Application for termination of the MSS Security Victorian Enterprise Agreement 2011

[2017] FWC 7033

[2017] FWC 7033

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Joshua Findley
(AG2016/3814)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 22 DECEMBER 2017

Application for termination of the MSS Security Victorian Enterprise Agreement 2011 – s.596 of the Fair Work Act 2009.

[1] On 6 July 2016 the Fair Work Commission (Commission) received an application (the Application) from Mr Joshua Findley (Applicant) under s.225 of the Fair Work Act 2009 (Cth) (the FW Act) for termination of the MSS Security Victorian Enterprise Agreement 2011 (the Agreement) after its nominal expiry date.

[2] The employer covered by the Agreement, MSS Security Pty Ltd t/a MSS Security (MSS), objects to the application and has sought permission to be represented by a lawyer pursuant to s.596 of the FW Act in all future proceedings relating to this application. Mr Findley objects to permission being granted.

[3] Directions were issued on 1 November 2017 requiring the parties to file submissions addressing s.596 of the FW Act. The parties were informed that I intended on dealing with the matter of representation on the papers unless either party requested to be heard. Neither party sought to be heard on the matter of representation.

[4] Both parties filed written submissions in accordance with directions.

Relevant Legislation

[5] The question of representation in proceedings before the Commission is governed by section 596 of the FW Act which is in the following terms:

“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.”

[6] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance s.596 of the FW Act.

[7] Subsection 596(2)(a), (b) and (c) are commonly paraphrased as (a) efficiency /complexity, (b) inability to represent oneself effectively, and (c) fairness. The decision to grant permission for representation is a discretionary one that is only exercisable if the Commission is satisfied that at least one of the conditions in section 596(2) of the FW Act is met.

[8] I now turn to consider each of the matters under section 596(2) of the FW Act.

Efficiency / Complexity- 596(2)(a)

[9] MSS submits that an application under s.225 of the Act is a complex area of law, requiring an understanding of difficult legal concepts. 1

[10] MSS refer to the decision of the Commission in Mrs Penelope Vickers 2 which provides as follows:

“[17] Section 226 requires the consideration of the views and circumstances of the employees, employers and each employee organisation covered by the Agreement, in relation to the likely effect that the termination of the Agreement would have on each of them. The statutory tests will require the presentation of comparisons of the associated industrial instruments, relevant to the Applicant and the workforce covered by the Agreement. The Employer employs a large workforce of approximately 74 000 employees. The views and circumstances of these employees, pursuant to s.226(b) (i) and (ii) will have to be sought. The matter also raises question of law in relation to a number of matters, including the public interest test. The matter (as referred to by the parties) has some history and complexity and the volume of evidence and the information (relevant to the legislative tests in s.226) will need to be dealt with before the Commission in an effective and efficient manner.” (endnotes omitted)

[11] They submit that they have been granted permission to be represented by Mr Levin in a number of applications that have been brought by Mr Findley both in the Commission and before the Courts. Therefore, MSS submit that it would be more efficient for the Commission if Mr Levin were able to appear to ensure that matters are not duplicated or dealt with inconsistently. 3

[12] Further, MSS submit that it does not employ any legal person with any employment law or workplace experience. They submit that their General Counsel, Ms Penny Sena, only has commercial law experience whilst their HR managers deal with operational matters and do not have the requisite standard of workplace relations expertise to assist the Commission with the issues at hand. 4

[13] MSS submit that, were permission granted, they would be able to address the real legal and factual issues, make concise and relevant submissions, and assist the Commission by answering questions and focussing any cross-examination on relevant matters to the arbitration. 5

[14] Mr Findley refers to the decision of the Commission in King v Patrick Projects Pty Ltd 6 in which the Full Bench of the Commission stated:

“Complexity

[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined.

[16] The Respondent seeks to assert that this matter is complex because of the high volume of documents and wide range of issues in the Appellant’s statement some of which are irrelevant to the issue of unfair dismissal.

