Australian Workers' Union, The v Boral Resources (Vic) Pty Ltd

[2017] FWC 5314

[2017] FWC 5314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Workers’ Union, The
v
Boral Resources (Vic) Pty Ltd
(C2017/2721)

COMMISSIONER RYAN MELBOURNE, 13 OCTOBER 2017

Representation by paid agent or lawyer.

[1] The Respondent has sought permission to be represented by Mr Rod Marshall, partner of FCB Workplace Law, at the arbitration hearing of this application. The Australian Workers’ Union (AWU) will be represented by Mr Craig Winter, industrial officer of the AWU.

[2] Section 596(2) of the Fair Work Act 2009 (the Act) provides as follows:

“596(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.”

[3] The Respondent contends in relation to s.596(2)(a) that:

“(a) the matter is complex as to its facts, given the history of the parties in relation to the Boral Concrete Testers Enterprise Agreement 2013 (the Agreement), the Agreement's relevant classification structure and how the respective parties' evidence addresses issues arising from the classification structure;

(b) FCB has to date been involved in all negotiations, discussions and conferences in relation to the dispute, including but not limited to the Conciliation and subsequent private conferences held before Ryan C
Commission. FCB therefore has a detailed understanding of the facts which will assist in relation to the efficiency of the hearing;

(c) there is a contest of factual matters which will require evidence to be led and cross examination of witnesses;

(d) as is the nature of disputes concerning enterprise agreement interpretation issues, it is evident from both the Applicant's submissions and the Respondent's submissions that these proceedings involve substantial legal questions including a consideration of agreement interpretation principles and an analysis of how which aspects of the evidence are relevant to those principles;

(e) Andrew Patterson, Human Resources General Manager for Southern Region, is the Respondent's senior HR officer with knowledge of this matter, but Mr Patterson is not a lawyer, only has limited advocacy experience in the Commission and does not have the experience of the Applicant's Senior Industrial Officer\ and

(f) an experienced solicitor will assist the Commission to refine and effectively address areas of evidence that are relevant to the issues in dispute, thereby lending efficiency to the proceeding.”

[4] The AWU contends that:

“The AWU is a member based not for profit organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The AWU will be represented by Craig Winter, Industrial Officer, in this matter. As noted in the Respondent's submissions (paragraph 6), whilst Mr Winter has appeared previously in matters before the FWC, he is neither legally qualified nor legally experienced.

The Respondent is a multinational corporation and "the country's largest construction

materials and building products supplier in all states and territories", with A$5.28 billion worth of sales (2014), and as noted by the Respondent (paragraph 5), it has dedicated internal HR and IR resources available to it.

FCB Group boasts that it is "Australia's leading workplace legal and human resources

solutions business." Mr Marshall is an "accredited specialist in workplace and employment law", with "extensive experience in a wide range of industrial and employment-related issues, both as an advisor and as an advocate.

In the circumstances, there will be a clear imbalance of power and disadvantage and

unfairness to the AWU if permission is granted.

It is the union's belief that none of these conditions are present here or justify the Respondent being legally represented.

The AWU also relies on the decision of Commissioner Cambridge in Mrs Angela Doyle v Specialty Fashion Group. In that decision, it was held that given the size of the respondent's operation, and the qualifications and experience of the staff who could represent it, it could not be said that the employer could not effectively represent itself without a lawyer, especially given the "resultant imbalance created by the perception of more advantageous representation for the employer" [at 23].

Having regard to the above, permission to be legally represented should be refused for the following reasons.

Efficiency, complexity (s. 596(2)(a))

The FWC should reject the submissions of the Respondent that the matter is sufficiently complex, that there is a contest of factual matters or that the dispute involves "substantial legal questions including a consideration of agreement interpretation principles" etc (paragraph 4). The Commissioner has been involved in the matter at conciliation stages and is well informed of the matters and issues in dispute.

On the contrary, permitting the Respondent to be so represented is likely to create inefficiency, undermine the process and hinder the resolution of the dispute. The AWU submits that this is not a complex matter. It involves a simple classification dispute, to which company representatives have participated in negotiations throughout the process.

The AWU submits that having regard to the complexity of the matter before the Commission - or more accurately, lack thereof- representation by lawyers would not contribute to the efficiency of dealing with the matter.

The AWU therefore submits section 596 limits when permission may be granted to three

particular circumstances. It is the union's submission that none of those circumstances are applicable to this matter and, as such, the union submits that leave to appear should not be granted.”

[5] I have had the benefit of conducting conciliation conferences with the parties and of considering the written witness statements and submissions filed by both parties in relation to the determination of the issue in dispute. I am of the considered view that, whilst the matter in dispute is not overly complex and whilst the Commission would happily proceed if the Respondent was represented by its employees or in-house counsel, I nevertheless consider that the proceedings may be conducted more efficiently if the Respondent is represented by a lawyer or paid agent. I do not consider that the points made in paragraphs (a) to (e) of the Respondent’s submissions create a sufficient justification for a grant of permission to be represented. However, from practical experience in dealing with similar disputes I am satisfied an experienced solicitor of Mr Marshall’s standing and experience will assist the Commission to refine and effectively address areas of evidence that are relevant to the issues in dispute, thereby lending efficiency to the proceeding.

[6] Permission is granted to the Respondent to be represented by a lawyer or paid agent.

COMMISSIONER

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