James Cole v Fire Rescue Victoria
[2023] FWC 1015
•1 MAY 2023
| [2023] FWC 1015 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
James Cole
v
Fire Rescue Victoria
(C2022/6928)
| COMMISSIONER WILSON | MELBOURNE, 1 MAY 2023 |
Alleged dispute about any matters arising under the enterprise agreement. Procedural decision. Applications for orders for attendance of persons and production of document; principles for those matters considered and applied to circumstances of this case; applications refused. Application for permission to be represented by a lawyer; principles considered and applied; application granted.
This decision concerns three procedural matters requiring determination relating to Mr James Cole’s application to the Fair Work Commission (the Commission) alleging a dispute with his employer Fire Rescue Victoria (FRV). The matters requiring determination are whether permission for representation by lawyers should be given to FRV; whether orders should be issued by me for the attendance before the Commission of up to 5 witnesses; and whether an order should be issued by me for the production of a particular document.
Mr Cole is a Leading Fire Fighter (LFF) engaged by FRV and his application to the Commission was made on 14 October 2022 pursuant to s.739 of the Fair Work Act 2009(Cth) (the Act). The application alleges a dispute arising under an enterprise agreement, the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020[1] (the 2020 Agreement). The matter has an extensive history including multiple conciliations and has now been programmed for a hearing on its merits, which will commence on Wednesday, 3 May 2023.
On 3 February 2023 the United Firefighters’ Union (UFU) gave notice that it sought to be made a party to the proceedings and be allowed to participate in future proceedings, even though LFF Cole was not represented by the UFU. In pressing this request, the UFU relied upon the decision of the Full Bench in United Firefighters Union of Australia v Mr Gavin Wright; Country Fire Authority.[2] LFF Cole initially objected to this course, however, withdrew his objection on 19 February 2022. The UFU was initially represented in the proceedings by its solicitors Slater and Gordon and Mr Hermann Borenstein KC, however since 14 April 2023 has been represented from within its industrial staff by Mr Jeremy Murphy.
Each of the three preliminary matters was the subject of a procedural hearing before me on 26 April 2023 at which LFF Cole appeared for himself; Ms Rebecca Preston of Counsel instructed by Hall and Wilcox appeared for FRV; and Mr Murphy appeared for the UFU.
At the conclusion of the procedural hearing I advised the parties that I would give consideration to their oral and written submissions and advise them at the earliest opportunity of my decision on each matter, which I did by email on 26 April 2023, with me advising that I granted FRV permission to be represented by lawyers while refusing the applications for orders for attendance of persons as witnesses; and the application for production of a document. The parties were also advised that reasons for decision on these matters would be provided at the earliest opportunity.
It is convenient for me to deal first of all with the potential orders for attendance of persons to give evidence and the proposed order for the production of an additional document.
Short background
By way of background the allegations made by the Applicant flow from events concerning him which took place at the Victorian Emergency Management Training Centre (VEMTC) at Craigieburn on and after 3 February 2021.
On that day there was an exchange between LFF Cole and another firefighter, Morgan Smith, and a member of the Centre’s catering staff. LFF Cole and Mr Smith were the subject of a complaint of some kind by the catering staff member which led to the two firefighters being approached by two FRV Commanders about what had occurred. Those events have led to numerous other events and interactions between LFF Cole, more senior firefighters, and managers of FRV. LFF Cole has also proceeded on workers compensation leave and still has not returned to work. The allegations put forward by LFF Cole in respect of the matter before the Commission are either that his actions were never the subject of proper investigation on the part of FRV, or alternatively, that they were the subject of decision-making which did not afford him procedural fairness or other rights accorded to him under the 2020 Agreement.
LFF Cole has an expansive view of the matters that could be the subject of a dispute arising under the 2020 Agreement and capable of resolution by the Commission, whereas FRV has a much narrower view. After consideration of the differences between the parties on the subject of the question for determination by the Commission in arbitration I determined the question to be the following:
“In relation to a meeting on 3 February 2021 attended by LFF James Cole and Commanders Bruce Gee and Cameron Adams at VEMTC Craigieburn and/or the management of any conduct concerns regarding the Applicant that were the subject of that meeting:
(a) was FRV required to follow the Management of Misconduct process set out in item 3 of Schedule 19 of Division A (Conduct Resolution) of the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (2020 Agreement)?
