Mr Peter Mugford v Qantas Airways Limited

[2015] FWC 5432

[2015] FWC 5432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Peter Mugford
v
Qantas Airways Limited
(C2015/2344)

COMMISSIONER CAMBRIDGE SYDNEY, 18 AUGUST 2015

Dispute settlement procedure - preliminary question about representation by lawyers and paid agents - s.596.

[1] This matter involves an application made under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was made by Peter Mugford (the applicant) and the respondent employer is Qantas Airways Limited (the employer).

[2] This Decision is confined to the discrete question as to whether the Commission should grant permission for the employer to be represented by a lawyer or paid agent (the representation question).

[3] The application was filed on 1 April 2015 and the employer filed a response on 1 May 2015. The matter was the subject of unsuccessful conciliation held on 4 May 2015. On 11 June 2015, the Commission issued Directions in respect to an anticipated Hearing of the Arbitration of the matter scheduled for 26 August 2015. The Hearing date was subsequently amended to 3 September 2015.

[4] On 24 July 2015, Herbert Smith Freehills lawyers (Freehills) filed a Notice of Representative Commencing to Act on behalf of the employer together with submissions in support of permission being granted in respect to the representation question. On 2 August 2015, the applicant formerly raised objection to the employer being represented by a lawyer.

[5] The Parties have subsequently confirmed their consent to the representation question being determined upon the documentary material which has been filed. On 14 August 2015, Freehills filed further submissions regarding the representation question.

[6] I have carefully examined and considered the respective submissions of the Parties as the basis for this Decision.

Consideration

[7] 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.”

[8] 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.

[9] 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 an Arbitration Hearing arising from a DSP. 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.

[10] 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)

[11] 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, inter alia, technical legal arguments about the construction of a long standing clause in the relevant instrument which governed the employment of the applicant and which had not previously been the subject of dispute or arbitrated outcome. Further, it was contended that complexity arose from inadequacies and inconsistencies said to be found in the case advanced by the applicant.

[12] Alternatively, the applicant rejected the complexity attributed to the matter by those representing the employer. The applicant submitted that the matter for consideration and determination was not complex. The applicant asserted that the employer had attempted to characterise the contest about the interpretation of the Workplace Determination as being more complex than it really was.

[13] In respect of the issue of complexity, the contested construction question does not appear to involve any particularly unusual issues. The contest that is presented in this instance seems to be a matter which involves a level of complexity which would be consistent with the complexity of many matters which are routinely resolved in s. 739 DSP proceedings.

[14] 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)

[15] 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 primarily arise from the requirement that the particular person who would otherwise advocate the case for the employer, Mr Haggerty, was required to give evidence in the Hearing.

[16] The applicant rejected that the employer was unable to represent itself effectively. The applicant submitted that the employer was capable of representing itself effectively.

[17] 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)

[18] 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.

[19] The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers because it did not have legally trained employees with previous experience in the matter. Further, the employer asserted that the legal, commercial, financial and industrial implications of the matter meant that it would be unfair if it could not be represented by lawyers.

[20] The applicant submitted that no unfairness would arise if the employer was not legally represented. The applicant stressed that he was unrepresented and there would be unfairness if the employer was permitted legal representation.

[21] In this instance, if permission for legal representation for the employer was granted there would appear to be a significant imbalance created because the applicant would be representing himself while the employer obtained external legal representation. Particularly given the size of the employer, there would also appear to be little unfairness created if the employer was required to utilise its own staff some of whom may be legally trained or qualified albeit without prior direct knowledge or involvement in the matter.

[22] 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

[23] 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.

[24] 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

 1 Warrell v Walton [2013] FCA 291.

 2   Ibid @ paragraph 25.

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