Corcoran & Ors v Bansley Pty Ltd
[2011] FMCA 440
•13 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CORCORAN & ORS v BANSLEY PTY LTD | [2011] FMCA 440 |
| INDUSTRIAL LAW – Small claims proceeding – representation of organisation – representation of corporation. |
| PRACTICE & PROCEDURE – Small claims proceedings – representation of organisation – registered organisation – employee organisation – industrial association – official of industrial association – whether official of industrial association may represent a party to small claims proceedings. |
| PRACTICE & PROCEDURE – Small claims proceedings – representation of corporation by employee. |
| WORDS AND PHRASES – “official of an industrial association”. |
| Federal Magistrates Act 1999 (Cth), ss.3, 43, 44 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 1.06, 9.04, 45.13 Fair Work Act 2009 (Cth) ss.12, 61(2), 139(1), 540, 548, 570(2), 608, 796, Divisions 2 and 3, Part 4-1 Fair Work Bill Explanatory Memorandum 2008 (Cth), R338 Fair Work (Registered Organisation) Act 2009 (Cth), ss.353, 353A Fair Work Regulations 2009 (Cth), reg.4.01 Industrial Relations Act 1979 (WA), s.112A |
| Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Reynolds v Minister for Health (2010) 247 FLR 425; [2010] FMCA 843 |
| First Applicant: | JANE CORCORAN |
| Second Applicant: | CINDY WOJTYSIAK |
| Third Applicant: | ANNA KAROLAK |
| Fourth Applicant: | KELLY WARREN |
| Fifth Applicant: | MELANIE SHORT |
| Sixth Applicant: | SHARON PICKERING |
| Seventh Applicant: | ELIZABETH SMITH |
| Eighth Applicant: | KELLY BARKER |
| Ninth Applicant: | BETTY MARIE WALKER |
| Tenth Applicant: | SUSAN LEWIS |
| Eleventh Applicant: | CATHERINE MCKINNON |
| Twelfth Applicant: | SYLVIA HALIM |
| Thirteenth Applicant: | ALISON ROSS |
| Fourteenth Applicant: | MARGOT BIFFIN |
| Fifteenth Applicant: | SUSAN HOSKINS |
| Sixteenth Applicant: | DAVID BERTANEES |
| Seventeenth Applicant: | JUDITH BORCHERT |
| Eighteenth Applicant: | TRACEY EXTON |
| Nineteenth Applicant: | ROCHELLE RICHARDS |
| Twentieth Applicant: | KERRY HARRIS |
| Twenty First Applicant: | JANINE PEOPLES |
| Twenty Second Applicant: | TERESA URBANIAK |
| Twenty Third Applicant: | THERESA BRISTOW |
| Twenty Fourth Applicant: | MYGAL GEBIE |
| Twenty Fifth Applicant: | MERRILYN HOSKING |
| Respondent: | BANSLEY PTY LTD |
| File Number: | PEG 68 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 23 May 2011 |
| Date of Last Submission: | 23 May 2011 |
| Delivered at: | Perth |
| Delivered on: | 13 June 2011 |
REPRESENTATION
| For the Applicant: | Mr A Clark (by leave on the representation issue only) |
| For the Respondent: | Mr G McCorry (by leave on the representation issue only) |
DECLARATION AND ORDER
Declares that Mr Clark, as an official of an industrial association, has no right to represent the applicants.
