Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz Pty Ltd

[2016] FWC 8291

[2016] FWC 8291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Kentz Pty Ltd
(C2016/4384)

Northern Territory
COMMISSIONER BISSETT	MELBOURNE, 18 NOVEMBER 2016

Alleged dispute about any matters arising under an enterprise agreement - permission to be represented - permission granted.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for the Fair Work Commission (Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act (the FW Act). Following unsuccessful attempts to resolve the matter through conciliation the matter is listed for arbitration.

[2] The Commission has received an application from Kentz Pty Ltd (Kentz) to be represented by a lawyer pursuant to s.596 of the FW Act in that arbitration. Submissions in support of the application have been received from Kentz and submissions opposed to the application have been received from the CEPU.

[3] I have decided, for the reasons given below, that permission should be granted to Kentz to be represented by a lawyer in the hearing of the application in accordance with s.596 of the FW Act.

The legislation

[4] Section 596(1) and (2) of the FW Act states:

      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.

[5] It is trite to observe that only one of the conditions in s.596(2) must be met before the Commission can consider whether or not to grant permission. It is also trite to observe that the decision to grant permission is a discretionary decision subject only to the necessary condition being met.

Submissions

Efficiency having regard to complexity

[6] Kentz submits that the matter is complex as it involves both a jurisdictional question of the right of the CEPU to bring the dispute to the Commission in its own name, and involves consideration of an earlier decision of the Commission and its relevance (in circumstances where it is relied on by the CEPU) to the matter to be decided.

[7] Further Kentz submits that there is complexity in the factual matrix as it relates to each parties understanding of the requirements of the provisions in dispute, income protection comparison data and the commencement of its operations on the Inpex Project.

[8] In addition Kentz says that the matter will require an analysis of authority as it relates to interpretation of agreements.

[9] Kentz submits that the grant of permission will ensure that these matters will be handled more efficiently, evidence adduced will be relevant, credible and streamlined, and relevant evidence and materials marshalled effectively.

[10] The CEPU says that there is no complexity in the matter and that the jurisdictional issue, partly relied on by Kentz, is a device to bolster its application for representation. It says that there is no evidence to support Kentz’ claim that legal representation will enable the matter to be dealt with more efficiently.

[11] The CEPU submits that the words of the FW Act demonstrate ‘an intentional tightening of the rules permitting legal representation’ 1 and this should be taken into account in determining this application. Further, it says that it is clear that permission should only be granted in ‘exceptional circumstances’.

Inability to represent itself

[12] Kentz submits that it does not possess the relevant expertise in house to produce, present and analyse evidence or present factual and legal arguments to the Commission. Whilst it has represented itself in conferences on the matter before the Commission it does not have the expertise to do so in arbitration.

[13] The CEPU submits that there is no evidence to support this claim.

[14] In reply to this submission of the CEPU, Kentz produced a statement from Mr Robert Twomey, the Kentz Project IR Manager for the Inpex Project subject to the agreement and matter in dispute. His statement is that his experience and that of his team relates to project level dispute resolution and conference level proceedings in the Commission. He says that he could not navigate the factual and legal matters that may arise in the hearing of the matter. He contrasts this experience to the skills of Ms Pat Rogers who will most likely represent the CEPU in the matter.

[15] Mr Twomey says that there is no-one in the business in Australia (the company does have United States based lawyers) who could effectively participate in proceedings including examination and cross examination of witnesses, prepare and present legal argument or appear in an arbitration in the Commission.

Fairness

[16] Kentz submits that the CEPU is an industrial organisation with considerable experience in bringing matters before the Commission. It submits that the CEPU materials make clear that it is well versed in Commission authority, principles of interpretation and the development of arguments to support its claims.

[17] It says that it would be unfair to deny it representation in such circumstances. In reply Kentz submits that the materials filed and the submissions of the CEPU in relation to representation are a fair indication of the skills and abilities of Ms Rogers who will be representing the CEPU.

[18] The CEPU says that there is no unfairness. In particular it says that the Commission is not bound by the rules of evidence.

Conclusion

[19] Each application for representation must be dealt with on its merits taking into account the matters before the Commission, the capacity of the party seeking permission or fairness between the parties. The range of decisions in relation to permission is a testament to this. Whilst some decisions may refer to ‘exceptional circumstances’ there is nothing in s.596 of the FW Act that suggest permission can only be given in exceptional circumstances. Had this been the intent of s.596 the words would have been used to signify this, just as they have been elsewhere in the Act. 2

[20] I am satisfied that there is complexity to the matter to be decided by the Commission. Whilst some of the matters raised by Kentz might not be complex on their own, in combination I am satisfied that jurisdiction matters, issues in relation to the parties intent in negotiating the agreement provisions in question and matters surrounding various insurance options do raise complexities.

[21] In this matter there are a number of witnesses. Their evidence will go to how the dispute came to be before the Commission, the intention of the parties in reaching agreement and potentially detailed information of comparisons of insurance policies, their limitations and benefits – that is, those matters identified by Kentz. The CEPU takes no issue as to the range of matters to be considered in the hearing.

[22] The value of witnesses to the Commission’s decision making cannot be underestimated. However, that value is much reduced if the witness examination and cross examination is not focussed and efficient. As much as it would be beneficial were it otherwise, the art of adducing the necessary evidence to assist the Commission is not easily done. Much of the decision making in this matter will rely on this witness evidence. Further, all of the information before the Commission, including the witness evidence, must be effectively synthesised. A skilled practitioner (legally qualified or otherwise) can provide substantial assistance to the Commission in this respect.

[23] Whilst the Commission may not be bound by the rules of evidence they are not something to be ignored. That the Commission is not so bound is not grounds to deny permission.

[24] Whilst representation by a lawyer does not guarantee efficiency I am satisfied, in this case, that the matter will be dealt with more efficiently if permission is granted.

[25] Whilst it is not necessary to do so, having found that there is complexity in the matter and it could be dealt with more efficiently if permission was granted, I am also satisfied, on the basis of the statement of Mr Twomey, that Kentz does not have the ability to represent itself effectively.

[26] While it might reasonably be anticipated that a large organisation will have within it the expertise to deal with matters in the Commission there are two things to be said of this. First, a large number of employees does not mean that any of them have the skills or expertise to effectively present and argue a matter before the Commission. Second, I accept in this case that while some employees of Kentz are responsible for industrial relations matters this is focussed more on problem solving than advocacy and what that entails.

[27] I would also, for these reasons, grant permission to Kentz to be represented.

[28] Having found on two grounds that permission to be represented should be granted it is not necessary for me to consider fairness between the parties.

[29] For these reasons permission is granted to Kentz to be represented by a lawyer in the hearing of the application by the CEPU. To be clear, permission is granted for all of the proceedings.

COMMISSIONER

 1  CEPU, submissions on legal representation dated 15 November 2016, para 4.

 2 See s.394(3) of the FW Act.

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