IRVINE and WORKCOVER WA
[2014] WASAT 146
•31 OCTOBER 2014
IRVINE and WORKCOVER WA [2014] WASAT 146
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 146 | |
| WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 (WA) | |||
| Case No: | VR:126/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 31/10/14 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NIGEL PETER IRVINE WORKCOVER WA |
Catchwords: | Registered agent Refusal of application Sufficient knowledge |
Legislation: | Legal Profession Act 2008 (WA) State Administrative Tribunal 2004 (WA), s 17 Workers' Compensation and Injury Management Act 1981 (WA), s 277(1), s 277(2), s 277(3)(a) Workers' Compensation and Injury Management Regulations 1982 (WA), reg 27A(c), reg 26, reg 26(a), reg 28(2a)(c), reg 29(1)(b), reg 41 |
Case References: | Frew v Donate Life (N.M.A.H.S) [2014] WADC 96 O'Toole and Workcover WA [2014] WASAT 11 Purje v Catholic Education Office [2008] WACC C-2008 |
Orders | On the application determined on the documents by the President, Justice Curthoys, it is on 31 October 2014, ordered that:,1. Mr Irvine's application is dismissed. |
Summary | The applicant applied to be registered as an independent agent under the Workers' Compensation and Injury Management Act 1981 (WA). Regulation 26 of the Workers' Compensation and Injury Management Regulations 1982(WA) requires an applicant to demonstrate sufficient knowledge of the workers' compensation jurisdiction to enable the applicant to represent a party effectively. Although the applicant had extensive experience as an individual advocate, he failed to demonstrate sufficient knowledge of the jurisdiction.,His application was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 (WA) CITATION : IRVINE and WORKCOVER WA [2014] WASAT 146 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 31 OCTOBER 2014 FILE NO/S : VR 126 of 2014 BETWEEN : NIGEL PETER IRVINE
- Applicant
AND
WORKCOVER WA
Respondent
Catchwords:
Registered agent - Refusal of application - Sufficient knowledge
Legislation:
Legal Profession Act 2008 (WA)
State Administrative Tribunal 2004 (WA), s 17
Workers' Compensation and Injury Management Act 1981 (WA), s 277(1), s 277(2), s 277(3)(a)
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 27A(c), reg 26, reg 26(a), reg 28(2a)(c), reg 29(1)(b), reg 41
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant applied to be registered as an independent agent under the Workers' Compensation and Injury Management Act 1981 (WA). Regulation 26 of the Workers' Compensation and Injury Management Regulations 1982 (WA) requires an applicant to demonstrate sufficient knowledge of the workers' compensation jurisdiction to enable the applicant to represent a party effectively. Although the applicant had extensive experience as an individual advocate, he failed to demonstrate sufficient knowledge of the jurisdiction.
His application was dismissed.
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr N van Hattem
Solicitors:
Applicant : N/A
Respondent : State Solicitor for Western Australia
Case(s) referred to in decision(s):
Frew v Donate Life (N.M.A.H.S) [2014] WADC 96
O'Toole and Workcover WA [2014] WASAT 11
Purje v Catholic Education Office [2008] WACC C-2008
Introduction
1 On 15 May 2014, the applicant, Mr Nigel Peter Irvine, applied to the respondent, WorkCover WA (WorkCover), to become an independent agent. On 4 July 2014, Mr Irvine's application was refused by WorkCover.
2 Mr Irvine applied to the Tribunal to be registered as an independent agent. Mr Irvine's application is dismissed.
Agreed facts and determination on the documents
3 Mr Irvine and WorkCover filed a statement of agreed facts dated 28 August 2014. A statement of agreed facts should set out an agreement between the parties as to the facts.
4 The statement of agreed facts filed by Mr Irvine was often expressed in the form 'The Applicant said'. Such statements are essentially unhelpful because they do not really resolve the facts between the parties. That one party said this or that is largely irrelevant, unless precisely what was said is a relevant fact. It was not in this matter.