Orders that Mr McCorry be granted leave to appear for the respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 68 of 2011
| JANE CORCORAN |
First Applicant
| CINDY WOJTYSIAK |
Second Applicant
| ANNA KAROLAK |
Third Applicant
| KELLY WARREN |
Fourth Applicant
| MELANIE SHORT |
Fifth Applicant
| SHARON PICKERING |
Sixth Applicant
| ELIZABETH SMITH |
Seventh Applicant
| KELLY BARKER |
Eighth Applicant
| BETTY MARIE WALKER |
Ninth Applicant
| SUSAN LEWIS |
Tenth Applicant
| CATHERINE MCKINNON |
Eleventh Applicant
| SYLVIA HALIM |
Twelfth Applicant
| ALISON ROSS |
Thirteenth Applicant
| MARGOT BIFFIN |
Fourteenth Applicant
| SUSAN HOSKINS |
Fifteenth Applicant
| DAVID BERTANEES |
Sixteenth Applicant
| JUDITH BORCHERT |
Seventeenth Applicant
| TRACEY EXTON |
Eighteenth Applicant
| ROCHELLE RICHARDS |
Nineteenth Applicant
| KERRY HARRIS |
Twentieth Applicant
| JANINE PEOPLES |
Twenty First Applicant
| TERESA URBANIAK |
Twenty Second Applicant
| THERESA BRISTOW |
Twenty Third Applicant
| MYGAL GEBIE |
Twenty Fourth Applicant
| MERRILYN HOSKING |
Twenty Fifth Applicant
And
| BANSLEY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction – the application in a case
By application in a case filed on 15 April 2011 the respondent, Bansley Pty Ltd,[1] sought leave for it to be represented by Mr Graham McCorry, who is said to be an employee of Bansley. Following a directions hearing on 23 May 2011 the Court made orders that each party make submissions with respect to the issue of representation in the proceedings. That is, that:
a)the applicants make submissions with respect to their representation, as they are seeking to be represented by Mr Clark, an employee of a registered organisation, United Voice; and
b)Bansley provide submissions with respect to its application to be represented by an employee, Mr McCorry.
[1] “Bansley”.
The substantive application involves claims by 25 applicants[2] in the small claims jurisdiction of the Fair Work Division of this Court and is made under s.548 of the Fair Work Act 2009 (Cth),[3] which is said to relate to a “safety net contractual entitlement”[4] for each employee. A “safety net contractual entitlement” is defined as an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in ss.61(2) and 139(1) of the FW Act.[5] The claims are said to relate to the payment of minimum wages and arrangements for when work is performed, including hours of work, rostering and variation to working hours, and is therefore said to be caught by s.139(1) of the
FW Act. The short facts, as alleged by the applicants, are set out in the grounds of the amended application as follows:1.The Applicants who all worked as Carers or Advanced Carers for the Respondent had expectations of work for the Respondent which formed a contract between the employer and the Applicants.
2.There were posted rosters for each of the employees and as such the Applicants, as a result of the unprotected industrial action by the Respondent were denied a contractual right to work the posted roster hours and receive payment for such.
3.On 31 January 2011 the Respondent employer, …. “locked out” members of United Voice from their place of work as response action as defined in s 411 of the Fair Work Act 2009.
4.On 3 February 2011 Commissioner Cloghan of Fair Work Australia ordered that the employer response action cease as he deemed it unprotected action ….”
[2] Twenty-five separate applications were consolidated into one application by order of the Court on 18 April 2011.
[3] “FW Act”.
[4] FW Act, s.548(1)(b) and (1A)(a)(ii).
[5] FW Act, s.12.
Bansley argues that the alleged entitlements are not entitlements under s.548(1A) of the FW Act, as they are claims for damages and not for safety net contractual entitlements, and that nothing in s.548(1A) of the FW Act gives rise to an obligation on Bansley to pay the applicants.
Applicant’s submissions on right of representation by an employee of United Voice
The applicants argue that:
a)section 353 of the Fair Work (Registered Organisations) Act 2009 (Cth)[6] provides for a party to the proceeding that is not an organisation to be represented by an employee of a registered organisation, so long as the party is a member of that organisation, and that in this case:
[6] “FW (RO) Act”.
i)the applicants are all members of United Voice; and
ii)United Voice is a registered organisation under the FW (RO) Act;
b)section 353A(4) of the FW (RO) Act envisages proceedings which might exclude the representation referred to in sub-paragraph (a) above, but s.548 of the FW Act is not one of the excluded proceedings, and as such leaves open the possibility that a party to small claims proceedings in the Fair Work Division of this Court may be represented otherwise in proceedings, other than those under s.608 of the FW Act;
c)if the Parliament had meant to exclude employees of registered employee organisations from representation in small claims proceedings in the Fair Work Division of this Court it would have expressly done so in the FW (RO) Act, and says that this argument is supported by the Fair Work Bill Explanatory Memorandum 2008 (Cth)[7] at R338 which says that:
[7] “FW Bill Explanatory Memorandum”.
