Mr Corey Batrachenko v Formway Group Ltd

[2013] FWC 1244

[2013] FWC 1244

FAIR WORK COMMISSION

DECISION

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

Mr Corey Batrachenko
v
Formway Group Ltd
(U2012/9684)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 27 FEBRUARY 2013

Procedural issue - legal representation.

[1] This matter concerns the determination of a point before the commencement of the substantive hearing in Batrachenko v Formway Group Ltd (U2012/9684).

[2] Prior to the application being allocated to a member for determination, the parties have sought that the Commission act promptly to resolve the threshold issue as to whether or not permission to appear should be extended to a legal representative for the purposes of the representation of the Respondent’s interests in the substantive hearing. The resolution of this matter is important to the preparations for hearing. In this particular instance the CEPU has opposed legal representation by the employer (Formway Group Ltd).

[3] Section 596 of the Fair Work Act 2009 (“the Act”) allows the Commission to exercise its discretion to grant permission to a legal representative when it is satisfied of the various conditions as set out.

[4] Specifically, s.596(2) of the Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent only if it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or it would be unfair not to allow the person be represented because the person is unable to represent himself\herself effectively; or 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.

[5] Having examined the file it appears to be that the matter concerns a substantial body of evidence and witness statements, and a notably extensive collection of other materials including daily time sheets and work allocation documents.

[6] There will be a requirement, evidently, for a considerable amount of cross examination. It is also apparent on the materials that there will also be arguments about the admissibility and the probative value of certain evidence. Issues of credit will also be in contest, and this again is evident from the materials within the file.

[7] It appears to me that in such circumstances the assistance of a legal representative would aid the efficiency of the conduct of the matter, particularly in ensuring an orderly approach to the body of materials, an informed focus on the issue of admissibility, and a deliberate approach to the cross examination.

[8] Where a matter reasonably may assume some complexity (as in this case), it would be prudent to allow for legal representation (and arguably on both grounds of fairness and efficiency).

[9] I add that judgments made by the Commission in these respects will often be somewhat prospective as they will anticipate not only the prospect of the matter to assume some measure of complexity, but also the capabilities of the legal practitioner in question to manage that complexity as it arises. The barrister here seeking permission to appear has not to my knowledge been the recipient of any admonishment or otherwise by the Law Society of Queensland, any commissioner of legal services, or any court, tribunal (or this Commission). His competence is to be safely assumed.

[10] That said, should the Applicant’s representative at any stage, however, form a view that the issue of ongoing legal representation has given rise to a particular unfairness or that the conduct of the legal representative has introduced inefficiencies into the hearing process, that should be brought to the attention of the presiding member promptly so that any such issue can be addressed.

[11] The parties will be advised shortly as to the member responsible for the arbitration hearing. In the interim, the directions timetable can continue uninterrupted.

SENIOR DEPUTY PRESIDENT

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