Mr Alan Flood v Aviation Ground Handling Pty Ltd

[2011] FWA 3013

[2011] FWA 3013

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Alan Flood
v
Aviation Ground Handling Pty Ltd
(U2011/3020)

COMMISSIONER ASBURY BRISBANE, 16 MAY 2011

Application for unfair dismissal remedy - representation by lawyers and paid agents.

Background

[1] On 4 January 2011, Mr Alan Flood made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is Aviation Ground Handling Pty Ltd.

[2] On 28 January 2011, a Notice of representative commencing to act was filed on behalf of Aviation Ground Handling, by Livingstones Australia giving notice that Aviation Ground Handling Pty is represented by Mr Laurie Moloney. A Conciliation Conference was held on 31 January 2011, and the matter was not resolved. The Respondent was represented at that Conference by Mr Moloney.

[3] A Directions Conference was held on 25 March 2011 for the purpose of determining how the application would be progressed. It was determined that a hearing would be the most effective and efficient manner to resolve the matter, and that hearing was scheduled for 26 and 27 May 2011, in Rockhampton.

[4] At the Directions Conference, Mr Flood indicated his objection to Aviation Ground Handling Limited being represented by Mr Moloney. It was agreed that the issue of whether the Company should be granted permission to be represented in this matter would be dealt with by way of the parties filing written submissions.

[5] Directions were issued in relation to the issue of representation setting out the relevant legislative provisions, and requiring that those matters be addressed in the written submissions. The submissions of Aviation Ground Services Pty Ltd were required to be filed on 13 April 2011, and Mr Flood’s submissions in reply were required to be filed by 27 April 2011. This decision relates to those submissions and the matter of whether the Company should be given permission to be represented by a paid agent in the hearing of Mr Flood’s application for an unfair dismissal remedy.

Legislation

[6] The matter of representation by lawyers and paid agents in matters before Fair Work Australia (FWA) is dealt with in s.596 of the Act. That section provides:

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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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) FWA’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 Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.

Submissions

[7] It is submitted for Aviation Ground Handling Limited that the Company initially started with two working directors, and has grown to the point that it now has 110 employees, undertaking ground handling operations in Rockhampton, Coolangatta, Maroochydore, Mackay, Townsville and Gladstone. Each port operates independently and is run and managed as a separate business.

[8] The organisational structure of Aviation Ground Handling Pty Ltd consists of a General Manager and Operations Manager located at Coolangatta Airport, and each airport base has a manager with supervisors, customer support officers and ground handling staff reporting to them. The Respondent does not have dedicated human resource management staff and day to day issues are usually dealt with by the relevant Airport Manager, Operations Manager or the General Manager as appropriate.

[9] Aviation Ground Handling Pty Ltd has engaged Livingstones Australia to assist with industrial relations and human resource management issues and representation since 1996, when the Company commenced operations in Rockhampton.

[10] Aviation Ground Handling Pty Ltd is a wholly owned subsidiary of Queensland Airports Ltd but operates as an independent business unit. Queensland Airports Ltd does have a human resources function, but this does not extend to representation before Tribunals, and that Company also uses the services of Livingstones Australia.

[11] Mr Moloney is an Industrial Advocate and does not have formal legal qualifications. He has appeared before FWA and its predecessor the Australian Industrial Relations Commission representing Aviation Ground Handling Services Pty Ltd for a considerable period of time.

[12] It is contended that the Tribunal would be assisted by the Respondent being represented by an experienced advocate, and such representation would allow the matter to be dealt with more efficiently. Aviation Ground Services Pty Ltd does not directly handle matters before the Tribunal on a regular basis and it would be unfair not to allow the Respondent to utilise its longstanding representative. The Company is not a member of an Employer Group or Association which could provide representation.

[13] It is further contended that Mr Flood has not objected to the representation of Aviation Ground Services Pty Ltd at any point before and during the conciliation of this matter, and has engaged directly with Mr Moloney in formal correspondence in relation to the application for an unfair dismissal remedy, on approximately four occasions, without objection. Such correspondence has been cordial and professional.

