Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering

[2016] FWC 5244

[2016] FWC 5244

FAIR WORK COMMISSION

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 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.

...”

The Applicant’s submissions

[9] The Applicant submitted that the legal representation was warranted given the complexity of the matter and the novel aspects of this application. It was submitted that legal representation would enable the matter to be dealt with more efficiently, taking into account the issues for determination including, it was submitted, matters of complexity arising from :

“(i) Novel aspects of law, including whether an enterprise agreement can be approved in circumstances where it is not signed within the requisite timeframe by a relevant bargaining representative or representatives because of concerns raised about victimisation;

(ii) In the above context, consideration of orders for non-disclosure of identifying information in respect of an individual and a request for the Commission to exercise a discretion to extend time; and

(iii) Consideration of the Commission’s powers to deal with the above.” 1

[10] In addition, it was argued by the Applicant that:

“The matter is also heavily contested by the Communications, Electrical and Plumbing Union of Australia (CEPU) and involves or likely will involve cross examination.

All of the above favour legal representation.

2 In relation to section 596(2)(b) of the Act – it would be fair and reasonable to allow Corrs to represent the Applicant because:

(i) The relevant officer from the Applicant, Carly Carloss who has had conduct of this matter to date, is no longer employed by the Applicant and so can no longer represent the Applicant;

(ii) In any event, Ms Carloss is a witness in the proceedings and could not reasonably be expected to represent and give evidence for the Applicant (particularly in circumstances where we expect the CEPU may wish to cross examine her);

(iii) The relevant officer from the Applicant who is now responsible for the conduct of this matter (Jarrett Goos) does not have any history in this matter and, given the timeframe, would likely not be able to represent the Applicant effectively. Importantly, representing the Applicant “effectively” does not just mean “satisfactorily”, “sufficiently” or “adequately”, it means in a manner that creates a “striking impression”, or which has an “impressive effect” or which is “powerful in effect”;1

(iv) Even if the Applicant was represented by Mr Goos, it will incur the costs of obtaining assistance from its legal representatives as a “McKenzie Friend”, which is far less efficient than having a representative act as advocate;

(v) The matter is of importance to the Applicant as it affects the terms and conditions on which part of its workforce are employed, and the terms on which the Applicant can bid for new work and retain existing work; and

(vi) Of the matters referred to in paragraph 1 above.

3 In relation to section 596(2)(c) of the Act – if the Applicant was not permitted to be represented by Corrs it would be unfair between the parties because:

(i) The CEPU is represented by Pat Rogers, an Industrial Officer for the CEPU, who is an experienced industrial advocate; and

(ii) Of the matters referred to in paragraphs 1 and 2 above.” 2

The ETU’s submissions

[11] The ETU objected to legal representation of the Applicant. With respect to the Applicant’s argument that the relevant officer did not have history in the matter, and would not be able to effectively represent the Applicant in the timeframe, the ETU submitted as follows:

“7. This application for approval of this agreement has been before the Commission for some time. Until now the employer has been represented by an employee. The employer was aware some time ago that the employee who had carriage of this matter was due to cease employment with them in July. The application is listed for hearing on 4 August, 2016. This has given the employer ample opportunity to ensure that one of its “in house” staff was able to represent them in this matter.” 3

[12] The ETU also submitted that the Fair Work Act 2009 has been in operation since 2009 and that it was clear that it was intended that the Act would include significant changes to legal representation provisions, including a tightening of the rules relating to permission to appear.

[13] It was submitted that the Commission may only grant permission for legal representation in exceptional circumstances, where one or more of the criteria set out in s.596(2) are met. The ETU submitted that none of these criteria are satisfied.

[14] With respect to considerations of efficiency under s. 596(2)(a), the ETU submitted that there was no evidence that the legal representation of the Applicant would enable the matter to be dealt with more efficiently, and that this submission of the Applicant’s was based on the assumption that the matter must be dealt with “in a legalistic manner”. The ETU submitted that it was open to the Applicant to apply to have the matter dealt with in a less formal manner.

[15] The ETU submitted that the Applicant was a large company and that there was nothing to indicate that the Applicant was “unable to represent… itself effectively” as per s.596(2)(b). The ETU submitted that the Applicant was clearly not a small company without specialist human resource staff and argued that the Applicant has Employee Relations and Industrial Relations practitioners.

[16] In terms of fairness under s.596(2)(c), the ETU submitted that they will be represented by an industrial officer, as is anticipated in Note (b) to s.596. The ETU submitted that the Applicant can be represented by one of their experienced Employee relations and industrial Relations practitioners. It was submitted by the ETU the allowing legal representation would potentially create an imbalance or unfairness “as the Union clearly cannot provide the level of resourcing that a law firm the size of Corrs Chambers Westgarth can provide” 4 to the Applicant.

[17] The ETU submitted that there were no such conditions that would allow legal representation under s.596.

Consideration

[18] The Federal Court in Warrell v Walton 5 considered the matter of permission to appear, pursuant to s.596 of the Act. Justice Flick stated:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008...” 6

[19] The Explanatory Memorandum to the Fair Work Bill’s introduction in 2008 relevantly reads as follows:

“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.”