(b) did FRV comply with Schedule 19 of Division A (Conduct Resolution) and clauses 21 (Dispute Resolution) and 22 (Natural Justice and Procedural Fairness and Good Faith) of Division A of the 2020 Agreement?”
For its part FRV contends that these questions are broader than require determination by the Commission.
LFF Cole has provided materials which could be considered to be a written précis of his evidence-in-chief and for the attendance of people he considers to be associated with the dispute and who should give evidence of what occurred. He will need to adopt his written statements as his evidence once sworn or affirmed and then be subject to cross-examination by FRV and UFU representatives at least to the extent their materials suggest a different factual base to that set out by LFF Cole. Originally LFF Cole sought for a total of seven people to be ordered to give evidence, however two of those will give evidence on behalf of FRV, leaving a total of five potential orders for attendance. LFF Cole also sought two documents to be ordered for production to the Commission by FRV; one of the documents was ordered and provided in February 2023 and the other proposed order requires being dealt with in this decision.
Application for orders requiring a person to attend before the Commission
Application was originally made by LFF Cole on 16 and 28 February 2023 for orders to be made by the Commission for the attendance of seven people. I declined the orders at the time since it was not apparent to me then which, if any of the people for whom orders were proposed would be included within FRV’s witness list. In declining the proposed orders I gave leave to LFF Cole to renew his application after FRV had filed its material, which he has now done.
When FRV filed its material on 14 and 17 April 2023 it provided witness statements for Commander Bruce Gee and Ms Carolyn Laughton, both of whom were within the listed seven people for whom attendance orders were sought by LFF Cole. There were five remaining subjects of proposed attendance orders, who are listed below, together with the short particulars put forward by LFF Cole for orders to be issued for each:
16 February 2023 Application
Mr Alex Sands - Manager Employee Relations
“1. Mr. Sands is sought due to his involvement in the dispute at a meeting on 28 October 2022, statements he has made regarding the handling of the applicant’s case between 12 August 2021-present, and his role as Manager Employee Relations which has direct involvement in the application of Clause 21. A witness statement has been sought from Mr. Sands, but has been declined.
Ms Jo Crabtree - Director, People and Culture
“3. Ms. Crabtree is requested due to her involvement in the applicant’s case from 8 June 2022-22 September 2022, her presence at a meeting with the applicant on 9 September 2022, her role as Director of People & Culture overseeing FRV HR, and her being named by Mr. Dan Sleeman, former Director of Workplace Relations & Ethical Standards, as the person to whom he was handing ownership of the applicant’s case on his departure from FRV. A witness statement has been sought from Ms. Crabtree, but no response has been received.”
28 February 2023 Application
Station Officer Tony Martin
“2. SO Martin is sought as he approached the applicant & LFF Smith following the 3 February 2021 meeting, provided the only outcome of the meeting the applicant received prior to 11 February 2022, and was involved in the case in the week between 4 August and 12 August 2021, liaising with Commander Thorn & the applicant. A witness statement has been sought from SO Martin, but has been declined
Commander Andrew Thorn
“3. Commander Thorn is sought as he was the Southern District Commander provided with the 8 February 2021 statement & request for further action by the applicant, made and rescinded an offer of mutual resolution, was present at the 4 August 2021 meeting with the applicant, and was the individual to whom the applicant’s FRVSafe was assigned on 12 August 2021. A witness statement has been sought from Commander Thorn, but has been declined”
Assistant Chief Fire Officer Barry Gray
“4. ACFO Gray is sought as he was the Southern District ACFO approached by the applicant for assistance with the dispute in March 2021, was provided with significant information about the dispute by the applicant at that time, and was assigned to the s.21 dispute as the appropriate senior officer in October 2022. A witness statement has been sought from ACFO Gray, but no response has been received.”
Neither FRV nor the UFU agree to orders being made for the attendance of the above people. FRV argues their attendance lacks relevance to the matters to be determined and that bringing forward the above people as witnesses would only add unnecessary complexity to the hearing of the application. The UFU was content to adopt FRV’s submissions on these applications as well as arguing that there will be sufficient evidence available to the Commission about FRV’s case from Commander Gee and Ms Laughton.
