Eland v Childrenfirst Inc T/A Childrenfirst

[2014] FWC 3051

[2014] FWC 3051 [Note: An appeal pursuant to s.604 (C2014/4646) was lodged against this decision - refer to Full Bench decision dated 17 July 2014 [[2014] FWCFB 4822] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eland
v
Childrenfirst Inc T/A Childrenfirst
(U2013/16116)

VICE PRESIDENT CATANZARITI SYDNEY, 8 MAY 2014

Application for relief from unfair dismissal - representation - whether organisation is an association of employers - whether entitled to represent as a matter of right.

[1] On 2 April 2014, I issued a decision 1 finding that employees and officers of Jobs Australia Limited (Jobs Australia) were not entitled to rely on s.596(4)(b)(ii) of the Fair Work Act 2009 (the Act) in appearing in this matter. I indicated that the full reasons for that decision would be published in due course. These are the reasons for that decision.

Background

[2] On 21 November 2013, Mrs Donna Eland (Mrs Eland) filed an application for unfair dismissal remedy pursuant to s.394 of the Act. It is sufficient for present purposes to note that Mrs Eland was of the view that she had been unfairly dismissed on the basis of allegations that she had hit a child in her capacity as a childcare worker. Mrs Eland denied the allegations and submitted that her employer had failed to investigate the incident properly, denied her procedural fairness and dismissed her despite a lack of evidence. On 16 December 2013, an employer’s response to Mrs Eland’s application was filed. The employer’s response was filed by Mr Keith Godfrey (Mr Godfrey), an employee of Jobs Australia on behalf of Childrenfirst Inc (the Respondent). The employer’s response alleged that most of Mrs Eland’s contentions in her application were either false or misleading, and submitted that Mrs Eland had not been unfairly dismissed. The employer’s response submitted that the incidents that led to Mrs Eland’s dismissal were confirmed by evidence obtained from other employees, that Mrs Eland was given every opportunity to explain and defend the allegations made against her and that Mrs Eland was made aware of the evidence of the other employees.

[3] On 14 January 2014, a conciliation took place before a Fair Work Commission (the Commission) conciliator, but the matter failed to settle. Mr Godfrey represented the Respondent for the purposes of the conciliation. Following the attempted conciliation, a solicitor from the firm Meridian Lawyers filed a Form F53 Notice of Representative Commencing to Act, advising that Meridian Lawyers was acting for the Respondent and may seek leave to represent the Respondent before the Fair Work Commission. On 24 February 2014, Mr Godfrey filed a Form F54 Notice of Representative Ceasing to Act, advising that he was no longer acting for the Respondent.

[4] On 24 March 2014, a directions teleconference was held at which the parties made submissions on whether permission should be granted to allow a lawyer to represent the Respondent in this matter. At the conclusion of the teleconference, I was not satisfied that the threshold criteria set out in s.596(2) of the Act had been satisfied and I informed the parties that I would not grant permission for lawyers to represent the parties in this matter.

[5] Following this, Mr Godfrey filed a new Notice of Representative Commencing to Act on 27 March 2014, notifying the Commission that he was again acting for the Respondent. On 27 March 2014 my associate emailed Mr Godfrey informing him that if he intended to represent the Respondent at the hearing for this matter, he must notify the Commission and Mrs Eland prior to close of business Friday 28 March 2014, following which I would list the matter to determine whether permission to represent the Respondent would be granted pursuant to s.596 of the Act.

[6] On 28 March 2014, Mr Godfrey responded by referring to s.596(4) of the Act, the draft Unfair Dismissal Proceedings Practice Note and the Fair Hearings Practice Note (Practice Note 2/2013). Both the draft Unfair Dismissal Proceedings Practice Note and the Fair Hearings Practice Note reflect s.596 of the Act which 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.

...

(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.”

[7] Mr Godfrey asserted that Jobs Australia is a registrable national employer association as defined in the Fair Work (Registered Organisations) Act 2009, which provides as follows at ss.18–18A:

“18 Employer and employee associations may apply

Any of the following associations may apply for registration as an organisation:

(a) a federally registrable association of employers;

(b) a federally registrable association of employees;

(c) a federally registrable enterprise association.

