BMD Urban Pty Ltd

[2024] FWC 1589

[2024] FWC 1589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BMD Urban Pty Ltd

(AG2024/1084)

COMMISSIONER SIMPSON BRISBANE, 19 JUNE 2024

Application for approval of the BMD Urban Pty Ltd Enterprise Agreement 2023 – representation granted.

1. On 4 April 2024 BMD Urban Pty Ltd (the Applicant / BMD) applied to the Fair Work Commission (the Commission) for approval of an enterprise agreement under s.185 of the Fair Work Act 2009 (the FW Act).

1. The matter is currently listed for hearing on 11 and 12 July 2024.

1. On 29 May 2024 the Applicant provided notice that they would seek permission under s.596 of the Act to be represented by Mr Troy Spence of counsel. The Construction, Forestry and Maritime Employees Union (CFMEU) opposed the request for the Applicant to have permission to be represented.

CFMEU Objection to Representation – 31 May 2024

1. The CFMEU submitted an objection to the Applicant being legally represented in the matter before the Commission. The CFMEU submitted  that a party ought ordinarily appear on its own behalf, and that the Commission should not be satisfied that it is appropriate to exercise its discretionary power.[1]

1. The CFMEU submitted that the Applicant being represented would not assist the Commission in conducting the matter more efficiently. It was submitted the Applicant is a large employer group with in-house counsel (lawyers) and employee relations, human resource and workplace relations staff available, and has an ongoing relationship with Drayton’s Workplace Consulting (Drayton’s). The CFMEU submitted that even if representation would enable the matter to be dealt with more efficiently, a lack of intricacy and difficulty in the matter may still mean that permission is declined.

1. The CFMEU asserted that the matter is a straightforward construction exercise, with a limited factual contest in play and no jurisdictional issues or technicalities to resolve, and this should weigh against a decision to grant permission.

1. The CFMEU submitted that granting permission would infringe on fairness. It was submitted the CFMEU is representing itself in the matter, and that the Applicant, being the largest privately owned civil contractor in the country with a global footprint spanning the UK and Philippines with an employee base of 2000+ staff is capable of representing itself.

1. The CFMEU submitted by way of example, in this current application to date: conciliations, and/or mentions, and/or conferences for the Application by BMD Urban Pty Ltd Enterprise Agreement 2023 before the Commission, by advocates Greg Power, Senior Industrial Relations Consultant and Daniel Power, Employment Relations Advisor from Drayton’s has been most agreeable and able to date. Accordingly, it was submitted this matter before the Commission is clearly distinguishable on the ground of fairness from situations where an Applicant is of moderate sophistication and against a union advocate.[2]

1. The CFMEU submitted the volume of material to be filed by the Applicant is at its choosing. It submitted there are no facts and circumstances of this case requiring representation in formal proceedings. It submitted that no imbalance of representation would arise should permission for legal representation not be granted. It submitted that taking into account the fairness between persons, and parties to this matter, this is not a matter that requires any particular legal expertise in case law. The CFMEU ultimately submitted that no unfairness would arise if permission was refused by the tribunal.

1. The CFMEU submitted that counsel’s involvement in preparation of the Applicant’s case is not relevant to the issue of efficiency. The CFMEU submitted that convenience and preference of the parties are not relevant to the issue of efficiency.[3]

1. The CFMEU asserted that the Commission is required to engage in a task of assessing the particular capacity of potential advocates.[4] The CFMEU submitted that despite any argument from BMD, against the CFMEU, that the Respondent’s representation is by a legally trained and qualified industrial officer of a major construction union, the reality is that (1) this application does not involve multiple applications canvassing a number of key aspects of the FW Act; (2) additionally, the relevant sections of the Act have been extensively considered by the Fair Work Commission; and (3) this is not a matter which requires forensic cross-examination.

1. The CFMEU also provided that though its industrial officer is a qualified barrister, as he is an employee of the union he is not considered to be represented by a lawyer under s.596(4) of the Act.

Applicant Reply to Objection – 6 June 2024

1. The Applicant submitted that the matter was listed for a case management hearing on Tuesday 7 May 2024. Relevantly, permission was granted for BMD to be represented by a paid agent for the purposes of that hearing pursuant to s.596 of the Act. The Applicant submitted there was no objections by the parties to this decision. BMD now seeks permission to be legally represented.

1. The Applicant noted that the CFMEU raised a number of concerns in its submissions in relation to the ballot process undertaken by the Applicant. The CFMEU requested a public hearing with needs to cross examine witnesses on the basis of the complexity of the matter.

1. In response to the CFMEU submissions, including the issues raised regarding Draytons, BMD seeks permission to be represented by Counsel, which it submitted is appropriate in respect of the complexity and the issues raised with Draytons in relation to equitable principles and their statutory analogues in the Corporations Act 2001.

1. The Applicant submitted that in contrast to the CFMEU’s email of 28 May 2024, without explanation, the CFMEU submissions of 31 May 2024 now argue the following:

“13. The CFMEU submits that in terms of complexity and efficiency, the matter is a straightforward construction exercise, with a limited factual contest in play, nor any jurisdictional issues, and/or technicalities to resolve”.

1. The Applicant submitted that the CFMEU submissions on 28 May 2024, in and of themselves, has rendered the matter complex. Further, it was submitted there is no explanation given by the CFMEU as to why their previous contentions regarding ‘complexity’ has now changed.

1. The Applicant submitted that it ought be given permission to be represented by counsel in light of the Applicant’s primary representative throughout the matter having a familial relationship with one of the witnesses to be cross-examined, and that this would otherwise negatively affect the process of the hearing.