The basis upon which the Commission assesses the issue of such orders is well-settled. The Commission has a wide discretion under s.590(2)(a) to require the attendance of persons to give evidence in a matter, with the evident purpose being set out in s.590(1), being that the Commission “may, except as provided by the Act, inform itself in relation to any matter before it in such manner as it considers appropriate”. In deciding whether or not to issue an order to attend, the Commission will consider whether attendance at the hearing by the person to whom the order will apply will assist in the resolution of the matter before it.[3]
Deputy President Saunders recently summarised the relevant principles for consideration of a proposed order for a person to attend the Commission in Dylan Thomas v Serco Australia Pty Limited[4] (Thomas):
“[9] In determining an application for an order to attend, the Commission will consider whether attendance at the conference or hearing by the person to whom the order will apply will assist in the resolution of the matter before it.[5] This will turn on the circumstances of each case. An order to attend may not be required or appropriate in circumstances where, for example:
(a) a party is yet to file its submissions and witness statements;[6]
(b) the person required to attend has filed a witness statement and will therefore voluntarily attend;[7]
(c) the person required to attend is a representative;[8]
(d) the person required to attend is not likely to be able to give evidence of apparent relevance to the issues in dispute;[9]
(e) where the person’s evidence is likely to be the same or corroborative of other persons who give evidence about the same matters and will add nothing to that evidence;[10]
(f) where the person’s evidence relates to agreed or uncontested facts;[11]
(g) where the person’s evidence is otherwise obtainable from relevant documents, CCTV footage or business records;[12] or
(h) where there is an unwarranted or disproportionate inconvenience or cost associated with ordering the person to attend the Commission, whether in person or otherwise, to give evidence.[13]” (endnotes in original)
Not all of the above Thomas elements will require consideration in this matter. In particular, all submissions and witness statements have been filed and the parties’ evidential and legal differences are well exposed through those filings. The orders pressed by LFF Cole are only in respect of five individuals who will not otherwise be giving evidence. One potential witness, SO Martin, acted in the alleged dispute as a union representative, however he is not participating in these proceedings as a representative, and the UFU does not object to his giving evidence, such as on the ground of privilege or similar. No person argues inconvenience or cost if any of the proposed orders were issued.
As a result, I do not further consider the Thomas elements (a), (b), (c) or (h). I will consider elements (d), (e), (f) and (g) in the context of each individual. Before doing so I note two matters of general application:
The questions requiring determination by the Commission are set out above, notwithstanding that FRV contests that the questions may still be too broad and that it may seek to persuade me that they should be narrowed, including for reasons of jurisdiction.
Aside from contemporaneous documents, the nature of this particular case is that evidence will come from one or more of three witnesses, LFF Cole himself, Commander Gee and Ms Laughton. Given the very comprehensive narrative provided by LFF Cole of the history of the matter, it is the case that much of the evidence about what took place and what was communicated to him will be from him alone. Ms Laughton has no direct knowledge of the circumstances of the dispute before October 2022[14] and Commander Gee apparently has knowledge of some events in February 2021 but none after about August 2021.[15]
I consider now the case for an order to be issued for attendance to give evidence of each of the five individuals.
Mr Alex Sands - Manager Employee Relations
LFF Cole submits he had a meeting with Mr Sands and others on 28 October 2022, which was followed by email correspondence and the provision of a letter. The communications with Mr Sands relate to endeavours to settle the matters within this dispute, as well as an enquiry about the outcome of an “FRVSafe”, being an internal Occupational Health & Safety incident report made by LFF Cole.
The FRVSafe was submitted on 12 August 2021 with LFF Cole only learning in December 2022 that the notification had been closed in August 2021 with Mr Sands stating to him that the closure notification had been sent to LFF Cole at his work email address. LFF Cole is critical that this occurred given that he was clearly not at work at the time or able to access FRV’s email system. LFF Cole also records Mr Sands as communicating that:
“… it appears to me that management of the matter through the workers compensation and return to work process was the appropriate way to deal with any risks to [the applicant’s] health and safety connected with the events which were the subject of your FRV safe. This was however subject to any other actions deemed necessary arising from the investigation – which apparently [there] were not.”[16]
LFF Cole’s evidence in these regards – that an FRVSafe was commenced and that he only learned of its closure many months later – may be accepted with there being no contradictory material put forward by FRV. While Mr Sand’s evidence on these and other matters will have apparent relevance to the matters requiring determination by me the evidence is unlikely to be greater than already put, at least in respect of the matters relevant to determination of the questions for determination. Consideration of Mr Sands’ likely evidence in the light of the residual Thomas elements (d), (e), (f) and (g) does not make a compelling case for him to be required to attend and give evidence.
