CEPU & Ors v Northern SEQ

[2016] FWC 4736

[2016] FWC 4736

FAIR WORK COMMISSION

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, if it was granted permission to be represented. It submits that:

• there are multiple proceedings, covering issues of scope and good-faith bargaining;



• so far there have been various conferences held and an interim application;



• scope applications require application of complex legislative provisions and further there is a range of Full Bench authorities on these matters;



• representation so far has promoted efficiency, including use of statements, legal principles to be applied and that cross-examination in the interim hearing was related to matter specific to the issues in dispute;



• there is significant overlap between the matters in the scope applications and in the bargaining orders; 1




having been legally represented at the interim matter Unitywater should not now be required to find an alternate mode of internal representation for the substantive hearing.

[7] Unitywater also submits that it would be unfair not to allow it to be represented because it is unable to represent itself effectively, as follows:

• while Unitywater does have employees with experience in HR and legal roles it is not experienced at advocacy at the Fair Work Commission (the Commission);



• Mr Dearling has been and will be a witness in the proceedings and relies on the case of Venn v The Salvation Army T/A Barrington Lodge 2;

[8] Unitywater also relies on the fairness ground taking into account fairness between the parties. It submits:

• there are five unions whose interests in these applications might be said to be aligned and to some extent rely on evidence led by each other;



• most of the unions are represented by experienced industrial officers;



• two of the unions are represented by advocates with law degrees and this goes to the comparative fairness. 3

The Unions

[9] The Unions submit:

• when considering whether permission to be represented by a lawyer should be made, there should be consideration of the clear expression of the Act and Explanatory Memorandum;



• in most cases legal representation will not be necessary, and that persons dealing with the Commission would generally represent themselves or be represented by an organisation of which they are a member;



• convenience or preference for legal representation is not sufficient;



• the circumstances stated in s.596(2) must be met to allow the discretion to be exercised.

[10] The Unions submit that Unitywater has not discharged that onus.

[11] In their view, permission to be represented by a lawyer will not enable the matter to be dealt with more efficiently because:

• Unitywater’s material is based on an assumption that the matters must necessarily be dealt with legalistically;



• legal representation at the interim application was a contributing factor to that hearing running for more than 20 hours;



• the current proceedings have been unnecessarily and excessively adversarial;



• Unitywater’s legal representation has tended to focus on legal technicalities rather than substantive rights;



• the substantive issues are not especially complex;



• the matter is being heard before an experienced tribunal member and the Commission has broad powers under the Act to deal with any genuine disadvantage;



• Mr Dearling, and employee of Unitywater, is experienced and has engaged in advocacy before the Commission;



• while some union advocates have legal qualifications a number of the other advocates do not;



• Unitywater in contrast seeks to be represented by a very senior lawyer with access to significant resources.

[12] On the issue of effective representation, the Unions note that Unitywater is not a small employer and has specialist resources. Further there is nothing to support the assertion that Unitywater is unable to represent itself effectively.

Consideration

[13] In this matter the Commission is required to consider competing scope applications and whether bargaining orders should issue. There are 7 scope applications and 5 bargaining applications. The Unions seek one agreement; Unitywater and the AWU seek 3 separate agreements. In addition there will need to be evidence adduced and submissions concerning coverage between the agreements should the Unitywater and AWU’s preferred scope issue.

[14] In deciding whether to exercise the discretion to grant permission to be represented one of the conditions in s.596(2)(a)-(c) must have been satisfied. The satisfaction of one of these conditions does not conclude the matter but enlivens a discretion about whether permission to be represented should be granted.

[15] Unitywater says that each of the conditions in s.596(2)(a)-(c) have been met.

[16] I therefore turn first to the complexity and efficiency question in s.596(2)(a).

[17] In these matters there are competing separate scope applications and good-faith bargaining applications.

[18] While limited substantive material has been filed to date, 4 from the hearing of the Interim Application it is clear a considerable amount of material will likely be filed.