18A Federally registrable employer associations

(1) An association of employers is federally registrable if:

(a) it is a constitutional corporation; or

(b) some or all of its members are federal system employers.

(2) [Repealed]

(3) An association of employers is not federally registrable if it has a member who is not one of the following:

(a) an employer;

(b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;

(c) a person (other than an employee) who carries on business;

(d) an officer of the association.

(4) An association of employers is not federally registrable if:

(a) it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

(b) it is not the case that some or all of the association’s members are federal system employers.”

[8] Mr Godfrey asserted that as an employee of Jobs Australia, he was not required to seek the leave of the Commission to represent the members of Jobs Australia in any matter before the Commission.

[9] Following this, I advised Mr Godfrey that on the basis of the material before me at that time I was not satisfied that leave to appear would not be required. I invited both parties to make further written submissions on the issues of standing and leave to appear by close of business 31 March 2014, and informed the parties that if either party wished to make oral submissions on the matter I would hear them at 10am the following day.

Submissions

[10] In his further written submissions, Mr Godfrey repeated his earlier assertions that he is an employee of Jobs Australia and that Jobs Australia is an association of employers. Mr Godfrey also repeated his earlier assertion that Jobs Australia is covered by s.18(b) and s.18A(1)(a) and (b) of the Fair Work (Registered Organisations) Act 2009, and therefore he fell within the exemption found in s.596(4)(b)(ii) of the Fair Work Act 2009 and did not need to obtain permission to represent a person before the Commission.

[11] Mr Godfrey continued in his submissions to state:

“A copy of the section of the Constitution of Jobs Australia Limited dealing with the Objects of the Company is attached for your information. The objects clearly show that Jobs Australia has the object ‘to represent throughout Australia not-for-profit member associations’. Most if not all of Jobs Australia’s members are federal system employers.”

[12] Mr Godfrey further requested the opportunity to make oral submissions in relation to the matter. Consequently, I listed a teleconference for Tuesday 1 April 2014. During the course of the teleconference, Mr Godfrey sought to rely on the decision of McCarthy DP in Yolande v Anglican Homes Inc (PR946048), and largely repeated his earlier submissions that as an employee of an employer association he was entitled to appear without seeking the permission of the Commission in accordance with s.596(4)(b)(ii) of the Act. I will turn to the relevance of Yolande v Anglican Homes Inc shortly.

[13] During the course of the teleconference, I informed Mr Godfrey that I was uncertain as to whether Jobs Australia was an “association of employers” for the purposes of s.596(4)(b)(ii), and invited him to put any further materials before me by 4pm the same day so that a decision could be made prior to the hearing of the substantive matter. Mr Godfrey took advantage of my invitation to file further materials and submitted the following with respect to s.596(4)(b):

“I believe it is clear that I am an employee of Jobs Australia.
I also believe it is clear that Jobs Australia is an organisation as described by s596(4)(b)(ii).
At the end of the four points is the statement “that is representing the person or”
This makes the section read if you leave out the dot pointed examples to read as follows;
‘(b) is an employee or officer of (any of (i) (ii) (iii) or (iv) that is representing the person’”

[Errors in original]

Consideration

[14] The term “association of employers” as found in s.596(4)(b)(ii) is not defined in the Act. Mr Godfrey submitted that Jobs Australia met the definition of “registrable national employer association” as defined in the Fair Work (Registered Organisations) Act 2009 at ss.18–18A as extracted above.

[15] However, s.18A of the of the Fair Work (Registered Organisations) Act 2009 does not attempt to define the term “association of employers” but instead outlines the circumstances in which an association of employers is eligible to become a registered organisation for the purposes of the Fair Work (Registered Organisations) Act 2009. A precondition of registration as such is that the organisation must be an association of employers. This is evident from the use of the term in s. 18A(1):

“An association of employers is federally registrable if:

(a) it is a constitutional corporation; or

(b) some or all of its members are federal system employers.”

(emphasis added)

[16] It is clear from the legislation that an organisation will not be classified as an “association of employers” simply because it is a constitutional corporation or some or all of its members are federal system employers. Instead, an association of employers is only federally registrable if it meets either of those criteria. The term “association of employers,” therefore, remains undefined.

