Australian Rail, Tram and Bus Industry Union
[2010] FWA 5790
•30 JULY 2010
[2010] FWA 5790 |
|
DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
Australian Rail, Tram and Bus Industry Union
(B2010/2912)
Australian Municipal, Administrative, Clerical and Services Union
(B2010/2913)
v
Australian Rail Track Corporation Limited
DEPUTY PRESIDENT BARTEL | ADELAIDE, 30 JULY 2010 |
Application for a scope order – whether legal representation should be permitted
[1] The Australian Rail, Tram and Bus Industry Union (RTBU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) have been bargaining with the Australian Rail Track Corporation Ltd (ARTC) for a new enterprise agreement. The RTBU and the ASU are seeking scope orders and the ARTC has sought permission to be legally represented in those proceedings. Both unions oppose Fair Work Australia (FWA) granting leave for ARTC to be represented by a lawyer.
[2] Written submissions relating to permission to be represented by a lawyer have been filed by the ARTC, RTBU and ASU 1. The parties have consented to the determination of this issue on these submissions.
[3] The relevant provisions of the Fair Work Act 2009 (the FW Act) are set out in ss.596(1) and (2) 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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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.”
ARTC Submissions
[4] ARTC submitted that the proceedings for a scope order are a matter where the granting of permission to be represented by a lawyer is appropriate because it would enable the matter to be dealt with more efficiently having regard to the factual and legal complexity; it would assist FWA and each of the parties; and it would be unfair not to allow ARTC to be legally represented in view of the experienced industrial advocates representing RTBU and the ASU.
[5] It was conceded that neither of the circumstances set out in the note at the conclusion of s.596(2) have application to ARTC, but it was submitted that these examples are not exhaustive and, in any event, the note does not form part of the FW Act. 2
[6] ARTC referred to the FWA decisions where the issue of legal representation had been considered. It was submitted that, on the basis of these decisions, permission for legal representation will be granted where there are complex factual or legal issues in dispute.
[7] ARTC contended that FWA will be assisted if it is legally represented. Firstly, it was submitted that there is limited case law that has considered s.238 of the FW Act and there are “complex legal issues at the heart of the dispute between the parties”. 3 Secondly, ARTC maintains that the applications raise important jurisdictional questions to be considered. Put briefly, ARTC contends that ss.238(1) and (3) of the FW Act have not been met and that these are mandatory prerequisites in order for FWA to consider whether to grant a scope order. The relevant sections are as follows:
“Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
…
Bargaining representative must have given notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
… ”
[8] Thirdly, ARTC submitted that FWA would be assisted if it was legally represented because there are fundamental factual disputes between the parties underpinning their respective attitude to the scope order. Finally ARTC contended that the unions would not be disadvantaged if it was legally represented because each union is represented by an experienced industrial advocate; ARTC’s human resources team are not equipped to defend a complex legal case; and the Human Resource Manager, Jenny McAuliffe, is the principal witness for the respondent and cannot be both witness and advocate.
RTBU and ASU submissions
[9] RTBU and ASU (the Unions) submit that the issues involved in the application for a scope order are not sufficiently complex to require legal representation. They submitted that ARTC’s existing human resource personnel have significant industrial experience and would not be disadvantaged if permission for legal representation was denied.
[10] The Unions contend that there is no significant factual dispute and that FWA would not be assisted by lawyers who were not part of the bargaining process.
[11] In addition, the unions contend that the central issue for determination is the fairness of the scope of the enterprise agreement sought by ARTC and that this is an issue which raises neither factual nor legal issues for resolution. The unions take issue with ARTC’s characterisation of the matter as “complex”.
Consideration
[12] Without going to the merits of the application for a scope order, the written submissions suggest that there are not complex factual disputes in issue between the parties on the substantive application. Nor do I regard the relatively limited number of decisions concerning scope orders to indicate, of itself, that legal representation will assist FWA on the substance of the applications.
[13] At this stage I am unsure of the Unions’ attitude to the preliminary legal issues raised by ARTC concerning s.238(1) and s.238(3) of the FW Act. ARTC’s contention that the Unions failed to comply with these sections may potentially involve disputed facts which will require cross-examination of the bargaining representatives from the RTBU and ASU.
[14] In addition, I note that ARTC has put forward detailed submissions on the application of s.238 of the FW Act. 4 Those submissions contend, among other things, that the RTBU and ASU have not filed valid applications and bring into issue the definition of “relevant bargaining representative” in s.238(3) of the FW Act.
[15] I am of the view that the matter would be able to be dealt with more efficiently if the witnesses were not also advocates, and this applies equally to the Unions as it does to Ms McAuliffe of ARTC. I also consider that FWA would be assisted in considering the issues raised by ARTC if at least one of the parties is legally represented. It is apparent from the submissions of ARTC that the case to be presented involves more than a “simple factual contest” and raises issues not previously considered in similar factual circumstances. 5
[16] ARTC is granted permission to be represented by a lawyer pursuant to s.596(2) of the FW Act. To the extent that the RTBU and/or ASU seek to be represented by a lawyer or paid agent, such permission is also granted.
DEPUTY PRESIDENT
Final written submissions:
ARTC: 4 June 2010
RBTU and ASU: 18 June 2010
1 ARTC submissions dated 4 June 2010; Joint submissions from RTBU and ASU dated 18 June 2010.
2 Section 13 of the Acts Interpretation Act 1901.
3 ARTC submissions, supra, at para 43.
4 ARTC submissions on the scope order filed on 18 June 2010.
5 O’Grady v Royal Flying Doctor Service of Australia (South Eastern Section)[2010] FWA 1143 at PN [29].
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