[14] Aviation Ground Services Pty Ltd dismissed Mr Flood for a serious safety breach which could have resulted in a serious injury to himself or his colleagues and members of the travelling public. The subject matter of this application will be the subject of “vigorous forensic examination and legal argument” and an “in depth analysis of the case law relevant to serious misconduct”. 1 Aviation Ground Services Pty Ltd does not have any employees equipped with the necessary skills for cross-examination, and permission for the Respondent to be represented by an experienced Industrial Advocate would assist in the efficient resolution of the matter. The matter is complex and there is a substantial variation of the accounts of the events that lead to the dismissal.2

[15] Mr Flood has indicated that he will be conducting lengthy cross-examination of the Respondent’s witnesses. The General Manager of Aviation Ground Services Pty Ltd was directly involved in the dismissal and it would be impracticable for him to act as an advocate and a witness to contested events, and be subject to lengthy cross-examination. That Mr Flood has chosen not to be represented is not determinative of whether the Respondent should be given permission to be represented.

[16] Where representation is engaged during the conciliation processes, this may have been considered in the decision to further engage such representation for arbitration, and a respondent company should not be prevented from utilising the resources it has engaged for the purpose of preparing and defending the matter. 3

[17] It is further submitted that to refuse permission for Aviation Ground Services Pty Ltd to be represented would be unfair and cause prejudice, and would not be consistent with the objective of ensuring a “fair go all round” in s.381(2) of the Act.

[18] Mr Flood objects to Aviation Ground Services Pty Ltd being represented, on the ground that he has no confidence in the case as presented by Livingstones Australia and feels that the fair and reasonable handling of the case is further complicated by the Company being represented by this particular paid agent. Mr Flood submits that during conciliation, he was not aware that he could object to Aviation Ground Services Pty Ltd being represented and now wishes to object.

[19] Mr Flood submits that he was also involved in the termination and will be subject to cross-examination, while representing himself. Mr Flood also contends that the submission that he has chosen not be represented, is incorrect. Mr Flood is not represented because assistance is not available and his funds are limited. If Aviation Ground Services Pty Ltd is represented in the hearing of this matter, Mr Flood will be disadvantaged.

[20] Mr Flood submits that while he engaged in correspondence with Livingstones in relation to this matter, he does not agree with the facts and statements as presented by Mr Moloney, and has no confidence that this matter can be resolved fairly through Mr Moloney. In conclusion, Mr Flood submits that:

“...direct resolution between Fair Work Australia and [Aviation Ground Handling Pty Ltd] General Manager...is the preferred method to settle this matter. A paid Agent will further complicate the matter with their own version of events.”

Conclusions

[21] After considering the submissions of the parties, and the material filed in relation to the application for an unfair dismissal remedy, I am of the view that permission should be granted for Aviation Ground Handling Services Pty Ltd to be represented by a paid agent. The matter is complex in that a central issue is an alleged serious safety breach. There is a further level of complexity on the basis that Aviation Ground Handling Services Pty Ltd is a tenant of, and subject to directions and operational requirements imposed by the Rockhampton Regional Council, and the dismissal of Mr Flood related to interactions with a representative of the Rockhampton Regional Council.

[22] It is apparent that there is a significant factual dispute between Mr Flood and Aviation Ground Handling Services Pty Ltd and resolution of disputed facts will involve evidence and cross-examination. In my view, the factual dispute will be more efficiently dealt with if the Respondent is represented by its usual industrial advocate, who has been involved in the matter from the outset.

[23] Mr Flood’s objection to the Respondent being represented relates more to the identity of the representative than it does to questions of fairness between the parties. Mr Flood’s objection also indicates a misunderstanding of the nature of the hearing to be conducted on 26 and 27 May 2011.

[24] The hearing will involve evidence and submissions from those persons who were directly involved in the dismissal and surrounding events. It will not involve a version of events formulated by the representative for Aviation Ground Handling Services Pty Ltd. The version of events that is accepted will be a matter for the Tribunal to determine.

[25] Livingstones Australia has a long history of providing industrial relations and human resource management services to Aviation Ground Services, and has assisted the Company in relation to this matter from the conciliation stages. In the circumstances, permission is granted for Aviation Ground Services to be represented by a paid agent at the hearing to be conducted in Rockhampton on 26 and 27 May 2011.

COMMISSIONER

 1   Lawrence v Coal and Allied Mining Services [2010] FWA 4978 (6 July 2010).

 2   In contrast to the facts in Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572 (9 October 2009.

 3   Lawrence v Coal and Allied Mining Services op. cit; Rollason v Austar Coal Mine Pty Limited [2010] FWA 4863 (1 July 2010).

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