[17] We do not find that this matter is one that can be characterised as complex. The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s.(596)(2)(a) of the Act.” (endnotes omitted)

[15] Mr Findley submits that the substantive matter before the Commission is not complex. He submits that there is no level of complexity in this matter beyond that which would ordinarily be found in such a matter. 7

[16] Mr Findley submits that MSS have an extremely qualified and experienced in-house lawyer, and in circumstances where a large well-resourced human resource department and in-house counsel can address the issues on the instructions of a legal representative, it should lead to the conclusion that there will be no loss of efficiency should permission to appear not be granted. 8

[17] Further, Mr Findley submits that the legal representative for MSS, Mr Levin, creates inefficiency and burdens the Commission’s processes with unnecessary technicalities and misinformation. 9 Mr Findley made extensive submissions regarding his industrial history with Mr Levin throughout their various matters at the Commission and before the Courts.10

[18] However, I note that it is not for the Commission to select which particular lawyer or paid agent will represent a party applying for permission. The Full Bench of the Commission provided as follows:

“[24] The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor. We do not consider that the power in s.596 was intended to interfere with a party’s right to choose who its legal representative (or paid agent) would be if permission was to be granted.” 11

[19] Mr Findley further submits that the Commission has an overarching obligation, under s.577(a) of the FW Act, to perform its functions and exercise its powers in a manner that is fair and just, and is quick, informal and avoids unnecessary technicalities. Mr Findley submitted that therefore a poor argument for efficiency should not negate the consideration of fairness between the parties. 12

Inability to represent oneself effectively –s 596(2)(b)

[20] MSS submits that whilst its HR managers have experience in dealing with operational human resources and industrial issues, they are not capable of representing MSS in a manner that creates a “striking impression or that is powerful in effect” 13 or in a manner that will avoid any damage to the commercial or reputational interests of MSS.14

[21] Therefore MSS submit it would be unfair not to allow them to be represented by a lawyer as they are unable to represent themselves effectively pursuant to s.596(2)(b) of the FW Act. 15

[22] Mr Findley submits that MSS has qualified human resource specialists 16, highly experienced advocates in their employer organisation17, the aid of an employee organisation18 and legally qualified and highly experienced in-house counsel.19

[23] Mr Findley refers again to King v Patrick Projects Pty Ltd 20 and submits that the relevant test is not an assessment of the skills and education of the individual employer representative, but rather it involves an examination of the resources available to MSS as a whole.

[24] He submits that the proposition that one must have representation that creates a striking impression or that is powerful in effect is setting the bar too high. 21 He submitted that MSS has not made out sufficient grounds for permission to be granted under this ground.22

[25] It should be noted that the Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’ 23 and that the ‘normal position’ of the Act is that a party “in a matter before the Commission” must normally appear on his own behalf.24

Fairness - s596(2)(c)

[26] MSS submits that it would be unfair if it were not represented taking into account the fairness between itself and the Applicant. 25 MSS reiterate that they do not employ any legal person with any employment law or workplace experience.26

[27] MSS submit that Mr Findley is completing a law degree and has completed legal subjects. Further, they submit that Mr Findley has made it clear in other proceedings both in the Commission and in the Courts that he has no difficulty in drafting documents, utilising the correct rules of the court and making submissions on applicable case law and legislation. 27

[28] Mr Findley submits that whilst he may have more industrial knowledge than the average security officer, he has only completed 18 months of legal studies and cannot afford legal advice. He submits that even without legal representation, MSS has experienced HR professionals, legally qualified and experienced in-house counsel, access to experienced advocates within their employer organisation and financial capacity to obtain legal advice. 28

[29] He submits that it is inconceivable that it would be in the interest of fairness to allow MSS to be legally represented against an unqualified and unrepresented litigant when they already have considerable resources at their disposal. 29

[30] The factors regarding fairness between the parties and the requirement for informality was recognised in Warrell v Walton in which His Honour stated;

“25. The appearance of lawyers to represent the interest 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.” 30

Consideration

[31] The legislative intentions underpinning section 596 of the FW Act have been the subject of various Decisions of the Commission. The approach to considering the question of representation has been examined in Warrell v Walton 31 in which Flick J found that:

“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”.”

[32] The decision as to whether or not to grant permission for a party to be represented by a lawyer (or paid agent) involves an exercise of the Commission’s discretion having regard to the matters set out in section 596(2) of the FW Act. In considering whether or not to grant legal representation, the Commission is required to establish that the prescribed conditions in s.596 exist prior to exercising the discretion to grant permission. The discretion to grant permission for a person to be represented by a lawyer or paid agent will be exercised in favour of the person if those prescribed conditions are in existence.