When dealing with a matter under the small claims procedure, the Fair Work Division may act in an informal manner, will not be bound by formal rules of evidence, and may act without regard to legal form and technicality. The Court will have discretion to allow a person to be represented by a lawyer but in most cases this will not be necessary.
d)section 548 of the FW Act has provisions regarding representation by particular individuals, namely legal representatives and representatives of industrial associations;
e)the provisions of s.548 of the FW Act limit the right of parties to be represented by a lawyer, and specifically provide that lawyers may only represent parties with the leave of the Court,[8] a provision which the applicants say is so that the small claims proceedings are less formal or legalistic for the parties, but nevertheless provides that a person is not deemed to be represented by a lawyer if they are an employee or officer of the person;[9]
f)the provisions of s.548(7) of the FW Act provide that an in-house lawyer of a registered organisation can represent a person if the lawyer is an officer of that person, and it is therefore unlikely that the Parliament would have allowed standing for an in-house lawyer of an employee organisation to represent its members by providing that such a person not be taken to be a lawyer, but at the same time excluding other officers or employees of the employee organisation from representing employees who are members of that employee organisation;
g)section 548(8) of the FW Act provides that an “industrial association” may only represent a party to a small claim, in specified circumstances as provided in the Fair Work Regulations 2009 (Cth),[10] but there are no relevant regulations in place;
h)the question is raised as to whom or what is being restricted in terms of representation under s.548(8) of the FW Act, and in that regard the applicants argue that s.540 clearly differentiates between an “employee organisation or registered employee organisation” and an “industrial association”, but that both have powers to apply for orders under the civil remedy provisions of the FW Act, and in that regard the provisions of the FW Bill Explanatory Memorandum at paragraph 2133 are relevant, and provide as follows:
The standing rules in relation to an employee organisation or a registered employee association are designed to be consistent across the Bill to ensure consistency and simplicity in proceedings involving them. The rules also recognise the role employee organisations play in enforcement, particularly in relation to the safety net and instruments that apply to them.
i)the applicants assert that United Voice is an employee organisation and is registered under the FW (RO) Act;
j)the applicants argue that the FW Bill Explanatory Memorandum refers to organisations which have standing to apply for an order under the civil remedy provisions of the FW Act, and acknowledge the role employee organisations play in enforcement, particularly in relation to the safety net provisions which are the subject of the amended application, and that the standing rules are designed to be consistent across the Bill, indicating in the applicants’ submission that they ultimately have force across all sections of what became the FW Act and FW (RO) Act;
k)finally, the applicants argue that the Court is not bound by any rules of evidence or procedure and may act in an informal manner and without regard to legal technicalities and forms in small claims proceedings,[11] and that the application as filed relates to twenty five separate members who if required could have represented themselves in these proceedings thereby taking up a significant resource in terms of court time. However, as the Court has ordered the applications be consolidated into one application, this inevitably requires all the applicants to be represented by one representative from United Voice, and that United Voice therefore, as the registered employee organisation of these employees, and in compliance with s.353 of the FW (RO) Act seeks to represent its members by an employee of the Union.
[8] FW Act, s.548(5).
[9] FW Act, s.548(7).
[10] “FW Regulations”.
[11] FW Act, s.548(3).
Consideration of the applicants’ submissions
Section 548(5)-(9) of the FW Act provides that:
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Representation by an industrial association
(8) The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.
(9) However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.
Section 353A of the FW (RO) Act provides as follows:
(1) This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:
(a) a proceeding in relation to an appeal under section 565 of the Fair Work Act; or
(b) a proceeding in relation to an offence against a law of the Commonwealth.
(2) Subject to subsection (4), a party to the proceeding that is an organisation may be represented by:
(a) a member, officer or employee of the organisation; or
(b) a member, officer or employee of a peak council to which the organisation is affiliated.
(3) Subject to subsection (4), a party to the proceeding that is not an organisation may be represented by:
(a) a member, officer or employee of an organisation of which the party is a member; or
(b) a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.
(4) If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.
(5) In this section:
"party" includes an intervener.