1. The Applicant submitted that it would suit fairness for permission to be granted for it to be assisted by counsel. The Applicant asserted that its in-house counsel does not have experience nor provide advice in relation to enterprise agreement approvals before the Fair Work Commission, as its industry is civil construction whereas the CFMEU specialises in representing its members and interests in industrial matters.

CFMEU Reply – 7 June 2024

1. In reply, the CFMEU objected to the submissions of the Applicant. It asserted that the Applicant had not tendered evidence and as such characterised its submissions as merely bar table statements.[5] The CFMEU objected to the facts asserted in the Applicant’s submission.

1. The CFMEU submitted that whilst reasonable minds may always differ as to whether any of 596 criteria were satisfied on the facts of this case, it could well be said that the conclusions reached by the Commissioner were not reasonably available on the asserted facts.

1. The CFMEU submitted that the Commission should not grant permission for the Applicant to be represented by a lawyer, as they view that the provisions of s.596(2) are not satisfied.

1. The CFMEU submitted that on 3 June 2024 Commissioner Simpson’s view was that he granted permission on 7 May 2024 for the paid agent Drayton’s to represent BMD in this application. The CFMEU submitted that if this is so, the CFMEU understanding was that the paid agent representation was for the purpose of mentions/conferences/conciliations and hearing. However, it was submitted that the conclusions reached by the Commissioner on 7 May 2024, if any, did not seem to involve the making of an evaluative judgment akin to the exercise of a discretion. The CFMEU submitted that on 7 May 2024 Drayton’s had not made it clear whether they were a subsidiary or otherwise related to the Applicant or if they were engaged commercially, and that the Applicant had not requested permission to be represented by a paid agent.

1. The CFMEU submitted that Drayton’s request that they be represented by counsel raised concerns which it submitted cannot be characterised as incorporated into the mere procedural decision to have granted leave on 7 May 2024. It submitted that the permission to be represented by a paid agent should be distinguished from permission to be represented by a lawyer, and that the Commission only granted representation by a paid agent.

1. The CFMEU submitted that the use of the term ‘or’ in s.596(1) of the Act should be given significance in undertaking statutory construction. It viewed that in the natural and ordinary meaning of the section there is a distinction between the term ‘or’ and the term ‘and’. It was noted emphasis should be placed upon this distinction and focus on words used, especially given it was an instrument drafted by lawyers. It was submitted given this distinction, the granting of permission to be represented by a lawyer should be viewed as a distinct use of Commission discretion from the granting of permission to be represented by a paid agent such as Drayton’s.

1. The CFMEU submitted that the current case should be distinguished from situations where the Commission may be seen as dictating between a lawyer and a barrister, due to the distinction in text and function between ‘lawyers or paid agents’. The CFMEU also questioned the inferences drawn on the precedent relied on by the Applicant, noting that at [25] the full bench stated "we do not consider it appropriate to determine this issue in a definitive way because it is not necessary for the disposition of this appeal to do so and because there was no proper contradictor in the appeal on that issue".[6]

1. The CFMEU submitted that the stark differences between paid agents and lawyers is clear in the existence of a scheme which regulates lawyers and its absence for paid agents. It also referred to the Commission paper entitled ‘Paid Agents and the Fair Work Commission’ as a basis for distinguishing the two, as well as their exclusion from appearing in the Federal Court of Australia and Federal Circuit and Family Court of Australia.[7]

1. The CFMEU submitted that their interpretation of the use of ‘or’ in ‘lawyers or paid agents’ would not lead to an ‘absurd’, ‘extraordinary’, ‘capricious’, ‘unjust’, ‘irrational’ or ‘obscure’ operation, that provides a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. As such, the text of s.596 cannot be seen as enabling a party to interchange permission to be represented by a paid agent with permission to be represented by a lawyer.

1. The CFMEU submitted there is no merit in the argument for legal representation proffered by the Applicant and that the Commission should not grant permission to the Applicant.

Consideration

1. The Applicant can only be represented by a lawyer or paid agent in proceedings with the permission of the Commission per section 596. Whether to grant permission is a discretionary matter to be made having regard to factors set out in section 596(2) of the Act. 

1. The CFMEU has asked for an in person hearing in order to cross examine witnesses for the Applicant.  It appears reasonably likely this cross examination will include matters going to the way the Applicant says it has complied with the approval requirement that the enterprise agreement has been genuinely agreed.  The CFMEU has raised issues concerning the ballot process undertaken.  On the basis of the material before the Commission and the potential for the issues in dispute to give rise to questions of law involving a degree of complexity, I am satisfied it will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter to allow the Applicant to be represented by a lawyer.

1. I also agree with the Applicant’s submission that it would suit fairness for permission to be granted for the Applicant to be assisted by a lawyer, when the CFMEU’s representative in this case, who does not require permission, has previously practiced as a Barrister including in the area of employment law, and the Applicant’s in-house counsel do not have experience or provide advice in relation to enterprise agreement approvals before the Fair Work Commission.  

COMMISSIONER

[1] Warrell v Fair Work Australia [2013] FCA 291 per Flick J at [24].

[2] Rahman v Storm International Pty Ltd T/A Storm International Property Maintenance 2011 FWA 7583 at [16].

[3] Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria[2011] FWA 1520

[4] CEPU v UGL Resources Pty Ltd[2012] FWA 2966.

[5] High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228 per Barwick at [243].

[6] New South Wales Bar Association v Bre; McAuliffe and Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663

[7] Federal Circuit and Family Court of Australia Act 2021, s.175 and Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rule 9.04; Federal Court Rules 2011, rules 1,34 and 4.01.

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