsel will assist in the matter being conducted more efficiently, noting the complexity of the matter. I am also satisfied that the countervailing considerations that may weigh against the grant of leave can be adequately managed. Given these findings, I exercise my discretion to grant leave to Woolworths and the SDA to be legally represented throughout the remainder of the proceedings for both applications.
COMMISSIONER
Hearing on the papers.
[1] E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 at [48].
[2] TWU v Greyhound Australia Pty Ltd[2015] FWC 2105.
[3] Explanatory Memorandum, Fair Work Bill 2008 (Cth) 349 [2291]–[2292], [2296].
[4] (2013) 233 IR 335, 342 [24]–[25].
[5] King v Patrick Projects Pty Ltd[2015] FWCFB 2679, 5 [15].
[6] National Tertiary Education Industry Union v The University of Notre Dame Australia[2014] FWC 2409, [36].
[7] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19(3)].
[8] Warrell v Fair Work Australia [2013] FCA 291; Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]; Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]; Kaur v Hartley Lifecare Incorporation[2020] FWCFB 43.
[9] Statement of Joshua Reinecker, 20 February 2024, [5]; Statement of Jannifer Kerr, 5 March 2024, [9].
[10] [2015] FWCFB 3502.
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