Section 12 of the FW Act defines:
a)“employee organisation” as “an organisation of employees”;
b)“organisation” as “an organisation registered under the Fair Work (Registered Organisations) Act 2009”; and
c)“industrial association” relevantly as “an association of employees … that is registered … under a workplace law”; and
d)“official, of an industrial association”, “means a person who holds office in, or is an employee of, the association”.
United Voice is an organisation, an employee organisation, and an industrial association. Mr Clark is an employee of United Voice, and is therefore an official of an industrial association for the purposes of s.548(8) of the FW Act.
Section 548 of the FW Act is a section of the FW Act specific to small claims proceedings in the Fair Work Division of this Court, which contains even more specific provisions concerning representation in those small claims proceedings. Those even more specific provisions:
a)require that lawyers obtain leave to appear; and
b)provides that officials of industrial associations may appear in specified circumstances prescribed in the “regulations”.
The reference to “regulations” is not the subject of further definition, and can therefore only be a reference to regulations made under s.796 of the FW Act. The regulations made under the FW Act, the Fair Work Regulations 2009 (Cth),[12] contain no provisions concerning representation in small claims proceedings in the Fair Work Division of this Court. It is clear however that Parliament has given consideration to relevant regulations for small claims proceedings in the Fair Work Division of this Court in framing the FW Regulations, because reg.4.01 of the FW Regulations deals with how a person must indicate whether they want the small claims procedure to apply to their application.
[12] “FW Regulations”.
Section 548(8) of the FW Act is a specific provision with respect to the representation of persons in small claims proceedings in the Fair Work Division of this Court by an industrial association. On the face of it, because there are no regulations under the FW Regulations specifying the circumstances in which an official of an industrial association may appear in small claims proceedings in the Fair Work Division of this Court, an official of an industrial association has no right of appearance in small claims proceedings in the Fair Work Division of this Court. That would mean that, in this application, Mr Clark, who is an official of United Voice, has no right of appearance for the applicants.
The applicants seek to avoid an outcome whereby Mr Clark cannot appear for them on this application by arguing that s.353A of the
FW (RO) Actprovides for an official of an industrial association such as Mr Clark to appear. Section 353A(1) of the FW (RO) Act provides for s.353A of the FW (RO) Act to apply in proceedings before this Court, with two exclusions unrelated to small claims proceedings in the Fair Work Division of this Court. Section 353A(3)(a) of the FW (RO) Act provides that a party to proceedings that is not an organisation may be represented by an “employee” of an “organisation”. Under s.353A(4) of the FW (RO) Act an “employee” of an “organisation” may only appear in the Federal Court in proceedings under s.608 of the
FW Actby leave of the Federal Court. It is therefore arguable that:
a)these provisions apply to representation of parties in proceedings in this Court, including small claims proceedings in the Fair Work Division, and therefore allow Mr Clark to appear in this Court on this application; and
b)the failure in:
i)s.353A(1) of the FW (RO) Act to exclude small claims proceedings in the Fair Work Division of this Court; and
ii)s.353A(4) of the FW (RO) Act to qualify any right of appearance in small claims proceedings in the Fair Work Division of this Court,
means that an employee of an organisation is not precluded from appearing in small claims proceedings in the Fair Work Division of this Court, and therefore Mr Clark is entitled to appear for the applicants on this application.
There are however two difficulties with such an argument. The first difficulty is that s.548(8) of the FW Act is a specific provision concerning representation of parties by an industrial association, within a specific provision concerning small claims proceedings in the Fair Work Division of this Court. Section 353A of the FW (RO) Act is a more general provision concerning representation of parties by members, officers and employees of organisations, in proceedings under the FW Act. Section 548(8) of the FW Act, as a particularly specific provision, ought to prevail over the more general provisions of s.353A of the FW (RO) Act.[13] The second difficulty is that if s.353A of the FW (RO) Act operated in the manner contended for by the applicants it would leave no room for s.548(8) of the FW Act to operate, and its words would have no meaning. This cannot be,[14] and the Court must strive to give the relevant provisions “that meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.”[15]
[13] Salemi v MacKellar (No 2) (1997) 137 CLR 396.
