Construction, Forestry and Maritime Employees Union v BMD Urban Pty Ltd
[2024] FWCFB 355
•26 AUGUST 2024
| [2024] FWCFB 355 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry and Maritime Employees Union
v
BMD Urban Pty Ltd
(C2024/4404)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 26 AUGUST 2024 |
Application for permission to appeal against decision [2024] FWC 1589 of Commissioner Simpson at Brisbane on 19 June 2024 in matter number AG2024/1084 – permission granted for representation by lawyer and paid agent – whether public interest – permission to appeal refused.
On 1 July 2024, the Construction, Forestry and Maritime Employees Union (CFMEU) lodged a Form F7 (Notice of Appeal) under s 604 of the Fair Work Act 2009 (the Act) in relation to a decision of Commissioner Simpson in [2024] FWC 1589 to grant permission for BMD Urban Pty Ltd (BMD) to be represented by a lawyer (the Decision).
The CFMEU seeks permission to appeal and appeals the Decision on eight grounds, which can be grouped into three categories:
Firstly, that the Commissioner misconstrued the effect of the phrase “a lawyer or paid agent” in s 596 of the Act on the basis that it does not permit a person to be represented by both a lawyer and a paid agent at the same time (Ground 1).
Secondly, that the Commissioner wrongly had regard to one decision and failed to have regard to another (Ground 2).
Thirdly, that the findings of fact made by the Commissioner were not based on evidence or sound evidence and were purely speculative as to BMD’s ability to represent itself (Ground 3).
The question is whether permission to appeal should be granted. For the reasons that follow, permission to appeal is refused.
Principles relevant to permission to appeal
Under s 604 of the Act, a person aggrieved by a decision of the Commission may appeal the decision with the permission of the Commission. There is no right to appeal, and an appeal may only be made with the permission of the Commission. By virtue of s 604(2), and without limiting when permission to appeal may be granted, the Commission must grant permission if satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[1] The public interest is not satisfied simply by the identification of error or a preference for a different result.[2] Considerations that may attract the public interest include that the matter raises issues of importance and general application; that the decision manifests an injustice; or that the result is counterintuitive.[3]
Permission to appeal may also be granted where there is an arguable case of appealable error, and the decision is attended with sufficient doubt to warrant its reconsideration.[4] But it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. And an error at first instance is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds,[5] although it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
The Decision
By its Notice of Appeal, the CFMEU asserts errors of law in paragraphs [12], [13], [23], [25], [26], [28] and [30] to [32] of the Decision. However, the findings to which this appeal relates only appear at paragraphs [30] to [32] of the Decision. The remaining paragraphs contain either summaries of the parties’ submissions or information about the procedural history of the case. It is convenient to set paragraphs [30] to [32] of the Decision out in full:
“[30] The Applicant can only be represented by a lawyer or paid agent in proceedings with the permission of the Commission per section 596. Whether to grant permission is a discretionary matter to be made having regard to factors set out in section 596(2) of the Act.
[31] The CFMEU has asked for an in person hearing in order to cross examine witnesses for the Applicant. It appears reasonably likely this cross examination will include matters going to the way the Applicant says it has complied with the approval requirement that the enterprise agreement has been genuinely agreed. The CFMEU has raised issues concerning the ballot process undertaken. On the basis of the material before the Commission and the potential for the issues in dispute to give rise to questions of law involving a degree of complexity, I am satisfied it will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter to allow the Applicant to be represented by a lawyer.
[32] I also agree with the Applicant’s submission that it would suit fairness for permission to be granted for the Applicant to be assisted by a lawyer, when the CFMEU’s representative in this case, who does not require permission, has previously practiced as a Barrister including in the area of employment law, and the Applicant’s in-house counsel do not have experience or provide advice in relation to enterprise agreement approvals before the Fair Work Commission.”
Consideration
Ground 1 – a person cannot be represented by a lawyer and a paid agent at the same time
The CFMEU submits that the Commissioner misconstrued the effect of the phrase “a lawyer or paid agent” in s 596 of the Act and specifically the word “or”, which the CFMEU submits is exclusionary (the construction argument). Having granted permission for BMD to be represented by a paid agent, the CFMEU submits that it was an error of law for the Commissioner to also grant permission for BMD to be represented by a lawyer. This is because, it is said, s 596 does not permit a person to be represented by both a lawyer and a paid agent at the same time.
Section 596(1) of the Act provides:
“(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.”