Accordingly, the proposed order for the attendance of Mr Sands is refused.
Ms Jo Crabtree - Director People and Culture
LFF Cole submits that Ms Crabtree became involved in matters associated with this dispute when she took over the role previously occupied by Mr Sleeman. LFF Cole’s submissions include that in a meeting with him in May 2022 Mr Sleeman accepted the procedures of Schedule 19 the 2020 Agreement had been activated, but not properly so, and agreeing:
“… the initial meeting that occurred on 3 February 2021 should never have taken place, and further that his office would have authored the written notice that the applicant & LFF Smith should have been provided. Mr. Sleeman apologized on behalf of FRV for the treatment the applicant had received, and offered to put this apology in writing.”[17]
LFF Cole submits that when he attempted to engage Ms Crabtree about this commitment in a meeting with her on 9 September 2022 she prevaricated and failed to send him the promised letter. There is nothing in the Respondent’s material that would contradict this submission of LFF Cole. As a result, and if he confirms it as his evidence, the factual base put forward by LFF Cole may stand without the need for Ms Crabtree to be compelled to give evidence.
Consideration of the Thomas elements (d), (e), (f) and (g) does not lead to a need for Ms Crabtree to be required to attend and give evidence as the matters put forward about her involvement by LFF Cole are unlikely to be contradicted. The proposed order for the attendance of Ms Crabtree is refused.
Station Officer Tony Martin
SO Martin is mentioned in LFF Cole’s materials only in his capacity as a union delegate. His involvement in the matter was in the early stages of LFF Cole’s concerns.
In LFF Cole’s evidence SO Martin spoke with him and Mr Smith the day after the mess hall incident and informed them both “that the matter was finished and would not be going any further” assuring the two he was there as a union representative and not in any managerial capacity.[18]
While there was some further contact between LFF Cole and SO Martin between February 2021 and August 2021 such was in all cases with SO Martin acting in his capacity as a union representative.
LFF Cole submits that he was told by SO Martin “that the matter was finished”, presumably meaning that there was to be no further consequences for what had occurred. How and why those matters became known to SO Martin are not a subject of the questions for determination now before me. While LFF Cole is critical that SO Martin’s involvement demonstrated that personal information had not been kept confidential it is not said by LFF Cole within his materials that the failure in that respect is attributable to SO Martin.
As no contradictory position to the factual base put forward by LFF Cole is mooted by either FRV or the UFU consideration of the Thomas elements (d), (e), (f) and (g) does not favour an order for attendance to be issued. There is no adjectival relevance to the evidence that SO Martin may give in these proceedings. Accordingly, the proposed order for the attendance of SO Martin is refused.
Commander Andrew Thorn
LFF Cole seeks an order for the attendance of Commander Thorn since he was involved in the early stages of the matters that led to this dispute. LFF Cole submitted a statement to him in February 2021, following which LFF Cole submits that in March 2021 Commander Thorn offered to write a letter with a view to its content resolving the matter, however this was never provided.[19]
LFF Cole submits that in August 2021 Commander Thorn withdrew the offer upon the instructions of Commander Gee while advising there would be an investigation.[20] Commander Gee’s witness statement does not deal with these subjects, other than to deny he had ever agreed to provide a letter.[21] Within this context there does not appear to be a need for greater evidence on the subject from Commander Thorn. Whether withdrawal of the offer of a letter was on Commander Gee’s instructions can be tested by LFF Cole in his cross-examination of the former; however, the point of who decided not to provide the letter does not require positive resolution in order to decide the questions for determination. Factually there was no such letter even though LFF Cole puts forward that Commander Thorn agreed one should be provided.
Such further evidence as Commander Thorn may provide would not be adjectivally relevant to the questions for determination. Consideration of the Thomas elements (d), (e), (f) and (g) does not favour an order for attendance to be issued.
As a result, no order will be issued in respect of the attendance of Commander Thorn.
Assistant Chief Fire Officer Barry Gray
LFF Cole seeks ACFO Gray to be ordered to attend the Commission and give evidence since he was involved from about March 2021 when approached for assistance by LFF Cole, and was the senior officer assigned to deal with LFF Cole’s dispute.
