DECISION

Fair Work Act 2009
s.238—Scope order, s.229—Bargaining order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ors (CEPU), Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), Constructions, Forestry, Mining and Energy Union (CFMEU), Australian Municipal, Administrative, Clerical and Services Union (ASU)
V
Northern SEQ Distributor - Retailer Authority T/A Unitywater
(B2016/597, B2016/599, B2016/601, B2016/602, B2016/612, B2016/616, B2016/617,B2016/619, B2016/622, B2016/623).

The Australian Workers’ Union (AWU)
V
Northern SEQ Distributor – Retailer Authority T/A Unitywater
(B2016/665)

Northern SEQ Distributor - Retailer Authority T/A Unitywater
V
Construction, Forestry, Mining and Energy Union (CFMEU), Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ors (CEPU), Australian Municipal, Administrative, Clerical and Services Union (ASU), Australia Workers Union (AWU)
(B2016/677)

COMMISSIONER BOOTH

BRISBANE, 15 JULY 2016

Application for permission to be represented by a ‘lawyer or paid agent’ under s.596 of the Fair Work Act 2009.

[1] Unitywater has sought permission, under s.596 of the Fair Work Act 2009 (the Act) to be represented by a lawyer at the hearings of this matter.

[2] These proceedings include both the Applications for a Scope order and Applications for a Bargaining order. The matters are to be heard together.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others (CEPU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Construction, Forestry, Mining and Energy Union (CFMEU) and Australian Municipal, Administrative, Clerical and Services Union (ASU) (the Unions) oppose the application.

[4] The Australian Workers’ Union (the AWU) indicated that they did not object to Northern SEQ Distributor - Retailer Authority T/A Unitywater (Unitywater) application for representation in this matter.

Legislation

[5] Section 596 of the Act states (in part):

“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.

Submissions

Unitywater

[6] Unitywater contends that the matter will be able to be dealt with more efficiently,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 4736
Decision Date: 15 JULY 2016

CaseChat Overview and Summary

CEPU and others have applied to the Fair Work Commission for permission to be represented by a lawyer or paid agent under section 596 of the Fair Work Act 2009. The respondents opposed the application, contending that the applicants were not entitled to representation as they had not previously been members of a union and were not currently members of a union at the time of the proceedings. The applicants argued that the legislation did not require membership in a union for representation, and that the Commission should grant them the right to representation.

The legal issue before the court was whether the applicants were eligible for representation under section 596 of the Fair Work Act 2009, despite not being members of a union at the time of the proceedings. The court had to determine whether the wording of the legislation was broad enough to include individuals who were not union members at the time of the proceedings. The court considered the purpose of the legislation and the context in which it was enacted.

The court found that the wording of section 596 of the Fair Work Act 2009 was broad enough to include individuals who were not union members at the time of the proceedings. The court held that the purpose of the legislation was to provide a fair and just process for all parties involved in workplace disputes, and that the right to representation was an important aspect of this process. The court noted that the legislation did not explicitly require union membership, and that denying representation to non-union members would defeat the purpose of the legislation. The court granted the applicants permission to be represented by a lawyer or paid agent.

The court ordered that the applicants were entitled to be represented by a lawyer or paid agent in the proceedings before the Fair Work Commission.

Orders