Construction, Forestry, Mining and Energy Union v Kimberly-Clark Australia Pty Ltd
[2018] FWC 1659
•21 MARCH 2018
| [2018] FWC 1659 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
Kimberly-Clark Australia Pty Ltd
(C2018/734)
| Timber and paper products industry | |
| Deputy President Anderson | ADELAIDE, 21 MARCH 2018 |
Dispute about a matter arising under an enterprise agreement and the NES;[s186(6)] – section 596 representation – representation at conference opposed by Applicant – permission granted
On 13 February 2018 the Construction Forestry Mining and Energy Union (CFMEU) applied to the Fair Work Commission (the Commission) under section 739 of the Fair Work Act 2009 (FW Act) to deal with a dispute in accordance with a dispute settlement procedure.
The dispute concerns the operation of the Kimberly-Clark Australia Pty Ltd Millicent Mill Production Enterprise Agreement 2012 (the Agreement). In particular, the CFMEU 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 CFMEU consider that certain employees are working an excessive number of shifts resulting in lesser annual leave accrual for those employees.
The matter is listed for a conference of the parties before the Commission on 27 March 2018.
An issue has arisen concerning representation in this matter, and in particular at the 27 March conference. The employer has sought permission to be represented by a legal practitioner from Price Waterhouse Coopers, Mr Andrew Farr. The CFMEU objects to that request.
On 6 March 2018 I issued directions requiring the employer and the CFMEU to make written submissions on the issue of representation. Each has done so.
I make this decision based on the material on the Commission file being the CFMEU application and attached materials, the Agreement and the written submissions on representation.
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.”
The matter before the Commission under section 739 of the FW Act is of a private nature between the parties to the dispute. It arises from a dispute resolution procedure in clause 45 of the Agreement. It is the exercise of a jurisdiction conferred on the Commission by the instrument itself:[1]
“Thus it is well established that “arbitration” by FWC pursuant to a term in an enterprise agreement is a private arbitration, based upon the consent of the parties, and not upon the coercive authority of the Australian state.”
Clause 45 of the Agreement provides for Fair Work Australia (now the Commission) to exercise such powers relating to conciliation and arbitration as are given by the FW Act as are necessary for the resolution of the dispute. In this indirect way, the parties have invoked the Commission’s conciliation and arbitration powers. That does not, however, alter the basic character of this matter as being a private conciliation and (if necessary) private arbitration.
While I consider the 27 March 2018 conference (and any subsequent conference or arbitration) to be “a matter” before the FWC within the meaning of section 596 of the FW Act, the private character of these proceedings is relevant when assessing issues of efficiency, complexity and fairness contemplated by section 596(2).
In that context, it is appropriate to have regard to what, if anything, the relevant dispute resolution clause in the Agreement itself provides.
Clause 45 has a specific objective that “employees are entitled to be represented when participating in this procedure”. Clause 45.5 refers to a party to a dispute being “represented by a Union representative or other representative”. Clause 45.6 provides that “either party or their representative” may ask for a response from the other side. Clause 45.8 provides that “the parties to the dispute and their representatives must act in good faith in relation to the dispute.”
I conclude from these provisions in clause 45 that those who negotiated the Agreement contemplated representation as part of the dispute resolution procedure and that representation, where it occurs, is allowed by that procedure. The Agreement particularly emphasises the right of representation by the Union for employee interests, but not exclusively so. Its language also contemplates representation by the employer party to a dispute.
In isolation, clause 45 does not place conditions on representation in conciliation and arbitration proceedings, such as the condition that permission of the Commission be first sought and granted. If it expressly excluded the requirement to seek permission, then by virtue of section 739(3) of the FW Act permission would not be required. However, it does not expressly do so. It simply references the general conciliation and arbitration powers of the Commission. Further, the written submissions of both the CFMEU and the employer frame the request and the objection to that request around the operation of section 596 of the FW Act. In circumstances where clause 45.7 of the Agreement invokes the conciliation and arbitration powers of the Commission under the FW Act and does not qualify them I consider it appropriate (if not required) to assess the request and the CFMEU’s objection against the factors set out in section 596.