5 On 12 August 2014, it was ordered that this matter be determined on the documents.
6 A statement dated 11 September 2014 was filed by Dr Robert Guthrie on the basis of his expertise in the workers' compensation jurisdiction. Dr Guthrie has not given any evidence that he has any knowledge of Mr Irvine's particular circumstances. His evidence is of a general nature.
The Tribunal's jurisdiction
7 Regulation 41 of the Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations) permits Mr Irvine to apply for a review of WorkCover's refusal to register him. He applied on 10 July 2014.
8 The Tribunal's review of WorkCover's decision is within the Tribunal's review jurisdiction (s 17 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act)).
9 The review of a reviewable decision by the Tribunal is by way of fresh consideration of the matters in issue, (i.e. a hearing de novo). The Tribunal is to make a fresh decision in place of the original decisionmaker, rather than review the decisionmaker's decisionmaking process (O'Toole and Workcover WA [2014] WASAT 11 (O'Toole) at [14]).
The purpose of the Act
10 Paragraph 1 and 2 of the Explanatory Memorandum to the Workers Compensation Reform Bill 2004 (Reform Bill) sets out what Parliament intended for the Act and the objectives of the Reform Bill:
… to ensure workers are adequately compensated, provided with assistance to return to work and employers are not burdened with additional costs due to inefficiencies in the system. …
to ensure the workers' compensation system balances the interests of workers and employers;
to establish a fair and efficient system with more stable and cost efficient protection for employers while providing improved levels of support and compensation to injured workers[.]
The legislation
11 Section 277(2) of the Workers' Compensation and Industry Management Act 1981 (WA) (the Act) provides that 'a person to whom this section applies may apply for registration as an agent in accordance with the regulations'.
12 Section 277(1)(f) of the Act provides that the section applies to a person prescribed by the Regulations.
13 Regulation 27A(c) provides that 'persons to whom section 277 of the Act does not otherwise apply and who act, or propose to act, as independent agents in the Conciliation Service or the Arbitration Service' may apply for registration as an independent agent.
14 Section 277(3)(a) of the Act states that the Regulations are to:
provide for a scheme of registration of persons for the purposes of this section and the procedure for obtaining registration[.]
15 Regulation 28(2a)(c) requires an applicant to provide 'a statement setting out the qualifications of the applicant, or any experience of the applicant, that demonstrates sufficient knowledge of the workers' compensation jurisdiction to enable the applicant to represent a party effectively'.
16 Regulation 29(1)(b) of the Regulations states that WorkCover may refuse to register an applicant if 'in the case of an application by an independent agent, the applicant is not a fit and proper person to be a registered agent'.
17 Regulation 26 of the Regulations defines a fit and proper person as:
… a person who satisfies WorkCover WA that he or she -
(a) by reason of qualification or experience or both, has sufficient knowledge of the workers' compensation jurisdiction to represent a party effectively; and
(b) is of good character.
18 Regulation 26 must be interpreted in the context of the Act and in particular, in the context of s 277(1) which provides that this section applies to the following persons:
(a) an officer of an organisation as defined in the Industrial Relations Act 1979;
(b) an officer of an association of employers or employees registered under the Fair Work (Registered Organisations) Act 2009 (Commonwealth) or under another law of the Commonwealth prescribed by the regulations;
(c) a person employed by an insurer or selfinsurer;
(d) a person (other than a legal practitioner) employed by a legal practitioner or an incorporated legal practice;
(e) an employee or officer of an organisation prescribed by the regulations;
(f) a person, or a person in a class of persons, prescribed by the regulations.
19 It can be seen that each of the categories to which s 277(1)(a) (e) apply involve persons who operate within an organisation. Therefore, they operate with supervision. Such persons can gain experience within an organisation and then move on to be an independent agent.
Sufficient knowledge
20 The essential element of sub-regulation 26(a) is that Mr Irvine must demonstrate sufficient knowledge of the workers' compensation jurisdiction to represent a person effectively. The applicant's knowledge is an essential element of his or her ability to represent a person effectively.
