Mr Nigel Hill v Hanicourt Transport Pty Ltd

[2019] FWC 6619

[2019] FWC 6619

FAIR WORK COMMISSION

DECISION

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

Mr Nigel Hill
v
Hanicourt Transport Pty Ltd
(U2019/3730)

COMMISSIONER BOOTH BRISBANE, 23 SEPTEMBER 2019

Application for an unfair dismissal remedy – s.596 request for representation by a lawyer or paid agent – request by employer opposed by applicant – permission granted.

[1] Mr Nigel Hill (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. The Respondent to the application is Hanicourt Transport Pty Ltd (the Respondent).

[2] The Respondent has sought permission to be represented in this matter under s.596 of the Act.

[3] This decision deals with the issue of whether permission to appear should be granted for the Employer.

Legislation

[4] Section 596 of the Act provides as follows:

“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.”

Respondent’s submissions

[5] The Respondent submits that, noting the jurisdictional objection it has raised, these proceedings involve complexity. The Respondent notes that where a jurisdictional objection is raised, permission for representation will usually be granted as jurisdictional issues are often complex and require expertise in case law. 1

[6] The Respondent submits that this matter does not merely involve a factual dispute; the extension of time matter requires consideration of whether there are exceptional circumstances to allow an extension, and if so whether the Commission should exercise its discretion to extend time, having regard to applicable authorities. 2 In this regard, the Respondent submits that being granted legal representation will allow it to better identify the relevant issues in dispute and questions of law to be answered.

[7] Further, the Respondent raises that it would be unfair not to allow it to be represented because it is unable to represent itself effectively, in accordance with s.596(b) of the Act. The Respondent submits that it is a small, family-run business with no specialised human resources employees, and therefore it would be unfair not to allow it to be legally represented.

[8] The Respondent submits that the following extract from the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) 3 is relevant:

“...Before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect.” 4

[9] The Respondent submits that while it is experienced in the trucking and logistics industry, it has no experience in industrial advocacy. Further, it submits that Mr Paul Cole, owner and co-director of the Respondent, may be required to give evidence in the jurisdictional proceedings, which weighs in favour of granting representation. 5 The Respondent submits that this consideration was recently applied in Skaka v Apple Pty Ltd t/a Apple,6 with Deputy President Anderson stating:

“…that it is difficult, and (depending on the circumstances) potentially unfair, to require a company witness to act as its representative whilst at the same time giving evidence. If Apple’s only internal advocate was its human resources officer who it intends giving evidence, that would weigh in favour of granting permission”. 7

Applicant’s submissions

[10] While Directions issued by Chambers on 23 July 2019 required that the Applicant file his response to the Respondent’s request to be legally represented and submissions in relation to the extension of time matter by 22 August 2019, the Applicant filed submissions addressing the extension of time matter but did not file any submissions in relation to the Respondent’s request to be granted legal representation.

[11] The Applicant was granted a further period, until 4 September 2019, for filing of these materials but did not do so.

Consideration

[12] The approach to the application of s.596 was recently considered by a Full Bench of the Commission in the matter of Grabovsky v United Protestant Association of NSW Ltd. 1 It concluded (footnotes omitted):

“[35] Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’ it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

[36] Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

[37] While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:

‘It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.’

[38] For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.”

[13] I have had regard to the issue of fairness between the parties, which weighs against the granting of permission. However, in exercising the discretion under s.596, I am satisfied that permission should be granted having regard to the complexity of the matter and the Respondent’s inability to represent itself effectively, particularly in light Mr Cole’s requirement to give evidence.

[14] I note however, as noted by Deputy President Anderson in Caruana v Shace Toop Trading Trust T/A Toop & Toop Real Estate, 8 consistent with my independent role as a statutory decision maker, if necessary I will intervene during the hearing to provide an appropriate level of guidance to the Applicant on the conduct of the proceedings and the taking and testing of evidence. I will do so to be satisfied that the Applicant is able to understand the issues and present his case and test that of the Employer. I note that in accordance with Deputy President Anderson’s decision, should circumstances arise such that the Employer’s legal representative is not contributing to the efficient conduct of the proceedings, I maintain discretion to consider whether the grant of permission should be revoked.9

Conclusion

[15] I am satisfied that permission should be granted for the Employer to be legally represented, for the purposes of the hearing of the jurisdictional matter. I have arrived at this conclusion on the basis of s.596(2)(a) in particular, as the matter involves a degree of complexity. The granting of permission will enable the Employer to deal with the complexities more efficiently.

[16] Having regard to my comments at paragraph [14], I will intervene and provide guidance as needed during the proceedings, to ensure fairness between the parties in presenting their case.

[17] It is noted that if the matter progresses to hearing of the substantive matter, permission for the purposes of the further hearing will be a matter for the relevant Member hearing it.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Respondent’s Submissions on Permission to Appear dated 8 August 2019, at 1.3; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966 (Richards SDP, 10 April 2012) at [23].

 2   Respondent’s Submissions on Permission to Appear dated 8 August 2019, at 1.4.

 3   [2012] FWA 2966.

 4 Ibid at [16].

 5   Respondent’s Submissions on Permission to Appear dated 8 August 2019, at 1.12; Wilcox v Holcim (Australia) Pty Ltd T/A Humes[2016] FWC 2359.

 6   [2018] FWC 2696.

 7 Ibid at [21].

 8   [2018] FWC 2231.

 9   Robert Caruana v Shace Toop Trading Trust T/A Toop & Toop Real Estate[2018] FWC 2231 at [50].