Blair Heading v Milgate Primary School

[2016] FWC 4529

[2016] FWC 4529 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Blair Heading
v
Milgate Primary School
(C2015/8182)

COMMISSIONER WILSON MELBOURNE, 7 JULY 2016

Application to deal with a dispute - application to be represented by a lawyer or paid agent.

[1] An application has been made by the Applicant, Blair Heading, seeking the Commission deal with an alleged dispute arising under an enterprise agreement, which has been allocated to me for a hearing on its merits.

[2] Mr Heading’s application names the Respondent to the matter as the Milgate Primary School, however it appears from the material filed in the matter as well as from discussion in the course of conciliation before me that, since the school is a public school and the events complained of by Mr Heading go beyond the confines of that school, that the Respondent is more properly described as the State of Victoria, as represented by the Department of Education and Training, referred to hereafter as DET. The DET have sought to be represented by a lawyer in the forthcoming arbitration, which is scheduled for Tuesday, 12 July 2016.

[3] The Applicant does not seek to be represented, and objects to the grant of representation in favour of the Respondent and provided short submissions on the subject to be taken into account.

[4] For the reasons set out below, I grant permission to the Respondent to be represented by a lawyer.

Legislation

[5] Section 596 of the Fair Work Act 2009 (the Act), which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, provides 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 the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(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 FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or
(b) is an employee or officer of:

(i) an organisation; or
(ii) an association of employersthat is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;

that is representing the person; or
(c) is a bargaining representative.

Relevant background

[6] The Applicant, Mr Heading, worked for DET as an educational psychologist until 18 December 2015 when his fixed term employment contract expired. Mr Heading worked as an educational psychologist in the Boroondara/Manningham Student Support Network region, and his employment required him to work across several schools in that region.

[7] In the course of his employment with DET, Mr Heading applied for several other positions; two were ongoing psychologist positions and one was a fixed term contract. Mr Heading was unsuccessful in his applications for each of the positions, which were determined through a single selection process.

[8] In summary, Mr Heading’s application to the Commission alleges that DET has not complied with the relevant terms of the Victorian Government Schools Agreement 2013, 1 because it has not determined selection for the position “solely on the basis of merit assessed in relation to the selection criteria of the position”, being the requirement in clause 21(2)(b). DET resist that argument, submitting instead that it determined and applied a local selection process, including through the appointment of a selection panel, and that it otherwise complied with its obligations for selection for the positions.

[9] The hearing before the Commission will take into account written submissions filed by the respective parties as well as potentially taking oral evidence from up to 6 witnesses.

[10] Mr Heading can be expected to provide evidence on his own behalf and has indicated that he may bring forward a statement from one other person, noting that such is yet to be filed by him, and he has not yet identified who that person may be. The DET has provided four witness statements from people involved in the selection panel process; Rose Stewart, a Psychologist and Network Coordinator of the Boroondara/Manningham Student Support Network and a member of the selection panel; Andrea Genat, Psychologist and a member of the selection panel; Yiorgo Sgourakis, also a Psychologist and selection panel member; and Deborah Mierisch, Principal of Milgate Primary School and Chair of the selection panel.

[11] The hearing will also deal with contentions on the part of the DET that substantial parts of the relief sought by Mr Heading sit beyond the Commission’s jurisdiction to order.

[12] Mr Heading’s application was commenced on 17 December 2015 and his employment with the DET finished on 18 December 2015. Notwithstanding this situation, it is noted that the DET does not raise an argument of jurisdiction about his ability to bring his application to the Commission such as for reason of a term in the relevant agreement providing that the parties intended that the operation of the dispute resolution clause be contingent on an employee remaining in employment. 2

The parties’ submissions as to representation

[13] The Respondent’s written submissions on the issue of representation argue that a grant of permission would enable the matter to be dealt with more efficiently taking into account its complexity; see s.596(2)(a) of the Act.