[17] There is nothing in the legislation to suggest that in order to qualify as an “association of employers that is not registered under the Registered Organisations Act” that an organisation must be a registrable national employer association. Nor is there anything to suggest that it in order to satisfy s.596(4)(b)(ii) it is sufficient that an organisation meets the definition of a registrable national employer association for the purposes of the Fair Work (Registered Organisations) Act 2009. Thus, despite Mr Godfrey’s submissions, there is little utility in pursuing any line of inquiry that places undue emphasis on the provisions of the Fair Work (Registered Organisations) Act 2009.

[18] While there is scant legislative guidance on the term “association of employers”, there has been some judicial consideration of the term. During the course of oral submissions, Mr Godfrey sought to rely on Yolande v Anglican Homes Inc (PR946048) to advance the proposition that the employee of an association of employers is entitled to represent a party without seeking the permission of the Commission. It must be noted that this is an uncontroversial proposition which is expressly stated in s.596(4)(b) of the Act. Determining whether or not an organisation is an association of employers, however, is a more difficult task. In Yolande v Anglican Homes Inc, McCarthy DP considered the term “association of employers” in the context of the Workplace Relations Act 1996 (Cth). The Deputy President said:

“[14] Section 170JEA provides:

‘Without limiting the operation of paragraphs 42(7)(b) and 469(7)(b), an employer that is a party to a proceeding under this Part before the Commission or the Court may be represented by a member, officer or employee of an association of employers of which the employer is a member.’

[15] There is no definition in the Act of ‘association of employers’ and neither is there a definition of ‘an association’ although an ‘industrial association’ is defined in Part XA as including:

‘(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;’

[16] An employers’ association can also be registered under the Act.

[17] It would appear then that an association of employers may be neither an organisation [in the sense of a Registered Organisation] nor an industrial association but an organisation and an industrial association can be an association of employers. What is important for this matter is that Ms Auerbach’s employer, the Chamber of Commerce and Industry of Western Australia (“CCIWA”), fits the description of an association of employers and also probably comes within the definition of industrial association. It was not disputed that the respondent is a member of CCIWA.” 2

(footnotes omitted)

[19] The Deputy President further noted in a footnote that:

“It was not specifically stated by either Ms Auerbach nor conceded by the LHMU that CCIWA did fit the description but I do not consider that it was necessary as it is self-evident (see ss.29A(2) and 50(1) of Industrial Relations Act 1979 (WA)).”

It should be noted that that s.170JEA of the Workplace Relations Act 1996 is similar in substance to s.596(4)(b)(ii) of the Act, and the definition of “industrial association” referred to by the Deputy President is similar in substance to the definition of “industrial association” found in s.12 of the Act. While the Deputy President’s analysis of the legislative definitions that are relevant in determining the meaning of the term “association of employers” is apposite to the matter at hand, its significance is limited due to the Deputy President’s finding that it was self-evident that the CCIWA was an association of employers.

[20] In Tzimos v Tempo Services Pty Ltd (1995) 64 IR 43, Wilcox CJ was referred a question of law from a judicial registrar. The question that was referred to Wilcox CJ was whether or not an officer of an organisation that purported to be an association of employers was entitled to represent an employer in proceedings before the Industrial Relations Court of Australia. The relevant legislation for Wilcox CJ’s purposes was the Industrial Relations Act 1988 (Cth), however the relevant section was s.170JEA which was in identical terms to s.170JEA of the Workplace Relations Act 1996 as extracted in McCarthy DP’s decision above.

[21] Wilcox CJ found as follows:

“It will be noted that this provision does not require that the officer be an officer of an ‘organisation’ as defined, that is a registered organisation. It is sufficient that the person be an officer of ‘an association of employers’. That term is not defined in the Act, either within Pt VIA or generally. Under those circumstances it is appropriate to give it its normal meaning; an association of people or companies who are in fact employers and who associate together in that capacity. Ausgroup Services Employers Association meets that criterion. Its constitution provides that it is to be comprised ‘of an unlimited number of members who are employers within Australia’. This means that only employers are eligible for membership of the association. Furthermore, the objects of the association are objects referable to members’ conduct as employers rather than their conduct in any other capacity.” 3

[22] Wilcox CJ provides a two-step test for determining whether or not an organisation is an association of employers:

1. the organisation must be an association of people or companies who are in fact employers; and

2. the members of the association must associate together in their capacity as employers.

