Mr Brian Davies v National Electrical Contractors Association NSW Chapter

[2021] FWC 1081

[2021] FWC 1081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.596—Representation by lawyers and paid agents

Mr Brian Davies
v
National Electrical Contractors Association NSW Chapter
(U2020/15793)

DEPUTY PRESIDENT BULL SYDNEY, 9 MARCH 2021

S.596(2) - Application for permission to be legally represented in unfair dismissal - whether matter will be dealt with more efficiently taking into account the complexity of the matter - exercise of discretion - application granted.

[1] The applicant, Mr Brian Davies, has filed an application in the Fair Work Commission alleging that he was unfairly dismissed. The respondent employer, the National Electrical Contractors Association NSW Chapter (NECA) opposes the unfair dismissal application and seeks to be legally represented in the forthcoming hearing, pursuant to s.596 of the Fair Work Act 2009 (the Act).

[2] The matter of representation has been dealt with by way of written submissions filed by the parties.

[3] On 3 February 2021, solicitors for the respondent filed a Form F53 giving notice that it acts for the respondent and seeks permission to participate in a conference or hearing.

[4] Mr Davies represents himself in this matter. 1

[5] On 12 February 2021, Mr Davies was invited to provide a response to the request of NECA to be legally represented in this matter by 19 February 2021.

[6] On 19 February 2021, Mr Davies filed a response to NECA’s request, stating that he objects to legal representation being granted. On the same day, NECA was directed to file and serve submissions as to why permission under s.596 should be granted by no later than 4:00pm on 24 February 2021.

[7] On 24 February 2021, NECA filed submissions as to the grounds on which the application for legal representation is made.

[8] On 26 February 2021, Mr Davies filed a further response to NECA’s request to be legally represented.

Applicant’s submissions

[9] On 19 February 2021, Mr Davies stated that he has not engaged legal representation because of the cost, and to allow NECA to have legal representation is not justified and would leave him disadvantaged. Mr Davies submitted that he is already disadvantaged because NECA is the peak industry body for the electrical contracting industry that offers legal representation to its members, defending employers against unfair dismissal claims from employees as well as offering education, training and support for IR and HR services. 2

[10] Mr Davies further stated that all IR and HR services are provided to NECA members by NECA Legal Pty Ltd as a contract service to NECA As NECA’s own in house legal representative, this demonstrates that the engagement of external lawyers is unnecessary. 3

[11] Mr Davies also stated that Mr Oliver Judd, the respondent’s Executive Director is a qualified solicitor, who is very skilled in this area of legal practice, having initially been employed specifically to provide IR and HR services for NECA members. 4

[12] It was stated by Mr Davies that NECA has engaged lawyers solely to threaten and justify higher costs against him, and NECA has notified him that it may seek costs pursuant to s.400A or s.611 of the Act. 5

[13] In his response on 26 February 2021, Mr Davies provided names of internal solicitors and individuals that NECA could engage without seeking external legal representation and maintained that he is disadvantaged by the legal background and experience NECA has in this area, and NECA’s size and access to resources and funds. 6

Respondent’s submissions

[14] On 24 February 2021, NECA made submissions in support of its request to be legally represented. NECA submitted that all of the conditions set out in s.596 of the Act are satisfied, and that the Commission should exercise its discretion to grant permission for NECA to be legally represented. 7

[15] Regarding the complexity of the matter, NECA recognised that the legal issues in dispute may not be significantly complex, however submitted that s.596(2)(a) of the Act suggests that the complexity of a matter is not confined to only legal issues, but may also extend to other matters such as factual matters, evidentiary matters or the parties’ understanding of the Commission’s processes and procedures. 8

[16] NECA stated that Mr Davies’ materials are approximately 40 pages in length and refer to various issues and facts. It is submitted that Mr Davies has an elementary understanding of the Act and the legislative regime governing the application, and that it is difficult to distil Mr Davies’ case based on his materials. 9

[17] NECA further submitted that whilst it has not yet filed its own submissions and evidence regarding the substantive matter, it is expecting to file numerous witness statements, and it will become apparent on the material that there is substantial disagreement between the parties as to the reasons for the dismissal and the events that occurred. 10

[18] In light of the above, NECA submitted that being legally represented would allow the matter to dealt with more efficiently in that it would:

a. aid in narrowing the scope of the issues in dispute to only those which are relevant to the application and that only relevant matters are put to the Commission;

b. assist the Commission to hear the application efficiently, noting that there will be a number of witnesses and that Mr Davies is self-represented;

c. ensure the matter is conducted and managed professionally and efficiently as the legal representatives of the respondent are:

i. familiar with the relevant statutory provisions, as well as the interpretation and application of those provisions;

ii. familiar with Commission processes and procedures; able to identify relevant evidence; and

iii. able to succinctly examine and cross-examine any witnesses who may be required to give oral evidence. 11

[19] Regarding fairness, NECA submitted that if permission is not granted, it is most likely that Mr Judd would appear on behalf of NECA. Mr Judd was involved in the dismissal and disciplinary process of Mr Davies and is a material witness in the proceedings. 12

[20] NECA further submitted that there are a number of personal matters raised in the application between Mr Davies and Mr Judd, which, whilst irrelevant, demonstrate that it would be difficult for Mr Judd to effectively represent NECA, and that there is a risk that personal matters will overshadow the core issues to be dealt with. 13

[21] NECA submitted that while it does have a Human Resources Coordinator, she is relatively new to her role, unfamiliar with Commission procedures and processes, and is also a witness in the matter. 14

