Dr Chris Lewis v Australian National University

[2018] FWC 366

[2018] FWC 366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Dr Chris Lewis
v
Australian National University
(C2017/6703)

COMMISSIONER BISSETT MELBOURNE, 18 JANUARY 2018

Application for permission to be represented – application granted.

[1] Dr Chris Lewis has made an application to the Commission alleging a breach of the general protections provisions of the Fair Work Act 2009 (FW Act). In particular Mr Lewis claims that the Australian National University (ANU) took adverse action against him by misrepresenting his workplace rights and refusing to re-employ him. He says these acts were undertaken for prohibited reasons.

[2] Dr Lewis’ claims relate to actions of ANU in 2013 and 2014.

[3] In 18 September 2014 Mr Lewis made an application to the Commission alleging a breach of his general protections involving dismissal pursuant to s.365 of the FW Act. An extension of time for the purposes of that application was heard by Deputy President Kovacic 1. He found that Mr Lewis’ employment had not been terminated beyond the termination which occurred automatically at the end of his casual employment contract. It was held that his employment had ceased on 11 September 2013 and that termination of his record did not equate to termination of employment. Ultimately the Deputy President determined not to extend the time within which Mr Leis could make his application.

[4] In the proceedings before the Deputy President Mr Lewis represented himself and the ANU was represented by permission by a lawyer (Mr Michael Will).

[5] The ANU now seeks permission to be represented by a lawyer pursuant to s.596 of the FW Act in the matter before me. Mr Lewis opposes the grant of permission.

Submissions of ANU

[6] The ANU seeks permission to be represented pursuant to s.596(2)(a) of the FW Act. It submits that the issues of complexity and efficiency arise from the history of the matter involving an application for unfair dismissal [general protections], an extension of time application (before Deputy President Kovacic as outlined above) and the nature of ANU’s response to this application.

[7] In particular the ANU says that Dr Lewis has not been refused employment because he has not applied for any, and he has not been discriminated against in the terms and conditions of employment as he has not been offered employment on any terms. Further, it says it has foreshadowed intention to make an application that the matter be dismissed pursuant to s.587 of the FW Act and that the application will require relevant case law to be referenced and that it could more efficiently be dealt with by a lawyer.

[8] The ANU submits that there will not be unfairness to Dr Lewis if he continues to represent himself. It submits that in the matter before Deputy President Kovacic Dr Lewis prepared a witness statement, gave oral evidence, cross examined ANU’s witnesses and made detailed submissions in support of his case.

[9] Further, it says that the main factual dispute in the present matter will be one that Dr Lewis has intimate knowledge of; including documents he obtained through a freedom of information request.

[10] ANU submits that, whilst its internal legal office is developing experience in workplace relations matters, it does not yet have anyone experienced in Commission matters. It says that it will be assisted by the continuation of representation previously granted.

Submissions of Dr Lewis

[11] Dr Lewis submits that Mr Will (of HWL Ebsworth Lawyers) should not be granted permission because Mr Will will be unable to aid efficiency pursuant to s.596(2)(a) of the FW Act “given that the current ANU defence and submissions contains serious untruths…” In particular Dr Lewis claims Mr Will has maintained an “obstructive approach to FWC processes as has been evident since my first s372 application (21 July 2014)…”

[12] Dr Lewis says that Mr Will should not represent the ANU “as he has hindered FWC efficiency so far, and that Mr Will is complicit is aiding a number of ‘false and misleading’ statements to the FWC in violation of Division 137 of the Criminal Code 1995…”

Legislation provisions and relevant authorities

[13] Section 596 of the FW Act states:

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.

[14] A proper application of this provision was considered in the Federal Court in Warrell v Walton 2 where Flick J said:

24. 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”.

25. 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 which provided in relevant part 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 or 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.

[15] In determining if permission should be granted it is therefore necessary to first consider if any of the pre-conditions in s.596(2) have been met. If any of these have been met, the Commission may consider the exercise of its discretion in whether or not to grant permission.

