Independent Education Union of Australia v Monash College Proprietary Limited

[2016] FWC 2614

[2016] FWC 2614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Independent Education Union of Australia
v
Monash College Proprietary Limited
(C2016/2447)

COMMISSIONER BISSETT MELBOURNE, 26 APRIL 2016

Alleged dispute about any matters arising under an enterprise agreement - permission to be represented - permission granted.

[1] The Independent Education Union of Australia (the IEU) has made an application for the Fair Work Commission (the Commission) to deal with a dispute arising under the Monash College Proprietary Limited (Monash University Foundation Year Teaching Staff) Agreement 2012 (the 2012 Agreement). The application is due to be heard by arbitration on 28 and 29 April 2016.

[2] Monash College Pty Ltd (the College) has sought permission to be represented by a lawyer in thearbitration of the matter. The IEU oppose the application. This decision deals with the question of permission only.

Legislation and approach to the question

[3] Section 596 of the Fair Work Act 2009 (the Act) deals with when permission may be given for a party to be represented by a lawyer or paid agent in matter before the Commission. It states:

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.

[4] It is well established that in order to exercise the discretion available to the Commission to grant permission to be represented, one of the conditions in s.596(2) of the Act must first be met. Such a condition having been met does not then make representation automatic but remains at the discretion of the Commission.

[5] A Full Bench of the Commission confirmed this approach in Oratis v Melbourne Business School 1where it said:

[3] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in Warrell v Walton (followed by a Full Bench of this Commission in New South Wales Bar Association v Brett McAuliffe):

“[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”.”

...

[5] It is apparent from the above reasoning that the Commissioner understood and applied the correct approach to s.596 as stated in Warrell v Walton, namely that in order for permission for representation to be granted under the section, it was necessary first to be satisfied that at least one of the three alternative jurisdictional prerequisites in s.596(2) applied, and second to exercise the statutory discretion in favour of the grant of permission. It is further apparent that the Commissioner was satisfied that the jurisdictional prerequisite in s.596(2)(a) applied.

Submissions

Monash College

[6] The College submits that the dispute before the Commission is one of some legal complexity, involving:

• the proper construction of clause 9.6 of the 2012 Agreement;

• the Commission’s jurisdiction to grant the relief sought by the IEU and, if it does have jurisdiction, the appropriateness of such relief;

• the structure and analysis of factual matters including the history of teaching in the Foundation Year course, changes to enrolments and factors influencing enrolments.

[7] Given this complexity The College submits that the matter can be dealt with more efficiently if permission is granted.

[8] Further, The College submits that the IEU will be represented by a person who, although employed by the IEU, is a registered legal practitioner. In these circumstances it says it would be unfair not to allow the College to be represented by a lawyer.

[9] In response to the IEU submissions the College says that:

• the CEO is a critical witness in the matter and it would be unfair to require her to also perform the role of advocate for the College;

• no contention has been made that any of the HR staff of the College have any legal training;

• there will be a lack of fairness if one party can be represented by a trained lawyer and the other by a person with no such training;

• HR personal of the College could not represent the College in the arbitration effectively.

Independent Education Union

[10] The IEU says that it is the prime facie position of the Act that parties should represent themselves in matters before the Commission.

[11] The IEU says the current dispute before the Commission does not involve any matters of legal complexity. The matter for determination is a ‘single very narrow matter of application of a single agreement clause to the employment of a number of staff on fixed-term contracts.’ The question before the Commission is whether a number of staff are being employed in conformity with the Agreement.

[12] The IEU says that the College has its own human resources department as these staff have participated in the conciliation of the application. Further, it says that the CEO of the college is legally qualified and is a member of Australian Human Resources Institute (AHRI). Further, it submits that the College has access to the Monash University industrial relations expertise.

[13] The IEU submits that allowing the College to be represented by Queen’s Counsel in this matter would create unfairness, defeating the purpose of s.596(2)(c) of the Act.

Consideration

[14] In considering this matter I have had the benefit of written submissions of the parties and of having received the written submission and witness evidence to be relied on in advance of the hearing and in considering this application. This material has been of assistance in resolving this question.

[15] In deciding if any of the preconditions set out in s.596(2) of the Act have been met it is the totality of the material that I have before me that is relevant. This does not preclude representation just because there is no complexity in one part of the case (for example what the clause says) but complexity in another (for example remedy), but it seems to me this is regularly encountered in matters that come for arbitration before the Commission.

[16] Further, the question to determine is if permission should be granted for representation by a lawyer (in this case), not a particular lawyer. This was the matter well resolved by the Full Bench in New South Wales Bar Association v Brett McAuliffe and Commonwealth of Australia represented by the Australian Taxation Office 2 in which the Full Bench found:

[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] This matter involves some contest as to the proper construction of a clause in the 2012 Agreement and its practical application in the workplace. This will most probably (at least on the College’s submissions) include the question of the relevance of certain factors in the application of the provision. It is my experience that such factors are often not straight forward, particularly when they are matters outside the control of the parties such as international student enrolments. The question of how these are taken into account and or properly assessed is not necessarily straight forward. How they may apply to a number of individuals may be even more complex. These matters, of course, must be determined in the context of the 2012 Agreement.

[18] The College intends to rely on evidence of four individuals and seek to rely on the statutory declaration of another. The IEU relies on two witness statements.

[19] Having considered these matters I am satisfied that there is some complexity to the matter before me particularly in relation to those matters that should be taken into account in determining if an employee is properly engaged on a fixed term basis. My experience leads me to conclude that, given these complexities, the matter may be dealt with more efficiently if permission was granted.

[20] In terms of fairness, the IEU says it would create unfairness to it to allow the College to be represented by Queen’s Counsel. This submission misunderstands the test imported by s.596(2)(c) of the Act. The assessment must be done from the perspective of the party seeking permission to be represented. The question to be answered is if it would be unfair not to allow the College to be represented given the circumstances of the IEU, not whether the grant of the representation would create unfairness to the IEU (although this is a matter that I might consider in considering the exercise of my discretion). In any event, as outlined above, the determination I am asked to make is not who should represent the College but if representation should be granted.

[21] In this case I do not accept that it is reasonable to expect the CEO of the College to represent the college in proceedings. Whilst she may have a legal background there is nothing to indicate that she is an experienced advocate or practices law. Further, she is a witness in the proceedings. Such background does not mean that the CEO would be able to effectively represent the College.

Conclusion

[22] I am satisfied that the prerequisite for consideration of the grant of representation has been satisfied in that it would enable to be dealt with more efficiently given its complexity if permission was granted. That is, I am satisfied that the condition precedent in s.596(2)(a) of the Act has been met.

[23] I have carefully considered whether I should exercise my discretion to grant permission to the College. These are difficult considerations given the predisposition of the Act that parties should represent themselves. While it may well have been envisaged that legal representation would not be necessary in most cases I have reached the conclusion that this is one of those cases where I should exercise my discretion and grant permission.

[24] I have reached this conclusion taking into account the dimensions of the case before me, the extensive material filed by the parties and the history of the matter. Apart from the apparent legal and HR background of the CEO no submission is made that other staff in HR area of the College have the capacity to advocate on behalf of the College in the arbitration of the matter.

[25] For these reasons permission is granted to the College to be represented by a lawyer.

COMMISSIONER

Final written submissions:

Applicant, 18 April 2016

Respondent, 18 April 2016

 1   [2014] FWCFB 3869.

 2   [2014] FWCFB 1663.

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