Construction, Forestry, Maritime, Mining and Energy Union v Kaefer Integrated Services Pty Ltd

[2019] FWC 1024

[2019] FWC 1024

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
Kaefer Integrated Services Pty Ltd
(B2019/47)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 18 FEBRUARY 2019

Alleged dispute concerning coverage of proposed agreement and recognition of Union as bargaining representative

[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 17 January 2019.

[3] The application concerns an alleged unwillingness by the respondent employer Kaefer Integrated Services Pty Ltd (Kaefer or the employer) to recognise the CFMMEU as a bargaining agent for the purposes of bargaining a new agreement, and the scope of the proposed new agreement.

[4] The matter is listed for conference before the Fair Work Commission (the Commission) on Thursday 21 February 2019.

[5] Kaefer 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, and has agreed that this question be determined ‘on the papers’.

Representation

[8] 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

(iii) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[9] 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

[10] 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 to be made having regard to 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.

[11] 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

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

Section 596(2) Efficiency

[13] This matter is a bargaining dispute. Bargaining disputes generally have a strong industrial character. As a general rule, and where persons are represented by competent industrial officers, participation by lawyers in bargaining disputes is not necessary for those proceedings to be conducted efficiently.

[14] On its face, the CFMMEU dispute notification raises commonly expressed industrial propositions: that it should be recognised as a bargaining agent; and that the scope of the proposed agreement should be of a particular dimension. Dealing with these issues (whether by conciliation or arbitration) would commonly involve industrial and workplace considerations.

[15] However, in the context of this dispute, Kaefer intends to raise jurisdictional objections to the CFMMEU dispute notification. It appears from the material before me that the employer intends to contend that the CFMMEU does not have constitutional coverage of employees to be covered by a proposed agreement in the hydrocarbon industry. The CFMMEU on the other hand appears to contend that its proposed scope of the agreement (and the employer’s initial proposal) included construction work and in that respect at least the CFMMEU asserts coverage. The union also says that it has been authorised by one employee to act as that person’s bargaining agent.

[16] It is apparent from the above that conciliation of this dispute is unlikely to be primarily concerned with the merits of respective bargaining positions on the terms of a proposed agreement. Rather, it would appear that a number of threshold issues associated with the bargaining process arise. These would appear to involve mixed questions of fact and law.

[17] Conciliation is a more informal process than arbitration and one where legal questions arising are neither determined nor necessarily the primary focus. The CFMMEU indicates that, at this stage, it only presses its dispute notification for conciliation purposes and reserves its position on whether it seeks or will seek arbitration. However, it would appear that the employer intends to bring these jurisdictional issues to the conciliation table and not just leave them for arbitration. A respondent to proceedings has the right to take that position. There are good public interest reasons associated with the efficient administration of the work of the Commission for a jurisdictional or threshold issue (provided it is not taken frivolously or vexatiously) to be raised at an early stage of proceedings, so that the parties and the Commission know where they stand. Equally, there are good industrial reasons why legal considerations should not necessarily overwhelm or subsume an actual workplace dispute that requires practical attention and resolution.

[18] In the circumstances of this matter, whilst conciliation is a relatively informal process and whilst the dispute on its face concerns matters commonly not requiring lawyers, the jurisdictional issue raised by the employer involves a substantive legal question and is likely to add to complexity.

[19] Section 596(2)(a) is made out.

Sections 596(2)(b) and (c) – Fairness

[20] 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.

[21] 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.

[22] The employer says it has no in-house expertise in industrial advocacy. It has however a national HR/IR Manager who may or may not be required to give evidence in this matter, should it or the jurisdictional issues be arbitrated.

[23] Having regard to the overall circumstances, I find that whilst the employer could represent itself in conciliation proceedings through an officer it may be unlikely to do so in a suitably effective manner given the jurisdictional issues raised.

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

[25] 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).

[26] The CFMMEU is not seeking permission.

[27] 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 this is, at this point in time, a neutral factor.

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

[29] 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 (including the “dialogue” sought by the CFMMEU) 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.

[30] I grant permission under section 596 of the FW Act for Kaefer Integrated Services Pty Ltd to be represented by a legal practitioner in these proceedings.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705021>

 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]