“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ALS Industrial Pty Ltd

[2014] FWC 542

[2014] FWC 542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
ALS Industrial Pty Ltd
(C2013/7307)

DEPUTY PRESIDENT MCCARTHY PERTH, 21 JANUARY 2014

Representation.

Background

[1] On 20 November 2013, the“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) lodged an application for the Fair Work Commission (the FWC) to deal with a dispute (the Dispute) in accordance with a Dispute Settlement Procedure pursuant to s.739 of the Fair Work Act 2009 (the FW Act). The Dispute concerns the travel allowance provided for in Clause 15 of the ALS Industrial Australia (WA) Enterprise Agreement 2012 (the Agreement). The Agreement is an agreement made by ALS Industrial Pty Ltd(the Respondent) and itsemployees and was approved by the FWC on 10 July 2013.

[2] I conducted a conference with the parties on 5 December 2013. On 6 December 2013, I made a recommendation consisting of six paragraphs. At the conference the AMWU was represented by counsel. The recommendation included a statement that the FWC would endeavour to determine the dispute before 31 January 2014. The parties notified me on 10 December 2013 that they both agreed to the recommendations, although the Respondent’s agreement contained some conditional elements.

[3] On 11 December 2013, I listed the dispute for hearing on 22 January 2014. I also issued Directions which required that the parties lodge submissions and other material by various dates. The parties complied with those Directions and material was lodged by the requisite times.

[4] On 17 January 2014, the Respondent wrote to my Chambers (the letter of objection) indicating that they understood that the AMWU intended to seek permission to be represented by other counsel and not Mr Kucera. They advised that they opposed permission for representation being granted. The Respondent outlined six reasons why it objected to permission to represent being granted.

[5] The AMWU advised my chambers on 17 January 2014 that it was in receipt of the Respondent’s objection and confirmed that it would be seeking permission for Mr Tim Hammond to represent in the matter. The AMWU requested an urgent directions hearing to be conducted. I decided to hold a telephone conference on 20 January 2014 (the Conference).

[6] At the Conference the Respondent indicated that it maintained its objection and relied on the grounds set out in the letter of objection it sent. I requested that the AMWU provide its request for permission in writing. Both parties agreed that I should make a decision on the papers. I indicated to the parties that I would endeavour to make a decision regarding the granting of permission to represent prior to the hearing.

Submissions

[7] The Respondent objects to legal representation on a number of grounds. Summarised, the Respondent asserts that:

1. there are no jurisdictional issues and therefore there is no efficiency to be gained by counsel appearing;

2. the matter is one involving an interpretation of the wording of the Agreement and its application to the facts and therefore will not give rise to complex factual and legal issues;

3. the AMWU is a large, well resourced organisation and if its own representatives were used the proceedings would not be any less efficient than if an external representative were used;

4. the AMWU has already had access to legal advice and should be able to represent itself; and

5. it would be unfair to the Respondent if the AMWU were able to be represented by a lawyer.

[8] A summary of the grounds in support of representation being approved for the AMWU are that:

1. there will be complex factual and legal issues involved and representation by legal counsel will increase the efficiency of dealing with the matter;

2. the Respondent has, from the outset, been aware that the AMWU intended to, and did, utilise legal representation, including at the conference, without objection by the Respondent;

3. the Respondent would not object to legal representation by Mr Kucera but would object to representation by Mr Hammond; and

4. it would be unfair not to allow legal representation as the Respondent’s representative is a legal practitioner and because of the potential for significant financial consequences for the employees involved.

Consideration

[9] There are only three grounds relevant to the consideration here of whether permission for legal representation can be granted by the FWC. The grounds are provided for in s.596 of the FW Act as follows:

“(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.”

[10] The issue involved here is Clause 15 of the Agreement. That clause provides for an entitlement to payment where an employee is required to attend at a location other than “the employee’s Company base”.

[11] The first sentence of Clause 15.5 of the Agreement states that, “For the purpose of this clause, an employee’s Company base as at the date of this Agreement is approved by FWC will be the employee’s Company base already nominated by the Company.” The Agreement was approved by me on 10 July 2013. The second sentence of Clause 15.5 then goes on to state that, “From time to time, the Company may nominate an alternate Company base”.

[12] The consideration will require an examination of what the phrase “employee’s Company base” means. A preliminary reading of the submission lodged in accordance with my Directions by both parties show that the examination of the meaning of the phrase, and of the operation of the clause as a whole, will not be a simple one. The submissions display very arguable cases apparent from both sides. It is clear to me from those submissions that the matter is complex.

[13] The consideration regarding legal representation once its complexity is taken into account requires a judgment as to whether it will enable the matter to be dealt with “more efficiently” than without that representation. I have had the benefit of a preliminary reading of the submissions lodged and have also had the benefit of the parties explaining their positions and the consequences of the outcome of the dispute. I agree with the Respondent that if the AMWU represented their members directly without legal representation then the matter should, and I am confident would, be dealt with efficiently. However, my obligation is to consider whether legal representation would enable the matter to be dealt with “more efficiently”. I consider that with legal representation allowed, it will enable the matter to be dealt with more efficiently.

[14] Having made that finding, permission for legal representation is granted, whether that be Mr Kucera or Mr Hammond. It is not necessary for me to deal with the other elements of the submissions.

DEPUTY PRESIDENT

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