Matthew Lyon v Jetstar Airways Pty Ltd T/A Jetstar Airways

[2020] FWC 4142

[2020] FWC 4142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Matthew Lyon
v
Jetstar Airways Pty Ltd T/A Jetstar Airways
(C2020/968)

COMMISSIONER WILSON MELBOURNE, 6 AUGUST 2020

Alleged dispute about matters arising under an enterprise agreement; Application for permission for representation by lawyer or paid agent.

[1] An application has been made by Matthew Lyon, pursuant to s.739 of the Fair Work Act 2009 (the Act) alleging a dispute arising under the Jetstar Airways Pilots’ Enterprise Agreement 2015 (the Agreement). 1 The application was the subject of conciliation before me, which did not lead to a resolution of the matters in question and the application has now progressed to an arbitration, the hearing of which will be conducted from Monday, 10 August 2020.

[2] The Respondent, Jetstar Airways Pty Ltd (Jetstar), seeks to be represented in these proceedings by a lawyer and has provided short written submissions in support of its request arguing that a grant of legal representation in its favour would enable the matter to be dealt with more efficiently; that because it would be unable to represent itself for several reasons unfairness would arise if it were not granted permission; and that matters of fairness as between the parties should lead to a grant of permission as well.

[3] Mr Lyon is represented by Andrew Molnar of the Australian Federation of Air Pilots (AFAP), whose signature block states he is “Legal Counsel”. Mr Lyon objects to the grant of representation in favour of the Respondent providing short submissions on the subject to be taken into account namely on the basis that efficiency will not arise if Counsel appears for Jetstar as well as that the matter lacks the required complexity; that there would be no unfairness to Jetstar if it was required to have one of its employees represent it; and that there would be no unfairness between the parties if legal representation was refused to Jetstar.

[4] Determination of the question of representation requires consideration of the provisions of s.596(2) 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.

(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 employersthat 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.”

[5] In particular, Jetstar submits that its circumstances are enlivened by each of the subsections in s.596(2). It seeks to be represented by Mr Jonathan Forbes, of Counsel, instructed by Herbert Smith Freehills, solicitors.

[6] The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton 2:

“[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”.” 3

[7] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 4 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.5

[8] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 6 Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.7 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.8

[9] Jetstar’s submissions in relation to s.596(2)(a) include the legal representation would enable a hearing to be dealt with more efficiently having regard to the matters in dispute. In particular there is a need to undertake a proper construction of the Agreement as well as to apply the facts to the Agreement. It is argued that “legal representatives will be able to more effectively give focus to the arguments be made for and against each party, and are more likely to appreciate the manner in which certain facts or submissions might become relevant to the Commission’s proper consideration of the matters in issue”. 9 After noting that the interpretation of the operational effect of clauses “is not an unusual function to be carried out by the Fair Work Commission”, Mr Lyon argues that such function will not be made more efficient by reason of Counsel been given permission for appearance. He then argues:

“The issue in dispute is not a complex one. Nor is the evidence filed with the Commission. There are no facts in dispute.” 10

[10] I accept from the material before me that there is an efficiency to be had from participation in the matter by skilled lawyers well used to the matters requiring determination by the Commission. This is not a case in which the proposition is to grant permission to lawyers without the background in such matters, or in which the materials filed to date would evidently suggest an endeavour to make the matters under consideration the subject of many involved undertaking unnecessary steps. Quite to the contrary the material filed by both parties so far, and especially that of the Respondent, would suggest endeavours by all involved to refine their dispute to only those essential matters requiring determination.

[11] While I may be disposed to accept that representation of the Respondent by lawyers will give efficiency to the proceedings, the obligation within the section is to take into account as well the complexity of the matter before the Commission.

[12] It is relevant in relation to that aspect of the criterion to consider the context of the matters requiring determination.

[13] Mr Lyon is a First Officer employed by Jetstar flying A320 aircraft living and based in Melbourne. He was rostered to work over 3 days in April 2019 scheduled to sign-on in Melbourne at 1415 on the first day and finish in Sydney at 2205 on the same day. On the second day he was to sign-on at 1320 and finish in Melbourne at 2240. He was due to have the third day of the rostered period as a Designated Day Off.

[14] However, having completed the first day’s work, he was notified a few hours before the start of work on the second work that the rostering arrangements had changed. Instead of starting and work in Sydney (where he was) and finishing the same day in Melbourne (where he lived) the change required him to fly to Queenstown, New Zealand, and the return to Sydney (not Melbourne) at 2205 the same day. The notification also indicated he was to fly from Sydney to Melbourne as a passenger on the third day, arriving in Melbourne at 1440.

[15] The proposition made by Mr Lyon that the “issue in dispute is not a complex one” significantly understates the matters requiring determination by the Commission.

[16] The dispute starts with an attractively simple question for determination: “was FO Lyon entitled to refuse the Roster Change?”, however provision of an answer to that question involves many considerations with the parties not agreed on how those considerations influence the overall consideration of the question for determination.

