Australian Federation of Air Pilots v Regional Express Holdings Limited

[2011] FWA 7716

[2011] FWA 7716

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Australian Federation of Air Pilots
v
Regional Express Holdings Limited
(C2011/5795)

Airline operations
VICE PRESIDENT WATSON	SYDNEY, 10 NOVEMBER 2011

Representation of Parties - Fair Work (Transitional and Consequential Amendments) Act 2009, Schedule 19 - Workplace Relations Act 1996, s100 - Fair Work Act 2009, s596.

Introduction

[1] This decision concerns an application by counsel to appear in relation to a dispute between the Australian Federation of Air Pilots (AFAP) and Regional Express Holdings Limited (REX) arising under the Regional Express Pilots Certified Agreement 2005 (the Agreement). By virtue of Schedule 19 to the Fair Work (Transitional and Consequential Amendments) Act 2009, the Workplace Relations Act 1996 (the WR Act) continues to apply to disputes relating to the Agreement and Fair Work Australia (FWA) may exercise relevant powers vested in the Australian Industrial Relations Commission under the WR Act and the Agreement. The dispute is in relation to the reinstatement of a pilot following the Full Bench decision in [2010] FWAFB 8753 and has been listed for hearing on 14 November 2011.

[2] Mr Lawrie Cox, Manager of Industrial Relations at AFAP, intends to appear for AFAP at the hearing. REX seeks permission from FWA for a legal representative to appear on its behalf at the hearing. AFAP opposes permission being granted. Both parties were legally represented in the appeal against the decision of Commissioner Bissett and in the proceedings before Commissioner Bissett in relation to this matter.

[3] The parties agree that it would be beneficial to them that the question of representation be determined in advance of the hearing date on the basis of written submissions of the parties. Directions to this effect were issued on 17 October 2011.

Relevant legislation

[4] The parties made submissions in relation to Section 596 of the Fair Work Act 2009. However as the WR Act applies to this matter it is necessary to have regard to the test in s100 of that Act. Section 100 provides:

“100 Representation of parties before Commission

(1) A party to a proceeding before the Commission may appear in person.

(2) Subject to this and any other Act, a party to a proceeding before the Commission may be represented only as provided by this section.

(3) A party (including an employing authority) may be represented by counsel, solicitor or agent if:

(a) all parties have given express consent to that representation; and

(b) the Commission grants leave for the party to be so represented.

(4) A party (including an employing authority) may be represented by counsel, solicitor or agent if:

(a) the party applies to the Commission to be so represented; and

(b) the Commission grants leave for the party to be so represented.

(5) In deciding whether or not to grant leave under subsection (3), the Commission must have regard to the following matters:

(a) whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible;

(b) the capacity of the particular counsel, solicitor or agent to represent the party concerned;

(c) the capacity of the particular counsel, solicitor or agent to assist the Commission in performing the Commission’s functions under this Act.

(6) In deciding whether or not to grant leave under subsection (4), the Commission must have regard to the following matters:

(a) the matters referred to in paragraphs (5)(a), (b) and (c);

(b) the complexity of the factual and legal issues relating to the proceeding;

(c) whether there are special circumstances that make it desirable that the party concerned be represented by counsel, solicitor or agent;

(d) if the party applies to be represented by an agent—whether the agent is a person or body, or an officer or employee of a person or body, that is able to represent the interests of the party under a State or Territory industrial relations law.”

[5] The Agreement does not contain specific provisions regarding representation in arbitration proceedings under the Dispute Resolution Procedure. However it does provide that a pilot may be represented by a person of their choice in any step of the dispute resolution process.

Whether Leave to Appear should be granted

[6] REX submits that permission should be granted on the basis that legal representation will lead to the matter being dealt with more efficiently as the matter involves complex and technical legal arguments as to whether the procedural and jurisdictional requirements have been met in order to enable the dispute to be heard by the Tribunal. It also submits that efficiency will be improved in the event that the calling and cross examination of witnesses is required. REX further submits that it would be unfair to deny legal representation on the basis that it is usually represented by legal counsel on the occasions that it has appeared before the Tribunal and does not have suitably qualified staff who may appear for it in the absence of such representation. It notes that Mr Cox, who will appear for AFAP, is an advocate of considerable experience and is well known to the Tribunal.

[7] The AFAP opposes permission to appear on the basis that it does not agree that the matter is sufficiently complex to warrant legal representation or that any jurisdictional matters arise. The AFAP contends that REX does employ specialist Human Resources staff but acknowledges that those employees do not have experience in appearing before the Tribunal. The AFAP submits that it has consistently opposed legal representation in matters arising under the Agreement, questions REX’s failure to employ suitably qualified industrial staff with relevant experience and is of the view that REX has adopted a process of deliberately engaging legal representation in matters before Fair Work Australia in order to avoid processes under the Agreement. AFAP further submits that if permission to appear is granted, it will experience disadvantage in the event that a Senior Counsel is engaged by REX.

[8] REX denies that it engages legal representation in order to avoid processes under the Agreement and contends that it only engages legal representation once a dispute has been escalated to the Tribunal and that it is entitled to do so. It submits that any suggestion that it should employ a specialist industrial advocate is unreasonable in the context of its infrequent appearances before the Tribunal and also on the basis that it is economically unviable and not required by the Act.

[9] I have had regard to the factors which are required to be considered under s100(6) of the WR Act. I consider that granting leave will assist Rex to put the best case possible, and in the unusual circumstances of this matter, representation by counsel will assist in the hearing and determination of the matter. In all of the circumstances and in the exercise of my discretion I consider it appropriate to grant leave to be represented.

Conclusions

[10] For the reasons above I grant REX leave to be represented at the hearing on 14 November 2011.

VICE PRESIDENT WATSON

Written submissions:

Submissions on behalf of REX, 24 October 2011.
Submissions of AFAP, 26 October 2011.
Submissions in reply on behalf of REX, 7 November 2011.

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