Mr Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd
[2023] FWC 281
•10 FEBRUARY 2023
| [2023] FWC 281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Scott Nigel Tracey
v
BP Refinery (Kwinana) Pty Ltd
(C2020/8999)
| DEPUTY PRESIDENT BINET | PERTH, 10 FEBRUARY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 15 December 2020, Mr Scott Tracey (Mr Tracey) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with BP Refinery (Kwinana) Pty Ltd (BP Refinery) in accordance with the dispute settlement procedure contained in clause 16 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Workplace Determination 2020 (Determination).
The dispute concerns whether BP Refinery failed to re-grade the work classification of Mr Tracey from OT5 to CT1A under clauses 58.8 and 59 of the Agreement.
The Application was listed for hearing on 20 and 21 October 2021. I issued my written reasons for dismissing the Application on 19 July 2022.[1]
Mr Tracey subsequently lodged an appeal. The Appeal was upheld by the Full Bench and the Application remitted to me for determination.[2]
On 5 December 2022 Mr Tracey made an application that I recuse myself from determining the Application (Recusal Application).
On 12 December 2022, my Chambers issued directions for the filing of materials in relation to the Recusal Application (Directions).
The Directions invited parties seeking to be represented by a lawyer or paid agent at the Recusal Hearing to file submissions in writing addressing the provisions of section 596(2) of the FW Act by 4pm (AWST) Thursday 29 December 2022. The Directions also provided that, if a party sought to object to a request for representation, a submission setting out their objections should be made in writing to Chambers by 4pm (AWST) Thursday 12 January 2022.
BP Refinery filed written submissions on 20 December 2022 seeking permission to be represented by a lawyer at the hearing of the Recusal Application (Recusal Hearing).
On 12 January 2023, Mr Tracy filed submissions opposing BP Refinery’s application for permission to be represented.
On 13 January 2023 the parties were advised that as the question of the granting of leave to be represented was contested that the Application would be listed for a hearing to determine this issue.[3] The parties were invited to file any additional submissions and evidence by Friday 20 January 2023.
The Application was listed for a hearing on 3 February 2023 to determine the question of whether permission should be granted to BP Refinery to be represented at the hearing of the Recusal Application (Hearing).
At the Hearing Mr Tracey appeared on his own behalf and Mr Ronan Boothman of Corrs Chambers Westgarth (Mr Boothman) appeared on behalf of BP Refinery.
Evidence
BP Refinery filed a witness statement setting out the evidence in chief of Mr Chris Lynch (Mr Lynch). Mr Lynch is the People Relations Manager, Asia Pacific for BP Australia Pty Ltd.
Mr Lynch was cross examined by Mr Tracey at the Hearing.
In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
The events leading to the Application can be traced to Mr Tracey’s dismissal in 2019 from his employment at the Kwinana Refinery. Mr Tracey subsequently lodged an application for an unfair dismissal remedy. In a decision issued on 2 September 2019, I determined that Mr Tracey’s dismissal was not unfair and his application for an unfair dismissal remedy was dismissed.[4] Mr Tracey appealed this decision.