21 The words 'sufficient knowledge' and 'represent a party effectively' should be interpreted having regard to their ordinary meaning, their usage in the Regulations and the intention of the Act.
22 The Macquarie Concise Dictionary (4th ed, 2006) (MCD) defines 'sufficient' as 'enough or adequate'.
23 The MCD defines 'effective'' as 'serving to effect the purpose; producing the intended or expected results'.
24 The Regulations link 'sufficient knowledge' with the phrase 'represent a party effectively'. The linkage requires an applicant to have enough or sufficient knowledge to produce the intended or expected results for his or her clients.
Of good character
25 It is not in issue that Mr Irvine is of good character.
The role of registered agents
26 In order to determine whether a person is a fit and proper person, it is important to understand the role of registered agents.
27 In O'Toole, Sessional Member Hilton Dembo described the functions of Workcover and registered agents in the following terms:
[WorkCover] registers and regulates registered agents under the Regulations. Registered agents are required to comply with the [registered agents code of conduct].
… Registered agents at all relevant times represent clients in workers' compensation claims and appear before arbitrators in the Dispute Resolution Directorate under [the Act]. In acting for clients in attempting to settle workers' compensation claims and appearing as their advocates, registered agents act in many respects as a barrister or solicitor would.
28 The similarity between registered agents and legal practitioners was stated by His Honour Judge Derrick in Frew v Donate Life (N.M.A.H.S) [2014] WADC 96 (Frew).
29 In Frew, a worker had been represented in a workers' compensation matter by a registered agent. An arbitrator found against the worker. On appeal, the worker argued (in part) that, having been represented by an independent agent rather than a lawyer, the arbitrator was required to act with:
'at least … some of the caution that is required when a litigant is actually self-represented' so as to ensure that the rights of the appellant were not obfuscated by her representative's advocacy: Neill v Nott[1994] HCA 23; (1994) 121 ALR 148, 150.
30 In relation to that submission, Derrick DCJ held in Frew at [69]:
I do not consider that the fact that the appellant's representative was a registered agent under the Act as opposed to a legal practitioner provides a basis for concluding that the arbitrator was required to direct the applicant to make an application to adduce the up to date progress medical certificates. To arrive at such a conclusion would in my view be inconsistent with the fact that the Act expressly provides for parties to be represented by registered agents such as the appellant's representative; that is, by persons who by reason of qualification or experience or both have sufficient knowledge of the workers' compensation jurisdiction to represent a party effectively.
(See also His Honour Judge McCann in Purje v Catholic Education Office [2008] WACC C-2008)
31 A legal practitioner must first complete a period of supervised practice (s 50 of the Legal Profession Act 2008 (WA) (LP Act). A legal practitioner is answerable to the Legal Practice Board.
32 A legal practitioner is required to have sufficient knowledge to advise and represent clients and be bound by ethical restraints.
33 Regulation 29(l)(b) imposes similar requirements on registered agents.
34 Unlike admission to legal practice, a person registered as a registered agent is entitled to unrestricted practice as an agent from his or her first day from registration.
35 The LP Act contemplates that legal practitioners are not competent to represent parties effectively from day one of their practice. However, they are subject to supervision and guidance. Ultimately, their law firm is responsible for their competence.
36 Similarly, registered agents within s 277(1)(a) (e) are subject to supervision. Independent agents are not subject to supervision. Independent agents should only be registered if they can represent parties effectively from day one of their registration. Experience is, in effect, a substitute for the supervision to which other classes of registered agents and legal practitioners are subject.
37 The Act provides a path for nonlegal practitioners to be able to represent workers independently by gaining sufficient knowledge through experience within the classes set out in s 277(1)(a) (e).
38 It is not the case that every applicant to become an independent agent must come through the path of s 277(1)(a) (e), but the section does provide the context for assessing the necessary level of experience.
