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 and other persons in the same matter.

[8] ASC advances its case for permission to be represented by a lawyer on all three bases set out in section 596(2). ASC submits the grant of permission would enable the matter before the Commission to be dealt with more efficiently taking into account the complexity of the matter. Complexity is said to arise in part by reason of the manner in which the matters have been progressed to date, the complex formulation of factual material and submissions, the large number of witnesses proposed to be called and the construction of the Agreement arguments involving the consideration and application of legal principles. It is said that this is not a “run-of-the-mill” dispute and the resolution of the dispute involves complexity. It is also said that it would be unfair not to allow representation because ASC is unable to represent itself effectively. This arises from the fact that the in-house resources that are available to it lack the necessary advocacy and industrial relations skills to effectively represent ASC.

[9] Finally ASC submits that it would be unfair for permission to be refused in circumstances where it was left to be represented by inexperienced in-house resources whilst the unions or at least some of them would be represented by in-house legally qualified advocates who have expertise in industrial relations and dispute work.

[10] The unions submitted that the determination of the dispute by arbitration did not involve complexity and no jurisdictional issues arose for determination. They submitted that the subject matter of the dispute was narrow and was restricted to the interpretation of an industrial instrument and the determination of some conflicting factual issues. They said that the resolution of factual conflicts alone is no basis upon which permission should be granted, and the principles of construction are well settled.

[11] The unions submitted that ASC has ample in-house legal and human resources capacity to enable it to be represented effectively and as such, external legal representation was not necessary. Rather, representation is sought by ASC because of preference and convenience, not because of any necessity for ASC to be represented effectively in the proceeding. Further, the unions submitted that the grant of permission to ASC Pty Ltd to be represented by a lawyer runs the risk that the proceeding, which is intended by the legislature to be informal, will become burdened by unnecessary formality, and given the in-house resources available to ASC, it would not be unfair to ASC that permission to be represented by a lawyer be denied.

[12] The AMWU also relies on the decision in Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd 1 to make good it’s argument in opposition and highlighted the fact that in Hamilton permission to be represented by a lawyer was denied to the respondent because, inter alia, of the lack of complexity in the issues that fell for determination and the respondent’s in-house legal resources available to it.

Consideration

[13] The resolution of the issues earlier identified will, in my view, requires a determination of questions of both fact and of law. Questions of whether provisions of the Agreement are ambiguous will arise, as well questions of whether and to what extent extrinsic material should be admissible, and if admissible, the use to which such material might be put in resolving questions of construction. It is not to the point that principles of construction of industrial instruments are well settled. Complexity can and often does arise from the application of those principles. Given the kind of evidence that the unions will seek to adduce, in particular from persons attending bargaining meetings for the Agreement, I anticipate that such complexity will arise in the determination of this dispute.

[14] Based on indications given by the parties, a large number of witnesses are likely to be called and cross examination of a forensic kind is likely to be required in order to assist me in resolving disputed questions of fact. Documentary evidence is also likely to be sought to be admitted into evidence and questions of relevance, purpose and weight that is to be attached to such evidence will also likely arise.

[15] When viewed in its totality the resolution of this dispute by arbitration is not without complexity of a kind that travels well beyond mere factual disputes and simple undisputed application of well settled principles.

[16] In my view, having regard to the complexity involved in the matters that require resolution, the grant of permission to ASC to be represented by a lawyer would enable the matters to be dealt with more efficiently. I note that ASC has available to it in-house resources but I accept the submission of ASC that the persons comprising such resources as are available to it, do not possess the necessary advocacy and industrial law skills to enable ASC to be effectively represented in this matter. In any event 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. Representation of ASC by persons (even if legally qualified) who are inexperienced in advocacy and industrial law, in this complex matter, will not in my view enable this matter to be dealt with as efficiently as representation for which permission is sought. I am satisfied therefore that permission for ASC to be represented by a lawyer should be granted.

[17] Although it is strictly unnecessary for me to deal with the decision in Hamilton, as it was relied upon by the AMWU, I will make the following observations. The decision in Hamilton turns on its own facts. It is not a decision of general application. In any event so far as the question of complexity is concerned, the decision is of little assistance to the resolution of the permission question here, as permission in Hamilton was sought in an unfair dismissal remedy application in which the only apparent area of complexity was said to arise from disputed facts, the resolution of which might turn on questions of witness credibility. To that extent, I agree with the submission more generally advanced by the unions that the resolution of factual disputes alone is not a basis for the grant of permission to be represented by a lawyer, but that is not the case here. As I have earlier indicated, matters which fall for resolution in this proceeding extend well beyond merely resolving factual disputes.

[18] As permission may be given to a person to be represented by a lawyer in a matter before the Commission if any one of the three matters set out in section 596 (2) applies, it is unnecessary for me to consider the other bases advanced by ASC for the grant of permission.

Conclusion

[19] Permission is given to ASC to be represented by a lawyer in the arbitration of this dispute.

[20] As a postscript I note that the dispute resolution provision of the Agreement provides that “[P]arties to the dispute (before the Commission) are entitled to representation” 2. As no party raised this issue or made any submission as to the way in which the provision might affect the exercise of the discretion in section 596 (2), I have not taken it into account in arriving at my decision.

DEPUTY PRESIDENT

 1   [2012] FWA 5219

 2   Cl. 13a.iv.

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