Marrs v Subsea 7 i-Tech Australia Pty Ltd
[2016] FWC 2650
•27 April 2016
[2016] FWC 2650
REASONS FOR DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| John Marrs | |
| v | |
| Subsea 7 i-Tech Australia Pty Ltd T/A Subsea 7 | |
| (U2016/366) | |
| COMMISSIONER RYAN | MELBOURNE, 27 APRIL 2016 |
Application for relief from unfair dismissal – representation - permission not required –
member of an association of employers - s.596(4)(b)(ii).
1
| [1] | On 7 April 2016 I issued a decision | granting permission to the Applicant to be |
represented by a lawyer or paid agent and recognising that the Respondent, Subsea
7 i-Tech Australia Pty Ltd, was represented by the Australian Mines and Metals Association
Inc. (AMMA) pursuant to s.596(4)(b)(ii). In that decision I advised that my reasons would be
published subsequently. The following are my reasons.
[2] The Respondent was represented by AMMA and the Applicant was represented by the
MUA for the purpose of each party filing its respective applications, responses and material in
support.
[3] The Respondent specifically raised an objection to the Applicant being represented by
The Maritime Union of Australia (MUA) on the basis that the MUA was not entitled to enrol
the Applicant as a member and that the MUA was unable to represent the Applicant. This first
issued was put aside when the Applicant sought to be represented by a lawyer who was
independent of the MUA.
[4] Given the complexity of the issues raised by the application and the Respondent’s
response to that application I was satisfied that it was appropriate to grant the Applicant
permission to be represented by a lawyer or paid agent as the granting of permission would
enable those complex issues to be dealt more efficiently.
[5] AMMA claimed that it had a right to represent the Respondent given the operation of
s.596(4)(b(ii) of the Act. Section 596 deals with the issue of representation of parties to
proceedings before the Fair Work Commission and is as follows:
[2016] FWC 2650
“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;
[2016] FWC 2650
that is representing the person; or
(c) is a bargaining representative.”
[6] As can be seen from the structure of s.596 of the Act, there is a presumption and
expectation that parties to proceedings under the Act will generally represent themselves. The
2
| decision in Warrell v FWA | confirms this. However a party can be represented by a lawyer or |
paid agent if permission is granted by the Commission.
[7] Sub–section 596(4) provides for representation of a party without the need for
permission from the Commission in certain very specific circumstances including that
provided by s.596(4)(b)(ii).
[8] When the Fair Work Bill was first introduced into Parliament in 2008 it did not
contain s.596(4)(b)(ii). That provision was added into the Fair Work Bill during its passage
through Parliament.
[9] The Supplementary Explanatory Memorandum which dealt with s.596(4)(b)(ii) said:
“Representation by lawyers
Item 10 – Clause 596
245. This item amends clause 596 to enable lawyers employed by an association of employers that is not registered under the Fair Work (Registered Organisations) Act to
represent their members before FWA without the need to seek permission from FWA.
This amendment maintains the current position in the Workplace Relations Act 1996
(section 100) and Workplace Relations Regulations 2006 (regulation 3.4).”
[10] Prior to the enactment of the Fair Work Act the predecessor Acts never contained a
provision similar to s.596(4)(b)(ii). However Regulation 3.4 of the Workplace Relations
Regulations 2006 did provide for representation in the same terms as s.596(4)(b)(ii). The very
first legislative provision having the same effect as s.596(4)(b)(ii) was Regulation 8 of the
Industrial Relations Regulations, No 12 of 1989 which provided as follows:
“Representation of certain persons by unregistered associations
8. Where a party to a proceeding before the Commission is an employer who is a
member of an association of employers, being an association that is not registered
under the Act, the party may be represented by an officer or employee of that
association.”
[11] Reg 8 of the Industrial Relations Regulations, No 12 of 1989 and Reg 3.4(1) of the
Workplace Relations Regulations 2006 were in identical terms.
[12] Whilst the Supplementary Explanatory Memorandum to the Fair Work Bill explains
that the addition of s.596(4)(b)(ii) into the Bill was to maintain the “current position” in s.100
[2016] FWC 2650
of the Workplace Relations Act and Reg. 3.4(1) of the Workplace Relations Regulations 2006
the language of s.596(4)(b)(ii) and the preceding Reg. 3.4 are very different.
[13] There is no mention in s.596(4)(b)(ii) that the employer has to be a member of the
“association of employers that is not registered under the Registered Organisations Act”
which is to represent the employer.