[16] In considering if permission should be granted the Commission does not have the ability to determine who should or may represent a party. The permission is given to a party to be represented by “a lawyer or paid agent”, not a particular lawyer or paid agent. In NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office 3 the Full Bench of the Commission said:

[24] We also consider that the Commissioner fell into error in another respect. We have earlier set out the process by which the Commissioner determined the question of the ATO’s representation in the matter before him. What the Commissioner effectively did on 4 and 5 December 2013 was, in a commingled way, to grant the ATO permission to be represented by its solicitor, Mr Noakes, but refuse it permission to be represented by its counsel, Mr Cross. In doing so, what the Commissioner did in substance was to select who, from the ATO’s legal team, would represent it at the hearing. That was not a course authorised by s.596. The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor. We do not consider that the power in s.596 was intended to interfere with a party’s right to choose who its legal representative (or paid agent) would be if permission was to be granted.

[17] What is apparent from these two decisions is that the decision to be made is, if one of the requirements in s.596(2) is met, whether permission should be granted not to any particular lawyer but to “a lawyer”. Such a decision should be made having regard, but not limited, to the need to ensure that the proceedings are not “burdened with unnecessary formality” and that ensures that matter proceeds “efficiently and informally”.

Consideration

[18] If I am to consider the grant of permission I must be satisfied, in this case, that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a). The ANU does not seek to rely on s.596(2)(b) or (c).

[19] I am satisfied that there is a complex and long history to this matter. Dr Lewis appears to have commenced numerous proceedings in the Commission including an application pursuant to s.372 (general protections application not involving dismissal) and s.365 (general protections matter involving dismissal). The incidents to which those applications related occurred in 2013 and 2014. Further, he has pursued freedom of information requests with respect to records of ANU, some or all of which have been filed with the application currently before me. This is not to criticise Dr Lewis for the actions he has taken but to note them and acknowledge the context and history this provides to the present application.

[20] The present application made pursuant to s.372 also relates in part to those matters which occurred in 2013 and 2014 including the earlier s.372 and s.365 application and some actions of ANU since that time in not re-employing Dr Lewis. I am satisfied that this history of the matter, including the multiple applications of Dr Lewis and his reliance on information found/sourced through the course of those applications, creates a level of complexity in the current application.

[21] I note that HWL Ebsworth Lawyers, in particular Mr Will, has represented the ANU in the earlier applications. It is intended, if permission is granted, that Mr Will should continue to do so.

[22] I am satisfied, given his knowledge of past applications, that the continued involvement of Mr Will will enable the matter to be dealt with more efficiently.

[23] Whilst I note that the ANU foreshadows an application pursuant to s.587 of the FW Act, I do not consider that this adds any complexity to the matter, particularly in circumstances where an employer is not obliged to participate in Commission proceedings. Further, I note in relation to an application made pursuant to s.372, an applicant is not obliged to make an application to the Commission prior to proceeding to the courts to have the matter resolved.

[24] However, I am satisfied, given the history and the involvement of HWL Ebsworth Lawyers to date that the present application can be dealt with more efficiently, given its complexity if permission was granted.

Should I exercise my discretion to grant permission?

[25] I am satisfied, for the reasons set out above, that the requirements of s,596(2)(a) of the FW Act have been met.

[26] Dr Lewis makes a number of claims as to why permission should not be granted to ANU. These matters go to conduct he says Mr Will has engaged in. This conduct, Dr Lewis submits, is in breach of the ACT Legal Profession ‘Solicitors’ Conduct Rules 2015. I am not convinced of those matters raised by Dr Lewis but, in any event, note that my decision is whether or not I should grant permission for the ANU to be represented by a lawyer, not with regard to any particular lawyer.

[27] In this case, given the history of the matter I am satisfied that I should exercise my discretion to grant permission to ANU to be represented.

[28] Permission is therefore granted.

COMMISSIONER

Final written submissions:

Respondent: 10 January 2018.

Applicant: 12 January 2018.

 1  End Notes:

[2015] FWC 2045.

 2 [2013] FCA 291.

 3   [2014] FWCFB 1663.

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