39 Registered agents and legal practitioners are subject to different regimes. However, having regard to the above authorities, and the similar degree of dependence workers necessarily place on representatives as they would on legal practitioners, an applicant to become an independent agent needs to demonstrate a sufficient level of knowledge pursuant to reg 29(l)(b) of the Regulations in order to represent a party from day one.
40 The phrases 'sufficient knowledge' and 'represent a party effectively' should be interpreted having regard to the dependence a party places on his or her representative.
Mr Irvine's qualifications
41 Mr Irvine completed a Bachelor of Commerce in 1993. Mr Irvine studied at Curtin University between 1992 1995. The degree mainly comprised law units. There was no dedicated unit for workers' compensation (Statement of Agreed Facts 7a to c).
42 Dr Guthrie states that 'in most instances workers' compensation is taught as a minor portion of an employment or industrial law course' (Guthrie, paragraph 1, page 5).
43 Mr Irvine submits that the unit Industrial Law 303 provided a detailed overview of the workers' compensation system, as it was in 1993 (Statement of Agreed Facts 7d).
44 Mr Irvine states that the Industrial Law 303 unit:
a) comprised four hours of lectures and two hours of tutorials relating to workers' compensation;
b) comprised an assignment containing elements of personal injuries and workers' compensation;
45 He further submits that:
a) the exam included elements of personal injuries and workers' compensation; and
b) the unit was delivered by Robert Guthrie, an acknowledged expert in the field.
- (Statement of Agreed Facts)
47 Dr Guthrie states:
In addition to the six hours instruction, students were required to compile an assessment for Law Industrial 303 and the progressive assessment for Law Industrial 303 always included some reference to workers' compensation and common law negligence. In addition, the examination likewise included questions or topics related to workers' compensation matters. (paragraph 9, page 3)
48 In 1993, there were no Western Australian textbooks on workers' compensation, although there were some guidance notes in relation to the Western Australian jurisdiction (Guthrie, paragraph 10, page 3).
49 In 1998, Dr Guthrie authored a loose leaf service on workers' compensation in Western Australia.
50 Dr Guthrie authored a report which led to significant amendments to the Act, resulting in the current dispute resolution model (Guthrie, paragraph 15, page 5).
51 There have been significant legislative and operational changes to the worker's compensation jurisdiction since 1993 (Guthrie, paragraphs 14 15, pages 4 5). A summary of many of those changes is set out in WorkCover's submissions:
(a) the introduction of the Conciliation and Review Directorate in January 1994 which substantially changed the model for dispute resolution;
(b) significant changes to laws affecting access to common law damages in October 1999 (retained in Subdivision 2 of Part IV of the Act);
(c) considerable reforms to benefits and key elements of the scheme under the Reform Act including:
(i) the establishment of the Dispute Resolution Directorate;
(ii) improvements to statutory benefits, taking effect from 4 January 2005;
(iii) the introduction of a new approach to the jurisdiction focused on 'injury management', taking effect from 14 November 2005;
(iv) further changes to common law thresholds and entitlements, taking effect from 14 November 2005;
(d) the establishment of the Conciliation and Arbitration Services on 1 December 2011, again substantially affecting the procedures and process for dispute resolution;
e) amendments in 2012 and 2013 affecting workers' compensation arrangements for specific workers;
(f) significant developments in case law since 1993 which must be understood in conjunction with the various amendments to the Act, particularly in relation to:
(i) the definition of 'worker' under the Act;
(ii) cross-border claims;
(iii) incapacity for work;
(iv) impairment assessment; and
(v) termination day for common law claims.
53 While some fundamental principles remain, the jurisdiction in 2014 bears very little resemblance to the jurisdiction which existed in 1993.
54 Dr Guthrie was a lecturer for one day seminars on workers' compensation three or four times a year from 1993 – 2005. He also presented at other seminars (Guthrie, paragraphs 18 91 pages 5 6). Mr Irvine has not given any evidence that he attended such seminars.
55 Dr Guthrie notes that the course 'stressed the need for legal research skills and legal writing' (Dr Guthie, paragraph 24, page 7).
