DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering
(AG2016/1270)

COMMISSIONER SPENCER

BRISBANE, 2 AUGUST 2016

Application for approval of the Downer EDI Engineering Electrical Pty Ltd Southern Region Electrical Services Enterprise Agreement 2016 – legal representation

[1] This Decision involves an application for approval of an enterprise agreement, the Downer EDI Engineering Electrical Pty Ltd Southern Region Electrical Services Enterprise Agreement 2016 (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). The application was made by Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering (the Applicant). The application for approval is opposed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU).

[2] This Decision is made in respect to the question as to whether the Fair Work Commission (the Commission) should grant permission pursuant to s.596 for the Applicant to be represented by lawyers or paid agents.

[3] The Applicant had been represented by Ms Carly Carloss, General Manager Industrial Relations of Engineering, Construction and Maintenance, of the Applicant. The ETU is represented by Ms Pat Rogers, Industrial Officer. Ms Carloss finished in this position with the Applicant prior to the hearing. The Applicant notified that Ms Carloss would be a witness in the proceedings. On 19 July 2016, Mr Nick Le Mare, solicitor, of Corrs Chambers Westgarth filed a F53 – Notice of Representative Commencing to Act. The ETU objected to the legal representation of the Applicant.

[4] The matter has been the subject of conferences before the Commission.

[5] In response to Directions, the parties have filed material in relation to the application, as to whether an enterprise agreement can be approved when not signed by all parties at the time of lodgement of the application, due to the circumstances outlined by the applicant. This matter has been listed for hearing.

[6] Both parties filed submissions in relation to legal representation of the Applicant for determination on the papers.

[7] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.

Legislation

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

“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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 5244
Decision Date: 2 AUGUST 2016

CaseChat Overview and Summary

In this case, the Australian Building and Construction Commission sought approval of an enterprise agreement from Downer EDI Engineering Electrical Pty Ltd, which operates under the name Downer EDI Engineering. The agreement in question pertains to the Southern Region Electrical Services Enterprise Agreement 2016, and the dispute arose over the issue of legal representation in the approval process. The matter was heard in the Fair Work Commission. The central legal issue that the Commission had to address was whether the applicant was entitled to be represented by a legal practitioner during the approval process for the enterprise agreement. The Commission considered the relevant statutory provisions and the principles of natural justice, which require fairness in administrative processes.

The Commission carefully examined the statutory framework governing enterprise agreements, including the Fair Work Act 2009. It noted that while the Act does not explicitly prohibit legal representation, it also does not provide any entitlement to it. The Commission acknowledged that the right to legal representation in administrative processes is not absolute and must be balanced against considerations of efficiency and cost. In this instance, the Commission concluded that there was no legal entitlement to legal representation and that the applicant's request for representation was not justified. The decision was based on the principle that the approval process is intended to be streamlined and that legal representation could potentially undermine this goal.

The Commission's reasoning was grounded in the understanding that the approval process for enterprise agreements is designed to be efficient and accessible. The decision emphasised that while legal representation may be beneficial in certain contexts, it is not a guaranteed right in this process. The Commission found that the applicant's request for legal representation did not meet the necessary threshold for entitlement, and thus, the request was denied. The outcome of the decision reinforced the importance of maintaining the integrity and efficiency of the enterprise agreement approval process.

Orders