“March 2021” may be a typographical error. The materials provided by LFF Cole do not support a finding that ACFO Gray was involved in matters associated with LFF Cole from March 2021. Instead, the file suggests his involvement in these matters appears to have commenced only in about March 2022 and then in relation to a decision by him not to allow LFF Cole to attend a commendation presentation. In pressing his claims for attendance at the presentation LFF Cole provided ACFO Gray with details of his wider dispute to which ACFO Gray did not respond. ACFO Gray appears to have had no substantive involvement in LFF Cole’s grievance after April 2022.
There is nothing within FRV’s materials which would lead me to form the view that they see a different factual involvement of ACFO Gray in these matters. As ACFO Gray’s involvement is limited and there appears to be no factual dispute between the parties about that involvement I see no basis for the issue of an order for the attendance of ACFO Gray.
Consideration of the Thomas elements (d), (e), (f) and (g) does not favour an order for attendance to be issued. As a result, no order will be issued in respect of the attendance of ACFO Gray.
Application for an order for the production of a document
LFF Cole seeks an order for the production of a document, described by him as follows:
“Draft letter to the applicant prepared between 20 May & 14 June 2022 by Daniel Sleeman, former Director of Workplace Relations & Ethical Standards at Fire Rescue Victoria, regarding allegations of misconduct, the application of Schedule 19 of the FRV EA 2020, FRV’s handling of the situation, and other undisclosed contents.”
The application for such order was originally made by LFF Cole on 31 January 2023 but was declined by me for several reasons, with leave for him to renew the application after FRV had filed its material. LFF Cole was advised at the time:
“[I am] not satisfied of the apparent relevance of the document sought and presently of the view that it may be a “fishing trip”. Ordinarily drafts do not illuminate the matter to be determined. Those concerns may be alleviated after the Applicant files his material and/or after the Respondent files its material. Accordingly, the application may be renewed prior to the hearing.
The Commissioner has formed these views taking into account the following principles:
In the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, with the test of relevance applied by courts usually also applied by the Commission.[22] Application of the tests requires examination of two questions:
“First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?”[23]
Consideration of the question of adjectival relevance looks toward the possibility of whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.[24] The documents must be of a nature capable of being relevant to an issue which may arise for determination in a hearing.[25] The concept of relevance for the purposes of production of documents is wider than the concept of relevance for the purposes of admission.[26]
There is a general presumption that a party will not be required to produce documents where to do so would be oppressive; for an irrelevant collateral purpose;[27] or where the application is a “fishing expedition”, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.”[28]
The context to the application includes LFF Cole’s submissions that on 20 May 2022 he met with Daniel Sleeman, then FRV’s Director Workplace Relations & Ethical Standards. Mr Sleeman is said to have expressed the view that:
“… as FRV has relied on s.2 ASSESSMENT[29], the initial meeting that occurred on 3 February 2021 should never have taken place, and further that his office would have authored the written notice that the applicant & LFF Smith should have been provided. Mr. Sleeman apologized on behalf of FRV for the treatment the applicant had received, and offered to put this apology in writing.”[30]
Mr Sleeman later confirmed to LFF Cole on 8 June 2022 a letter “had been drafted, but that provision of it would not be finalised prior to his departure from FRV”.[31]
While conceding she has not seen the letter, Ms Preston, Counsel for FRV, argues the letter is not the “smoking gun” LFF Cole might think it to be and that it would not be an appropriate exercise of the Commission’s powers to require production of a document that was never finalised.
I accept from LFF Cole’s materials that he will give evidence that he was promised a letter of apology from Mr Sleeman, but that such was never issued to him. Assuming he does so FRV has to live with that factual circumstance as it has not indicated through its filed materials an intention to contest LFF Cole on this matter, although what its relevance is to the questions for determination remains at this time an open question. Production of a draft would have no adjectival relevance to the matters requiring determination by me.
Accordingly, I refuse the application for an order for the production of the indicated document.
Permission for representation by a lawyer
FRV seeks to be represented in the forthcoming hearing by lawyers, and in particular, Rebecca Preston, of Counsel, instructed by Hall and Wilcox, solicitors.
For the reasons set out below, I am persuaded that it is appropriate for me to grant permission for FRV to be represented by lawyers with me reaching this conclusion having regard to the criteria within s.596 of the Act as well as the particular facts of the matter and the submissions made by each party to me about representation.
Determination of the question of representation requires consideration of s.596, which is in the following terms:
“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.