In a decision issued on 28 February 2020[5], a Full Bench of the FWC granted Mr Tracey permission to appeal, upheld his appeal, and ordered his reinstatement within 14 days of the date of the decision. The Full Bench directed further submissions to be filed concerning any order for compensation for Mr Tracey’s lost earnings from the date of his dismissal to the date of his reinstatement. BP applied for judicial review of the Full Bench decision, and consent arrangements for the stay of the reinstatement order were entered into. In a decision issued on 22 May 2020 the Full Court of the Federal Court dismissed BP’s application for judicial review.[6]
Mr Tracey’s reinstatement took effect on 3 June 2020. Initially BP indicated that he would employed in the classification of CT1 upon reinstatement. However, BP subsequently informed Mr Tracey that they had made an error and that upon reinstatement he would be employed in the classification of OT5.[7]
On 7 July 2020 Mr Tracey lodged an application for the FWC to deal with his dispute that BP failed to appoint him to, and pay him at the rate of, CT1A pursuant to the dispute resolution procedure contained in clause 23 of the 2014 Agreement (First Application). On 29 July 2020 BP filed a response to the First Application. On 31 August 2020 Mr Tracey filed an amended application.[8]
On 31 July 2020 the parties participated in a conference before me to endeavour to resolve the First Application.[9]
On 10 August 2020, a Full Bench of the FWC issued their decision in the matter of C2019/5845 in respect to the quantum of back pay BP was required to pay to Mr Tracey as a consequence of his reinstatement.[10]
On 30 October 2020, BP announced that it would be shutting down the Refinery and converting it into an import terminal. This decision would ultimately lead to the loss of 600 jobs including that of Mr Tracey.[11]
On 3 December 2020, the parties attended a jurisdictional hearing in respect of the First Application. At this hearing Mr Tracey discontinued the First Application and indicated that he would pursue the subject matter of that dispute via the dispute resolution procedure contained in the Determination.[12]
On 15 December 2020 Mr Tracey filed the Application seeking that the FWC deal with the dispute. On 7 January 2021 BP filed a response to the Application raising a jurisdictional objection to the Application namely that the dispute identified by Mr Tracey was not a dispute for the purposes of the dispute resolution procedure contained in clause 16 of the Determination.[13]
On 19 January 2021 the parties attended a conciliation conference before me with a view to resolving the dispute. The Application was not able to be resolved at the conference and Mr Tracey requested that the Application be referred for arbitration.[14]
On 11 March 2021 Mr Tracey filed the Summary Judgement Application. On 25 March 2021, BP filed their submissions in response to Summary Judgement Application. [15]
On 1 April 2021, Mr Tracey was made redundant, along with the majority of the Operations employees.[16]
On 1 June 2021 the parties were advised that the Dismissal Application was declined and directions were issued to the parties for the filing of materials in relation to the Jurisdictional Objections.[17]
On 14 June 2021 and 22 June 2021 Mr Tracey and BP respectively filed further submissions in relation to the jurisdictional objection. BP’s submissions raised an additional jurisdictional objection, namely that the Determination no longer applied to Mr Tracey because Mr Tracey was no longer employed by BP. Mr Tracey was then granted leave to file further materials in relation to the additional jurisdictional objection which he did so on 1 July 2021.[18]
Mr Tracey requested that the parties have the opportunity to also file materials in relation to the merit of the Application. On 26 August 2021 and 2 September 2021 Mr Tracey and BP filed respectively filed their materials in relation to the merits of the Application. Mr Tracey sought and was granted leave to file further submissions in reply on or before 15 September 2021.[19]
The parties subsequently made a number of interlocutory applications which required determination prior to the substantive hearing.
The Application was eventually listed for hearing in Perth on 20 October 2021 and 21 October 2021 (Hearing). I issued a decision on 19 July 2022 upholding the Jurisdictional Objection and dismissing the Application.[20] Mr Tracey appealed the decision. On 22 November 2022 the Full Bench of the Commission[21] upheld two grounds of Appeal.[22] The Full Bench remitted the Application to me to determine the merits of the Application.
Consideration
Whilst the FWC is not bound by the rules of evidence and procedure, it is subject to the common law principles of procedural fairness.
Section 577 of the FW Act also provides that:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:(a) is fair and just; and(b) is quick, informal and avoids unnecessary technicalities; and(c) is open and transparent; and(d) promotes harmonious and cooperative workplace relations.”
As the Practice Note - Fair Hearings commencing 15 July 2016 points out:
“The provision of a fair hearing is at the very heart of the Commission’s obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act “judicially” in the sense that they are obliged to provide procedural fairness and to determine matters impartially.”
Deciding whether parties are to be represented is a key aspect of ensuring that the manner in which proceedings are conducted is fair and just. A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to section 596 of the FW Act cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.[23]
The issue of representation in a matter before the FWC is dealt with in section 596 of the FW Act 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. ...”
It is apparent from the very terms of section 596 that a party must normally appear on his or her own behalf.[24]
Section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.
Section 596(2) provides that the FWC may only grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC if:
a.it would enable the matter to be deal 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.
One or all of the prescribed conditions outlined in section 596(2) of the FW Act, but no others, may give rise to the FWC’s power to exercise its discretion to grant permission to a person to be represented by a lawyer or a paid agent in any given case.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted. The satisfaction of any of the requirements set out in section 596(2)(a) to (c) therefore does not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.[25]
The appearance of lawyers to represent the interests of parties to a hearing runs the risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.[26] The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of section 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) which states that:
“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
…
2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”
In addition, the Explanatory Memorandum contains the following commentary in its regulatory analysis section:
“r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will also be a higher bar set for representation. Permission for representation will only be granted to parties (including the Minister) where it would enable the matter to be dealt with more efficiently or fairly...It is envisaged that in most cases legal representation will not be necessary.”
