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CEPU v UGL Resources Pty Ltd

CEPU v UGL Resources Pty Ltd

Case [2012] FWA 2966 10 April 2012

Appeal

Procedural Fairness

Standing

Civil Litigation & Procedure

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[2012] FWA 2966

FAIR WORK AUSTRALIA

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
UGL Resources Pty Limited (Project Aurora)
(C2012/3216)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 10 APRIL 2012

Summary: section 596 - objection to appearance by lawyer – s.596(2)(a) - conditioned discretion – meaning of adverb “effectively” - “impressive” or “striking effect” etc – “efficiency” - “achieving desired result” - adverbs not used in section - procedural fairness - s.596(2)(b).

[1] On 4 April 2012, a conference was convened following an application under s.739 of the Fair Work Act 2009 (“the Act”) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”). The Respondent was UGL Resources Pty Ltd (Project Aurora). The dispute concerned a number of issues relating to hours of work and transportation (of personal tools from site).

[2] Prior to the convening of the conference, a Form F53 Notice of Representative Commencing to Act was received from Mr Phillip Copeland of Copeland Workplace Law.

[3] Attached to that notice was correspondence from Mr Copeland raising a number of jurisdictional objections to the dispute application brought by the CEPU. Briefly put, Mr Copeland maintained that the issues in contention were not about matters arising under the applicable agreement or alternatively did not constitute a dispute in relation to the Act.

[4] Prior to and at the commencement of the conference, the CEPU agitated the issue of Mr Copeland’s status. I granted permission to Mr Copeland to represent the Respondent, and at that time I gave some brief reasons for my decision in this regard. The CEPU thereafter requested that I provide full written reasons for my decision in this respect. I now do so.

The Statutory Context

[5] Section 596 of the Act 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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from…

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.

Continue reading CEPU v UGL Resources Pty Ltd

Details

AGLC: CEPU v UGL Resources Pty Ltd [2012] FWA 2966
Case: [2012] FWA 2966
Decision Date: 10 APRIL 2012

CaseChat Overview and Summary

The case of CEPU v UGL Resources Pty Ltd involved a dispute under section 596 of a relevant statute, which concerns objections to the appearance of a lawyer before the court. UGL Resources Pty Ltd objected to the lawyer's appearance on the basis that it was not conducted in accordance with the statutory provisions. The court had to determine whether the manner of appearance by the lawyer met the criteria outlined in section 596(2)(a) and whether it satisfied the procedural fairness requirements under section 596(2)(b). The primary issue before the court was the interpretation of the adverb "effectively" and whether it implied a higher standard such as "impressive" or "striking effect". Additionally, the court considered whether the term "efficiency" and "achieving the desired result" were encompassed within the statutory language.

The court examined the plain meaning of the word "effectively" and concluded that it did not necessarily imply an "impressive" or "striking effect". Instead, it focused on whether the lawyer's appearance achieved the desired legal outcome in a competent manner. The court found that procedural fairness required the appearance to be conducted in a manner that was efficient and resulted in the desired legal effect, but it did not need to be "impressive" or "striking". The court held that the statutory language did not mandate the use of specific adverbs to describe the manner of appearance, and thus the focus should be on the outcome and efficiency of the appearance. This interpretation ensured that the procedural fairness was upheld without imposing an unnecessarily high standard on the manner of appearance.

Ultimately, the court determined that the objection to the lawyer's appearance was not valid because the manner in which the lawyer appeared was conducted effectively, efficiently, and achieved the desired result. The court emphasised that procedural fairness was maintained by focusing on the practical outcome of the appearance rather than the subjective quality of the manner itself. The court dismissed the objection and allowed the lawyer to proceed with the case. The final orders of the court were that the objection to the lawyer's appearance was not upheld, and the lawyer was permitted to continue representing the client in the proceedings.

Orders