(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.”
In particular, FRV relies upon s.596(2)(a) and (b) as supporting its application.
In relation to s.596(2)(a), requiring consideration of whether legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, FRV submitted legal representation will enable its response to be confined notwithstanding the “multitude of issues raised by the Applicant”. The Applicant’s lack of representation, characterised by “the consequential lack of constraint in the matters he agitates” it is said weighs in favour of a grant of representation to FRV since it can provide guidance, avoid error and “minimise the risk of an appeal and the associated inefficiencies”. Ms Preston’s submissions about legal representation also took the Commission to the provisions of s.577, requiring the performance of functions and exercise of powers in a manner that is fair and just, as well as quick, informal, and avoiding of unnecessary technicalities. These considerations she argued favoured an exercise of discretion in favour of FRV being represented by lawyers.
FRV also submitted that legal representation will assist the Commission in dealing with issues of jurisdiction and power. In this latter regard it submitted CEPU v UGL Resources[32] stood for the principle that where a party raises a jurisdictional issue, permission for representation will usually be granted and certainly where the issues are complex and unable to be disaggregated from other parts of the hearing. It also referred with approval to the decision in Applicant v Respondent[33] in which Deputy President Sams opined that matters could be run more efficiently and with greater focus on the relevant issues when competent legal practitioners are involved.
In relation to s.596(2)(b), referring to the inability of FRV to effectively represent itself it submitted two matters; first that its lawyers involvement to date and the judgment exercised by them meant “that it would be unfair and liable to result in inefficiency for those who exercised this judgment to be excluded from the various hearings and prevented from addressing issues as they arise”;[34] and second that FRV “does not employ any person with the training and expertise to prepare and present the complex jurisdictional and legal arguments it intends to rely on at the hearing”. The first head of submission is simply not relevant to a determination under s.596(2)(b), it is no more than a repetition of the efficiency ground pertinent to s.596(2)(a). I give no further consideration to that part of FRV’s submissions in respect of s.596(2)(b). The second head of submission is dealt with at a later point in these reasons for decision.
The UFU does not oppose legal representation being granted to FRV.
LFF Cole objects to the application for FRV to be represented by lawyers, submitting that in his view the matter is not complex and deals only with the issue of whether there has been compliance with clauses 21 and 22 and Schedule 9. He argues there have been unnecessary technicalities raised by the Respondent, engineered to introduce complexity in order to justify representation. It cannot be unfair for an employer to be called upon to justify its actions under an enterprise agreement and it is reasonable for an employer to have to come to the Commission to explain its actions. LFF Cole submits there is an inherent unfairness for him to be pitted against the resources of FRV which has the means to retain lawyers to defend itself.
The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton[35]:
“[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”.”[36]
It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[37] It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.[38] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[39] Satisfaction of one of the s.596(2) criterions does not dictate that the discretion is automatically to be exercised in favour of granting permission.[40]
In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[41] Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.[42] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[43]
I am satisfied that the relevant complexity of this matter is twofold. First is the scope of matters required to be traversed in order to properly decide the questions for determination. The scope is necessarily narrow, with the proper enquiry being upon whether in the light of certain facts were three clauses required to be followed and were they followed. The relevant complexity in this first regard is ensuring the response as put in examination of the witnesses and oral argument fits the scope and avoids going wider where that will not inform determination of the questions. Second is that consideration of a dispute under the 2020 Agreement, perhaps more than would be the case for most enterprise agreements and especially in view of the relief sought by LFF Cole, necessarily requires consideration and application of complex legal principles.
FRV argued that that CEPU v UGL Resources had held that “Jurisdictional issues by their nature are often complex and may require expertise in case law and statutory interpretation. Where a party raises a jurisdictional issue, permission for representation will usually be granted”. To the extent that this is put forward as a rule to be followed for determination of permission for legal representation such would conflict with what was said by the Full Bench in ERGT Australia v Mr Kevin Govender, in which it was made clear that it was not the case that all jurisdictional issues were complex or that a decision rule followed the raising of a jurisdictional challenge:
“[51] We reject the proposition that jurisdictional issues are ‘by their nature’ complex. Some jurisdictional issues may properly be characterised as complex and others not. A case by case assessment is required, rather than the adoption of some general decision rule which assumes that all matters in which a jurisdictional issue arises are ‘complex in their own right’ and that ‘representation by a lawyer would be a reasonable course’. To the extent that Senior Deputy President Richards is to be understood as expressing a contrary view, we respectfully disagree.”[44]
I am satisfied that representation of FRV by lawyers has the likelihood of enabling the matter to be dealt with more efficiently. The material filed by the Respondent’s lawyers appears to assist in resolving at least some of the complexity referred to above, avoiding responding to all assertions and focussing the tribunal’s attention upon the key legal principles requiring application. I have more to say on this subject in respect of the matter of discretion, dealt with below, however relate those matters to the establishment of complexity and efficiency as well.
