Mr Errol McCarthy v CDJV Construction Pty Ltd

[2014] FWC 3072

[2014] FWC 3072 [Note: An appeal pursuant to s.604 (C2014/4273) was lodged against this decision - refer to Full Bench decision dated 4 September 2014 [[2014] FWCFB 5726] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Errol McCarthy
v
CDJV Construction Pty Ltd
(U2013/1487)

Mrs Gabriel McCarthy
v
CDJV Construction Pty Ltd
(U2013/1488)

COMMISSIONER SPENCER BRISBANE, 28 MAY 2014

Application for relief from unfair dismissal - objection to representation by CFMEU

[1] This decision concerns an objection by CDJV Construction Pty Ltd (the Respondent) to the proposed representation, of Mr Errol McCarthy and Mrs Gabriel McCarthy (together the Applicants), by Mr Alex Cousner of the Construction, Forestry, Mining and Energy Union (the CFMEU). This decision concerns the issue of this specific question of representation for this matter.

Procedural History

[2] The substantive applications in these matters were filed on 8 May 2013 but allocated to the Commission, as presently constituted, on 10 February 2014. At this time the matters were listed the matter for a conciliation and mention on 21 February 2014. The Respondent’s representative, AiGroup, raised their objection to the CFMEU’s representation in the matters at the conference on this date.

[3] At the mention on 21 February 2014 the parties agreed that submissions in relation to the matter of representation would be filed with the substantive submissions in relation to the applications. This was subsequently further clarified by email from the Commission.

[4] Following the exchange of submissions in this matter, and a delay to the directions timetable caused by the Respondent’s representative seeking to file their material later, the Respondent’s submissions were filed on 22 April 2014.

[5] On 28 April 2014, further particulars were sought from the Applicant’s representative on 28 April and again on 29 April 2014.

[6] On 29 April 2014, Mr Cousner, of the CFMEU, responded as follows:

“Dear Associate,

We refer to the above matter and make the following submissions in relation to the objections:

1. The Applicant’s in this matter are Represented by officers of the CFMEU. 

2. The CFMEU is a Registered Organisation within the meaning of in the Fair Work (Registered Organisations) Act 2009.

3. In accordance with section 596 of the Fair Work a person can be represented by an officer of an Organisation without having to apply for leave.

4. The CFMEU confirm, however, that Mr Alex Cousner will be appearing on behalf of the Applicant’s who are members of the CFMEU.”

[7] Late on the afternoon of 29 April 2014, the Respondent’s representative corresponded with the Commission, seeking that a decision be made in relation to representation by the CFMEU. The matter was listed for Arbitration on 1 May 2014.

[8] The Commission was then out of Chambers on 28 and 29 April 2014 on unrelated interstate Full Bench matters, the Commission was also out of Chambers for a large portion of 30 April 2014 conducting site inspections in an unrelated matter. The initial timeframe for this jurisdictional decision was adjusted by the delay in submissions.

[9] Accordingly, on the morning of 30 April 2014, the parties were advised that Mr Cousner would be permitted to appear at the Arbitration in the matter. No objection was raised at that time by the Respondent’s representative.

[10] Following this, and while the Commission and Associate were out of chambers on unrelated site inspections, the Respondent’s representatives wrote to the Commission seeking that the Arbitration be adjourned until such time as written reasons in relation to representation could be produced. This correspondence raised additional matters in relation to the representation issue, not originally put to the Commission in submissions.

[11] The Commission (as requested) adjourned the Arbitration, listed for the following day. Given the late adjournment request the parties were given some options to consider in the matter proceeding. However, in the interim the Respondent lodged an appeal. They later wrote, setting out that they would seek instructions as to whether they pressed the appeal.

Relevant legislation

[12] A person may only be represented by a lawyer or paid agent with the permission of the Commission. 1 Section 596 of the Fair Work Act 2009 (the Act) 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 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.”

[13] A lawyer is defined by the Act as:

“lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.” 2

[14] A paid agent is defined by the Act as:

“paid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter.” 3

[15] An organisation is defined by the Act as:

“organisation means an organisation registered under the Registered Organisations Act.” 4

Submission of Applicants

[16] The CFMEU submitted, on behalf of the Applicants, that the CFMEU was not the Applicant in the proceedings and therefore did not need to prove “coverage” of the employees (the Applicants) in order to appear before the Commission. Further to this, the CFMEU submitted that the Applicants “are entitled to be represented in these matters by anyone that they choose and accordingly they have chosen to be represented by the CFMEU”.

[17] After having been requested to provide clarification, the Union submitted that, as the CFMEU was an “organisation”, leave was not required pursuant to s.596 of the Act.

