Miss Marie Caltabiano v Enuf Burger Bar T/A Enuf Burgar Bar Glenelg

[2016] FWC 8196

[2016] FWC 8196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Marie Caltabiano
v
Enuf Burger Bar T/A Enuf Burgar Bar Glenelg
(U2016/11908)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 NOVEMBER 2016

Permission to be represented by a 'lawyer or paid agent' pursuant to s.596 of the Fair Work Act 2009.

[1] This decision deals with a dispute over representation arrangements in relation to an unfair dismissal application made by Ms Caltabiano. That application is listed for a determinative conference on 22 November 2016. The respondent to the application has advised that its correct name is CA Bound & HL Bound & BA Reynolds T/A E’Nuf Burger Bar, and has objected to the application on the basis that it asserts that Ms Caltabiano was a casual employee and that she was not dismissed.

[2] In a directions conference on 25 October 2016, the position of the parties with respect to representation by a lawyer or paid agent was unclear. As a consequence, in the directions issued on that same date I stated:

“[3] In the event that either party seeks to be represented by a lawyer or paid agent, at the determinative conference, brief submission setting out the basis for that request is to be provided to the Commission, and to the other party, by close of business 2 November 2016. If any such request is opposed, a brief submission detailing the basis for that opposition is to be provided to the Commission and to the other party by close of business 9 November 2016. In that event, and in that event only, a decision on the representation issue will be provided to the parties as soon as practicable after 9 November 2016. A copy of s.596(2)(a) of the Fair Work Act 2009 (the FW Act) is attached for the information of the parties.”

[3] I have subsequently received advice from both parties. Mr Cagney, of the Shop, Distributive and Allied Employees Association (SDA) has advised that the SDA will be representing Miss Caltabiano, who is a member. Mr Dawson, of E’Nuf Burger Bar has provided advice in which he records his objection to a “lawyer” being involved on the basis that:

“…. I rang and talked to him and he said to me he had only just gotten involved and did not know much about case when I asked him if he knew that I have an sms resignation he replied he didn’t know about any evidences” (sic) (email of 13 November 2016).

[4] The Fair Work Act 2009 deals with the capacity for a lawyer or paid agent to represent a person in a matter before the Fair Work Commission (FWC) in section 596. This section relevantly states:

“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.”

[5] Mr Cagney is a lawyer who is an employee, or an officer of the SDA which is an organisation within the meaning of s.596(4). Mr Cagney has advised that Miss Caltabiano is a member of the SDA. Accordingly, Mr Cagney does not require a grant of permission pursuant to s.596(2).

[6] To the extent that E’Nuf Burger Bar objects to Mr Cagney representing Miss Caltabiano because he was not aware of the full facts of the matter, this is not a basis upon which representation in the circumstances could be refused. In any event, I anticipate that, consistent with its normal approach, the SDA will ensure that it is fully briefed on the matter before it proceeds.

[7] This brings me to observe that E’Nuf Burger Bar has not yet complied with the Directions issued on 25 October 2016. Those directions required E’Nuf Burger Bar to provide to the Commission, and to Miss Caltabiano, by close of business 14 November 2016:

● a witness statement addressing any of the initial or jurisdictional issues identified in the Employers Response (the Form F3) to the application, and
● a copy of any document to be relied upon.

[8] Those same directions advised that compliance was mandatory and that a failure to attend the determinative conference on 22 November 2016 or to provide the requested information may result in an adverse finding. E’Nuf Burger Bar must comply with that direction as a matter of urgency. Miss Caltabiano’s rights in this respect are reserved.

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