[20] The application of s.596 of the Act allows the Commission to exercise discretion to grant permission in formal proceedings, however, as set out, this is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case, against the legislative tests. 7

[21] In considering the grant of legal representation, the Commission is required to establish that the prescribed conditions exist prior to exercising the discretion to grant permission. Accordingly, if the prescribed conditions are considered to be in existence, the discretion to grant permission for a person to be represented by a lawyer or paid agent will be exercised in favour of the person. This assessment of the prescribed conditions is an objective exercise.

[22] The Applicant in submissions also referred to the nature of representation, in that regard, the Decision in National Tertiary Education Industry Union v The University of Notre Dame Australia 8(Notre Dame) is authority for the test being not whether someone has the ability or the legal qualifications or the industrial qualifications or can read the Act to represent the relevant party:

“The applicant is a registered organisation and as such one of its regular activities, and one in which it specialises, is to appear before this Commission in dispute arbitrations and it employs staff to do just that. Notre Dame in contrast is a University and the evidence is it does not employ staff to regularly appear in arbitrations before the Commission.” 9

[23] This matter also raises questions of the effectiveness of the representation. This issue has been dealt with by Senior Deputy President Richards as follows in the Decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) 10:

“[11] That said, some guidance might be found in the definitional context of the adverb “effectively”, which is used in s.596(2)(b) of the Act.

[12] The Macquarie Dictionary (Revised Third Edition) defines “effective” in the following way:

Adjective 1. serving to effect the purpose; producing the intended or expected result: effective measures, effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture - noun 4. a solider or sailor fit for duty or active service. 5. the effective total of military force. Effectively, adv effectiveness n.

[13] The Australian Concise Oxford Dictionary (Third Edition) defines “effective” as:

adj 1a having a definite or desired effect. b efficient. 2 powerful in effect; impressive. 3a actual; existing in fact rather than officially or theoretically (took effective control in their absence). b actually usable; realisable; equivalent in its effect [...]. 4 coming into operation [...] 5 (of manpower) fit for work or service. [...] effectively adv. effectiveness n. [...]

[14] In the context used in the s.659(2)(b) of the Act, the adverb “effectively” is used to condition the verb “to represent”. Thus, a person must be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted.

[15] It seems sufficiently clear that Parliament did not intend that permission to be represented be granted when a person is unable to be represented “satisfactorily”, “sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to represent” in s.596(2)(b) of the Act is “effectively”.

[16] It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[24] The remarks of Senior Deputy President Richards (set out below), in considering permission to appear, are also relevant to this matter, given the potential complexity of the proceeding. I agree with his assessment as follows:

“[26] 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.(1)

(1) Such considerations as this may also ground an application for permission to appear under s.596(2)(b) of the Act. This much was alluded to in my earlier discussion.”

[25] There is some complexity to the matter, given the consideration of the application of the discretion pursuant to s.586 to allow for the acceptance of an amended signature page of the Agreement (that was only signed by the Employer at the time of filing the application) and the suppression of the signing employee’s identity.

Conclusion

[26] Taking into consideration sections 596(2)(a) and (b), with respect to the consideration of fairness between the parties, whilst legal representation of the Applicant is sought, the ETU is represented by an experienced Industrial Officer, Ms Rogers, who is familiar with the application, its circumstances and has been assisted by Mr Peter Ong, State Assistant Secretary of the ETU. Ms Rogers has been involved with the application since its commencement. Accordingly, it is not considered that the ETU will be significantly disadvantaged or prejudiced by the permission to appear being granted. The Applicant has only instituted legal representation recently, on account of Ms Carloss’ departure. The hearing date was originally to occur the day prior to Ms Carloss’ final day with the Applicant. The change in hearing date, as necessitated by the Commission, was a recent development giving rise to a situation where the Applicant could no longer be represented by Ms Carloss.

[27] Further, the complexity of matters has arisen in relation to matters associated with the approval tests of the Agreement and the proposed suppression of material (only provided to the Commission). This material is associated with the consideration of the signature of the Agreement and an associated confidential Affidavit.

[28] Accordingly, on the specific facts and circumstances of this matter, to assist in the efficient, fair and effective hearing of witnesses and documents and some matters with potential industrial and legal complexity and novelty, the Applicant, pursuant to s.596(2) is granted permission to be represented by a lawyer at the hearing in this matter.

[29] I Order accordingly.

COMMISSIONER

 1   Applicant’s Submissions On Permission To Appear

 2   Applicant’s Submissions On Permission To Appear

 3   Submissions of the ETU RE Legal Representation at [7]

 4   Submissions of the ETU RE Legal Representation at [34]

 5 [2013] FCA 291.

 6   Ibid at [24]-[25].

 7   Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

 8   National Tertiary Education Industry Union v The University of Notre Dame Australia[2014] FWC 2409.

 9   National Tertiary Education Industry Union v The University of Notre Dame Australia[2014] FWC 2409 at [36].

 10   [2012] FWA 2966.

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