Satisfaction on those matters is a precursor to a grant of permission for legal representation pursuant to s.596(2)(a).
I am not though satisfied of the matters within s.596(2)(b), that it would be unfair not to permit legal representation as FRV is unable to represent itself effectively.
Senior Deputy President Richards considered the operation of s.596(2)(b) at length in CEPU v UGL Resources (which consideration has not been disturbed by Govender). I do not repeat his consideration here, other than to note it and that he concluded “the totality of the observed circumstances will be important, as will the genuineness of any asserted belief that is said to be held”.[45]
I doubt very much from the events associated with this file that I have observed that the various senior managers who have attended the numerous conciliations conducted by me in this matter would be unable to cogently explain to the Commission why FRV holds the views it does in this matter, notwithstanding the elements of complexity referred to above; how the 2020 Agreement is seen by them to operate; and how the relevant case law applies to them. My experience with FRV in this matter and many others concerning FRV and its predecessors is in fact to the contrary: the senior management and others who may attend the Commission on FRV’s behalf are well versed in industrial matters; are articulate and persuasive even in relation to workplace relations matters; and well-capable of explaining the operation of the enterprise agreement and its application to particular facts and circumstances. FRV therefore has failed to satisfy me that s.596(2)(b) is a ground for consideration of a grant of legal representation.
As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[46]
Having determined that the only ground enlivened by the Respondent’s application is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I consider that the possibility that there will be a significantly improved handling of the proceedings because of the Respondent’s representation is a factor in favour of the discretion being exercised.
I place significant weight in my exercise of discretion on the concessions given by FRV in the course of the procedural hearing in answer to questions from me about the status of unrebutted submissions made in LFF Cole’s filed material. LFF Cole documents at length conversations had with others as well as things communicated to him in writing. Many of those things have not been responded to at all in FRV’s material, as it does not see the matters as requiring rebuttal. Be that as it may, because many matters are not rebutted means they may be accepted by me as fact when it comes to deciding the merits of LFF Cole’s case, assuming he adopts and maintains them in his oral evidence. To take two matters from the discussion above about potential orders for attendance of witnesses as examples of the effect of FRV’s concession; since there is no contradiction of the following, they may be accepted as factual:
In March 2021 Commander Thorn offered to write a letter to LFF Cole with a view to its content resolving the matter, however this was never provided;
In May 2022 Mr Sleeman apologised to LFF Cole on behalf of FRV for the treatment the Applicant had received, and offered to put this apology in writing, which again did not occur.
These are but two of many examples that could be given and serve to illustrate that following FRV’s concession extensive and likely uncontrolled cross-examination of many witnesses will not be required. While, naturally, LFF Cole will need to adopt his written materials as his evidence and be open to cross-examination on the subjects within, it would not be open to FRV in cross-examination to now expand its case against LFF Cole to include facts it contested but which had not been rebutted by its own evidence.
This concession on the part of FRV has the potential to bring considerable efficiency to the proceedings by truncating the evidential part of the case very considerably without – importantly for LFF Cole – denying the opportunity for him to rely upon many of the facts he asserts. FRV’s concession has shifted the dominant part of the debate in the forthcoming hearing from “what are the facts” to “what does the 2020 Agreement permit or require to be done about them”. I accept these matters enliven the considerations within s.577 and leans in favour of an exercise of discretion toward FRV being represented by lawyers.
I would have been reluctant to exercise discretion in favour of FRV’s representation by lawyers without adoption of this stance. Had there been a prospect of a much wider and longer factual debate it would have been unlikely the exercise of discretion would favour FRV. In such case it would not be seen as a model litigant, but rather one intent on putting a current employee to the test on every potential issue with a consequential lack of alignment with the requirements of s.577.
