Construction, Forestry, Maritime, Mining and Energy Union v Kimberly-Clark Australia Pty Ltd

[2019] FWC 1304

[2019] FWC 1304

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Kimberly-Clark Australia Pty Ltd
(C2018/734)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 28 FEBRUARY 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 13 February 2018 the Construction, Forestry, Mining and Energy Union (now known as the Construction, Forestry, Maritime, Mining and Energy Union) (CFMMEU) applied to the Fair Work Commission (the Commission) under section 739 of the Fair Work Act 2009 (the FW Act) to deal with a dispute.

[2] The dispute concerns the operation of the Kimberly-Clark Australia Pty Ltd Millicent Mill Production Enterprise Agreement 2012 (the Agreement). In particular, the CFMMEU contend that clause 31 (Annual Leave) and clause 24 (Hours of Work / Shift Work) are not being lawfully and properly applied by Kimberly-Clark Australia Pty Ltd (the employer). The CFMMEU consider that certain employees are working an excessive number of shifts resulting in lesser annual leave accrual for those employees.

[3] The Commission conducted conferences of the parties on 27 March 2018, 31 July 2018 and 18 December 2018. The matter has not resolved.

[4] On 24 January 2019, and at the request of the parties, I listed the dispute for arbitration on 20 and 21 May 2019. I issued directions for the filing of materials.

[5] Both the CFMMEU and the employer seek permission to be represented by a legal practitioner at the hearing of this matter. Neither opposes the other being represented, should they be granted permission.

[6] 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.”

[7] By decision on 21 March 2018 1 I granted the employer permission to be represented in conciliation proceedings in this matter. In that decision I observed:2

“…the matter, involving as it does the interpretation and application of clauses of the Agreement concerning hours of work, shift work and annual leave, is likely to involve some complexity…The presence of representatives with legal capability is likely to assist in the efficient conduct of such an exercise given that the complicated shift rostering arrangements arise in the context of the interpretation and application of clauses of a legally binding agreement. This weighs in favour of granting permission.”

[8] I remain satisfied that the dispute is attended to by complexity. The issues canvassed and the materials referenced in conciliation proceedings add weight to my earlier observation.

[9] I am also satisfied that legal practitioners, particularly those with experience in dealing with this Agreement or with complex interpretation issues will assist the efficiency of proceedings and crystallisation of issues.

[10] The employer highlights 3 that its current and proposed legal representative has direct and historic knowledge of the matter.

[11] The CFMMEU 4 point to a high workload amongst its internal staff and the lack of practical in-house availability to efficiently conduct arbitration of the issues.

[12] I conclude that section 596(2)(a) is made out in respect of both the CFMMEU and the employer.

[13] No issue of fairness between the parties arises should permission be granted to both the CFMMEU and the employer.

[14] I also note, as observed in my 21 March 2018 decision, that clause 45 of the Agreement contemplates representation as part of the dispute resolution procedure. 5

[15] In these circumstances, I consider it appropriate to grant permission to the CFMMEU and to Kimberly-Clark Australia Pty Ltd to be represented by a legal practitioner in further proceedings on this dispute, including its arbitration.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705378>

 1   [2018] FWC 1659

 2   Ibid at [17] – [18]

 3   Respondent’s Submissions on Representation 15 February 2019 paragraph 8

 4   Applicant’s Submissions on Representation 15 February 2019 paragraph 3

 5   [2018] FWC 1659 at [13]