[14] The Commonwealth v Baume (1905) 2 CLR 404 at 414 per Griffith CJ.
[15] Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28 at para.70 per McHugh, Gummow, Kirby and Hayne JJ.
Given the terms of the conflicting provisions, the Court is of the view that the only way in which both s.353A of the FW (RO) Act and s.548(8) of the FW Act can operate together, and both be given meaning, is for s.548(8) of the FW Act to be interpreted to mean that an official of an industrial association has no right of appearance in small claims proceedings in the Fair Work Division of this Court, save as specified in any applicable regulations. As there are presently no applicable regulations, Mr Clark, who is an official of United Voice, has no right to represent the applicants.
Reference to the relevant explanatory memorandum is not of assistance,[16] as this specific situation was not the subject of comment, and platitudinous comment about ensuring “consistency and simplicity” cannot stand when it is not consistent with the actual meaning of the relevant statutory provisions,[17] and these provisions are not themselves ambiguous or obscure.[18]
[16] See the extracts at para.4(c) and (h) above.
[17] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ; Wilson and Dawson JJ.
[18] NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at 471-472 per Lindgren J; [2003] FCA 781 at para.66-72 per Lindgren J.
Section 540 of the FW Act was also sought to be invoked by the applicants, but it does not assist them as it sets out who may apply for an order, but not who may represent those who apply.
The applicants also sought to rely on s.548(3) of the FW Act which provides that the Court is not bound by any rules of evidence or procedure and may act in an informal manner and without regard to legal technicalities and forms in small claims proceedings. The capacity to act informally and without regard to legal technicalities does not “provide a licence to disregard legal principle”.[19] Legal principle requires this Court to apply substantive law. The application of substantive law is not a legal technicality, and there is no reason why this Court cannot act informally whilst still applying substantive law.
[19] Zoological Board of Victoria & Ors v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41 at 48 per Moore VP.
In this case, the application of the law as it appears in the FW Act and FW (RO) Act requires a finding, for reasons set out above, that, under s.548(8) of the FW Act, and absent applicable regulations, an official of an industrial association has no right to represent a party in small claims proceedings in the Fair Work Division of this Court. Mr Clark, who is an official of United Voice, therefore has no right of appearance for the applicants.
In this case the question of whether a lawyer employed by an industrial association is an official of an industrial association has not arisen directly on the facts. However, the applicants made a submission that it was unlikely that Parliament would allow an “in-house lawyer of an employee organisation”, to appear, but not allow other officers or employees of an employee organisation to appear. In this case the “employee organisation”, United Voice, is also an “industrial association”. Section 548(7) of the FW Act deems a lawyer who is an employee of an industrial association not to be a lawyer, and therefore not to be a person who requires leave under s.548(5) of the FW Act to represent a party in small claims proceedings in the Fair Work Division of this Court, because they are otherwise a lawyer. However, it does not deem a lawyer, who is also an employee of an industrial association, not to be an employee of an industrial association. Therefore, the employed lawyer is still an “official of an industrial association” for the purposes of s.548(8) of the FW Act, and therefore, for reasons set out above, also has no right to represent a party in small claims proceedings in the Fair Work Division of this Court.
There is no question that the above conclusion gives rise to the arguably odd circumstance that an official of an industrial association who has no right to represent a party in small claims proceedings in the Fair Work Division of this Court, may represent a party in other (and necessarily more complex) proceedings in this Court (and the Federal Court). There are several possible ways in which such an issue might be dealt with, most obvious however is that actually contemplated by s.548(8) of the FW Act, namely, the enactment of regulations specifying the circumstances in which an official of an industrial association may represent a party in small claims proceedings in the Fair Work Division of this Court.
Evidence in support of Bansley’s submissions
The evidence in support of Bansley’s application for Mr McCorry to represent Bansley is contained in an affidavit of Mr McCorry.[20]
[20] Affidavit of Graham McCorry sworn 15 April 2011 (“Mr McCorry’s Affidavit).
