Mr Gregory Cowle v Caltex Petroleum Services Pty Ltd T/A Caltex Energy NSW
[2015] FWC 1592
•9 MARCH 2015
| [2015] FWC 1592 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gregory Cowle
v
Caltex Petroleum Services Pty Ltd T/A Caltex Energy NSW
(U2014/15184)
COMMISSIONER CAMBRIDGE | SYDNEY, 9 MARCH 2015 |
Termination of employment - representation by lawyers and paid agents.
[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Gregory Cowle (the applicant). The respondent employer is Caltex Petroleum Services Pty Ltd T/A Caltex Energy NSW (the employer).
[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should grant permission for the employer to be represented by lawyers or paid agents (the representation question).
[3] The application was filed on 17 November 2014, and the applicant is represented by the Transport Workers’ Union of Australia (the TWU). The employer filed a response dated 11 December 2014. The file indicates that conciliation of the matter scheduled for 15 December 2014 did not take place.
[4] On 16 January 2015, FCB Workplace Law (FCB)lawyers filed a Notice of representative commencing to act on behalf of the employer. On 26 February 2015, FCB sent a communication to the Commission which included submissions made in support of the employer being granted permission to be represented by lawyers or paid agents. Subsequently, in a communication dated 6 March 2015, FCB provided further written submissions in respect to the representation question.
[5] The TWU on behalf of the applicant formerly raised objection to the employer being represented by lawyers or paid agents. The TWU has provided written submissions dated 2 March 2015, which set out the basis for the applicant’s opposition to the employer being granted permission to be represented by lawyers or paid agents.
[6] The Parties have subsequently confirmed their consent to the representation question being determined upon the documentary material which has been filed.
[7] I have carefully examined and considered the filed documentary material including the respective submissions of the Parties as the basis for this Decision.
Consideration
[8] The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:
“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.”
[9] The legislative intentions underpinning s.596 of the Act have been the subject of various Decisions of the Commission and Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.
[10] Upon examination of subsection 596 (2) of the Act, there appears to be three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the conciliation or Hearing of a claim for unfair dismissal. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.
[11] In this case, the employer has submitted that those factors found in subsections 596 (2) (a), (b) and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively, and fairness, all operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the applicant submitted that all of the factors contained in subsection 596 (2) of the Act operated to establish that the Commission should refuse permission for the employer to be represented by lawyers.
Complexity/Efficiency - Subsection 596 (2) (a)
[12] The employer submitted that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from expert medical evidence which the employer sought to rely upon.
[13] In particular, expert medical evidence was to be provided in connection with the basis for the dismissal of the applicant, which involved the detection of the presence of alcohol (at a BAC level of 0.077 g/100ml) as part of the employer’s random workplace drug testing regime. The employer submitted that the Commission would be assisted and the proceedings would be more efficient, if a lawyer was involved “in guiding the Commission through” what it asserted to be “complex expert and lay evidence”.
[14] Alternatively, the applicant rejected the complexity attributed to the matter by those representing the employer. The applicant submitted that the matter for consideration involved a simple factual contest.
[15] In respect of the issue of complexity, the circumstances that surround the termination of the employment of the applicant do not appear to present any particularly unusual issues. The expert medical evidence has not been the subject of contest by way of alternative contradictory expert evidence. The contest that appears to emerge relates in large part, to testing of the applicant’s evidence concerning the amount of alcohol that he consumed on the evening prior to the workplace drug testing. The relevance of that contest may become apparent during the Hearing.
[16] Upon examination of the medical evidence and consideration of any contests that may arise from it, I am unable to recognize a level of complexity beyond that which would be found in a fairly routine unfair dismissal matter. On balance, I find that the matter has no particular complexity such that it would be dealt with more efficiently with the assistance of legal representatives.
Inability/Effectively - Subsection 596 (2) (b)
[17] The employer advanced an argument that it would be unfair if it was unable to represent itself without a lawyer. The inability to effectively represent itself was said to arise from the requirement that the particular persons who would otherwise advocate the case for the employer, have not had experience appearing in a Hearing before the Commission. In addition, it was submitted by the employer that it would be unfair for the employer if it had to present expert evidence which had been obtained by its legal representatives.
[18] The TWU on behalf of the applicant rejected that the employer was unable to represent itself effectively. The TWU submitted that the employer was part of a large multi-national group of companies with a human resources department comprising personnel with ample qualifications and experience to be capable of representing the employer effectively.
[19] Upon examination of the respective submissions, I am not convinced that the employer could not effectively represent itself without lawyers. I believe that given the size of the employer’s operation which includes specialist staff in a human resources department, those who would represent it would be capable of making a “striking impression” or be “impressive” or be “powerful in effect”.
Fairness - Subsection 596 (2) (c)
[20] The issue of fairness between the Parties is a matter of recognised significance. In this instance both Parties have made submissions which have stressed the question of fairness.
[21] The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers, in circumstances where the TWU advocate was legally trained and experienced in Commission proceedings.
[22] The TWU submitted that no unfairness would arise if the employer was not legally represented and the applicant was represented by staff of a registered organisation albeit legally trained. The TWU submitted that the objects of the Act and a general requirement for informality of proceedings before the Commission were factors which operated against granting permission for the employer to be legally represented.
[23] In this instance, if permission for legal representation for the employer was granted there would appear to be little in the way of an imbalance created because the applicant would be represented by a legally trained TWU advocate. However, particularly given the size of the employer, there would also appear to be little imbalance created if the employer was required to utilise its own staff.
[24] Importantly, as was recognised by his Honour in the Warrell Judgement; “The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.” 2
[25] In the present circumstances, applying in particular, the reasoning contained in the Judgment in the Warrell case, I consider that unnecessary formality would be created by the granting of permission for legal representation in circumstances where no manifest unfairness between the respective Parties would otherwise emerge.
[26] A further issue has arisen from the more recent communication provided to the Commission from FCB on behalf of the employer. In this communication, dated 6 March 2015, FCB has asserted that if permission was not granted for it to represent the employer, it may nevertheless appear by virtue of it being formally retained by the Australian Retailers Association (ARA) as the employer is a member of the ARA. It was submitted that “FCB’s engagement by the ARA” meant that it, FCB, satisfied the definition of “officer” under s.12 of the Act and therefore it was enabled by s. 596 (4) (b) (i) of the Act, to represent the employer.
[27] The prospect that a law firm could be construed to be an officer of an industrial association is an incredible suggestion which would operate to provide a mechanism to defeat the clear statutory intention that lawyers and paid agents represent persons only with the permission of the Commission. By way of example, as a corollary of this submission, any practicing barrister could be engaged on retainer by an industrial association and thus avoid the need to obtain permission to represent a member of that association in any proceedings before the Commission. This somewhat ill-conceived and perhaps regrettable submission must be unequivocally rejected.
[28] In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, the permission sought by the employer to be represented by lawyers or paid agents is refused.
COMMISSIONER
Final written submissions:
2015.
February 26.
March 2, 6.
1 Warrell v Walton [2013] FCA 291.
2 Ibid @ paragraph 25.
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