H v Centre

[2014] FWC 6349

[2014] FWC 6349

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.604—Appeal of decisions

H
v
Centre and Others
(C2014/6240)

DEPUTY PRESIDENT SMITH MELBOURNE, 17 SEPTEMBER 2014

Application to stay a decision [[2014] FWC 6128] issued by Commissioner Wilson at Melbourne on 4 September 2014 in matter number AB2014/1146.

[1] The following decision, now edited, was issued during proceedings conducted on 9 September 2014.

[2] This decision concerns an application made by Ms H for a stay of a decision of Wilson C dated 4 September 2014. The proceedings before Wilson C involved an application for the Fair Work Commission to stop bullying. As a part of those proceedings, the respondent sought to be represented by a lawyer. Wilson C gave permission for such representation.

[3] The principles concerning whether a stay application will be granted are well established. I must be satisfied there is an arguable case with some reasonable prospect of success in respect of both the grant of permission to appeal and the substantive merits of the appeal. In addition, I must be persuaded that the balance of convenience weighs in favour of the decision, the subject of the appeal being stayed. Each of these elements must be established before a stay order is granted.

[4] The appeal against the Commissioner’s decision relies upon three main grounds. They are that:

● the Commissioner overstated the ability and the qualifications of the applicant’s representative to present the case and therefore the Commissioner made an error of fact about the applicant’s representative.

● the applicant believes that she would be disadvantaged and granting permission for a lawyer to represent the respondent creates an unfairness.

● there was no finding in the decision concerning the greater complexity of the matter.

[5] The appellant drew my attention to a decision of Lewin C in Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria [[2011] FWA 1520].

[6] The respondent supports the decision of the Commissioner and argues there is no appealable error. It was submitted that the Commissioner properly exercised his discretion on a matter of practice and procedure. It was also submitted that the balance of convenience does not favour the granting of a stay given the importance of dealing with these matters quickly and where the employment relationship is still on foot. It was further submitted that if the stay is granted, the hearing before Wilson C tomorrow may be lost.

[7] Appearance and participation in proceedings in the Commission involves the direct parties. However, s.596 of the Fair Work Act 2009 (the Act) provides a discretion for a member of the Commission to grant permission for a lawyer or paid agent to be a representative in the circumstances established by s.596(2). Once the jurisdictional prerequisites have been established, it is a discretionary and procedural judgment. In the present matter, the Commissioner was satisfied that representation by a lawyer would most likely “allow the matter to be dealt with more efficiently taking into account the number of witnesses to be heard and the issues to be determined” [[2014] FWC 6128] paragraph 17].

[8] In making his finding and exercising his discretion, the Commissioner considered the nature of the case; the number of witnesses and the contest in the evidence; the decision of the Court in Warrell v. Walton [[2013] FCA 291, (2013) 233 IR 335 at [24]]; the resources of the respondent; the ability of the applicant through her representative to deal with the matter; the obligations of counsel; the role of the Commission in assisting self-represented litigants; the Commission’s fair hearing practice note and the form the proceedings would take.

[9] One area of fact which was said to be important was the professional standing of the applicant’s representative. It was argued that he was not a professional and relied significantly on others to assist in the preparation of material. This may constitute a misunderstanding by the Commissioner but in these proceedings the applicant’s representative dealt with the matters cogently and properly. However, that issue goes to discretion not a jurisdictional fact, that is whether or not the matter would be dealt with more efficiently given its complexity. On this matter, there is considerable material for the Commissioner to reach the conclusion he did.

[10] I am not persuaded by the submissions put in this hearing that the appellant has established an arguable case that permission would be granted on the basis that it would be in the public interest to do so. Similarly, I am not persuaded that the submissions or the grounds of appeal as currently argued establish an arguable case on the merits of the appeal. It follows there is no need for me to consider whether or not the balance of convenience would favour the grant of the stay order. I refuse to issue a stay in the matter.

DEPUTY PRESIDENT

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