The Decision does not record any finding of the Commissioner about the CFMEU’s submission in relation to the construction argument. Instead, the Decision deals with the application for permission for BMD to have legal representation on efficiency grounds (s 596(2)(a)) and by reference to fairness as between the parties (s 596(2)(c)).
It is important to observe that the construction argument was only raised by the CFMEU in reply. As a result, BMD was not on notice of the objection before its opportunity to make submissions on the question of permission had passed. It would have been preferable for the Commissioner to record his views about the construction argument in the Decision (even if simply to record a decision to not entertain the submission in the circumstances). But if the substance of the objection had been decided without first hearing from BMD, the result would have been a denial of procedural fairness to BMD. That circumstance has been remedied in that BMD has now had the opportunity to file submissions on the construction argument.
We discern no arguable case of appealable error in the Commissioner’s exercise of the general discretion to grant permission for BMD to be represented by a lawyer under s 596(2)(a). The Commissioner took into account the complexity of the matter and was satisfied that permission would enable the matter to be dealt with more efficiently. In relation to the grant of permission under s 596(2)(c), the Commissioner took into account fairness as between the CFMEU and BMD, approaching the matter on the basis of seeking to level the playing field as between two opposing lawyers. We discern no arguable error in this approach even if it might have been worded more precisely.
Turning then to the construction argument. Section 596 is found in Division 3 of Part 5‑1 of the Act, which deals with the conduct of matters before the Commission. It is among a group of provisions conferring broad discretionary powers on the Commission, including to make procedural and interim decisions (s 589) and to inform itself in such manner as it considers appropriate (s 590).
Subdivision C deals with “Representation by lawyers and paid agents and Minister’s entitlement to make submissions”. Relevant to s 596, the words “lawyer” and “paid agent” are defined terms in s 12 of the Act respectively: as “a person who is admitted to the legal profession by a Supreme Court of a State or Territory”; and “an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter”. A person may be represented in Commission proceedings by a lawyer or paid agent, but only if permission is granted under s 596.
The purpose of the word “or” in the phrase “lawyer or paid agent” is to draw a distinction between the two categories of representative for whom permission is required. It is not the function of s 596 to limit a party’s right to choose who its legal representative (or paid agent) will be if permission is granted.[6] That is the practical effect of the construction argument in this case, because the CFMEU seeks to limit BMD’s representation to the representative it prefers (a paid agent) to the exclusion of another (a lawyer).
The words of s 596 should not be understood as limiting the opportunity for representation to only one type of representative, or only one representative. No reference to a limitation of this kind is found in the Explanatory Memorandum to the Fair Work Bill 2008, or in the text of the provision itself. It is not enough to point to the use of the word “or” between the words “lawyer” and “paid agent” in s 596, or to note the absence of the words “or both” after those words. One might equally observe the absence of the words “but not both”. The language of the provision must be taken as it is, understood in light of its context and purpose.
It is common in Commission proceedings for parties to represent themselves. In those circumstances, s 596 has the protective purpose of conferring discretion on the Commission about whether representation by a party will promote efficiency, or fairness, or both. But it is also common for parties who are represented in Commission proceedings to have more than one representative (usually a lawyer instructing Counsel, but also a paid agent instructing Counsel, or a paid agent working together with a lawyer on behalf of a common client). This might be for any number of practical reasons, as the present case illustrates. Mr Greg Power, a paid agent acting on behalf of BMD, has a conflict of interest. One of the witnesses for BMD is a member of his family. To manage the conflict of interest, BMD has sought permission to be represented by a lawyer at the hearing of its application.
It would be a triumph of form over substance to read s 596 as limiting a person to only one representative at a time. The limitation could readily be overcome by representatives notifying of their “ceasing to act” and in that way opening the door for a new application for permission under s 596. It would also be wrong to understand the Commission’s power in s 596 as only capable of being exercised once for each party in relation to a matter before it, or only in relation to one type of representative (that is, by preventing a person from changing representation from a paid agent to a lawyer). No limitations of this kind appear in the text of the Act, and s 603 provides for the Commission to vary or revoke its decisions, including under s 596. Given the vicissitudes of litigation and circumstances particular to the parties at any given time, limitations of this kind would not be a sensible outcome and would instead operate to impede the right to choose one’s representative(s) and to seek permission to be represented in relation to that choice on the basis that one of the limbs in s 596(2) is met.
The better view is that s 596 leaves it to the Commission to decide when and in what circumstances permission for representation ought to be granted. The discretion is limited by the terms of s 596 itself, including that the representative for whom permission is sought is a lawyer or a paid agent, and that one or more limbs of s 596(2) is met. No arguable case of appealable error arises on this account.