[14] The plain language of s.596(4) would appear to permit an employer to be represented
by an association of employers that is not registered under the Registered Organisations Act
even where the employer is not a member of the association nor has any connection to the
association of employers other than paying the association to represent the employer in
proceedings before the Commission.
[15] It is tolerably clear that the intention behind s.596(4)(b)(ii) was to provide a right of
representation at least equal to that provided under Reg 3.4(1) of the Workplace Relations
Regulations 2006.
[16] The plain language of s.596(4)(b)(ii) does not appear to be limited to the explanation
in the Supplementary Explanatory Memorandum. The plain language of s.596(4)(b)(ii) clearly
provides for representation as provided by Reg 3.4(1) of the Workplace Relations Regulations
2006 but goes quite a long way further in providing rights of representation which were not in
either s.100 of the Workplace Relations Act or the Workplace Relations Regulations. Given
that the regulations had been in the same language since early 1989 the very different
language used in s.596(4)(b)(ii) may suggest that more was intended by the provision in the
Act than was provided for by the predecessor regulation.
[17] Should the language of s.596(4)(b)(ii) be given a meaning which accords with the
purpose behind that provision and if so what is that purpose.
[18] Discerning the proper meaning of s.596(4)(b)(ii) is made relatively easy through the
3
| amount of attention paid to s.596 by other decisions, including: Warrell v FWA | , NSW Bar |
4 5
| Association v McAuliffe | , CDJV Construction P/L v McCarthy and McCarthy | . |
[19] “Association of employers” is not a defined term in either the Fair Work Act 2009 or
the Fair Work (Registered Organisations) Act. The Fair Work Act does in s.12 define the
concept of an “industrial association” as follows:
“industrial association means:
(a) an association of employees or independent contractors, or both, or an association
of employers, that is registered or recognised as such an association (however
described) under a workplace law; or
(b) an association of employees, or independent contractors, or both (whether formed
formally or informally), a purpose of which is the protection and promotion of their
[2016] FWC 2650interests in matters concerning their employment, or their interests as independent
contractors (as the case may be); or
(c) an association of employers a principal purpose of which is the protection and
promotion of their interests in matters concerning employment and/or independent
contractors;
and includes:
(d) a branch of such an association; and
(e) an organisation; and
(f) a branch of an organisation.”
[20] As is clear from the definition of “industrial association” some associations of
employers and some associations of employees can be “industrial associations”. An
association of employers that has as “a principal purpose of which is the protection and
promotion of their interests in matters concerning employment and/or independent
contractors” is an “industrial association”. However, an association of employers that does not
have as one of its principal purposes the protection and promotion of their interests in matters
concerning employment and/or independent contractors” cannot be an “industrial
association”. Thus an association of employers that has as one of its purposes but not one of
its principal purposes, the protection and promotion of their interests in matters concerning
employment and/or independent contractors cannot be an “industrial association”.
[21] The definition of “industrial association” has been given an expanded meaning for the
purposes of the general protections provisions of Part 3-1 of the Act. Section 339 provides for
an expanded meaning of “industrial association” as follows:
“339 Additional effect of this Part
In addition to the effect provided by section 338, this Part also has the effect it would
have if any one or more of the following applied:
…
(c) a reference to an industrial association in one or more provisions of this Part were a
reference to an organisation, or another association of employees or employers, a
purpose of which is the protection and promotion of the interests of national system
employees or national system employers in matters concerning employment;”
[22] The effect of s.339 is to expand the concept of “industrial association” from only those
employer associations which have a principal purpose of the protection and promotion of their
interests in matters concerning employment to employer associations which have a purpose
(no matter how minor that purpose is) of the protection and promotion of their interests in
matters concerning employment.
[23] It is also relevant to note that an application under s.365 in relation to a contravention
of the general protections provisions resulting in dismissal may be made by an industrial
association that is entitled to represent the industrial interests of the dismissed person. Whilst
[2016] FWC 2650
this provision refers to an industrial association of employees it includes an association of
employees which has as one of its purposes (but not a primary purpose) the protection and
promotion of the interests of national system employees in matters concerning employment.
Such is the effect of s.339.
[24] In legislation which has as its object the provision of a balanced framework for
cooperative and workplace relations that promotes national economic prosperity and social
inclusion for all Australians it is not surprising that the focus is on associations of employers
and employees which have at least one of their purposes as the protection and promotion of
the interests of their members in matters concerning employment.
