“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Boeing Aerostructures Australia Pty Ltd T/A Boeing Aerostructures Australia

[2015] FWC 7600

[2015] FWC 7600

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
Boeing Aerostructures Australia Pty Ltd T/A Boeing Aerostructures Australia
(C2015/5423)

COMMISSIONER RYAN MELBOURNE, 4 NOVEMBER 2015

Alleged dispute about public holidays.

[1] The respondent has sought to be legally represented in the hearing listed for 9 November 2015. The Respondent relies upon each of the grounds in s.596(2) of the Act:

“596 Representation by lawyers and paid agents

(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.

Note: Circumstances in which the FWC 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.”

[2] The Respondent in support of its application relies on the decision of the SDP Richards in CEPU v UGL Resources P/L (Project Aurora). 1

[3] It is relevant to note that the decision in CEPU v UGL Resources predates the decision of the Federal Court in Warrell v Walton 2 where Flick J said:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”

[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”

[4] Recently a Full Bench of the Commission said of s.596(2)(b):

“[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings. As such, the findings of the Commissioner were not open to him on the evidence.” 3

[citation omitted]

[5] In the present matter I have had regard to the submission of the Respondent that:

“Ability to effectively represent itself

16 While the Respondent does have a human resources team and in-house counsel
(collectively, HR/Legal), HR/Legal does not have substantial expertise or experience in appearing before a court or tribunal in hearings, nor is that generally the expectation or function of HR/Legal. For example, no individual within HR/Legal has any experience appearing before the FWC or similar tribunal in the hearing of a dispute under a dispute resolution provision or similar proceedings. Further, HR/Legal does not have any experience appearing in the hearing of any matter before the FWC or similar tribunal, save for two individuals who have appeared in one and two unfair dismissal arbitrations, respectively, all of which occurred over 10 years ago with a former employer and involved matters that were not complex and did not require the cross-examination of evidence.

17 In National Tertiary Education Industry Union v The University of Notre Dame Australia [2014] FWC 2409, Commissioner Williams considered s 596(2)(b) in the context of a respondent which had a human resources team and in-house legal counsel who were experienced in employment relations but inexperienced in advocacy and appearing before the FWC. At [32], the Commissioner held (citing and following the decision of Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd [2012] FWA 2966) that:

'... the question is whether the respondent is unable to represent itself in a manner that allows it to create a striking impression, or to have an impressive or powerful effect. In my view considering the limited advocacy or litigation experience of those respondent's staff whom could potentially be its representative, I am satisfied that the respondent would not be represented in this manner and it would therefore be unfair not to allow the respondent to be represented by a lawyer because it is otherwise unable to represent itself effectively. ,

18 It follows from the foregoing that it would be unfair not to allow the Respondent to have legal representation because it would be unable to represent itself effectively having regard to the limited experience of HR/Legal in advocacy and appearing before the FWC.”

[6] I have previously issued a decision, Chung v Spa Industries P/L 4, in which I have adopted a different approach to that adopted by the Commission in CEPU v UGL Resources. In Chung v Spa Industries P/L I said:

“[12] The issue posed by s.596(2)(b) is whether the Respondent is unable to represent itself effectively. The two words of importance in this provision are “unable” and “effectively”.

[13] The Macquarie Dictionary 6th edition defines “unable” as follows:

unable adj. not able (to do something); lacking ability or power (to do something); weak; impotent.

[14] The Macquarie Dictionary 6th edition defines “effective” as follows:

effective, adj. 1. serving to effect the purpose; producing the intended or expected result: effective measures; effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture. n. 4. a soldier or sailor fit for duty or active service. 5. the effective total of a military force. -effectively, adv

The Oxford English Dictionary, 2nd edn, Volume III, defines ‘effectively’ as follows:

Effectively, adv
1. As a means of causing or producing
2. a. By a direct exercise of power. b. With regard to the effects. (chiefly Theol.) Obs
3. = In effect a. Actually, in fact (obs) b. Virtually, substantially.
4. So as to produce an effect. Often emphatically: With powerful effect; decisively, completely.
5. In a manner fit for service.

[15]It would appear that the plain meaning of the s.596(2)(b) is whether the Respondent is lacking ability or power to represent itself so as to produce the intended or expected result.

[16] I note that a decision of SDP Richards in CEPU v UGL Resources Pty Ltd (Project Aurora) at [16] and [17], and followed by Williams C in Oliveira et or v The Trustee for Clipper Pearls Unit Trust T/a Clipper Pearls P/L, sets a higher bar for being represented effectively but I am of the view that plain words of s.596(2)(b) do not require representation “that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[17] Setting the bar so high for effective representation is a bar that most experienced industrial advocates and lawyers may find too high.”
[citations omitted]

[7] I intend to follow my earlier decision in Chung v Spa Industries.

[8] However the question of whether the Respondent cannot represent itself effectively cannot be determined solely on the basis of a broad assertion by the Respondents lawyers as to the capacity of the Respondent.

[9] The Commission has taken into account the resources available to the Respondent. The Commission notes that the Respondent does have in-house lawyers and in-house HR or IR specialists. Additionally, the Respondent has access to legal representation which it has used to prepare the submissions on the matter of representation.

[10] To the extent that the Respondent relies on s.596(2)(b) the Commission is not satisfied on the material before the Commission that the Respondent is unable to represent itself effectively at the hearing.

[11] The Respondent also relies on s.596(2)(a) and (c).

[12] In relation to s.596(2)(a) I am of the considered view that the issues raised by the application in this matter have are complex. I am also satisfied that allowing the Respondent to be legally represented would enable the matter to be dealt with more efficiently.

[13] In relation to s.596(2)(c) I consider that it would be unfair to the Respondent to deny the Respondent permission to be represented by a lawyer in circumstances where the Applicant is a registered organisation of employees and where the Applicant’s advocate is an experienced advocate before the Commission even though not a lawyer.

[14] Permission is granted to the Respondent pursuant to both s.596(2)(a) and (c) to be represented by a lawyer or paid agent.

COMMISSIONER

 1   [2012] FWA 2966.

 2 [2013] FCA 291.

 3   King v Patrick Projects P/L, [2015] FWCFB 2679.

 4   [2014] FWC 5141.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR573622>