Ground 2 – reliance on relevant decisions
The CFMEU submits that the Commissioner wrongly called into aid the decision in NSW Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[7] (McAuliffe) and failed to have regard to the decision in R v The Melbourne Metropolitan Tramways Board[8] (Tramways) when relying on assertions or uncontested statements “from the bar table”. We do not accept the submissions. Reference to McAuliffe was made in the Decision only in passing, in the context of a summary of submissions made by the CFMEU. There is no indication on the face of the Decision that the Commissioner “called into aid” the decision in McAuliffe.
Further, Tramways was not decided by reference to the provisions of s 596 and nor is it authority for the proposition put by the CFMEU as it applies to the circumstances of this case. Tramways was about the existence of an interstate industrial dispute under the Conciliation and Arbitration Act 1904-1964 (Cth). In obiter, Barwick J of the High Court remarked on the prudence of attaining a proper state of satisfaction about asserted but challenged facts. But he saw no difficulty with a union advocate’s unsworn statements being considered sufficient evidence of matters in dispute in the circumstances of the case.
Decisions under s 596 must be made in the context of the Commission’s statutory obligation to deal with cases quickly, fairly and by avoiding unnecessary technicalities. In this context, and because of the obvious cost and time burden involved, decisions under s 596 are not usually the subject of formal evidence or hearing.
In this case, the CFMEU made an anticipatory challenge to “any assertions (without documentary evidence), or uncontested statements, either made at the bar table, or in unsworn statements, made by” BMD. It also made its own unsworn assertions about the size and resources of BMD and its “multiple layers of legal” and “HR staff”. No evidence was put before the Commissioner, either by BMD or the CFMEU, that might call into doubt the factual assertions made by the parties about matters within their knowledge. Nor was there any evidence of this kind before us. In the circumstances, it was open to the Commissioner to take the representatives at face value and to rely on what he had been told. We discern no arguable case of appealable error on this basis.
Ground 3 – evidentiary basis for findings of fact
Ground 3 largely overlaps with Ground 2 as it relates to the Tramways decision. The CFMEU submits that findings of fact made by the Commissioner were not based on evidence or sound evidence and instead were purely speculative as to the ability of BMD to represent itself.
The relevant findings of fact are not specified by the CFMEU. However, the only finding of fact made by the Commissioner about the ability of BMD to represent itself (and one of only two findings of fact made by the Commissioner) is found in paragraph [32] of the Decision, where the Commissioner stated:
“… the Applicant’s in-house counsel do not have experience or provide advice in relation to enterprise agreement approvals before the Fair Work Commission.”
This statement relied on a submission from BMD to the same effect. As noted above, we are not aware of any material before the Commission to indicate that this statement was incorrect. In the circumstances, it was open to the Commissioner to accept the statement and to rely on it when considering whether, and on what terms, to exercise his discretion under s 596. No arguable case of appealable error arises.
The public interest
The CFMEU submits that the Decision is attended by sufficient doubt as to warrant its reconsideration, and that it raises important issues concerning the interpretation of s 596 of the Act and the jurisdiction of the Commission and the correct approach in determining representation by a lawyer or paid agent. In this regard, we refer to our consideration of the construction argument above. Although it is true that a Full Bench of the Commission has not before dealt substantively with the construction argument, similar conclusions to those above were reached by the Queensland Industrial Relations Commission in Kempster v JGI Property Group Pty Ltd & Ors.[9] We do not accept that the Decision raises any general issue about the legal principles applied which appear disharmonious or distinguishable when compared with other decisions dealing with similar matters.
The CFMEU also submits that the Decision manifests an injustice, but the nature of the injustice is not apparent. In practical terms, the result is that each party will be able to be represented by a lawyer with relevant experience.
In our view, the appeal does not raise any genuine issue of law, principle or wider application. In the circumstances, we are not satisfied that the appeal attracts the public interest.
Order
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
E Dalgleish for the CFMEU
T Spence of Counsel for BMD Urban Pty Ltd
Hearing details:
2024.
Sydney (by video):
August 7.
[1] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[2] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[3] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[4] Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30]
[5] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[6] NSW Bar Association v McAuliffe & Ors [2014] FWCFB 1663 at [24]
[7] [2014] FWCFB 1663
[8] [1965] HCA 50; (1965) 113 CLR 228 at [243]
[9] [2024] QIRC 151
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