56 Skills in legal research and writing are a part of every law unit. That skill does not of itself lead to a conclusion that an applicant has knowledge to any degree of a particular area of law.
57 WorkCover submits that Mr Irvine's lack of evidence of internet research is relevant. The absence of any evidence as to Mr Irvine's skills in internet research strikes me as irrelevant.
58 The Tribunal does not accept that six contact hours as part of a general unit on industrial law would be sufficient to impart anything other than a rudimentary knowledge of workers' compensation, even when the other aspects of the course are taken into account.
59 The Tribunal is not satisfied that, of itself, Mr Irvine's qualifications provide sufficient knowledge to effectively represent a party.
Mr Irvine's experience
60 Mr Irvine:
a) says he has 20 years' experience as an industrial relations registered agent in industrial relations negotiation, dispute resolution and representation in the WA Industrial Relations Commission, WA Industrial Magistrates Court and Fair Work Australia;
b) gives WorkCover examples of his negotiation skills in dispute resolution, unfair dismissal claims, enterprise agreements, sex discrimination, employment and termination issues and redundancy scenarios;
c) says he currently works as a consultant and representative agent to small and medium businesses (mainly, but not exclusively, in the mining and construction industries), and employees;
d) says he owns his own small engineering businesses (working in the mining industry), employing up to eight workers;
e) says he has 'managed' two minor workers' compensation claims associated with his small business. On each occasion, the worker had promptly returned to work. Neither claim involved injury management;
f) says that on one occasion, he attended a directions hearing at the Conciliation and Arbitration Services (CAS) to support a friend who he was representing in Fair Work Australia in a related unfair dismissal claim, and assisted in the negotiated settlement of the unfair dismissal claim. The friend was his brotherinlaw;
g) says that he has no other experience with CAS; and
h) says he has never negotiated or represented a party in relation to a disputed workers' compensation matter.
- (Statement of Agreed Facts paragraph 6).
… I have worked as an industrial agent providing advocacy, advice and representation for employers and employees before the WA Industrial Relations Commission, WA Magistrates Court, and Fair Work Australia.
Matters have ranged from writing employment contracts, enterprise agreements, staff dismissals, redundancies, entitlement claims, unfair dismissal claims, sex discrimination claims, union interference, fifo, mining regulations, OH&S procedures, theft, dishonesty, incompetence, malingering, breach of contract, sexual harassment, long service leave, to name a few.
On occasions I have also provided advice regarding workers['] compensation issues. From time to time I have been asked to represent clients before WorkCover WA, and I have had to decline such requests.
62 In an email dated 20 May 2014, Mr Irvine provided to WorkCover a list of the types of advice he has provided to his industrial relation clients. He states that this was not an exhaustive list, but examples of wide ranging issues that are regularly raised with him:
Workers Compensation issues ranged from those as basic as application processes or return to work strategies, to fraud and deceit. One example was where a business had an employee coming back off of workers' compensation but the employer did not have a position available as his business has come to a standstill. He wanted to put him off immediately but I counseled [sic] him to notify the worker and Workcover WA of the intention to dismiss as per section 84AB of the Act. Another instance is where a Form 1 had been misplaced and it looked like the application may have to be restarted. The client was able to backtrack and locate the original document and all was put on foot. Another instance was where a worker had left the [S]tate and was fraudulently drawing a benefit. The client was able to work with the insurer to expose the worker and seek redress (unfortunately he went overseas). A recent example was where an employer was uninsured but demanded a former employee be examined by another doctor for assessment. I counseled [sic] the employee that according to s 64 the employer is not able to direct him as he was uninsured.
63 WorkCover's submissions analysed those examples at paragraphs 24 36 of its submission. Suffice to say, the four examples provided by Mr Irvine are examples of what amount to little more than administrative matters under the Act.
64 Mr Irvine submits that to provide legal advice to clients requires detailed knowledge of the relevant legislation, regulations, rules and jurisdictional practices. To write submissions for commissions and courts requires experience and practice. Those skills do not of themselves lead to any knowledge of a particular jurisdiction.