Mr McCorry’s Affidavit, which was ultimately not challenged, provides that Mr McCorry:
a)is employed by Bansley in the capacity of a casual Senior Industrial Officer, and has been appointed to represent Bansley in these proceedings;[21]
[21] Mr McCorry’s Affidavit, paras.1 and 2 and Annexures A and B.
b)has previously represented Bansley in industrial relations matters generally;[22]
[22] Mr McCorry’s Affidavit, para.3.
c)is a person of extensive experience in industrial relations and as an advocate in industrial relations, having:
i)
carried on business as a registered industrial agent for
10 years, and is registered as an industrial agent under s.112A of the Industrial Relations Act 1979 (WA);[23]
ii)previously been an industrial inspector and Senior Legislation Officer with the State Government for a period of 14 years;[24]
iii)appeared as an advocate in a variety of industrial tribunals up to and including appearances in matters argued before the Full Benches of Fair Work Australia, the former Australian Industrial Relations Commission and the Western Australian Industrial Relations Commission, as well as having appeared as an advocate in industrial prosecutions in the Western Australian Industrial Magistrates Court;[25] and
d)has a bachelors degree in economics (which included industrial and consumer law units) and a masters degree in business administration.[26]
[23] Mr McCorry’s Affidavit, paras.4 and 9.
[24] Mr McCorry’s Affidavit, paras.4 and 6-8.
[25] Mr McCorry’s Affidavit, paras.10-11.
[26] Mr McCorry’s Affidavit, para.5.
Bansley’s submissions seeking to be represented by an employee
Bansley submits as follows:
a)section 43 of the FM Act provides that the practice and procedure of the Court is to be in accordance with the FMC Rules, subject to any provision made under the FM Act or any other Act with respect to practice and procedure;
b)the FW Act and the FMC Rules make no provision in respect of the practice and procedure to be followed where a corporation seeks to be represented by an officer or employee of the corporation who is not a legal practitioner;
c)rule 1.06 of the FMC Rules provides that the Court may dispense with compliance or full compliance with any of the rules at any time in the interests of justice, but the dispensation is discretionary, and cannot be used to confer on the Court a power it would not otherwise have, and must be exercised judicially and be granted where it is desirable to do so in the interests of the administration of justice, but not as a matter of course;[27]
[27] Citing Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 (“Melaleuca”) and Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626.
d)the principles applicable to the grant of leave to appear are:
i)the simplicity or complexity of the matter;
ii)whether the non-lawyer had previously appeared for the party;
iii)the objects of the FM Act and FMC Rules and the impact of those objects and purposes on case management considerations;
iv)genuine difficulties of a self-represented party;
v)whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party;
vi)the unavailability of disciplinary measures against, and the absence of any duty to the Court by, lay advocates;
vii)protection of the client and the opponent from the actions of an unqualified person;
viii)whether lay advocates ought to appear in inferior courts and tribunals; and
ix)the interests of justice;[28]
noting that not all of the principles are relevant to small claims proceedings in the Fair Work Division of this Court because the principles are directed generally to proceedings where legal practitioners have a right of appearance;[29]
[28] Relying upon Reynolds v Minister for Health (2010) 247 FLR 425 at 429 per Lucev FM; [2010] FMCA 843 at para.8 per Lucev FM; Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230; and Melaleuca.
[29] Citing McShane v Image Bollards Pty Ltd as Trustee for The Scott Family Trust trading as Image Bollards [2011] FMCA 215 at para.40 per Lucev FM (“Image Bollards”).
In relation to complexity the respondent submits that:
a)the applicants’ legal claims assert that the right to work certain rostered hours and receive payment for them is contractual in nature and the amounts claimed constitute safety net contractual entitlements the respondent was required to pay to or on behalf of the applicants. The claims are said to “relate to” matters specified in the National Employment Standards[30] and the terms of an unspecified modern award dealing with payment of minimum wages, arrangements for when work is performed, rostering and variations to working hours. The terms of the contracts, the relevant NES and the relevant award provisions are not particularised;
[30] “NES”.