[14] With respect to efficiency and complexity of the matter, the Respondent argues that the grant of permission would result in the efficient resolution of the matter, with the factual matters in dispute requiring analysis and the cross-examination of witnesses, coupled with the relatively complex jurisdictional issues in relation to the scope and nature of the Commission’s dispute resolution power. The Respondent also relies upon the likelihood of the matter being more focused on the relevant issues requiring determination necessitating the involvement of competent legal representation on its part. 3 The DET also rely upon the duties to the Commission of its Counsel as assisting the efficient conduct of the matter taking into account its complexity.4

[15] The Applicant provided short written submissions on the issue of representation, which included the proposition that it would be unfair to him to allow the DET to be legally represented for the reason that they are “heavily resourced and able to come up with case law and legislative examples” and that he does not have legal experience and is not a lawyer and does not have the capacity to pay for legal representation. He puts forward that the Commission is set up as a low-cost jurisdiction with lawyers not having an automatic right of appearance. He also puts forward that principles of procedural fairness as well as the obligation for parties to present all relevant evidence and materials and to make submissions in support of their case suggest that parties should appear for themselves. He also submits that the fact that Ms Mierisch is a well-educated person with a long-standing employment history leans toward the matter being better dealt with by means of her appearing for the Respondent instead of a lawyer.

Consideration

[16] The proper interpretation of s.596 of the Act was considered by Flick J of the Federal Court in Warrell v Walton 5:

“[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”.” 6

[17] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 7 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.8

[18] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 9 Sheer volume of documents or the existence of extraneous issues does not equate to complexity.10 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.11

[19] The points raised by the Respondent in its submissions regarding representation identified a number of potentially complex issues concerning the nature of the evidence in terms of conflicting material, relevance, and factual complexity, as well as the capacity of the Commission to grant an Order in the terms sought by the Applicant. Overall, I am satisfied that a grant of permission for representation by a lawyer to the DET will, in general, assist the efficient conduct of the hearing of this matter, taking into account its complexity.

[20] As a result, I consider the foregoing to support a finding that the grounds set out in s.596(2)(a) of the Act has been met.

[21] Mr Heading makes an argument about the potential unfairness to him of the DET being represented by a lawyer, which is an invitation to me to take into account a question of fairness between the two and use that to refuse the Respondent’s application. Such consideration is not consistent within the provisions of s.596(2).

[22] Section 596(2)(c) enables a grant of permission for representation by lawyer or paid agent if the Commission is satisfied that it would be unfair not to allow that representation taking into account fairness between the person to be represented and the other persons involved in the same matter. The consideration of that section involves examination of whether it would be unfair if a party was not allowed to be represented because it is unable to represent itself effectively, with the Full Bench having found that the relevant test is not an assessment of the skills and education of the individual representative, but rather an examination of the resources available to the party has a whole.

[23] Consideration of that section does not go to the question of a grant of representation being denied because unfairness would arise to a person who is not represented and does not seek to be represented. Instead, the section examines whether an application for permission for representation is to be allowed.

[24] In any event, in relation to Mr Heading, I discern no inability on his part to represent himself or that he would be placed at a significant disadvantage because of a grant of representation to the DET. I am assisted in forming that view by the indication on the part of Counsel for the DET that his duties to the Commission go more broadly than his duties to his client.

[25] For these reasons, I consider that the requirements of s.596 of the Act have been met and grant the Respondent’s request for permission to be represented by a lawyer.

COMMISSIONER

 1   AE402151.

 2   per Telstra v CEPU [2007] AIRCFB 374 at [13], with reference to ING Administration Pty Ltd v Jajoo 158 IR 239.

 3   Applicant v Respondent[2014] FWC 2860, at [20]–[21].

 4   Ibid; see also E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 at [48].

 5 [2013] FCA 291.

 6 Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663.

 7   Appellant v Respondents [2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869, at [5].

 8   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618, at [19].

 9   King v Patrick Projects Pty Ltd[2015] FWCFB 2679, at [15].

 10 Ibid [17].

 11   Singh v Metro Trains Melbourne[2015] FWCFB 3502, at [16].

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