Brian Charles Harradence v Asciano Services Pty Ltd

[2016] FWC 6168

[2016] FWC 6168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Brian Charles Harradence
v
Asciano Services Pty Ltd
(U2016/7553)

COMMISSIONER CAMBRIDGE SYDNEY, 1 SEPTEMBER 2016

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Brian Charles Harradence (the applicant). The respondent employer is the Asciano Services Pty Ltd (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).

[3] The application was filed on 9 June 2016, and the applicant is represented by the Australian Rail, Tram and Bus Industry Union (the RTBU). The employer filed a response dated 27 June 2016.

[4] The file indicates that unsuccessful conciliation of the matter occurred on 4 July 2016. On 4 August 2016, K&L Gates lawyers, filed a notice of representative commencing to act on behalf of the employer. The matter had been scheduled for Hearing/Conference on 12 and 13 September 2016.

[5] The RTBU on behalf of the applicant has formerly raised objection to the employer being represented by lawyers or paid agents. The RTBU has provided written submissions dated 15 August 2016, which set out the basis for the applicant’s opposition to the employer being granted permission to be represented by lawyers or paid agents.

[6] The employer provided written submissions dated 15 August 2016, which included submissions in support of permission being granted for it to be represented by lawyers or paid agents.

[7] The Parties were provided with an opportunity to deliver supplementary oral submissions in respect to the representation question during a telephone pre-Hearing conference held on 26 August 2016. I have examined and considered both the filed documentary material including the respective submissions of the Parties, and the further oral submissions made on the representation question, as the basis for this Decision.

Consideration

[8] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:

“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.

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.

(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 employers that 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.”

[9] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[10] Upon examination of subsection 596 (2) of the Act, there appears to be three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing/Conference of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[11] In this case, the employer’s representatives have submitted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, all operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the RTBU, on behalf of the applicant, submitted that all of the factors contained in subsection 596 (2) of the Act operated to establish that the Commission should refuse permission for the employer to be represented by lawyers or paid agents.

Complexity/Efficiency - Subsection 596 (2) (a)

[12] The employer’s representatives submitted that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from the potential for legal argument regarding the admissibility and reliance that could be placed upon unsupported submissions arising from the absence of direct evidence from the applicant. The applicant had not filed a witness statement. Further, it was submitted that the matter involved evidence which was to be provided by a number of witnesses, and that the involvement of legal representation would assist to ensure efficiency with the time taken to deal with the evidence from witnesses during the Hearing of the case.

[13] The RTBU submitted that the involvement of lawyers or paid agents would not enable the matter to be dealt with quickly. Further, it submitted that the presence of lawyers or paid agents may add obstruction to reaching a resolution.

[14] Upon examination of the evidence which has been filed and a consideration of any contests that may arise from it, I am unable to recognise a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter. The potential difficulty that may have arisen from the absence of direct evidence from the applicant has been remedied by the Commission’s determination to “re-open” the Directions procedure, so as to enable the applicant to file and serve a witness statement.

[15] Notwithstanding the absence of particular complexity, the re-scheduling of the matter has involved a reduction in the time allocated for the Hearing so that it is now to be undertaken on a single day, albeit commencing earlier than previously scheduled. The Commission has had regard for the assistance provided by the lawyers for the employer during the pre-Hearing conference which facilitated the abridged informal discovery of a particular document, and additionally allowed for the efficiency of a shortened Hearing.

[16] Therefore, in this instance the issue of efficiency has operated as a factor in support of permission being granted for the employer to be represented by lawyers or paid agents.

Inability/Effectively - Subsection 596 (2) (b)

[17] In this case, the employer did not specifically advance an argument that it would be unable to represent itself effectively without the assistance of lawyers or paid agents.

[18] The submissions made by the RTBU stressed that the employer is a large corporation with a large legal division which is supported by a large Human Resources Division.

[19] Consequently, I have not been persuaded that the employer would be unable to provide a “striking impression” or be “impressive” or be “powerful in effect” or otherwise be unable to represent itself effectively. This particular factor has operated against permission being granted for the employer to be represented by lawyers or paid agents.

Fairness - Subsection 596 (2) (c)

[20] The issue of fairness between the Parties is a matter of recognised significance. In this instance, both Parties have made submissions which have addressed the question of fairness.

[21] The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers, in circumstances where the applicant was represented by officers of the RTBU. It was asserted that the RTBU was a Registered Organisation with very significant industrial and legal experience. Further, the employer submitted that the particular identity or level of experience of the individual officer that the RTBU utilised to conduct the case on behalf of the applicant was an irrelevant consideration.

[22] The RTBU advised that the particular officer who would conduct the matter on behalf of the applicant was inexperienced and not legally qualified or trained.

[23] In this instance, if permission for legal representation for the employer was not granted there would appear to be something of a perceived imbalance created because the applicant would be represented by an RTBU advocate, while the employer would be required to utilise one of its own staff. An alternative perception of imbalance would also emerge whereby an inexperienced RTBU advocate, who was not legally trained, would represent the applicant, whilst a lawyer would conduct the case on behalf of the employer. Therefore, there were competing perceptions of imbalance which have required evaluation.

[24] In the present circumstances, which involve the employer seeking permission to be represented by lawyers, and notwithstanding the reasoning contained in the Judgment in the Warrell case, I consider that there would be an element of unfairness between the respective Parties if permission was not provided for the employer to be represented by lawyers or paid agents. That element of unfairness arises from an imbalance in circumstances where the applicant is represented by the RTBU, and the employer would, without permission, be required to represent themselves.

[25] The qualifications and/or experience of the particular representatives are not, in the present circumstances, relevant considerations. The perception of imbalance between particular advocates can be quite illusionary, and, for example, the enthusiasm of an inexperienced advocate may often more than compensate for the staid approach of a learned geriatric. It is important to note that a significantly different imbalance would exist in circumstances where one side was self-represented and the other side utilised the services of an advocate, whether experienced, legally qualified, or otherwise.

[26] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, on balance, I have decided that the permission sought by the employer to be represented by lawyers or paid agents shall be granted.

COMMISSIONER

 1 Warrell v Walton [2013] FCA 291.

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