Macdonald v Centurion Transport Co. Pty Ltd
[2025] FWC 418
•12 FEBRUARY 2025
| [2025] FWC 418 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Macdonald
v
Centurion Transport Co. Pty Ltd
(C2024/7032)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 12 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal – request for permission to be represented – permission granted.
Mr Macdonald has applied to the Fair Work Commission to deal with contraventions involving dismissal. Centurion Transport Co. Pty Ltd (Centurion) opposes the application.
If a party wants to be represented by a paid agent or lawyer, they need the Commission’s permission.[1] Centurion seeks to be legally represented in these proceedings. Mr Macdonald objects to Centurion being granted permission to be legally represented.
When can the Commission grant permission?
The Commission may grant permission only if:[2]
it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
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
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.
How does the Commission decide whether to grant permission?
Deciding whether to grant permission is a two-step process:[3]
(a)First, the Commission decides if at least one of the above requirements has been met. If so, that activates the discretion about whether to give permission.
(b)Second, the Commission decides whether to exercise the discretion and grant permission.[4]
What did the parties say about whether the Commission could or should grant permission?
On the question of representation, Centurion submitted that allowing it to be legally represented would enable the matter to be dealt with more efficiently, taking into account its complexity. Further, or alternatively, Centurion argued that it would be unfair not to allow Centurion to be legally represented because it is unable to effectively represent itself.
Mr Macdonald argued that complexities previously present in the matter were no longer relevant, that he would be disadvantaged if Centurion was allowed to be legally represented, that Centurion had been able to effectively represent itself in the matter previously, and that it would be unfair to him if Centurion was given permission to be legally represented.
Is the discretion enlivened?
I find that allowing Centurion to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
I do not accept Mr Macdonald’s submissions to the extent they seek to downplay this matter’s complexity, on the basis that he says he is not now relying on certain issues referred to in those submissions.
This is an application to deal with contraventions involving dismissal, brought under s.365 of the Fair Work Act 2009 (Cth) (the Fair Work Act). No jurisdictional objection has been raised. So, at this point the Commission’s role is to deal with the dispute other than by arbitration, and, if it cannot be resolved, issue a certificate.[5]
Unless the parties consent to arbitration the Commission’s involvement would end once the matter is resolved by agreement, or once a certificate is issued. However, dealing with the dispute can involve some preliminary assessment of the merits, for the purpose of forming a view about whether an arbitration or general protections court application would have no reasonable prospects of success.[6]
General protections matters can be complex because of the various prohibited reasons and types of proscribed conduct under Part 3-1 of the Fair Work Act, and because of the nature of the inquiry (in that it goes to the question of a decision-maker’s subject reasons for acting).
In this case the application refers to more than one prohibited reason, and Mr Macdonald has since raised issues under another provision of the Act. He has also made an application for an order for production, which involves the exercise of a statutory discretion. Such an application is somewhat unusual in proceedings brought under s.365 of the Fair Work Act, where there is no jurisdictional objection raised by the Respondent.
As to efficiency generally, I make the following observations.
If a party is unrepresented, the Commission needs to provide them with more guidance than would have to be provided to a represented party,[7] without affording unfairness to the other party, and while remaining impartial.[8] If the Respondent is legally represented, then it is likely that there will be fewer requests for procedural guidance sent to chambers, better prepared applications (if any) for orders in the existing proceedings, and shorter conferences, all of which would allow the matter to be dealt with more efficiently.
Lawyers’ paramount duty is to the court, which under the various conduct rules includes this tribunal.[9] They are subject to professional responsibilities and legal profession regulation, and I would expect them to act in a manner consistent with both. I would expect lawyers to make themselves familiar with the relevant law, the Commission’s rules, and relevant procedures and practice.
Having regard to the matters above, I find the discretion conferred by section 596 is enlivened.
Is permission granted?
It is not necessary for me to consider whether the discretion is enlivened under the alternative basis that Centurion relied on. Nonetheless, the other matters in section 596 are, in my view, relevant to the exercise of the discretion in this case.
As to whether Centurion is able to effectively represent itself, I accept that it has been able to participate to date.
As to fairness as between the parties, Mr Macdonald also argues that if Centurion is given permission to be represented then they would have the benefit of “highly skilled high powered litigators,” while he would “be relying solely on the mediative expertise of Fair Work Commission to guide the process in an understandable non-hostile process.” Mr Macdonald has submitted that he is not represented by a union and the company has significant resources available to it in terms of human resources expertise.
The fact that Mr Macdonald is not represented by a union in these proceedings is a matter for him (and the relevant union, if he is a member). If one party proceeds unrepresented by their relevant union or employer association in proceedings in this Commission, that does not necessarily require the conclusion that it is unfair for the other party to be legally represented.[10]
Greater efficiency is a significant consideration in favour of granting permission to be represented. I do not consider it to be outweighed by any considerations against granting permission, in this case.
I grant permission for the Respondent to be represented.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) (‘Fair Work Act’) s.596(1).
[2] Fair Work Act s.596(2).
[3] Warrell v Fair Work Australia [2013] FCA 291, [24].
[4] Ibid.
[5] Fair Work Act s.368(3).
[6] Fair Work Act s.368(3)(b).
[7] Titan Plant Hire v Van Malsen[2016] FWCFB 5520, [35]; James Jones v Ciuzelis[2015] FWCFB 84,[44]; Iain Kenneth Lockyear v Graeme Cox[2021] FWCFB 875, [28], see also the Fair Work Commission’s Fair hearings practice note, [14]-[16].
[8] The Fair Work Commission’s Fair hearings practice note, [24]-[29], and the cases cited in those paragraphs.
[9] Australian Solicitors’ Conduct Rules, rr 3 and 1.2, and Glossary (definition of “court”); Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 23 and 125.
[10] Conversely, if one party is represented by a union or employer association, that does not necessitate the conclusion that it would be unfair not to grant permission to the other party to be represented. But that does not arise in this case.
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