Mr John Saunders v MACA Mining Pty Ltd

[2015] FWC 2738

[2015] FWC 2738

FAIR WORK COMMISSION

DECISION

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

Mr John Saunders
v
MACA Mining Pty Ltd
(U2014/13876)

COMMISSIONER RIORDAN SYDNEY, 21 APRIL 2015

Application for relief from unfair dismissal.

[1] Allion Legal has sought leave to appear on behalf of its client MACA Mining Pty Ltd in these proceedings, in accordance with section 596 of the Fair Work Act, 2009 (FW Act).

[2] The Applicant, Mr John Saunders, opposes the application.

[3] Section 596 of the FW Act states:

“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 employersthat 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.”

[4] The facts of this case do not readily identify the requisite level of complexity that would substantiate the granting of such an application. Nor am I convinced that there is any inherent disadvantage to the Respondent as identified in s596(2) (b) & (c).

[5] However, I am prepared to accept that there is the capacity for the matter to be dealt with more efficiently if the application is granted. Legal issues such as a perceived inconsistency of process and a possible breach of procedural fairness draw me to the conclusion that the Fair Work Commission will be assisted if the Respondent is legally represented.

[6] Permission to appear is granted in accordance with section 596 of the FW Act.

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