Section 596 of the FW Act represents a more stringent requirement for the granting of permission than existed under the predecessor provisions.[27]
Mr Tracey submits that the necessary requirements of section 596(2) have not been made out by BP Refinery and therefore permission to be represented must be refused. In the alternative Mr Tracey submits that if those requirements have been met then I should not exercise the discretion to grant leave.
Section 596(2)(a) - Efficiency and Complexity
In respect of sub-section 596(2)(a) of the FW Act, BP Refinery submits that granting permission would enable the Recusal Application to be dealt with more efficiently taking into account the complexity of the matter because:
a.The question of whether I should recuse myself from hearing a matter is not merely procedural but one involving a question of law.
b.The applicable legal principles inevitably give rise to ‘legal issues of some complexity’.
c.The hearing is likely to be more focused on the relevant issues to be determined where there is competent legal representation by practitioners experienced in the jurisdiction.
Mr Tracey asserts that BP Refinery are seeking leave to be represented as a matter of convenience not as a matter of efficiency. Mr Tracey submits that the Recusal Application is not a complex matter. He says that the relevant legal principles are relatively straight forward because the rule against bias is a principle of natural justice.
Mr Tracey asserts that to date BP Refinery’s legal representatives have caused the Application to be handled inefficiently and that therefore granting permission to BP Refinery to be represented will not assist the Recusal Application to be determined more efficiently. For example, Mr Tracey alleges that BP Refinery’s legal representatives have led me into error on multiple occasions.
Section 596(2)(b) - Effective Representation
In relation to sub-section 596(2)(b) of the FW Act, BP Refinery submits it would be unfair to require it to represent itself as BP Refinery has not previously been a party to an application for recusal and there is therefore no relevant experience within BP Refinery that would enable effective internal representation at the Recusal Hearing.
Mr Tracey submits that being denied leave to be represented would not effect BP Refinery’s ability to be effectively represented as:
a.he is not calling any witnesses therefore there are no witnesses requiring any special skills to cross-examine;
b.the relevant test is not an assessment of the skills and education of the individual representative, but rather an examination of the resources available to BP as a whole;
c.BP Refinery is part of a large multinational company with significant internal resources including a large dedicated Human Resources department who are experienced in dealing with complex employee relations matters; and
d.the parties have already filed their evidence and submissions.
In relation to sub-section 596(2)(b) he also submits that it is relevant that:
a.he has not previously been a party to an application for recusal;
b.he does not have access to specialist personnel or other outside resources that would enable effective representation in these proceedings; and
c.that it can be inferred that he has essentially never effectively represented himself before me because the majority of my decisions have gone against him.
I noted that these are matters which go to the question of the exercise of my discretion rather than whether it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively.
Section 596(2)(c) - Fairness between the parties
BP Refinery submit that sub-section 596(2)(c) of the FW Act is not directed to a consideration of any unfairness towards the person objecting to an application for representation, and, given that Mr Tracey is not seeking to be represented, therefore sub-section 596(2)(c) is not relevant. Mr Tracey concedes this is the case.
Conclusion
I do not accept that the issues to be determined at the Recusal Hearing are simple or straightforward. The issues raised by Mr Tracey involve questions of law. The decision by a Member to recuse or not recuse herself or himself from hearing a matter is not merely a procedural matter.[28] Recusal hearings can require the consideration of relatively complex legal principles and reference to an array of case law in both Commission and the Courts.[29]
This particular hearing will have an added degree of complexity as a consequence of the nature of the grounds of recusal and the parties involved. Mr Tracey has appeared before the FWC on multiple occasions on his own behalf. In an effort to fully ventilate his position he files extensive submissions, cites numerous authorities and seeks to tender numerous exhibits. While his endeavours are earnest, his submissions can be unduly complex, the authorities relied upon can cited out of context or misconstrued and the documentary evidence not relevant to the matters which need to be determined. For example, in the most recent proceedings in which he was involved the Full Bench noted:[30]
“The remaining grounds of appeal misunderstand the nature of the decision under appeal and so do not engage with it.
