Marija Hussey v Springmount Services Pty Ltd T/A Springmount Services

[2019] FWC 1127

[2019] FWC 1127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Marija Hussey
v
Springmount Services Pty Ltd T/A Springmount Services
(C2018/5958)

COMMISSIONER BOOTH BRISBANE, 20 FEBRUARY 2019

Application under section 596 for representation by lawyers and paid agents.

[1] Ms Marija Hussey (the Applicant) filed an application under s.365 of the Fair Work Act 2009 (the Act) on 24 October 2018. The application was filed outside the statutory time limit.

[2] The Respondent is Springmount Services Pty Ltd T/A Springmount Services (the Respondent). The Respondent engaged a paid agent, Mr Craig Pollard, Senior Consultant at CTMA Workplace Consulting, in respect of the application.

[3] The Applicant objected to the Respondent being represented by a lawyer or paid agent in a Directions Conference held on 29 November 2018.

[4] As a result, directions were issued on 29 November 2018 requesting the parties to file submissions concerning whether the Applicant should be granted an extension of time and whether the Respondent should be granted permission to be represented by a lawyer or paid agent.

[5] Submissions were filed by both the Applicant and the Respondent.

[6] This decision concerns the preliminary jurisdictional point as to whether the Fair Work Commission (the Commission) should grant permission for the Respondent to be represented by a lawyer or paid agent.

Legislation

[7] 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.”

Submissions

[8] The Respondent submits that the nature of the jurisdictional objection to the application requires careful consideration of the Act and case law. The Respondent notes that the Applicant alleges medical illness as a reason for her failure to file her application within the statutory time frame and notes further that the Applicant intends to call medical witnesses in support of her case against the jurisdictional objection.

[9] The Respondent therefore submits the matter will involve the hearing of medical evidence, cross-examination of expert witnesses and preparation and submission of expert evidence in response. The Respondent submits this necessitates the assistance of an experienced advocate to expedite such examination and ensure an efficient and effective presentation of relevant evidence before the Commission.

[10] The Respondent submits further that it has only recently employed a Human Resources Professional, Mr Michael Klos. The Respondent notes that Mr Klos has no experience in preparing or appearing before the Commission and he does not have a working knowledge of the General Protections provisions of the Act.

[11] The Respondent does not argue that refusal to grant leave would be unfair taking into account fairness between the Respondent and the Applicant in this matter. The Respondent notes that the Applicant is unrepresented and has stated that she is unable to afford a solicitor.

[12] The Respondent submits, however, that permitting it to be represented will be of benefit to the Commission in assisting the parties to ensure that the evidence and submissions are filed from the Respondent’s perspective, on time and in a manner easily understood by the Applicant.

[13] The Applicant submits that the granting of permission to be represented to the Respondent would undermine the informal nature of proceedings before the Commission. The Applicant submits further that self-representation is encouraged by the Commission and that the involvement of a paid agent would cause unfairness in circumstances where Mr Pollard has greater expertise, knowledge and experience within the Commission compared to the Applicant.

[14] The Applicant also submits that, rather than enhancing the efficient conduct of the matter, the representation by a paid agent would hinder the process by increasing the complexity of language and technical terms that previously have had to be explained to the Applicant in conferences held in this matter.

[15] The Applicant notes that, according to the Respondent’s website, the Respondent has employed a General Manager and Senior Operations Manager since 2011 and 2003 respectively who have overseen the Human Resources divisions across the Respondent’s company. The Applicant concedes that neither of these individuals have had any involvement in her case, but submits it is clear the Respondent have staff capable of representing the company in informal Commission matters where Mr Klos is unable to do so due to inexperience. The Applicant also refers to the Respondent’s website and HR training materials available to purchase as evidence of a string and well-developed human resources system in place at the company.

[16] The Applicant submits further that Mr Klos’ inexperience in Commission matters should not be a persuasive reason why the Respondent should be granted legal representation in circumstances where the Applicant herself has no experience in such matters. The Applicant submits she cannot afford to engage representation for her application and it would therefore be unfair for the Respondent to be granted such.

Consideration

[17] Sections 596 (a) to (c) provide that permission may be granted by a lawyer or paid agent in certain circumstances. However, the party seeking permission to be represented is only required to satisfy one of those circumstances.

[18] In s.596(2)(a), permission will be granted in circumstances where a matter would be dealt with more efficiently, taking into account its complexity.

[19] It is the Applicant’s view that a paid agent, rather than assist the process, will hinder the hearing by ‘bringing in formality and complexity’. Further, the Applicant submits that the Respondent has other staff experienced in human resources capable of representing the company in informal Commission matters other than Mr Klos, who has only recently been employed by the Respondent and is inexperienced at appearing in the Commission. The Respondent submits that it is not a small business and Mr Klos’ inexperience will not enable the efficient or effective resolution of the matter.

[20] DP Gostencnik considered the effect of s.596 in circumstances where a company sought to be represented despite having access to both in-house legal and human resources in ASC Pty Ltd v AMWU & Anor [2014] FWC 544 at [16]:

“In any event the question, for the purposes of granting permission for the reasons set out in section 596 (2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently” (emphasis added)

[21] I have formed a view that the matter does raise complex jurisdictional points, including that the Applicant was suffering from an illness and seeks to rely on medical evidence in support of the reason for delay. The test as detailed above is not whether there are company staff that can represent the company but whether representation by someone experienced in advocacy or industrial law would allow the matter to be dealt with more efficiently.

[22] I have concluded that, as the matter is complex, representation by a paid agent with advocacy and industrial law experience will enable the matter to be dealt with more efficiently than if the matter was dealt with by employees of the Respondent. This is because an experienced paid agent can deal with the complex issues more efficiently than someone who has limited experience in advocacy and industrial law.

[23] Having concluded that the Respondent has satisfied the requirements of s.596(2)(a), it is not necessary to deal with s.596(2)(b) and (c). However, I do note that the HR manager, Mr Klos, is new to the position with no working knowledge of the general protections provisions of the Act and in that regard it tends towards a finding of unfairness.

[24] As to s.596(2)(c), it is noted that the Respondent does not seek to rely on this ground. While the Applicant raises unfairness between the parties, the Commission must perform its functions and exercise its powers in a way that is quick, informal and avoids unnecessary technicalities. 1 In my view, leave to be represented will assist such an approach and in doing so the Commission will assist the Applicant to ensure that the hearing is fair and just.

[25] Having taken into account complexity and having concluded that the matter will be dealt with more efficiently, I exercise my discretion to grant permission to appear to the Respondent.

COMMISSIONER

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 1   Fair Work Act 2009 s.577(b).