65 Mr Irvine states that he maintained:
[A] comprehensive library of legislative Acts, Regulations and decisions. These include those covering the WA worker's compensation jurisdiction.
66 The existence of a library of resources does not, of itself, establish any knowledge of its contents.
67 Mr Irvine has provided negotiation advice and representation for employers and employees in industrial law for over 20 years. Negotiation, advice or advocacy would be common to all areas of law. Experience in such matters does not, of itself, provide sufficient knowledge, by way of experience, of the workers' compensation jurisdiction.
68 In Mr Irvine's submissions dated 16 September 2014, he gives details of his experience as an employer. He states that from 2007 to 2010, he owned an engineering business which employed up to eight employees. He states that, as an employer, he maintained workers' compensation cover and over that period he managed a number of workers' compensation injuries. Several injuries occurred while operating the business, including a sprained hand caught in a drill and welding slag in the eyes, both of which were short term injuries and returned to work fairly promptly
69 The Tribunal does not accept that, of itself, experience gained in the course of operating a business could contribute, by way of experience, sufficient knowledge to qualify as an independent agent. If it were, almost any employer could qualify.
Dr Guthrie – paragraph 24
70 Dr Guthrie's statement at paragraph 24 states that:
A student who had undertaken the Law Industrial 303 course in the early 1990's was probably part of the Human Resource Management stream. I taught many students who were undertaking that course with the intention of being employed in human resource management, occupational health and safety or as industrial advocates. In the Masters of Commerce thesis completed around 2003, I discussed the common themes in the law relating to industrial law, workers' compensation law and occupational health and safety. I observed that all three areas of law required knowledge of the contract of employment and that all three areas of law had similarities in the modes of dispute resolution. In addition, because of the changes to stress claims made in the workers' compensation jurisdiction in 1993, there was an overlap between unfair dismissal law and the various exclusion clauses relating to workers' compensation stress claims. That is to say, after 1993 workers who attempted to make a claim for stress related injury or disease were excluded if the condition arose out of management related matters such as redeployment, termination of employment or disciplinary matters. Those issues are commonly dealt with in the Industrial Commission. There were also common themes between workers' compensation industrial laws and occupational health, such as, the notion of wilful misconduct as it applies in those jurisdictions. A graduate who commenced work as an industrial advocate or agent shortly after graduation would be well prepared to be involved in workers' compensation matters. As noted above, each University degree has a certain shelf life and whether or not a person had continued to be immersed in a particular area of law or training would be relevant to whether or not they were capable of engaging in that area at the present time.
71 Ultimately, Mr Irvine's submissions rely heavily on paragraph 24 of Dr Guthrie's statement set out above.
72 As noted, Dr Guthrie's statement does not deal with Mr Irvine's particular circumstances.
73 If Dr Guthrie's statement is interpreted as submitted by Mr Irvine, then recognition as an industrial agent and experience in that field would qualify Mr Irvine as an independent agent under the Act.
74 However, what qualifies Dr Guthrie's statement is that 'whether or not a person had continued to be immersed in a particular area of law or training would be relevant to whether or not they were capable of engaging in that area at the present time'.
75 There is nothing in Mr Irvine's submissions that suggests that he has been immersed in workers' compensation. Indeed, there is nothing in his evidence to establish that he has had anything other than a peripheral involvement in that area.
76 Mr Irvine's experience is in no way analogous to the experience that he would have gained had he worked for a period as a registered agent with an organisation under s 277(1)(a) (e).
77 The Tribunal is not satisfied that Mr Irvine has demonstrated sufficient experience in the workers' compensation jurisdiction.
78 Further, the Tribunal is not satisfied that Mr Irvine's qualifications and experience in combination provides sufficient knowledge and experience of the workers' compensation jurisdiction to effectively represent a party.
Mr Irvine's application is dismissed.
Order
1. Mr Irvine's application is dismissed.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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