[19] Further, the matters arising here and in the Interim Applications are plainly legally complex, not least because of the overlaps and divergences between the various scope applications and the bargaining orders and the evidence required for them. These factors contribute to the complexity and the extent of material likely to be required by the parties.

[20] In addition, while the 5 applications from the Unions are in similar terms, coverage issues will need to be dealt with on a separate basis. I have concluded that the matter has significant complexity, requiring consideration of extensive amount of evidence and legal issues dealing with the scope and bargaining applications.

[21] It remains to be considered whether legal representation will enable the matter to be dealt with more efficiently given the complexity.

[22] Unitywater points to the manner in which its legal representatives conducted the Interim Applications as indicative of efficiency. The Unions point to the same conduct arguing that the legal representatives reduced efficiency by preferring legal technicalities to substantive rights, and accordingly, they say, legal representation should not be granted.

[23] In my view, the Interim Applications were conducted by all parties strongly asserting their rights. I do not agree with the Unions’ characterisation of Unitywater’s conduct of the Interim Applications.

[24] The Unions also submit that Unitywater is able to represent itself effectively, particularly through Mr Dearling. Further, they provided details of employees of Unitywater obtained from the internet, arguing there are many lawyers who work for Unitywater. I note however they appear to be commercially focussed lawyers rather than advocates. Mr Dearling is not a lawyer but is an experienced employee relations practitioner although not an industrial advocate.

[25] It may be that Mr Dearling or other employees could run the case. However, the test is not whether a party can be effectively represented by an in-house advocate, but whether the matter would be dealt with more efficiently if permission to be represented by a lawyer or paid agent was granted, given the complexity of the matter.

[26] In ASC Pty Ltd v The Australian Workers’ Union 5 Deputy President Gostencnik observed that:-

“…In any event the question, for the purposes of granting permission for the reasons set out in section 596 (2) (a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result. …”

[27] The capacity of Mr Dearling or other employed lawyers is a factor in assessing whether representation “would enable the matter to be dealt with more efficiently”. The lawyers appear not to have expertise in this jurisdiction or as advocates. Mr Dearling has considerable employee relations experience but is not an experienced advocate.

[28] The legal representative acting in this matter to date has experience in advocacy and industrial law. Further, Mr Dearling’s status as a witness in the matter is a consideration. These are factors, when taking into account the complexity of the matter, mean that it would be more efficient if Unitywater was represented at the hearing.

[29] I am therefore satisfied that the matter is complex, and, taking into consideration the above, the matter will be dealt with more efficiently if Unitywater was legally represented.

[30] It is not necessary to decide if the condition in s.596(2)(b) or (c) have been met.

[31] However, I must still instead decide whether I should exercise my discretion to grant permission.

[32] Self-representation is the “normal position”, and departure from it requires satisfaction of one or more of the pre-requisites in s.596(2) and then exercise of discretion. 6

[33] I consider in this case there are potentially a significant amount of evidence that will need to be properly organised and presented if the matter is to be dealt with efficiently. Witnesses will likely be cross-examined (including Mr Dearling). Legal argument and submissions will be necessary for resolution of the competing positions between the Unions and the AWU, and dealing with the 12 applications involved. The interim application showed clearly that the parties are likely to pursue their relative rights.

[34] I consider this is a case in which the discretion should be exercised in favour of Unitywater’s application for permission.

[35] Permission is granted to Unitywater to be represented by a lawyer or paid agent in terms of s.596(2).

COMMISSIONER

 1   Rollason v Austar Coal Mine Pty Ltd [2010] FWA 4863

 2   [2010] FWA 912. See also Flinders OPerationg Services Pty Ltd t/as Alinta Energy v Australian Municipal, Administrative, Clerical and Services Union and others [2010] FWA 4821

 3   Hoklas v Richmond Grove Wines T/A Orlando [2012] FWA 4011

 4   Submissions from Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Plumbing Division Queensland Divisional Branch were filed on 1 July 2016.

 5   [2014] FWC 544

 6 Warrell v Walton [2013] FCA 291 at [24]

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