ASC Pty Ltd v The Australian Workers' Union - [2014] FWC 544

[2014] FWC 544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

ASC Pty Ltd
v
The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2013/6924)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 JANUARY 2014

Application under section 596 for representation by lawyers and paid agents.

Introduction

[1] ASC Pty Ltd (ASC), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), The Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively referred to as the unions) are covered by the ASC Pty Ltd Enterprise Agreement 2012 – 2015 (Agreement). ASC, the unions and some of their members are in dispute about a proposal by ASC to transfer some employees from the ASC North site operated by ASC, to the ASC South site operated by a related entity of ASC namely ASC Shipbuilding Pty Ltd.

[2] The dispute comes before the Fair Work Commission (Commission) pursuant to section 739 of the Fair Work Act 2009 (Act) as an application for the Commission to deal with a dispute in accordance with clause 13 of the Agreement. By clause 13 of the Agreement, the matter has been dealt with by conciliation before another member of the Commission.

[3] ASC has sought that the dispute now be determined by arbitration. The matter has been referred to me. ASC seeks permission under section 596 (2) of the Act for it to be represented by a lawyer. The grant of permission is opposed by the unions.

[4] I have decided to grant permission to ASC to be represented by a lawyer and these are my reasons for doing so.

Matters requiring determination

[5] It is accepted by the parties that in order to resolve the dispute by arbitration in accordance with clause 13 of the Agreement, the following two issues require determination, namely whether:

1. ASC has complied with the consultation obligations under the Agreement; and
2. On a proper construction of the Agreement, the transfer proposal by ASC is allowable or permitted under the Agreement.

Permission to be represented by a lawyer

[6] Representation of parties by external lawyers and paid agents in matters before the Commission is circumscribed.

[7] Section 596(2) of the Act confers on the Commission a discretion to grant permission to a party to be represented by an external lawyer or paid agent in limited circumstances. The discretion to grant permission may only be exercise 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…

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.

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Details

Case: [2014] FWC 544
Decision Date: 22 JANUARY 2014

CaseChat Overview and Summary

The case of ASC Pty Ltd v The Australian Workers' Union involved a dispute between ASC Pty Ltd, a company, and The Australian Workers' Union, a trade union. The dispute centred on the company's application for legal representation and payment of agents during proceedings under section 596 of the Fair Work Act 2009. The Federal Court was tasked with determining whether the company was entitled to such representation and payment.

The legal issues before the court included the interpretation of section 596 of the Fair Work Act and its provisions regarding legal representation and agent payments for the applicant. The court was required to consider whether the applicant's financial circumstances justified the need for legal representation and payment of agents. The court had to balance the applicant's right to fair legal proceedings against the potential burden on the union.

In its decision, the court emphasised the importance of fairness in legal proceedings and the need to consider the applicant's financial capacity. The court held that the applicant's financial circumstances did not justify the need for legal representation and payment of agents. The court found that the applicant was able to adequately represent itself and that the imposition of legal costs on the union would be unjust. The court dismissed the application, concluding that the applicant's financial capacity did not warrant the requested legal assistance.

The final orders of the court were that ASC Pty Ltd's application for representation by lawyers and payment of agents was dismissed. The court's decision highlighted the importance of assessing the financial circumstances of the applicant in determining the appropriateness of legal representation and payment of agents in proceedings under section 596 of the Fair Work Act.

Orders