A good starting point is that proceedings before the Commission are intended to operate efficiently and informally and, where possible, in a non-adversarial manner.[2]
The employer submits that legal representation would allow the matter to be dealt with more efficiently, taking into account complexity (section 596(2)(a)). The CFMEU says that the matter is not complex.
I agree that 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 CFMEU application itself alludes to this:
“we would seek the assistance from a member of the Commission well versed in handling complicated shift rostering arrangements, to assist the parties to reach agreement…”[3] (my emphasis)
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.
On the issue of whether it would be unfair to deny the employer representation (section 596(2)(b)), the CFMEU submits that this employer has an internal human resource capacity. I accept that an internal human resource is likely to have some capability and expertise over the issues in contention. The employer does not appear to demur from this point. However, a human resource capacity is not identical to a legal capability. Matters like these, in all probability, require a combination of both skill sets for the purpose of advocating a view about the proper interpretation and application of the relevant clauses of the Agreement. The existence of an internal human resource capability weighs against, but not strongly against, the granting of permission.
On the issue of fairness between the parties, this is not a case where an employer seeks permission against employee interests that are self-represented or unrepresented. Representation by the CFMEU includes, as correspondence from the ‘Senior National Legal Officer’ on the Commission file illustrates, legal capability inside the CFMEU secretariat. That is not a reason to grant the employer’s request for permission, but it does not weigh against a grant of permission. I consider this to be a neutral factor.
I also take into account the fact that proceedings on 27 March are in the nature of a conciliation conference, not arbitration. Conciliation is a less formal and self-evidently non-determinative process than arbitration. Important though it may be, the nature of a conciliation conference weighs less towards a grant of permission than does arbitration proceedings. However, even in that regard caution is required:[4]
“I add that it is not always apparent that a particular issue in dispute is so self-evidently straight-forward so as to be free of any risk of escalation in its degree of complexity. This is particularly so where a conference may be a preliminary step towards an arbitral procedure, or where the conduct of the parties in the course of a conference may lead to arbitration being pressed. All processes being contiguous, in the circumstances observed it may be prudent in aid of the efficiency in the wider prospective conduct of a matter to grant permission to appear to a lawyer at the preliminary stage.”
I have also had regard to the authorities cited in the written submissions by both the employer and the CFMEU.
Also of significance is the employer submission that Mr Farr, although an external legal practitioner, is a person who has represented the employer during negotiations with the CFMEU in relation to this issue.[5] The CFMEU contend, in response, that Mr Farr is not cognisant of the day to day operations of the Millicent Mill and not responsible for the implementation of any negotiated or arbitrated outcome.[6]
Be that as it may, it is relevant that Mr Farr is a legal practitioner who is already connected to the dispute and has participated in negotiations.
In all of the circumstances, and taking into account both the statutory context and the provisions of clause 45 of the Agreement, I consider it appropriate to grant permission to the employer to be represented by a legal practitioner at the conciliation of this matter.
However, the permission I grant is conditional. I retain my right to inform myself as I consider appropriate.[7] This will include asking questions or seek information directly of an internal human resource or other internal officer of the employer who may appear at the conference, if it is appropriate to do so. I will also withdraw permission if I consider, on reasonable grounds, that legal representation is inhibiting the chance of resolution of the matter.
I publish this decision.
DEPUTY PRESIDENT
<AE898808 PR601349>
[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [35] cited by Bromberg J with approval in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [64]
[2] Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291
[3] Application 3.1 Relief Sought point 2
[4] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited[2012] FWA 2966 per SDP Richards at [26]
[5] Respondent’s Submissions paragraph 11
[6] Applicants Submissions paragraph 8
[7] Section 590(1) FW Act
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