Construction, Forestry, Maritime, Mining and Energy Union v ITI SA Pty Ltd T/A ITI

[2018] FWC 7567

[2018] FWC 7567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 240 - Application to deal with a bargaining dispute

Construction, Forestry, Maritime, Mining and Energy Union
v
ITI SA Pty Ltd T/A ITI
(B2018/1062)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 13 DECEMBER 2018

Alleged dispute concerning resume bargaining

[1] This decision concerns whether permission is to be granted for an employer to be represented in a bargaining dispute under section 240 of the Fair Work Act 2009 (the FW Act).

[2] The Commission has before it an application under section 240 made by the Construction Forestry Maritime Mining and Energy Union (CFMMEU) dated 15 November 2018.

[3] The application concerns an alleged unwillingness by the respondent employer ITI SA Pty Ltd (ITI) to recommence stalled negotiations between itself and the CFMMEU.

[4] The matter is listed for conference before the Fair Work Commission (the Commission) on Friday 14 December 2018.

[5] ITI seeks permission to be represented by a legal practitioner.

[6] The CFMMEU opposes permission being granted.

[7] Each has filed written submissions on the issue.

[8] There is history to this dispute notification. The CFMEU (as it then was) lodged bargaining disputes concerning this employer in September 2016, February 2017, April 2017 and August 2017. Conferences were conducted by the Commission on each occasion. The CFMEU also applied for a protected action ballot order in November 2016, which was granted by consent.

[9] I note that at least at the conferences held before the Commission on the February 2017, April 2017 and August 2017 applications, the employer was granted permission to be legally represented. At the conference that I conducted on 10 August 2017 permission was granted by consent.

Representation

[10] Section 596 of the FW 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 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.”

[11] The principles governing the application of section 596 of the FW Act were recently summarised by a full bench of this Commission in Grabovsky v United Protestant Association of NSW Inc.:¹

“Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Fair Work Australia: 2

“It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.”

For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.” (footnotes omitted)

Consideration

[12] The employer can only be represented by a lawyer (or paid agent) in proceedings with permission of the Commission.³ Whether to grant permission is a discretionary matter made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

[13] A relevant starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in a matter before the Commission must normally appear on its own behalf (to paraphrase the words of Flick J in Warrell). This proposition is consistent with the statutory scheme:

“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.”4

[14] I now turn to the considerations in section 596(2).

Section 596(2) Efficiency

[15] This matter is a bargaining dispute with a strong industrial character.

[16] Dealing with this dispute, at least at the conciliation stage, would be unlikely to involve complex legal questions. Being a bargaining dispute it is likely to concern an understanding of the current positions adopted by the respective parties on bargaining claims and their interest-level in bargaining. Whilst statutory provisions may need to be considered, the dispute on the face of it is not complex.

[17] If the dispute were to be arbitrated different considerations may apply. A stronger focus would be likely on the legislative provisions concerning bargaining and the terms of any order sought.

[18] I take into account the fact that efficiency can be facilitated by persons attending proceedings who are familiar with the matters in issue and have historic association with them. It can also aid efficiency if a party who wishes to take advice from an adviser has that adviser with them at the time of proceedings.

[19] In this instance, both the employer as well as the employer’s legal practitioner have familiarity with the matter, although the employer does not have specialist in-house industrial expertise.

[20] Having already conducted a conference of these parties on a bargaining dispute attended by the employer’s legal practitioner, I consider that legal representation could somewhat add to efficiency, at least in terms of efficiently explaining the employer’s position.

[21] The consideration of efficiency is a neutral factor given that the conciliation proceedings are unlikely to involve legal complexity but may be assisted by persons with historical involvement in advising the employer.

[22] Section 596(2)(a) is not made out.

Sections 596(2)(b) and (c) - Fairness

[23] The fact that sub-section (2)(a) of section 596 is or is not made out does not compel the exercise of discretion in favour of the person requesting permission.⁵ All factors in the section need to be considered, including fairness, although not all factors need be made out.

[24] Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[25] The employer says it has human resource personnel but no in-house expertise in industrial advocacy.

[26] Having regard to the overall circumstances and the apparent longstanding involvement of the employer’s legal practitioner in advising its management on these bargaining matters, I find that the employer would be able to represent itself in conciliation proceedings but may be unlikely to do so in a suitably effective manner.

[27] Section 596(2)(b) weighs somewhat in favour of granting permission.

[28] I now turn to sub-clause 596(2)(c) of section 596. This sub-section requires the Commission to take into account fairness between the person seeking permission (the employer) and other persons in the matter (the CFMMEU).

[29] The CFMMEU is not seeking permission. Nor is it intending to participate in the conference on 14 December 2018 with an in-house legal practitioner. It is intending to appear through an experienced senior official who is not legally qualified.

[30] While I accept that in some instances a union official being pitted against a legal practitioner in a conciliation conference could be unfair to the union (as could an inexperienced manager being pitted against an experienced lay union advocate be unfair to an employer), in the context of this matter where the parties have competently dealt with that dynamic in previous conferences this is, at this point in time, a neutral factor.

[31] On balance, I am satisfied that permission should be granted.

[32] However, if at any stage of proceedings I consider the presence or the role of the employer’s legal practitioner to be frustrating the efficient conduct of this matter or be otherwise unfair I will review this grant of permission. For this reason I will require an officer of the company to also attend the conference and be in a position to explain the employer’s position.

[33] I grant permission under section 596 of the FW Act for ITI SA Pty Ltd to be represented by a legal practitioner in these proceedings.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR703115>

1 [2018] FWCFB 4362 at [35] – [38], 31 July 2018

 2 [2013] FCA 291 at [24]

3 Section 596(4) does not apply to the employer in this matter

4 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

5 Warrell v Fair Work Australia [2013] FCA 291 at [24]