John Byrne v ParaQuad Victoria T/A Independence Australia

[2014] FWC 2260

[2014] FWC 2260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Byrne
v
ParaQuad Victoria T/A Independence Australia
(U2013/17116)

COMMISSIONER BISSETT MELBOURNE, 4 APRIL 2014

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

[1] On 3 April 2014 I received a written submission from TressCox Lawyers on behalf of ParaQuad Victoria T/A Independence Australia (the Respondent) in which the Respondent sought permission to be represented by a ‘lawyer or paid agent’ pursuant to s.596 of the Fair Work Act 2009 (the Act) in the substantive application due to be heard by me on 7-9 April 2014.

[2] I received submissions from the National Union of Workers (NUW) representing Mr Byrne (the Applicant) in which they opposed the granting of permission.

[3] The Respondent’s grounds for seeking permission include that the Applicant will be represented by the NUW and that it would be unfair between the parties, in circumstances where the Applicant has professional representation to not allow the Respondent to be represented. Further, it submits that the granting of permission will allow the matter to be dealt with more efficiently given the need to cross examine witnesses, provide submissions as to the fairness of the dismissal and provide submissions as to remedy.

[4] The Respondent indicated in its application that it was seeking permission to be represented by TressCox Lawyers along with counsel.

[5] The NUW submits that permission should not be granted to counsel as this would result in the proceedings becoming ‘overly and adversarial.’ It submits that the NUW officials appearing in the matter are not legal practitioners. Further, it says that permission for counsel to appear for the Respondent will result in unfairness to the Applicant who will not be represented.

[6] The NUW relies on the Federal Court decision in Warrell v Walton 1 and the decision of the Fair Work Commission Full Bench in New South Wales Bar Association v McAuliffe.2

I take from the submissions of the NUW that it objects to permission being granted to counsel. Whilst they do not make it clear I will consider the issue on the basis that it also objects to permission being granted to TressCox Lawyers.

[7] In Warrell the Court said:

[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”.

[8] The process of determining representation is therefore a two-step process. First it must be determined if one of the requirements in s.596(2) has been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether I should grant permission.

[9] The Applicant in this matter will be represented by the NUW. I accept that the NUW is a professional organisation with skilled employees experienced in matters before the Commission. Nothing has been put to me to suggest that the Respondent employs staff who have skills or experience in the Commission. I am therefore satisfied that it would be unfair not to allow the Respondent to be represented taking into account fairness between the Respondent and the Applicant in the matter (s.596(2)(c)).

[10] The second objection raised by the NUW is whether I should grant permission to counsel to appear in the matter. In New South Wales Bar Association the Full Bench observed:

[24] We also consider that the Commissioner fell into error in another respect. We have earlier set out the process by which the Commissioner determined the question of the ATO’s representation in the matter before him. What the Commissioner effectively did on 4 and 5 December 2013 was, in a commingled way, to grant the ATO permission to be represented by its solicitor, Mr Noakes, but refuse it permission to be represented by its counsel, Mr Cross. In doing so, what the Commissioner did in substance was to select who, from the ATO’s legal team, would represent it at the hearing. That was not a course authorised by s.596. The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor. We do not consider that the power in s.596 was intended to interfere with a party’s right to choose who its legal representative (or paid agent) would be if permission was to be granted.

[11] Whilst ultimately not granting permission to appeal in New South Wales Bar Association the observations of the Full Bench set out above cannot be ignored.

[12] The power conferred under s.596 is to grant permission to be represented by a lawyer or paid agent. There is no power conferred on the Commission to determine who that representative may be. For the reasons given in New South Wales Bar Association I find that I have no power to determine, should I grant permission as sought, who the representative of the Respondent should be. That the Respondent has indicated it will be represented by counsel does not affect my decision as to whether the requirements of s.596(2) have been met or whether permission should be granted.

[13] Having found that the requirements in s.596(2) have been met I am satisfied that permission to be represented by a lawyer (in this case) should be granted to the Respondent. Permission is therefore granted.

COMMISSIONER

 1 [2013] FCA 291.

 2   [2014] FWCFB 1663.

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