b)the applications are incompetent as they are claims for damages for alleged breach of contract, and damages are not amounts the respondent was required to pay to or on behalf of the applicants as contractual entitlements. Proceedings under s.548(1A)(a)(iii) of the FW Act are said to be limited to entitlements due to be paid in accordance with the terms of a contract that relate to an NES or a term of an employment instrument but are of greater benefit than the statutory or employment instrument entitlement;
c)the claims are not causes of action independently justiciable under Division 2 of Part 4-1 of the FW Act which is a requirement for proceedings to be brought under s.548(1A), and that in any case the respondent was not required because of any of the matters within s.548(1A) to pay to or on behalf of the applicants, the amounts claimed or any other amount;
d)the proceedings can be characterised as moderately complex involving the proper constructions of Division 3 of Part 4-1 of the FW Act, the terms of the contracts of employment of a large number of people and the relationship of those terms to the provisions of the NES and any relevant award, as well as evidence going to quantum and the liability to pay;
e)the respondent’s jurisdictional objection is relatively straightforward involving well established principles in relation to entitlements under employment instruments, the nature of damages for breach of contract and the interaction between such instruments and contracts of employment;[31]
f)should the matter proceed past the jurisdictional objection stage, the facts relevant to individual applicants, while numerous in total, will likely exhibit a considerable degree of commonality and largely be uncontentious. The number of documents requiring consideration will not be excessive and will also likely be largely common and uncontentious. The Court will not be bound by the rules of evidence and can inform itself in any manner it chooses;
g)on the unchallenged affidavit evidence and the material now before the Court the respondent’s Senior Industrial Officer has the requisite knowledge, experience and ability to:
i)competently argue principles of law, properly cross-examine witnesses and make proper and pertinent submissions on evidence;[32]
ii)assist the Court in the proper marshalling and presentation of facts and the inferences properly to be drawn from the, thereby reducing time and expense to all parties and the likelihood of the Court’s limited resources being wasted; and
iii)properly represent the respondent in the proceedings.
[31] Automatic Fire Sprinklers v Watson [1946] HCA 25; Byrne & Frew v Australian Airlines Ltd [1995] HCA 24.
[32] Affidavit of Graham McCorry, sworn 15 April 2011 at para.11, footnotes 1-3 (“Mr McCorry’s Affidavit”).
With respect to prior representation or whether representation can be effective, and whether prejudice is suffered by any other party Bansley submit that its employed Senior Industrial Officer, Mr McCorry, has represented Bansley in previous litigation involving disputes between Bansley, its employees and their representatives, including an upheld appeal to the Full Bench of Fair Work Australia.[33]
[33] LHMU v Carinya Care Services [2010] FWA 6489. [See also LHMU v Bansley Pty Ltd [2010] FWA 979 and Bansley Pty Ltd v LHMU C2010/596 (Full Bench Fair Work Australia, unreported).
Bansley says that on the evidence Mr McCorry can effectively represent it, that there is no prejudice to the applicants in Bansley being represented by Mr McCorry, and that the relevant legislative provisions anticipate that small claims proceedings will be conducted without lawyers becoming involved.
In relation to the objects of the FM Act and FMC Rules Bansley submits that:
a)the objects of the FM Act include enabling the Court to act as informally as possible in the exercise of its judicial power, with streamlined procedures and encouragement of appropriate dispute resolution processes;[34]
b)the objects[35] of the FMC Rules repeat the objects of the FM Act with the added requirement to assist the just, efficient and economical resolution of proceedings by among other things requiring the parties to avoid undue delay, expense and technicality and consider options for primary dispute resolution as early as possible;
c)a grant of leave for the respondent’s Senior Industrial Officer to represent the respondent would facilitate the efficient and economical resolution of proceedings and not require Counsel to be briefed by either party with the attendance expense and undue delay; and
d)the FW Act small claims Division, while silent on the issue, also anticipates that where a legal practitioner is not granted leave to appear, the representation will be conducted by an officer or employee of the corporation.
[34] FM Act, s.3.
[35] FMC Rules, r.1.06.