[23] While Wilcox CJ established this test with respect to s.170JEA of the Industrial Relations Act 1988 (Cth), the terms of the Act before me are not substantially dissimilar. It is important to note that in order to qualify as an association of employers, both criteria must be satisfied.

[24] Mr Godfrey only tendered an extract of the Jobs Australia constitution. However, in exercising the power of the Commission to inform itself, 4 I have obtained a full copy of the Jobs Australia Constitution from the Jobs Australia website.5 The objects of Jobs Australia are set out in its constitution as follows:

“2. The objects for which the Company is established are:

a) To represent throughout Australia not-for-profit member organisations (hereinafter called ‘members’) which are engaged in the delivery of programs and services to assist unemployed people particularly long term unemployed people and other disadvantaged people to gain and retain employment;

b) To provide such services as are necessary to members as are required by them to facilitate a high standard of provision of assistance to unemployed people particularly long term unemployed people and other disadvantaged people;

c) To bring the needs of unemployed people and other disadvantaged people before member organisations, the Australian community and Governments to ensure that member organisations, Governments, the business community, trade unions and community organisations institute and/or maintain high quality and adequately resourced programs of assistance to alleviate poverty, distress of those in the Australian community who are in necessitous circumstances and the disadvantage suffered by unemployed people and which programs assist in the reduction of unemployment and/or which assist unemployed people and other disadvantaged people to gain and retain employment;

d) To prepare and disseminate information to unemployed people relating to the operation of the employment services market and the Commonwealth Government’s Department of Employment, Education, Training and Youth Affairs’ labour market programmes;

e) To prepare and disseminate information on program activities and issues relating to unemployed people and other disadvantaged people and consult with Governments, Government Departments and Authorities and any other bodies and provide input into the development of public policy affecting employment and unemployment of behalf of members and to negotiate on their behalf;

f) To foster co-operation and communication between member organisations and to facilitate information exchange between members;

g) To carry out and publish research on matters affecting unemployed people and other disadvantaged people;

h) To assist in the procurement of financial and other resources for member organisations at the national level; and

i) To co-operate with international organisations and agencies operated by nongovernment, not-for-profit organisations devoted to assisting unemployed people and/or fostering economic and community development on their behalf.”

[25] Also of relevance are the criteria for membership found in Article 9.1 of the Jobs Australia Constitution:

“Any not-for-profit organisation (however incorporated) which is engaged in the delivery of programs and services to assist unemployed people and other disadvantaged people to gain and retain employment may apply for membership of the Company.”

[26] During the course of oral submissions, I asked Mr Godfrey how the Respondent, a childcare service provider, fit within the criteria for membership as set out in Article 9 of the Jobs Australia Constitution. Mr Godfrey responded that there are different types of “membership” that an organisation can have in Jobs Australia. In addition to the standard membership as envisaged by Article 9.1 of the Jobs Australia Constitution, Jobs Australia also offers a “Community Sector Industrial Relations Subscription.” The Jobs Australia website explains this paid subscription service as follows:

“The Community Sector Industrial Relations Subscription is a service for nonprofit community service organisations that are seeking industrial relations and human resource management support but are not eligible for Jobs Australia membership (that is, your organisation does not engage in the delivery of programs and services to assist unemployed people and other disadvantaged people to gain and retain employment).” 6

[27] Thus, the Respondent is not a full member of Jobs Australia, but does subscribe to its “Community Sector Industrial Relations Subscription.” This was confirmed in a letter of 1 April 2014 from the Respondent addressed to myself, in which the Respondent wrote that “Childrenfirst is a current subscriber member of Jobs Australia Limited and [...] our subscription fees are fully up to date.”

Do the members of Jobs Australia associate together in their capacity as employers?

