Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Constructions Pty Limited

[2010] FWA 2565

[2010] FWA 2565

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Brookfield Multiplex Constructions Pty Limited
(B2010/2767)

COMMISSIONER SPENCER BRISBANE, 30 MARCH 2010

Proposed protected action ballot by employees of Brookfield Multiplex Constructions Pty Limited – legal representation.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has objected to Dibbs Barker (solicitors) acting for Brookfield Multiplex Constructions Pty Limited in protected action ballot proceedings listed for hearing before me on 31 March 2010.

[2] In response to Directions, the CFMEU provided written submissions opposing permission for leave to appear. The CFMEU contended that none of the circumstances in which the Tribunal may grant permission for a person to be legally represented were in issue in this matter. The Directions were set further to a Directions Conference required to accommodate timetabling of the protected action ballot application and a proposed dispute application pursuant to s.240 of the Fair Work Act 2009 (Cth) (the Act).

[3] The relevant provisions of the Act are set out in s.596(1) and (2):

“1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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…”

[4] At the Directions conference the Respondent outlined that they would be objecting to the protected action ballot application on the grounds that the CFMEU were not genuinely trying to reach agreement.

[5] At the Directions conference the parties agreed to meet in the interim period prior to the s.240 dispute being listed, by consent, in the following week. It was also agreed that the protected action ballot application was to be listed at the conclusion of that dispute conference.

[6] Furthermore, at the Directions conference, the CFMEU sought that the legal representative provide “the legal opinion” that centred on some of the issues between the parties in the negotiations. Alternatively, it was discussed that it should be provided as the subject of the legal opinion may be at issue between the parties in the protected action ballot hearing.

[7] It is recognised as per the CFMEU submissions, that the Respondent’s representative has experience in industrial relations and is capable of representing the Respondent’s interests without the need for additional legal representation. Mr Crank of the CFMEU has considerable experience before this Tribunal and is considered to be familiar with the legal issues raised and capable of addressing the matters raised. He is of course not prevented from seeking legal representation. In addition, the CFMEU emphasised that the matters raised in the legal opinion relating to the National Code of Practice for the Construction Industry (the Construction Code) may be irrelevant to the provisions to be considered in the protected action ballot application.

[8] The Applicant had however sought a copy of the legal opinion and the Respondent indicated that the legal expertise (of those that prepared the opinion) is required to appropriately present the matters addressed in the opinion, before the Tribunal.

[9] The intent of the Parliament regarding the question of representation is expressed in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill’s introduction in 2008:

“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

.…2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[10] In practice the Tribunal has a discretion to grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Tribunal will be exercised on the facts and circumstances of the particular case. The Applicant in these proceedings by seeking a copy of the legal opinion has introduced its relevance to the factual matrix of the ‘bargaining’ between the parties. The matters contained in the opinion may not be ultimately determinative to the legislative tests to the protected action ballot application. However, the proceedings will be able to deal with such issues more efficiently given that the matters presented in the legal opinion have been the subject of continuing discussions between the parties, and that these matters have allegedly prevented the progress of the negotiations.

[11] Further to this the Respondent submits, that the complexity of the matter and the need for fairness and efficiency supports legal representation on this occasion:

• Brookfield Multiplex respectfully submits that there is a substantial amount of complexity involved in determining whether the CFMEU has been, and is, genuinely trying to reach an agreement and therefore whether FWA is in a position to make the orders sought by the CFMEU.



• The issues include, among other things,:




(a) The onus of establishing that the CFMEU is genuinely trying to reach agreement;

(b) whether the CFMEU is complying with its good faith bargaining obligations;

(c) whether the CFMEU is seeking provisions in the agreement which are not matters pertaining to the employment relationship; and

(d) whether the seeking of provisions which are not matters pertaining to the employment relationship means that the CFMEU cannot be genuinely trying to reach agreement.

…

• The matter is also further complicated by the fact that two divisions of the CFMEU, the CFMEU, Construction Workers Divisional Branch (CFMEU General Division) and the CFMEU, Builders Labourers Divisional Branch (CFMEU BLF), are involved in the bargaining process and each has adopted a different approach to the provisions they are seeking in the agreement. Despite this, the application is made simply on behalf of the CFMEU.



• Brookfield Multiplex considers that this matter is clearly distinguishable from the matter of RJ Rodgers v Hunter Valley Earthmoving CompanyPty Limited[2009] FWA 572. The Rodgers matter was an unfair dismissal matter which Commissioner Harrison determined was a simple factual contest and not a matter of a complex nature. By contrast this matter involves a number of complex legal issues. Brookfield Multiplex respectfully submits that FWA will be assisted in the efficient resolution of the matter by Brookfield Multiplex having legal representation.”

[12] Accordingly, on the specific facts and circumstances of this matter, to allow for an efficient, fair and effective hearing of matters of some potential complexity Dibbs Barker will be granted permission to appear at the protected action ballot hearing. I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR995586>