Against these matters I need to take into account that there is the potential for an imbalance to arise in the proceedings because of FRV being represented by a skilled and professional advocate. In this regard LFF Cole submits that he is a self-represented applicant pitted against his large and well-resourced employer which can afford the retention of solicitors and counsel to resist his claims. Having heard LFF Cole in the several conciliations and mention hearings conducted to date, I do not hold the view that he will be disadvantaged through a grant of permission for legal representation to the Respondent. He has a good knowledge of the Commission’s procedures, including for how matters are decided through arbitration and has used the Act’s provisions to seek the attendance of witnesses and production of documents. The requirements of the Commission’s Practice Note: Fair Hearings provide for the presiding member “to provide appropriate assistance to parties in the presentation of their case, in particular self-represented parties. This means that in some circumstances a Member has an obligation to intervene, both for the benefit of a self-represented party and more generally”.[47] LFF Cole may also raise in the course of the hearing questions about the conduct of his case or procedure that should be followed.
On balance, I consider that the matter of potential efficiency to be gained through the grant of representation outweigh the matters referred to by LFF Cole.
FRV is therefore granted permission to be legally represented in the forthcoming proceedings in this matter.
COMMISSIONER
Appearances:
Mr J. Cole for himself
Ms R. Preston for FRV
Mr J. Murphy for the UFU
Procedural Hearing details:
Melbourne (via video);
26 April;
2023.
[1] PR720617.
[2] [2020] FWCFB 3315, [47].
[3] Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 3847 at [46].
[4] [2023] FWC 386.
[5] Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 3847 at [46].
[6] Mocanu v Kone Elevators Pty Ltd[2018] FWC 1335.
[7] Day v Drake Trailers Pty Ltd[2015] FWC 2644; Wissell v Twentieth Super Pace Nominees Pty Ltd[2019] FWC 7539; Mocanu v Kone Elevators Pty Ltd[2018] FWC 1335.
[8] Day v Drake Trailers Pty Ltd[2015] FWC 2644.
[9] Uijland v Airservices Australia[2020] FWC 3613; Hu v Shanghai Garden Chinese Restaurant[2020] FWC 1308.
[10] Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 3847; Day v Drake Trailers Pty Ltd[2015] FWC 2644.
[11] Uijland v Airservices Australia[2020] FWC 3613.
[12] Uijland v Airservices Australia[2020] FWC 3613.
[13] Uijland v Airservices Australia[2020] FWC 3613.
[14] Witness Statement of Carolyn Laughton at [17].
[15] Applicant Outline of Submissions at [5]; Witness Statement of Bruce Gee at [21].
[16] Applicant Outline of Submissions at [113].
[17] Applicant Outline of Submissions at [90].
[18] Applicant Outline of Submissions at [14].
[19] Applicant Outline of Submissions at [16] – [17].
[20] Applicant Outline of Submissions at [50].
[21]Applicant Outline of Submissions at [20] – [21].
[22] Clermont Coal v Brown and Others[2015] FWCFB 2460, at [19].
[23] ANF v VHIA[2011] FWA 8756, at [13]; see also Trade Practices Commission v Arnotts Limited [1989] FCA 248, at [44].
[24] Ibid, at [13].
[25] Clerks (Alcoa) Case (1988) Print H2892.
[26] Santos Ltd & Others v Pipelines Authority of SA [1996] SASC 5628, [87], cited in Australian Municipal, Administrative, Clerical and Services Union v Moreland City Council[2017] FWC 3283, [35].
[27] Re Trade Practices Commission v Arnotts Limited Biscuits Limited [1989] FCA 248, [38].
[28] Clerks (Alcoa) Case (1988) Print H2892.
[29] Being part of the 2020 Agreement’s Schedule 9, the application of which to Mr Cole is contested.
[30] Applicant Outline of Submissions at [90].
[31] Applicant Outline of Submissions at [91].
[32] [2012] FWA 2966.
[33] [2014] FWC 2860.
[34] Respondent’s Application for Permission to be Represented at [4].
[35] [2013] FCA 291.
[36] Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
[37] Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5].
[38] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[39] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].
[40] Govender, [48].
[41] King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].
[42] Ibid [17].
[43] Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].
[44] [2021] FWCFB 268.
[45] [2012] FWA 2966, [21].
[46] Warrell v Fair Work Australia [2013] FCA 291, [26].
[47] Practice note: Fair hearings (2016) Fair Work Commission < at 1 May 2023.
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