[17] While it is clear, the Agreement constrains rostering and that there was a change to Mr Lyon’s roster, he contends the Agreement gave him an entitlement to refuse the roster change.

[18] Both parties submit that management of rosters is in accordance with a Roster Protocol, which is referred to in the Agreement but is not part of the Agreement. Each party argues the application of the Roster Protocol leads to a different conclusion in their respective cases. The Respondent argues that to the extent that the Roster Protocol is a workplace agreement it is excluded and replaced by the Enterprise Agreement. Mr Lyon makes a contrary argument, both about the Roster Protocol’s status, as well as its construction. The Roster Protocol in turn makes use of definitions in CASA material and Jetstar’s Operational Manual, with the parties appearing to have differing views on the application of those materials to Mr Lyon’s circumstances.

[19] Mr Lyon argues that the Roster Protocol governs what should have taken place, with him arguing that the number of Designated Days Off to which a pilot is entitled and when they are rostered is something limited by the Agreement’s clauses 42.4 – 42.7 and clause 42.13.2. Both parties submit that the answer to the question for determination is dependent on the construction of clause 42.16, with each differing in their preferred construction.

[20] Respectfully, consideration of these steps, as well as the lengthy and involved submissions by both parties in no way leads to the conclusion that the “issue in dispute is not a complex one”. I consider the matter to be featured by moderate to high complexity, because of the required matters of construction.

[21] The conclusion to be drawn under s.596(2)(a) that a grant of legal permission would enable the matter to be dealt with more effectively, taking into account the complexity of the matter is an enquiry necessarily focused upon the presiding Member’s perspective of efficiency and complexity. It is of course also the case that a grant of permission for these reasons relates to the matter of future efficiency on the basis of known complexity. Whether actual efficiency will be demonstrated cannot be known at the time the grant of permission is made.

[22] The request for permission in this case comes from the Respondent. I am satisfied from their material filed to date that reasonable efficiency has already been shown in the way the submissions and other material have been drafted and that the practitioners involved may be expected to maintain their efficiency into the future as the case progresses. I am satisfied that this fact, together with the obvious complexity of the matter means that a grant of permission for legal representation will enable the matter to be dealt with more efficiently.

[23] I am satisfied from the material before me that the prerequisites required by s.596(2)(a) have been enlivened and that it is appropriate to grant permission for Jetstar’s representation by lawyers for that reason alone.

[24] It has been held in relation to s.596(2)(b) that the relevant test is not an assessment of the skills and education of the individual representative, but rather an examination of the resources available to a party as a whole; 11 and that an inability to represent oneself would be an inability to represent in a manner which creates a striking impression, or which has an impressive effect, or which is powerful in effect.12

[25] Jetstar argues in support of a grant under this section, that while it accepts it has an experienced and professional human resources department, the people employed in that department do not engage in advocacy on a regular basis. There is nothing further for me in relation to this argument other than to say that the human resources team would be unable to create a “striking impression”. I do not find the contention has been established in the absence of any elaboration about the skills or experience of the people involved.

[26] Jetstar further argues, somewhat disconnectedly, that it is not able to directly represent itself effectively due to numerous locations, competing work priorities and the burden that this would place on the Respondent's management. It does not elaborate what this means and I therefore place no reliance upon the contention.

[27] In relation to the criterion in s.596(2)(c) Jetstar argue that since Mr Lyon is represented by an experienced industrial advocate it would be unfair if its own legal representation was denied. Further, the duties of legal practitioners would mean it is unlikely that any procedural unfairness would arise from permission, and that no unfairness would be visited upon Mr Lyon if it were represented.

[28] I am not persuaded by the argument there would be unfairness to Jetstar if it were not legally represented for the reason there is no manner by which the contention can be tested on the material now before me. Perhaps the Jetstar people who would otherwise conduct the case have an experiential and skill equivalence to Mr Molnar, and perhaps they do not; perhaps there would be an unfairness if they were pitted against him, but perhaps not. In the absence of greater material there is simply no means to test the propositions Jetstar makes on this criterion.

[29] As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted. 13

[30] Having determined that the only ground enlivened by the Respondent’s application is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I consider that the possibility that there will be a significantly improved handling of the proceedings because of the Respondent’s representation is a factor in favour of the discretion being exercised.

[31] Jetstar is therefore granted permission to be legally represented in the forthcoming proceedings in this matter.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   AE413585.

 2 [2013] FCA 291.

 3   Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 4   Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5]; Calleri v Swinburne University of Technology[2017] FWCFB 4187, [36].

 5   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].

 6   King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].

 7 Ibid [17].

 8   Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].

 9   Respondent’s submissions in support of legal representation, 3 August 2020, [7].

 10   Applicant’s objection to the Respondent being legally represented, 4 August 2020, [5].

 11   King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [18].

 12   CEPU v UGL Resources Pty Limited (Project Aurora)[2012] FWA 2966.

 13   Warrell v Fair Work Australia [2013] FCA 291, [15].