[25] As a matter of logic it would appear that a reference to an association of employers in
s.596(4)(b)(ii) would not include associations of employers where the association did not
have as one of its purposes the protection and promotion of the interests of employers in
matters concerning employment.
[26] Even where the association of employers does have as one of its purposes the
protection and promotion of employers in matters concerning employment is that sufficient
for the purposes of s.596(4)(b)(ii)? What relationship is needed between the association of
employers and the employer who is to be represented by the association of employers?
[27] The predecessor provisions to s.596(4) were explicitly predicated upon the fact that
the employer was a member of the organisation or association which sought to represent the
employer. However, s.596(4) makes no mention of the need for the employee or employer
who seeks to avail themselves of the benefits of s.596(4) to be a member of the organisation
(596(4)(i)) or of the association of employers (596(4)(b)(ii)).
[28] The careful analysis by the Full Bench in CDJV Construction P/L v McCarthy and
McCarthy of the proper meaning of s.596(4)(b)(i) provides a strong guide as to the
relationship required between the employer and the association of employers for the purposes
of s.596(4)(b)(ii).
[29] In circumstances where the Supplementary Explanatory Memorandum explains that
s.596(4)(b)(ii) is to maintain “the current position in the …. Workplace Relations Regulations
2006 (regulation 3.4)” then any interpretation of s.596(4)(b)(ii) that permitted an association
of employers to represent employers who were not members of the association of employers
would be a significant departure from what was permitted under Reg 3.4 of the Workplace
Relations Regulations 2006. In circumstances where giving s.596(4)(b)(ii) the same meaning
as Reg 3.4 of the Workplace Relations Regulations 2006 not only accords with the
Supplementary Explanatory Memorandum but is a reasonable reading of the words used in
s.596(4)(b)(ii) then such an interpretation should be given to the provision. To do otherwise
would require the Commission to find that the Supplementary Explanatory Memorandum did
not reflect the plain language used in the provision and this would require placing the
language of the provision under some strain in order to achieve that end.
[30] The result of the above discussion is that an employer will be able to avail themselves
of the benefit of s.596(4) and be represented by an association of employers that is not
registered under the Registered Organisations Act in circumstances where the association of
employers has as one of its purposes the protection and promotion of the interests of
[2016] FWC 2650
employers in matters concerning employment, and, where the employer is a member of that
association of employers.
[31] In the present matter AMMA provided a witness statement from Mr Scott Barklamb,
Executive Director – Policy and Public Affairs of AMMA which relevantly said:
“8. AMMA is a national association of employers that exists for the principal purpose of providing industry advocacy and employment advice and representation for
employers in the Australian resources industry.
9. AMMA’s membership consists of approximately 240 resources employers.
10. AMMA’s Constitution provides the following “qualification for membership”:
“No person shall be eligible to become or remain a member unless that person
is –
(a) an employer; and
(b) either substantially interested in the ownership or operation of resources
and energy industries, or formed for the purpose of protecting the interest of
persons engaged in resources and energy industries, or in similar activities.”
11. Based on these qualifications, AMMA member companies are engaged in a
variety of activities across various sectors of the resources industry including mining,
hydrocarbons, maritime, exploration, energy, transport, construction, smelting,
refining and services (as well as suppliers to those industries).
…
16. Subsea 7 i-Tech Australia Pty Ltd trading as Subsea 7 (Subsea 7) is a
Remotely Operated Vehicle service provider to the hydrocarbons and maritime
industry.
17. Subsea 7 is a current financial member of AMMA, and has been since 1989.”
[32] In the absence of any challenge to the statement from Mr Barklamb the Commission
accepts the accuracy of his statement.
[33] The Commission is satisfied that AMMA has as one of its purposes the protection and
promotion of the interests of employers in matters concerning employment.
[34] The Commission is satisfied that Subsea 7 i-Tech Australia Pty Ltd is a member of
AMMA.
[2016] FWC 2650
[35] As both AMMA and Subsea 7 i-Tech Australia Pty Ltd satisfy the two essential
elements necessary for representation under s.596(4)(b)(ii), then Subsea 7 i-Tech Australia
Pty Ltd has a right under that provision to be represented by AMMA without needing to seek
or be granted permission from the Commission.
COMMISSIONER
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[2016] FWC 2220.
2
[2013] FCA 291.
3
[2013] FCA 291.
4
[2014] FWCFB 1663.
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[2014] FWCFB 5726.
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