Joshua Findley v MSS Security Pty Ltd T/A MSS Security

[2017] FWC 5590

[2017] FWC 5590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Joshua Findley
v
MSS Security Pty Ltd T/A MSS Security
(C2016/6551)

COMMISSIONER GREGORY MELBOURNE, 26 OCTOBER 2017

Application to deal with a dispute – permission to appear.

Introduction

[1] Mr Joshua Findley has made application under s.739 of the Fair Work Act 2009 (Cth) (“the Act”) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Agreement that covers the parties, being the MSS Security Victorian Enterprise Agreement 2011 (“the Agreement”). 1The application was dealt with in conference in November last year but was unable to be resolved. Mr Findley now seeks to have the matter arbitrated. MSS Security Pty Ltd T/A MSS Security (“MSS Security”) seeks permission under s.596 of the Act to be represented by a lawyer in the proceedings. Mr Findley opposes this application. This decision accordingly deals with whether MSS Security should be granted permission to be legally represented in the proceedings.

The Relevant Legislation

[2] Section 596 of the Act states:

“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.” 2

The Submissions

MSS Security

[3] MSS Security makes application for permission to appear on the basis of each of the grounds in s.596.

596(2)(a) – it would enable the matter to be dealt with more efficiently, taking into account complexity of the matter

[4] MSS Security has indicated that it intends to pursue a threshold jurisdictional objection to the application, namely “that Mr Findley does not have standing to pursue the matter and the Application is now jurisdictionally beyond power.” 3 In its submission this will involve consideration of complex legal issues and require an understanding of the relevant common law authorities, including those dealing with the ability of a former employee to pursue a claim under an enterprise agreement. It also submits the dispute raised by Mr Findley has a number of different elements, which are potentially complex and require an understanding about the interaction between the Commission, the Fair Work Ombudsman, and the Federal Court.

[5] It also submits that Mr Findley has brought other matters against MSS Security, which are, in part, related and it will assist in dealing with the present matter more efficiently if its legal representative in those other proceedings is also able to appear in the present matter.

596(2)(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

[6] MSS Security acknowledges it has recently employed a legally qualified General Counsel with commercial law experience. However, it does not employ anyone with both legal qualifications and experience in employment/workplace law. Its HR managers have experience in dealing with operational matters, but have no experience of appearing in a contested hearing in the Commission, particularly one that involves consideration of a jurisdictional objection. It accordingly submits it would be unfair not to allow MSS Security to be legally represented because it is unable to represent itself effectively in the proceedings.

596(2)(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

[7] MSS Security again relies on the submissions set out in the above paragraph. It also submits Mr Findley has demonstrated in other recent proceedings that he has no difficulty in preparing applications and the associated supporting materials, as well as making submissions about relevant case law and legislation. It does not have this expertise, and submits there will be a constructive denial of procedural fairness if it is not able to be legally represented.

[8] MSS Security also made reference to the decision of Deputy President Richards in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources P/L (Project Aurora) [2012] FWA 2966 (“UGL”) and submits that it is a relevant authority that provides support for its submissions.

Mr Findley

596(2)(a) – it would enable the matter to be dealt with more efficiently, taking into account complexity of the matter

[9] Mr Findley submits that MSS Security has deliberately made the matter complex by the “meritless jurisdictional objections” 4 pursued by its representative. He also submits that the substantive matter is not complex, and the involvement of its legal representative in the proceedings to date has already caused additional delay and unnecessary inefficiency.

596(2)(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

[10] Mr Findley submits that MSS does have dedicated human resource professionals, as well as an in-house Counsel, who have the ability, with the assistance of their legal representatives, to develop their arguments and make effective submission. He also submits that the decision in UGL has set the “bar too high” 5 in terms of these considerations. In addition, the “feigned lack of ability”6 attributed to MSS Security’s employees should not be allowed to provide the grounds for it to be granted permission to be represented in the proceedings.

596(2)(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

[11] Mr Findley submits that it is inconceivable that it could be in the interests of fairness to allow MSS Security to be legally represented against “an unqualified and unrepresented litigant.” 7 Fairness between the parties is instead more likely in all the circumstances to be achieved if MSS Security is not legally represented.

Consideration

[12] The decision about whether to grant permission to a party to be represented by a lawyer (or paid agent) involves an exercise of the Commission’s discretion having regard to the matters set out in subsection (2) of section 596. It follows that the legislation intends at first instance that it will normally be expected that a party will appear on its own behalf, and that permission for a representative to appear will only be granted if it can be justified on the basis of one or more of the grounds in s.596.

[13] Further consideration of the intended operation of s.596 is contained in the decision of the Federal Court (Flick J) in the matter of Warrell v Fair Work Australia. 8 It arose following a situation in which a lawyer was permitted to appear in proceedings before the Commission without the presiding member giving consideration to the requirements of s.596. The Court held:

“[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”.

[25] 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. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided in relevant part as follows:

1. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

...

1. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.” 9

[14] As indicated, the decision confirms that the intention of the legislation is that parties will, as far as possible, represent themselves and the principal considerations in terms of whether permission should be granted are efficiency and fairness, and not simply the convenience of the parties.

[15] However, I am also satisfied that when a jurisdictional objection is raised in response to an application this inevitably introduces an additional level of complexity, given the legal issues involved. It is understood that the objection raised in the present matter concerns whether the Commission has jurisdiction to deal with the application. This is obviously an important consideration for the Commission to have regard to before it can be satisfied that it is appropriate to deal with the substantive matters in dispute. I also note that previous Commission decisions, including that in UGL, have concluded that when a jurisdictional issue is sought to be raised, then legal representation might well be a reasonable course.

[16] Mr Findley submits that the jurisdictional objection has been raised without justification, and that MSS Security should not be rewarded for having raised a frivolous or unnecessary objection by now being given permission to be legally represented in the proceedings.

[17] However, a party is broadly entitled to determine what submissions and evidence it provides in response to an application, once made. It is then for the Commission to determine the matter based on the respective submissions and evidence of the parties. Obviously there are also other legislative provisions which may be of relevance in dealing with a particular matter, such as those contained in s.587, although this does not imply that those provisions are necessarily relevant in the circumstances of this matter.

Conclusion

[18] I am satisfied, in conclusion, that permission should be granted to MSS Security to be legally represented in the proceedings. I have arrived at this conclusion on the basis of s.596(2)(a) in that I am satisfied that granting permission will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. I am of the view, in particular, that it will enable the Commission to deal with the matter more efficiently in terms of coming to a view about whether it has jurisdiction to deal with the application. Having come to this decision on the basis of s.596(2)(a) it is not necessary to consider whether any of the remaining matters in s.596 are applicable.

[19] However, I have also decided at this time that permission to appear should only be granted in regard to the jurisdictional objection raised by MSS Security. If and when the Commission comes to deal with the substantive issues in dispute I will give further consideration to any further application for permission to appear at that time.

[20] The Commission will now proceed to list the jurisdictional objection for hearing and will also issue directions in regard to the filing and service of evidence and submissions.

COMMISSIONER

 1   AE400199.

 2   Fair Work Act 2009 (Cth) s 596.

 3 Respondent’s submissions, dated 14 June 2017, at [16].

 4 Applicant’s submissions, dated 20 June 2017, at [13].

 5 Ibid at [31].

 6 Ibid at [32].

 7 Ibid at [34].

 8 [2013] FCA 291 (4 April 2013).

 9   Warrell v Fair Work Australia [2013] FCA 291 (4 April 2013) at [24]-[25].

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