Jeffrey Swinson v Virgin Tech Pty Ltd T/A Virgin Tech

[2021] FWC 6256

[2021] FWC 6256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Jeffrey Swinson
v
Virgin Tech Pty Ltd T/A Virgin Tech
(C2021/4101)

COMMISSIONER CAMBRIDGE SYDNEY, 3 NOVEMBER 2021

Dispute settlement procedure - preliminary question about representation by lawyers or paid agents - s. 596.

[1] This matter involves an application made under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was made by Jeffrey Swinson (the applicant), and the respondent employer is Virgin Tech Pty Ltd T/A Virgin Tech (Virgin or the employer). The DSP upon which the application has been made is found at clause 11 of the Virgin Tech Enterprise Agreement 2020 (the 2020 EA).

[2] This Decision is confined to the discrete question as to whether the Commission should grant permission for the employer to be represented by a lawyer or paid agent (the representation question).

[3] The application was filed on 18 July 2021, and the subject matter of the dispute was previously raised in an earlier application taken under s. 739 of the Act and made in respect to the Virgin Tech Enterprise Agreement 2017 (the 2017 EA). The 2017 EA was replaced by the 2020 EA on 12 February 2021. The dispute has been the subject of extensive unsuccessful conciliation proceedings held in respect to the earlier application. On 18 August 2021, the Commission conducted a Mention and Directions proceeding during which the matter was listed for Hearing on 4 November 2021, and Directions were issued for the Parties to file and serve evidence and submissions in advance of the scheduled Hearing.

[4] On 22 October 2021, King & Wood Mallesons lawyers (King & Wood) filed a Form F53 - Notice that the employer has a lawyer or paid agent and seeking permission to participate at all future Conferences and Hearings. On 27 October 2021, the applicant sent an email to the Commission (copied to King & Wood and Virgin) which advised that he opposed permission being granted for the employer to be represented by lawyers or paid agents.

[5] On 28 October 2021, the Commission issued Directions which required the Parties to file and serve their respective submissions on the representation question. The late filing of the Form F53 by Virgin has meant that a compressed timetable was required for dealing with the representation question. The compressed timetable stipulated that Virgin provide its written material in support of permission being granted by 4:00 pm on 1 November 2021 and the applicant’s material was required by no later than 12:00 noon today, 3 November 2021. The Commission has proceeded to determine the representation question upon careful examination and consideration of the documentary material which has been filed by the respective Parties.

Consideration

[6] The question of representation in proceedings before the Commission is governed by section 596 of the Act 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.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[7] The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and its predecessor, Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.

[8] It is also relevant to note that the operation of s. 596 of the Act has been the subject of further examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited 2 (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a Party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.

[9] Subsection 596 (2) of the Act identifies three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as an arbitration Hearing arising from an application made under s. 739 of the Act. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.

[10] In this case, Virgin has submitted that the factor found in subsection 596 (2) (a) of the Act, involving complexity/efficiency, operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the applicant has made submissions which traversed all of the factors contained in subsection 596 (2) of the Act and sought to establish that the Commission should refuse permission for the employer to be represented by lawyers.

Complexity/Efficiency - Subsection 596 (2) (a)

[11] The employer submitted that the matter involved significant complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from, inter alia, a requirement to resolve what was said to be a significant legal issue, specifically, the interpretation of an enterprise agreement. Virgin submitted that, “The dispute has been framed by reference to the meaning of particular clauses of the enterprise agreement. This involves what is fundamentally a legal question…” and “The meaning to be attributed to the enterprise agreement will be a significant determinant of the basis on which the dispute will be determined.” Virgin asserted that there was “clearly a degree of complexity to be resolved.”

[12] Virgin also made submissions which noted that, “while it does have Human Resources and Legal staff, none have experience in conducting arbitral hearings in the FWC.” Further, Virgin mentioned that, “The hearing is also to be conducted remotely, via video conference.” In these circumstances, it was submitted by Virgin that the proceedings involved complexity and would be conducted more efficiently if permission was granted for it to be represented by lawyers or paid agents.

[13] Alternatively, the applicant rejected the complexity attributed to the matter by those seeking to represent the employer. The applicant submitted that the matter for consideration and determination was not complex. The applicant submitted that “Permitting an external legal representative to now talk to those submissions would not enhance efficiency of the proceedings”.

[14] In respect of the issue of complexity, the dispute in this instance is fundamentally a contested construction question which does not appear to involve any particularly unusual issues. There are potential logistical difficulties associated with a Hearing that involves one Party and its witness(es) appearing remotely via video link. Although the Commission generally recognises and appreciates the assistance that a lawyer or other experienced practitioner might provide, and which ordinarily would enable the matter to be dealt with more efficiently, the prospect of such assistance should be contemplated in cases where clear complexity can be identified. This is not the case in this instance.

[15] Therefore, in this instance, the factor regarding complexity/efficiency has not operated to strongly support permission being granted for the employer to be represented by lawyers or paid agents.

Inability/Effectively - Subsection 596 (2) (b)

[16] Virgin did not seek to rely on subsection 596 (2) (b) of the Act.

[17] The applicant submitted that, “Virgin Tech is a large corporation with a well resourced specialist workplace relations staff.” The applicant further submitted that, “Virgin Tech has a legally qualified workplace relations manager who is not due to give evidence.”

[18] Upon consideration of this factor, I am not convinced that the employer could not effectively represent itself without lawyers. I believe that given the size of the employer’s operation which includes specialist staff in a “Workplace Relations – Industrial” unit, those who would represent it would be capable of making a “striking impression” or be “impressive” or be “powerful in effect”.

Fairness - Subsection 596 (2) (c)

[19] Virgin did not seek to rely on subsection 596 (2) (c) of the Act.

[20] The issue of fairness between the Parties is a matter of recognised significance.

[21] The applicant’s submissions highlighted that as Virgin was a large organisation with a well-resourced internal HR team, it would be unfair to grant permission for it to be represented by external lawyers, while the applicant represented himself. The applicant submitted, “I am an unrepresented Applicant before the Commission” and “I believe that allowing representation would fundamentally change the dynamics and manner in which the Hearing is conducted to an unfair degree.”

[22] In this instance, if permission for the employer to be represented was granted, there would appear to be a significant imbalance created because the applicant would be representing himself while the employer obtained the assistance of external representation.

[23] Importantly, the evaluation of competing perceptions of imbalance has been considered in the context of what was recognised by his Honour in the Warrell Judgement; “The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.” 3

[24] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, unnecessary formality would be created by the granting of permission for the employer to be represented. Further, a manifest unfairness between the respective Parties would emerge if permission was granted and an imbalance created between an unrepresented applicant against the employer’s external representatives. The resultant imbalance created by the appearance of more advantageous representation of the employer against the applicant should be avoided, particularly in circumstances where complexity has not been established. Therefore, the fairness criterion has, in this instance, operated strongly against the granting of permission.

[25] In view of the conclusions that the Commission has reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is refused.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR735430>

 1 Warrell v Walton [2013] FCA 291.

 2   Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.

 3   Ibid @ paragraph 25.