Consideration of Bansley’s submissions
In Image Bollards this Court observed as follows:
Section 548(5) of the FW Act prevails over s.44 of the FM Act and r.9.04 of the FMC Rules in relation to the appearance of lawyers in this Court. However, it does not prevent the Court from granting leave for a corporation to be represented by a non-lawyer under the provisions of r.9.04 of the FMC Rules. Therefore, the Court can allow a non-lawyer to appear for a corporation in small claims proceedings in this Court under r.9.04 of the FMC Rules. Such an interpretation is not inconsistent with s.548 of the FW Act which is silent as to how a corporation might be represented in small claims proceedings in this Court. As the Court explained in Cadillac Transport Repairs, where the relevant legislation leaves open the possibility that a party may be represented in a manner other than that prescribed in the legislation, r.9.04 of the FMC Rules can still apply so that a corporation can seek leave to appear other than by a lawyer. Thus, in this case, because s.548 of the FW Act:
is silent as to the appearance of corporations in small claims proceedings in the Fair Work Division of this Court; and
is insufficiently comprehensive or conclusive to constitute a code as to appearance in small claims proceedings in the Fair Work Division of this Court,
r.9.04 of the FMC Rules can still apply insofar as it provides for the Court to grant leave to non-lawyers to appear in proceedings.
Most of the factors outlined in Alcantara related to the appearance of non-lawyers are not relevant to a consideration of whether a non-lawyer should be granted leave to appear under r.9.04 of the FMC Rules in small claims proceedings in the Fair Work Division of this Court, because they are directed to circumstances where lawyers ordinarily have a right of appearance. The remaining factors, adapted to suit the circumstances of small claims proceedings in the Fair Work Division of this Court, which might be considered by the Court are as follows:
the relative complexity or simplicity of the matter;
the objects and purposes of the FM Act and FMC Rules, including the impact of those objects and purposes on case management considerations; and
whether a party can be effectively represented by the proposed representative, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of the proposed representative.
In addition, regard must be had to the objects and purposes of the inclusion of the provisions concerning small claims proceedings in the FW Act.
As in Alcantara, the above factors do not purport to be a closed list. Further, and again as in Alcantara, the discretion is to be exercised judicially having regard to all relevant considerations.[36]
[36] Image Bollards at paras.39-42 per Lucev FM (footnotes omitted).
In this matter the Response raises contractual and statutory interpretation matters of some complexity, but they are at the lower to mid end of complexity. They are sufficiently complex that, were it sought, the Court would presently be minded to grant leave to lawyers to appear for the parties. That said the matter is not sufficiently complex to deny an experienced industrial advocate, such as Mr McCorry, leave to represent Bansley. There appears to be no real doubt that Mr McCorry can effectively represent Bansley in these proceedings.
Lawyers have not sought to appear for the parties, but as indicated above, the Court would presently be minded to grant leave to lawyers to appear for the parties, if that leave were sought.
Granting Mr McCorry leave to appear would not be inconsistent with objects and purposes of the relevant legislation: it will not protract the proceedings and will not otherwise give rise to any foreseeable adverse case management considerations.
An issue does arise as to whether Mr McCorry’s appearance might prejudice the other parties, particularly given the Court’s finding that an official of United Voice cannot appear. Prejudice might occur, given the nature of the issues, if the applicants were to appear in person, as there might be said, with respect, to be a disparity between the ability of the applicants to represent themselves and Bansley’s ability to be represented by an experienced industrial advocate. However, that may be overcome if leave were sought for a lawyer to appear for the applicants, or by the ability to file affidavits and written final submissions, in relation to which the applicants can obtain whatever assistance is needed. The applicants may still be prejudiced in relation to any necessary cross-examination of Bansley’s witnesses, but at the end of the day, some prejudice may be unavoidable, and prejudice is but one factor in the consideration as to whether leave is granted to a non-lawyer to represent a corporation in these proceedings.
Having considered all of the circumstances, and notwithstanding the possibility of some prejudice to the applicants if they have to represent themselves, the Court is of the view that it is appropriate to grant
Mr McCorry leave to appear for Bansley.
Conclusion, declaration and order
The Court has concluded that:
a)Mr Clark, who is an official of United Voice, has no right to represent the applicants; and
b)it is appropriate to grant Mr McCorry leave to appear for Bansley.
There will be a declaration and order accordingly.
Having regard to:
a)the provisions of s.570(2) of the FW Act; and
b)the fact that both parties were not represented by lawyers,
there will be no order as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 13 June 2011
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