[22] In response to Mr Davies’ statement on 19 February 2021, NECA acknowledged that it provides HR and IR assistance to its members, however this is a member service designed to assist NECA members as opposed to the HR/IR issues of NECA itself. If NECA was required to utilise this area of the organisation, this would divert resources away from its member services and arguably constitute a misuse of member services. 15

[23] NECA further submitted that the NSW Branch of its organisation is relatively small, with only approximately 20 employees, and a number of these employees may be involved as witnesses at the hearing. It is also submitted that given the small number of employees who work together in the NSW branch, it would be difficult for employees to distinguish their personal relationship with Mr Davies and it would cause unnecessary stress or disruption to an employee required to represent NECA in respect of the application. 16

[24] Finally, NECA submitted that allowing it to be legally represented would not prejudice Mr Davies nor would it create unfairness between the parties. Conversely, it would assist the parties to efficiently deal with the application and focus on the key issues. NECA submitted that if Mr Davies wished to be represented, it would not object to this. 17

[25] On 5 March 2021, NECA filed its written submissions and eight witness statements in defence of the unfair dismissal application.

The Legislation

[26] Section 596(2) of the Act is the relevant section that must be applied in determining applications of this kind. This section is expressed as follows:

“(2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before 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.”

[27] Sub-sections (a), (b) and (c) of s.596 are disjunctive in that it is only necessary for the Commission to find one of the sub-sections is satisfied to exercise its discretion to grant permission for a party to be legally represented. The satisfaction of one of these conditions is not determinative but enlivens the Commission’s discretion as to whether permission to be represented should be granted. 18

[28] The principles to be applied in such applications were considered in Warrell v Walton 19 and subsequently adopted by a Full Bench of the Commission in New South Wales Bar Association v McAuliffe.20

[29] In Warrell, Flick J said, at [24]:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to section 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 section 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 section 596(2) have been taken into account and considered. The constraints imposed by section 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 section 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 section 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in section 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission.”

[30] In a recent Full Bench decision Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender, 21 (Wellparks) the Full Bench stated at [48]:

“The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”

S.596(2)(a)

[31] Under s.596(2)(a), the Commission must consider the complexity of the matter, the test being whether the matter would be dealt with more efficiently if permission to be represented by a lawyer or paid agent was granted, taking into account the complexity of the matter.

[32] In ASC Pty Ltd v The Australian Workers’ Union and others; 22 Gostencnik DP stated:

“[16] In any event the question, for the purposes of granting permission for the reasons set out in section 596(2)(a) of the Act, is not whether ASC can be represented or even effectively represented by in-house resources, rather the relevant question is whether, taking into account the complexity of the matter, the grant of permission to ASC to be represented by a lawyer (in this case one experienced in advocacy and industrial law) would enable the matter to be dealt with more efficiently. The in-house capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant of permission to ASC for external legal representation will have that result.”

[33] In this matter, as evidenced by the witness statements and submissions filed by the parties, the complexity of the matter is highlighted by the fundamental disagreement between the parties as to the circumstances leading up to and surrounding the dismissal of the applicant. NECA has submitted that legal representation will enable it to distil the applicant’s case, based on the 40 pages of materials filed by the applicant.

[34] Having regard to the submitted material and on the specific facts and circumstances of the matter, the Commission is satisfied that legal representation on behalf of the respondent would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The complexity includes the amount of evidentiary material filed, the number of persons to give evidence and the substantial differences between the parties in the events connected to the reasons for dismissal, which will need to be dealt with in cross-examination. 23

S.596(2)(b)

[35] With regard to whether it would be unfair not to allow the respondent to be represented because they are unable to represent themselves effectively, I am not persuaded that NECA’s own in-house employees would not be sufficiently competent to represent NECA effectively.

S.596(2)(c)

[36] With regard to this aspect, the Commission is not satisfied that it would be unfair not to allow the respondent to be legally represented taking into account fairness between the respondent and other persons in the same matter.

Conclusion

[37] In applying the two step process set out in Wellparks, the Commission is satisfied that sub-section 596(2)(a) has been met, in that legal representation of the respondent will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[38] Secondly, having regard to all of the circumstances, I am satisfied that the discretion to allow legal representation should be exercised in favour of the respondent.

DEPUTY PRESIDENT

Matter dealt with by way of written submissions

Printed by authority of the Commonwealth Government Printer

<PR727359>

 1   Statement of B. Davies dated 19 February 2021 at [1.0-1.1]

 2   Ibid at [1.0-1-2]

 3   Ibid at [2.0-2.3]. It was not made clear why NECA Legal Pty Ltd would not also need leave to appear in the matter.

 4   Ibid at [2.2-2.3]

 5   Ibid at [3.0-3.1]; Attachment B to statement.

 6   Response of B. Davies dated 26 February 2021.

 7   Submissions of the respondent dated 24/2/2021 at [26]

 8   Ibid at [6-7]

 9   Ibid at [8]

 10   Ibid at [10]

 11   Ibid at [13]

 12   Ibid at [14]

 13   Ibid at [15-16]

 14   Ibid at [17]

 15   Ibid at [20]

 16   Ibid at [21]

 17   Ibid at [23]

 18   CEPU & Ors v Northern SEQ[2016] FWC 4736 at [13- 14]

 19   [2013] FCA 291

 20   [2014] FWCFB 1663

 21   [2021] FWCFB 268

 22   [2014] FWC 544

 23   See comments of Full Bench in Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 regarding volume of material