Submission of Respondents

[18] The Respondent succinctly stated the two limbs of its submissions as follows:

“the CFMEU’s capacity, right and authority to engage in any particular course of conduct is circumscribed by the registered Rules of the Construction, Forestry, Mining and Energy Union (“CFMEU Rules”); it depends on whether the particular course of conduct is in fact authorized (sic) by the CFMEU Rules; and is within the objects of the CFMEU, as set out in the CFMEU Rules; and

Further, or in the alternative, neither the FW Act nor the Fair Work (Registered Organizations) (sic) Act 2009 (Cth) (“FW (RO) Act”) provides any basis on which the CFMEU may represent the Applicants and therefore the FWC Ought not to give permission to the CFMEU or any officer of that organisation to represent the Applicants in this matter because it is contrary to the intentions of the FW (RO) Act.” 5

Legal capacity, right or authority

[19] The Respondent’s referred to the CFMEU Rules, Rule 2(E)(a), as follows:

“(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union :-

(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected as representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.

Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership.” (underlining in submissions)

[20] The Respondent submitted that the Applicants were employed as “Group B Truck Drivers” under the relevant industrial instrument. The “occupations” for the Applicants were submitted as either being the “Driver of a Motor Vehicle with a carrying capacity of over 6.09T” or “Driver of a truck up to 20T”. The Respondent submitted that the Applicants work “most frequently” involved driving a Toyota Hilux.

[21] This, in the Respondent’s submission, meant that the Applicants were driving a “motor truck” and were therefore excluded from eligibility to be members of the CFMEU pursuant to Rule 2(E)(a). The industry within which the Applicants work was submitted as irrelevant on the basis of the unqualified exclusion contained in the Rule.

[22] The Respondent submitted that, on the basis that the Applicants were not entitled to be members of the CFMEU, the CFMEU did not have the capacity, under its Rules, to represent them. If the Commission permitted the CFMEU to represent the Applicants, the Respondent submitted that this would “give the appearance of [the Commission’s] acquiescence in the use of union resources in respect of activities beyond the scope of the objects and rules of the union.

Consideration

[23] There are two questions for consideration in this decision: whether Mr Cousner of the CFMEU was able to represent the Applicants, specifically, was he a “lawyer or paid agent” for the purposes of s.596 and thus required to seek permission of the Commission to appear, and if so, should permission be granted?

[24] The parties have not referred the Commission to a decision of any Tribunal or Court which has directly dealt with the scenario now presented.

[25] The Explanatory Memorandum to the Fair Work Bill 2009 stated:

“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 of 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.” 6 (emphasis added)

[26] The Respondent’s objection to representation by the CFMEU would have the Act read as limiting the ability of the CFMEU to represent its members only where it has coverage of the member. Section 596, when given its plain and ordinary meaning, does not mention “coverage” or that the “organisation” must have coverage of the person. The paragraph of the explanatory Memorandum above also does not mention or require coverage.

[27] I note that the Fair Work (Registered Organisations) Act 2009 (the RO Act) provides for remedies in relation to “breach of rule of organisations”; in particular I note s.164A of the RO Act. If the Applicants are not members of the CFMEU, and to represent them is a breach of the CFMEU’s Rules, then a person, with appropriate standing, could make an application to the Court for an appropriate order.

[28] The unambiguous language of s.596 of the Act is that where a person is represented by a lawyer or paid agent, and that lawyer or paid agent is an officer of an organisation that is representing the person, then the person is taken not to be represented by a lawyer or paid agent.

[29] The Applicants sought to be represented by Mr Alex Cousner of the CFMEU. There is no evidence before the Commission of whether Mr Cousner is “a person who is admitted to the legal profession by a Supreme Court of a State or Territory”. There is also no evidence that the CFMEU has charged, or received, a fee to represent the Applicants in the matter, rather Mr Cousner has clarified that the Applicants are members of the CFMEU.

[30] Section 596(4) of the Act specifies that a “person” is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent is one of the specified class of persons stipulated by s.596(4)(a) to (c).

[31] It is not in dispute that the CFMEU is an organisation, or that Mr Cousner is an “employee or officer” of the CFMEU. It is also not in dispute that the CFMEU is an organisation that “is representing the [Applicants]”.

[32] On that basis, Mr Cousner of the CFMEU was able to appear in this matter and therefore permitted to appear in the matter representing the Applicants.

[33] I Order accordingly.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s.596(1).

 2   Ibid s.12.

 3   Ibid.

 4   Ibid.

 5   Submissions of the Respondent on the right of the CFMEU to represent the Applicants at para 4.

 6   Fair Work Bill 2009 Explanatory Memorandum at 2291.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550437>