Joanne Broad v BGC Contracting Pty Ltd

[2015] FWC 6532

[2015] FWC 6532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Broad
v
BGC Contracting Pty Ltd
(U2015/9602)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 SEPTEMBER 2015

Permission to be represented by a 'lawyer or paid agent' pursuant to s.596 of the Fair Work Act 2009.

[1] Ms Broad has made an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with BGC Contracting Pty Ltd (BGC). This application is listed for arbitration in November 2015. This decision deals specifically with a request made by Ms Nagel of K&L Gates for a grant of permission to represent BGC in this arbitration.

[2] The issue of representation was considered in a directions conference before Commissioner Wilson on 25 August 2015. The Commissioner directed that K&L Gates file in the Fair Work Commission (the FWC) and serve on Ms Broad, by close of business 4 September 2015, a brief statement setting out the basis upon which permission was requested. Ms Broad was directed to provide a brief statement setting out her position in response, by close of business 11 September 2015.

[3] The BGC statement was received on 4 September 2015 and, on 17 September 2015, advice was received from Ms Dooley, of the Construction, Forestry, Mining and Energy Union (CFMEU) South Australian Branch, representing Ms Broad, to the effect that Ms Broad did not consent to a grant of permission but did not seek to make any further submissions in this respect.

[4] Representation of a party in the FWC by a lawyer or paid agent generally requires a grant of permission to this effect. Section 596 relevantly 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.”

[5] I have considered the request for a grant of permission for representation of BGC by K&L Gates on the basis of this statutory provision.

[6] The K&L Gates submission is that there are significant factual issues in dispute such that the matter should be regarded as being of sufficient complexity so that it will be more efficiently dealt with if BGC is legally represented. Further, that BGC would otherwise need to be represented by its human resources and/or managerial staff, who are not located in South Australia, do not have the requisite skill or experience and are also likely to be involved in the provision of evidence relative to the circumstances of the termination of Ms Broad’s employment. In terms of s.596(2)(c) K&L Gates assert that issues of fairness between Ms Broad and BGC favour a grant of permission in that Ms Broad is represented by Ms Dooley who is a legally trained and qualified industrial officer of the CFMEU.

[7] Only limited information about the merits of the application is available to me at this time. However, that information indicates that the termination of Ms Broad’s employment followed a finding that she had returned a positive drug test. Ms Broad appears to be disputing the basis for that drug test and to be challenging the efficacy of the testing regime.

[8] Absent any information to the contrary, I have concluded that the matter may well involve some issues of complexity relative to both the drug testing system and the particular circumstances which led to the positive finding in relation to Ms Broad. In this respect I have noted that numerous issues associated with drug and alcohol testing arrangements have been referred to the FWC. Because of the likely complexity of these issues I have concluded that representation of BGC by a lawyer would enable the matter to be dealt with more efficiently.

[9] Further, and pursuant to s.596(2)(c), I have concluded that it would be unfair not to allow BGC to be represented by a lawyer in this circumstance where Ms Broad is represented by a legally trained officer of the CFMEU.

[10] Accordingly, I am satisfied that the prerequisite requirements of s.596(2) have been met in this instance such that a grant of permission for BGC to be legally represented in this matter is appropriate and that permission is granted.

[11] I note that outstanding issues associated with claims for the production of various documents and the location of the proposed hearing of the matter appeared to remain unresolved. I further note that this matter is listed for Member assisted conciliation on 7 October 2015. Should these issues remain unresolved following this conference, a further telephone directions conference will be convened at short notice to allow resolution of those issues.

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