Mr Robert Shaw v Downer EDI Mining Pty Ltd

[2014] FWC 2159

[2014] FWC 2159

FAIR WORK COMMISSION

DECISION

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

Mr Justin Fisher; Mr James Davis; Mr Robert Shaw
v
Downer EDI Mining Pty Ltd
(U2013/1781, U2013/1787, U2013/1788)

COMMISSIONER CAMBRIDGE SYDNEY, 1 APRIL 2014

Termination of employment - representation by lawyers and paid agents.

[1] This Decision involves three applications for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The applications were made by the Construction, Forestry, Mining & Energy Union (CFMEU) and were the subject of an earlier Jurisdictional Decision [PR543206] (the Jurisdictional Decision), which held that each of the dismissals was not a case of genuine redundancy. The respondent employer is Downer EDI Mining Pty Ltd (Downer Mining or the employer).

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

[3] In the earlier proceedings which led to the Jurisdictional Decision, Mr J Goos, Employee Relations Manager, appeared for the employer, and Mr K Endacott from the CFMEU appeared for, inter alia, the applicants.

[4] On 11 March 2014, FCB Workplace Law,lawyers, filed a Notice of Representative Commencing to Act on behalf of the employer. On 26 March 2014, the CFMEU formally raised objection to the employer being represented by a lawyer.

[5] By way of a letter dated 19 March 2014, the employer provided a written submission in support of permission being granted for it to be represented by a lawyer. On 26 March 2014, the CFMEU provided a communication which maintained the objection to the Commission granting permission for the employer to be represented by a lawyer.

[6] The Commission conducted a Hearing on 1 April 2014 to deal with the question of whether permission should be granted for the employer to be represented by a lawyer or paid agent. Mr R Warren, counsel, appeared for Downer Mining at the Hearing regarding permission for representation, and Mr Endacott continued his appearance for the applicants.

[7] I have carefully examined and considered 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] It should be noted that these provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of Fair Work Australia (FWA) and more recently, the Commission, which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before either FWA or the Commission, as compared with the Australian Industrial Relations Commission. In this respect, I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board[2011] FWA 1520.

[10] Further, the legislative intention underpinning s.596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton 1 (Warrell) and I refer in particular to paragraph 25 of that Judgment which stated, inter alia: “The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, ...”.

[11] Upon examination of subsection 596 (2), there appears to be three criteria 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 Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness.

[12] In this case, the employer submitted that all of the criteria contained in subsection 596(2) of the Act were satisfied in a manner which provided basis to grant permission for it to be represented by a lawyer. The CFMEU submitted that none of the legislative criteria were satisfied and further, that even if one or more of the criteria were established, the Commission should not exercise the discretion to grant permission for the employer to be represented.

Complexity/Efficiency - Subsection 596 (2) (a)

[13] 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 the nature of the proceedings which would examine whether the dismissals were harsh, unjust or unreasonable, notwithstanding that the Jurisdictional Decision had held that the dismissals were not cases of genuine redundancy. Alternatively, the CFMEU rejected the complexity attributed to the matter by those representing the employer. The CFMEU submitted that the matters had become less complex because of the Jurisdictional Decision.

[14] In respect of the issue of complexity, the circumstances that surround the dismissals of the applicants have become somewhat unusual. The question of whether a dismissal for reason of redundancy which has been found not to be a genuine redundancy, could nevertheless not be unfair, is an interesting proposition and something which is not routinely part of the considerations for determination in unfair dismissal proceedings.

[15] On balance, I am convinced that the matter is of sufficient complexity that it would be dealt with more efficiently with the assistance of legal representation.

Inability - Subsection 596 (2) (b)

[16] The employer advanced an argument that it would be unable to represent itself effectively without a lawyer. The alleged inability was said to primarily arise from the potential requirement that Mr Goos, who resides in Brisbane, may be unable to participate in the further Hearing because his wife is expected to give birth to their second child in the week following the scheduled Hearing, and she may give birth early. The prospect for an early birth is increased due to some minor aspects of the pregnancy which are unnecessary to disclose.

[17] I apprehend that Mr Goos’s potential unavailability has been the subject of some contingency planning which has contributed to the desire to have lawyers come into the matter. Without such plans, the proceedings might be further delayed as it would be unreasonable and uncompassionate not to permit Mr Goos to attend to his family responsibilities.

[18] The CFMEU stressed that the size of the employer’s operations would or should provide it with ample capacity to have others replace Mr Goos if the need arose. However, it was acknowledged that Mr Goos had detailed knowledge of the particular circumstances and had been the only advocate in the matters for the employer.

[19] In many instances, the family responsibilities that surround child birth particularly in circumstances such as those that Mr Goos is likely to experience, might provide sufficient basis for the other Party to adopt a compassionate and understanding approach and not take any objection to the permission sought for lawyers to appear. Such compassion and understanding would enhance the standing of that Party before the Commission and also ensure that the proceedings avoid potential delay.

[20] Upon examination, the employer’s submissions represented a potential, rather than any actual, inability to adequately represent itself. Although it is understandable and commendable to make the contingency plans, the circumstances do not manifest as the employer being unable to represent itself, but rather a potential for that to occur. Consequently, unless and until Mr Goos is called back to Brisbane to attend to family responsibilities, I cannot find that the employer would actually be unable to represent itself effectively without a lawyer.

Fairness - Subsection 596 (2) (c)

[21] In this instance, both parties have made submissions which have stressed the question of fairness. The issue of fairness between the person and other persons in the matter has some significance. The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers. The CFMEU has submitted that it would be unfair to permit the employer to be represented by a lawyer.

[22] I am mindful of any imbalance that may be created if a party is granted permission to be represented by lawyer or paid agent. Such an imbalance can provide great potential for the absence of a fair and just Hearing, as was identified by the Federal Court Judgment in the Warrell case.

[23] However, in the circumstances where the applicants have the experienced and competent advocate, Mr Endacott from the CFMEU, I apprehend that no imbalance would be created with lawyers appearing for the other side. Consequently, I consider that there would be no unfairness created by the granting of the permission for legal representation for the employer.

[24] In summary, I believe that there is a degree of complexity which has arisen with the applications and in the circumstances of this case, there would be no unfairness created by the employer being legally represented.

[25] 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 a lawyer or paid agent is granted.

COMMISSIONER

Appearances:

Mr K Endacott, from the CFMEU, appeared on behalf of the applicants;

Mr R Warren,counsel, instructed by Ms K Eather from FCB Workplace Law, appeared on behalf of the employer.

Hearing details:

2014.

Sydney:

April, 1.

 1 Warrell v Walton [2013] FCA 291.

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