Michaela Banerji v Commonwealth of Australia (Department of Immigration and Citizenship)

[2013] FWC 8817

[2013] FWC 8817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michaela Banerji
v
Commonwealth of Australia (Department of Immigration and Citizenship)
(C2013/6447)

COMMISSIONER DEEGAN CANBERRA, 8 NOVEMBER 2013

Application to deal with contraventions involving dismissal - whether permission should be granted for representation by lawyer.

[1] In this matter, the respondent, the Commonwealth of Australia (Department of Immigration and Citizenship), seeks permission, pursuant to s.596 of the Fair Work Act 2009 (the Act), to be represented by a lawyer in a conference relating to an application lodged under s.365 of the Act by the applicant, Ms Michaela Banerji.

[2] Section 596 of the Act provides that a person may be represented in a matter before the Fair Work Commission (the Commission) by a lawyer or paid agent only with the permission of the Commission. The section provides the following with respect to the granting of permission:

(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] Submissions in support of the request for permission to be represented by a lawyer were filed on behalf of the respondent. The submissions rely on the factual and procedural complexity of the matter which, it is put, has already been the subject of earlier proceedings. It was submitted that complex legal issues are raised by the application, including matters of constitutional law. Further, it is contended that the matter will be able to be dealt with more efficiently if the representative, who has had carriage of the matter since October 2012, is permitted to appear and assist the Commission in identifying and explaining those issues. Finally, it was noted that the applicant is a lawyer and has represented herself in matters against the Commonwealth in the Commission, the Federal Court and the Federal Circuit Court.

[4] The applicant objects to the respondent being granted permission to be represented in these proceedings by a lawyer, submitting that the ‘case is simple, unlawful termination for reasons of holding and expressing political opinion as a private citizen’.

[5] In Warrell v Fair Work Australia 1,the Federal Court of Australia considered the need for hearings before the Fair Work Commission to be conducted in a manner that is fair and just2. In this decision, His Honour Flick J noted following:

“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:

2291. 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.

2292. 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.

...

2296 In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.” 3

[6] The decision in Warrell relates to an unfair dismissal application heard in the Commission. Section 596 of the Act applies equally to unfair dismissal applications and applications made under the general protections provisions of the Act. The principles set out in the decision are as applicable to a general protections application where the Commission’s primary role is the conduct of a conference as to an unfair dismissal hearing.

[7] It can be argued that there should be less need for a party to be represented by a lawyer at a proceeding in the nature of a conference. It is also clear, however, that applications made under s.365 of the Act are more likely to raise complex legal issues than those alleging unfair dismissal. Despite having no determinative role in a conference held pursuant to s.368 of the Act, other than the limited advisory role set out in s.370 of the Act, it is nevertheless necessary that the Commission properly appreciate the legal issues which may arise should the matter not be settled and the applicant decide to proceed to court. If the Commission is to properly facilitate a settlement of the matter at the conference stage then it should have as comprehensive as possible an understanding of such issues.

[8] This matter has already been the subject of various proceedings in the courts and in the Commission. The applicant has represented herself in those proceedings while the respondent has been represented by lawyers.

[9] Having considered all the matters raised by the parties, I am satisfied that this is a matter in which permission for representation of the respondent by a lawyer is appropriate and that this is not merely for the convenience and preference of the respondent.

[10] Despite the applicant’s characterisation of the case as simple, I am satisfied that there will be matters raised during the conference of a complex legal nature and that any attempt to facilitate a settlement of the matter will proceed more efficiently if the legal issues are clearly and comprehensively put at the conference. I do not consider it unfair to the applicant to allow the respondent to be represented by a lawyer, particularly in light of the fact that the proceeding is a conference from which no decision on the law can arise, and in circumstances where the applicant is a solicitor admitted to the Supreme Court of the ACT.

[11] I also note the applicant’s concession that she would be prepared for the respondent’s legal representative to represent the respondent at the conference if ‘his presence was for the purpose of facilitating a resolution of the matter’ in accordance with the Commonwealth’s role as a model litigant and the respondent’s acknowledgement of the requirement that the Commonwealth act as a model litigant in accordance with the Legal Service Directions 2005 made under the Judiciary Act 1903.

[12] Accordingly, I grant permission for the respondent to be represented by a lawyer at the conference convened in relation to this matter.

[13] The applicant also objects to the request for permission to be represented by a lawyer having been made by the respondent’s representative rather than the respondent. I am satisfied that the request for permission to appear may be made by the representative of a respondent.

 1   Warrell v Fair Work Australia [2013] FCA 291 (4 April 2013).

 2 see s.577(a) Fair Work Act 2009.

 3 Above n 1, [24]-[25].

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