Flinders University v National Tertiary Education Industry Union

[2018] FWC 6867

[2018] FWC 6867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Flinders University
v
National Tertiary Education Industry Union
(C2018/6180)

COMMISSIONER PLATT ADELAIDE, 8 NOVEMBER 2018

Application for to deal with a dispute – section 596 application for representation of Applicant on grounds of efficiency – application opposed – permission granted.

Summary

[1] Flinders University (the University) has lodged an application to the Fair Work Commission under section 739 of the Fair Work Act 2009 (the Act) in respect of a dispute concerning the organisational change process within the University. The University and the National Tertiary Education Industry Union (the Union) are covered by the Flinders University Enterprise Agreement 2014-2017 (the Agreement).

[2] Considerable background material was attached to the Form F10 Notification of Dispute lodged on 2 November 2018, including:

•  A copy of a settlement agreement in relation to a s.739 dispute between the parties which I previously heard 1.

•  Copies of a major change and implementation proposal titled “The 2025 Agenda” in respect of a number of the University faculties.

•  A letter dated 18 October 2018 from the Union to the University which notified of a dispute (which appears to be in accordance with the escalation process in the Agreement’s dispute resolution clause) over the restructure, and provides in considerable detail the basis upon which the Union asserts that the changes do not amount to a redundancy process in accordance with clause A35 of the Agreement, and that the provisions of clause C10 (Academic Workloads) should apply. The Union also contended that the University had not complied with the terms of settlement reached with respect to the matter previously heard 2.

•  A letter from the University dated 25 October 2018 in reply to the Union’s Form 10 application.

•  A letter from the Union to the University dated 29 October 2018 in reply to the University’s communication of 25 October 2018 which inter alia indicated that the dispute was entirely unresolved.

•  A letter from the University to the Union dated 1 November 2018 which inter alia agreed that the dispute remains unresolved.

•  Correspondence between the parties in relation to the settlement of the matter previously heard 3.

[3] The matter was listed for Conference on 7 November 2018.

[4] Prior to the Conference the Union advised it would oppose any section 596 application by the University for legal representation and provided written submissions to that effect.

[5] Mr Andrew Short from Minter Ellison appeared for the University at the Conference with Professor Clare Pollock and Mr Steve Barrett. Ms Anne Buchecker from the Union appeared together with Mr Andrew Miller and Ms Juliet Fuller.

[6] Mr Short sought permission pursuant to section 596 on the basis of the complexity of the matter and submitted that representation would allow the matter to be dealt with more efficiently; which was particularly important as a result of the tight time frames that the change process needed to be completed within.

[7] The Union relied upon its written submissions which contended that:

•  The proper application of section 596 was as determined in Warrall v Walton 4.

•  That the dispute principally related to the application of clauses A35, A30, C10, C12, Schedule 11 and C13 of the Agreement.

•  These clauses are not complex, nor are the issues in dispute.

•  The Union contended that the matters were “so well-rehearsed” by the parties that there is no gain in efficiency from involving an outside party which has not had involvement. The Union contended that the involvement of such a party would further complicate the matter and impede efficiency.

•  The University has a large “People and Culture” section with a breadth of workplace relations expertise and a Director with significant advocacy experience.

•  The Union will be represented by its industrial officer who is experienced but not legally qualified.

Applicable Law

[8] Section 596 of the FW Act 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.

(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.”

[9] In Mr Christopher Patterson v Re-Engage Youth Services Incorporated T/A Re-Engage Youth Services 5,Deputy President Anderson summarised the judicial consideration of section 596 as follows:

“[9] The meaning of section 596 was recently considered by a Full Bench of this Commission in Fitzgerald v Woolworths 6. While that decision concerned whether a lawyer not acting as an advocate could be said to be “representing” a party, the Commission made the following general observations about the application of section 596 and its legislative history:

“[30] There is little authority on the scope or operation of s.596. Only two decisions are of significance. In Warrell v Fair Work Australia 7 the Federal Court (Flick J) dealt with a situation where, in an unfair dismissal proceeding before Fair Work Australia (as the Commission was then known), a lawyer was permitted to appear on behalf of the employer in a proceeding without the Senior Deputy President hearing the matter having given consideration to the requirements of s.596. The Court 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:

1. 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.

2. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission…In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.

……….

[32] The other authority is the Full Bench decision in NSW Bar Association v McAuliffe. 8 That decision is, for relevant purposes, authority for two propositions. The first is that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor did it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings. Section 596(2) was not intended to interfere with a party’s right to choose who its legal representative would be. The second proposition is that an error in the application of s.596 at a hearing does not necessarily require the decision that results from the hearing to be quashed if it does not result in any prejudice to a party.”

[10] The following extract of the decision in CEPU v UGL Resources Pty Ltd 9 is also relevant:

“…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”. 10

Consideration

[11] The operation of section 596 is such that that the University can only be represented by a lawyer (or paid agent) with permission of the Commission. The grant of permission is a discretionary decision to be made having regard to the three factors set out in subsection (2): efficiency (in the context of the complexity of the matter); fairness (in the context of a person’s capacity to effectively represent themselves); and fairness between the parties.

[12] The relevant starting point for the exercise of my discretion under section 596 is that granting permission should be seen as a departure from the default position that a party in a matter before the Commission must normally appear on its own behalf (to paraphrase the words of Flick J in Warrell). This proposition is consistent with the statutory scheme:

“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.” 11

[13] I have determined from my review of the materials provided, and the submissions of the parties, that the dispute is factually complex. This does not appear to be a straight forward restructuring exercise governed by an Agreement with commonplace consultation and redundancy provisions.

[14] There appears to be a dispute over the meaning of terms of the Agreement, how they interact and their application to the current circumstances.

[15] There appears to be a dispute over compliance with the Terms of Settlement agreed in respect of dispute which I previously heard 12.

[16] There is a need for this matter to be resolved promptly to give certainty to the University and the staff before the commencement of the 2019 academic year.

[17] The written communication indicates a level of animosity between the direct parties. In these circumstances, efficiency may well result from the participation of an external representative well versed in the law.

[18] I have had the opportunity to observe Ms Buchecker as an advocate previously, including in matters involving the University. Ms Buchecker is an experienced advocate, well versed in industrial law and industrial arrangements as they apply in the University sector. Whilst Ms Buchecker is not legally qualified, in my observation Ms Buchecker is well able to “hold her own” in the presence of legally qualified representative. It is not apparent to me that the Union would be at a disadvantage as a result of the University being represented.

[19] In all of the circumstances and having regard to the matters relevant to section 596(2) I am satisfied that the University has demonstrated that it has met the criteria specified in section 596(2)(a) and that on the basis of the material before me, it is an appropriate exercise of my discretion to grant permission to the University to be represented.

COMMISSIONER

Appearances:

A Short, with permission and C Pollock and S Barrett on behalf of the Applicant.

A Buchecker, A Miller and S Fuller for the Respondent.

Hearing details:

2018.

Adelaide.

7 November.

Printed by authority of the Commonwealth Government Printer

<PR702129>

 1   Matter no: C2017/3587.

 2   Ibid.

 3   Ibid.

 4 [2013] FCA 291.

 5   [2017] FWC 5459.

 6   [2017] FWCFB 2797, 17 October 2017 VP Hatcher, DP Dean, Wilson C.

 7 [2013] FCA 291.

 8   [2014] FWCFB 1663.

 9   [2012] FWA 2966, Senior Deputy President Richards

 10 Ibid at [16].

 11   Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291.

 12   Matter no: C2017/3587.