[28] The objects of Jobs Australia as set out in its constitution make no indication that its members associate together in their capacity as employers. There is nothing to suggest that in order to be engaged in the delivery of programs and services to assist unemployed people that an organisation must itself be an employer. Further, even if an organisation is an employer that is engaged in the delivery of such programs and services, there is nothing to suggest that the organisation’s role as an employer is relevant to its role in delivering such programs and services. It is possible to envisage a scenario where an organisation’s role as an employer is relevant to its role in delivering programs and services to assist unemployed people; for example, an organisation that deliberately and conspicuously attempts to recruit unemployed people (particularly long term unemployed people and other disadvantaged people) to assist in delivering its programs and services. However, there is nothing in the Jobs Australia Constitution that leads to the conclusion that this is the case for the bulk of its members, nor were any assertions to that effect made by Mr Godfrey.

[29] Thus, it seems that for the bulk of Jobs Australia’s membership, their capacity as employers is incidental to their Jobs Australia membership. This is reinforced by Article 9 of the Jobs Australia constitution, which does not set out, as a pre-requisite to membership, any requirement that an organisation must be an employer. This reinforces the incidental nature of any Jobs Australia members’ collateral roles as employers.

[30] It is important to note that the Respondent in this matter is not a full member of Jobs Australia. It is a subscriber to Jobs Australia’s Community Sector Industrial Relations Subscription. It can be safely assumed that all subscribers to the Industrial Relations Subscription are employers on the basis that it is unlikely that a non-employer would be interested in the industrial relations services that are provided as part of the subscription. However, the subscription service is but one aspect of the broader Jobs Australia organisation; it cannot be considered in isolation. Further, a distinction must be made between entities that “associate together” and entities that utilise a common service. On the material before me, there is nothing to suggest that the various subscribers to the Jobs Australia Community Sector Industrial Relations Subscription associate together. Instead, it seems that the relationship between the various subscribers is closer akin to the relationship between the various clients of an industrial relations consultancy. As there is no suggestion that the subscribers to the Industrial Relations Subscription associate together, let alone form the constituent elements of an association, there can be no doubt that these organisations do not constitute an association of employers for the purposes of the Act.

Is Jobs Australia an association of people or companies who are in fact employers?

[31] As the test propounded by Wilcox CJ is conjunctive, my finding that the members of Jobs Australia do not associate together in their capacity as employers is sufficient to determine that Jobs Australia is not an association of employers. However, for the purpose of completeness I will make a few brief observations on this limb of the test.

[32] Mr Godfrey asserted in his written submissions that “most if not all of Jobs Australia’s members are federal system employers.” As no evidence was led to support this assertion, I make no finding with respect to the factual composition of the membership of Jobs Australia. I do note, however, that Article 9 of the Jobs Australia constitution does not impose, as a condition of membership, any requirement that an organisation must be an employer in order to be eligible for membership in Jobs Australia.

Conclusion

[33] Having found that the members of Jobs Australia do not associate together in their capacity as employers, it follows that Jobs Australia is not an “association of employers” for the purposes of s.596(4)(b)(ii). Thus, Mr Godfrey cannot properly be classified as an employee or officer of an association of employers that is not registered under the Registered Organisations Act. Instead, in this matter, the employees or officers of Jobs Australia would be acting in the capacity of paid agents or lawyers. As I have already refused permission for lawyers or paid agents to represent parties in this matter, it follows that employees or officers of Jobs Australia are not entitled to represent parties in this matter.

VICE PRESIDENT

Appearances:

L Brayne for Mrs Donna Eland.

K Godfrey for Childrenfirst Inc T/A Childrenfirst.

Hearing details:

2014.

Sydney and Melbourne (telephone hearing):
April 1.

Final written submissions:

Childrenfirst Inc T/A Childrenfirst, 1 April 2014.

 1   Eland v Childrenfirst Inc T/A Childrenfirst [2014] FWC 2178.

 2   Yolande Smith v Anglican Homes Incorporated (PR946048) [14]-[17].

 3   Tzimos v Tempo Services Pty Ltd (1995) 64 IR 43, 44-5.

 4   Fair Work Act 2009 (Cth) s.590.

 5   Jobs Australia, “About Us” <   Jobs Australia, “Jobs Australia Membership Categories” < by authority of the Commonwealth Government Printer

<Price code C, PR550414>