Mr Hunter Douglas v SSX Services Pty Ltd T/A the Australian Reinforcing Company

[2010] FWA 1139

[2010] FWA 1139

FAIR WORK AUSTRALIA

DECISION

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

Mr Hunter Douglas
v
SSX Services Pty Ltd T/A The Australian Reinforcing Company
(U2009/1007)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 15 FEBRUARY 2010

Termination of employment; permission to be represented by a lawyer.

[1] The Australian Workers Union, representing the applicant, has objected to the respondent (ARC) being legally represented in unfair dismissal proceedings listed for arbitration before me in Sydney on 2 and 3 March 2010. A brief hearing to deal with this issue was held on 15 February 2010.

[2] The relevant provisions of the Fair Work Act 2009 (the Act) are set out in s.596(1) and (2). They are as follows:

“(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

a bargaining representative;

(iv) that is representing the person; or

(c) is a bargaining representative.”

[3] It was not in contention between the parties that the rules governing the ability to be represented by a lawyer have been tightened with the passage of the Act. Nor was it contested that FWA should exercise its discretion whether to permit a party to be legally represented having regard to the facts and circumstances of the particular case.

[4] I have considered the submissions of both parties and the relevant facts and circumstances of the case in question and have decided to grant permission for ARC to be represented by a lawyer in the proceedings before me. In particular I have determined that it would be both more efficient and fairer for the respondent to be legally represented. In making my decision I have had particular regard to the following factors:

1. it is clear, on the basis of the material already filed, that there will be a serious contest on a range of key factual issues, implying the need for detailed cross examination of witnesses;

2. the human resources manager who has carriage of the case for the respondent has no legal qualifications, and no experience in cross examination or workplace relations advocacy in formal hearings; and

3. the applicant is represented by an experienced union official.

[5] I note that these are significantly different circumstances than those dealt with by Commissioner Harrison in Rodgers v Hunter Valley Earthmoving Company Pty Ltd. [2009] FWA 572. In that case, the Commissioner noted that before the engagement of a firm of solicitors the company in question had been represented by an experienced industrial advocate (albeit one without legal qualifications). Moreover he was of the opinion that the matter before him was ‘a relatively simple factual contest’ which did not require ‘forensic cross examination’.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S Crawford for the applicant

Mr A Ash for the respondent

Hearing details:

2010

Sydney

15 February

SENIOR DEPUTY PRESIDENT

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