[33] I have considered the circumstances of the parties, their resources and the complexity of the matter in relation to the material to be examined against the legislative tests in sections 225 and 226.

[34] Mr Findley in his objection raised a number of issues relating to the representation of MSS in a number of other matters he currently has before the Commission and the Federal Court, of which some are associated with this matter. Similar matters have been dealt with in the decision of a s.225 application by Mrs Penelope Vickers 32 as follows:

“[16] In assessment of the matters raised, it is clear that the legal representatives have duties to the Commission, and any issues of conflict in representation or the giving of evidence are professional matters for those legal practitioners, and I do not intend to exclude legal representation on this basis.”

[35] This matter was also dealt with by Deputy President Sams in Applicant v Respondent 33, referring to a Full Bench Decision in this respect:

“[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 said at para [48]:

‘A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].’

…

[21] In my view, balancing fairness between parties is as much a case of courtroom management, as it is a case of legislative mandate. With the greatly increased exposure of all courts and tribunals to self-represented litigants, with all of the well known difficulties this brings, the appearance of a focused, experienced and sympathetic legal practitioner is, more often than not, a welcome relief.”

[36] Some of the matters Mr Findley raised in relation to the financial affairs and the personal and private conduct of the proposed representative are irrelevant to the matters I have to consider under s.596. I have chosen not to replicate those submissions in this decision and they have not formed part of my consideration.

Conclusion

[37] Section 226 requires the consideration of the views and the circumstances of the employees, employers and each employee organisation covered by the Agreement, in relation to the likely effect that the termination of the Agreement would have on each of them.

[38] Mr Findley is no longer an employee of MSS. Mr Findley currently has a number of other matters before the Commission, one of which has had bearing on submissions for consideration in this matter. It is known to the parties that the statutory test requires the presentation and comparison of the associated industrial instruments relevant to the workforce covered by the Agreement.

[39] The public interest test is a question of law that will be of some complexity in this matter. Due to the significant size of MSS’ workforce I anticipate that, in addition to the materials already filed, substantially more materials will be filed before the determination of the application. Further, there are a number of complex matters associated with this application, inter alia its long and varied history and the volume of materials already filed, including various objections and orders.

[40] I have considered Mr Findley’s concerns that efficiency and complexity should not trump fairness between the parties. I note that it is the Commission’s responsibility to facilitate a fair hearing of the matter irrespective of whether one of the parties is represented.

[41] To enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, permission is granted pursuant to section 596(2)(a) for the legal representation sought by MSS.

COMMISSIONER

 1   MSS submissions re: leave to appear, [13]

 2   [2016] FWC 5951

 3   MSS submissions re: leave to appear, [16] – [17]

 4   Ibid, [20]

 5   Ibid, [21] – [22]

 6   [2015] FWCFB 2679

 7   Applicant submissions re: leave to appear, [13] – [15]

 8   Ibid, [29] – [30]

 9   Ibid, [16]

 10   Ibid, [17] – [21]; [23] – [27]

 11   New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office, [2014] FWCFB 1663

 12   Applicant submissions re: leave to appear, [56] – [58]

 13   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd (Project Aurora), [2012] FWA 2966

 14   MSS submissions re: leave to appear, [23]

 15   Ibid, [24]

 16   Applicant submissions re: leave to appear, [35] – [38]

 17   Ibid, [39]

 18   Ibid, [40] – [44]

 19   Ibid, [45] – [47]

 20   [2015] FWCFB 2679 at [18]

 21   Applicant submissions re: leave to appear, [49]; Chung v Spa Industries Pty Ltd, [2014] FWC 5141 [17]

 22   Applicant submissions re: leave to appear, [50]

 23 Fair Work Act s.577(a)

 24 [2013] FCA 291 at [24]

 25   MSS submissions re: leave to appear, [25]

 26   Ibid, [26]

 27   Ibid, [27]

 28   Applicant submissions re: leave to appear, [52]

 29   Ibid, [54]

 30 [2013] FCA 291 at [25]

 31 [2013] FCA 291

 32   [2016] FWC 5951

 33   [2014] FWC 2860

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