…
[19] Grounds 9 and 9b, by which the appellant contends error because the decision is plainly unjust or unreasonable, also do not engage with the decision. A contention that a decision is unreasonable or unjust is concerned with error in the exercise of discretionary decision making.
As we have explained above, the Deputy President’s decision to dismiss the classification dispute application on jurisdictional grounds was not a discretionary decision.”
Mr Tracey’s submissions in relation to granting of leave alone exceeded twenty pages and he submitted a tender bundle of more than 170 pages and two zip folders of authorities.
Mr Tracey’s submissions in support of his Recusal Application run to twenty seven pages. Mr Tracey relies on 700 pages of evidence and thirty seven authorities. The Digital Court Book for the Recusal Hearing is in excess of 2000 pages.
The filing of materials in advance of proceedings can limit the complexity of proceedings in circumstances where the legal principles and facts in dispute are uncomplicated and the only task to be undertaken at the hearing is the cross examination of witnesses. The submissions in these proceedings are lengthy and detailed, the authorities numerous and the relevant factual background lengthy and complex.
The grounds upon which Mr Tracey submits that I should recuse myself are that I have demonstrated bias against Mr Tracey in proceedings before me involving Mr Tracey. Mr Tracey first appeared before me in 2018 when he was dismissed from his employment at BP Refinery. Since that time, I have presided over multiple applications involving Mr Tracey which of themselves have included extensive interlocutory proceedings. The materials which have been filed over this time are voluminous, complex and interrelated. Since his dismissal the Refinery has shutdown. Mr Tracey and 600 of his colleagues have been redundant. The BP Refinery employees who previously had conduct of Mr Tracey’s proceedings have left BP. The only individuals who have remained involved in the proceedings since 2018 are Mr Tracey, Mr Boothman and myself.
I do not accept that BP Refinery seek leave to be represented purely as a matter of convenience. The evidence of Mr Lynch is that while BP do have a dedicated human resource department who are experienced in dealing with complex employee relations matters no one in the Department has experience acting as an industrial advocate in contested hearings before the FWC.[31] At the Hearing Mr Lynch accepted that BP employ legal practitioners outside the human resource department but explained that they are not experienced in this jurisdiction. Mr Tracey has provided no evidence that they are.
A hearing is more likely to be focused on the relevant issues to be determined where there is competent legal representation by persons experienced in the relevant jurisdiction.[32]
BP Refinery’s legal representatives have represented BP Refinery for the entirety of this matter and in the related matters. They are therefore familiar with my prior dealings with the Application and other related proceedings involving Mr Tracey. Corrs Chambers Westgarth also has recent experience in representing clients in the FWC and the Courts in relating to recusal applications.[33] The BP Refinery employee who was responsible for instructing BP Refinery’s legal representatives, Ms Taya Hill (Ms Hill), in relation to Mr Tracey’s proceedings is no longer employed by BP. [34]
Mr Lynch who has replaced Ms Hill is employed by BP Australia Pty Ltd not BP Refinery. He explained that in his role he is responsible for, and to, multiple geographical locations and business units and therefore does not have the necessary time available to dedicate to appearing as an advocate. I accept his evidence that his limited availability, coupled with his lack of knowledge of the background to the matter and lack experience acting as an industrial advocate in contested hearings before the FWC would prevent him from effectively representing BP Refinery.[35] It would be reasonable to presume that corporate counsel employed by BP would face similar challenges.
Given the volume and complexity of the submissions, evidence and authorities filed by Mr Tracey, their advocacy skill set and their intimate knowledge of the Application (and the events leading to it) I am satisfied that the involvement BP Refinery’s legal representatives will enable the matter to be dealt with more efficiently than if BP Refinery relied on its employees to conduct the Recusal Hearing.
Mr Tracey has made various very serious allegations about the conduct of BP Refinery’s legal representatives. I do not accept that the examples cited by Mr Tracey establish a basis for his criticism of their conduct. The criticisms also fail to recognise the tolerance and accommodations those representatives have extended to Mr Tracey because he is unrepresented.
Mr Tracey submits that I should decline to exercise my discretion in favour of BP because he is unable to create a ‘striking impression’. Many applicants who appear before the Commission share similar concerns and for this reason chose to engage a paid agent or legal representative to advocate on their behalf including in unfair dismissal applications at a time at which they find themselves in difficult financial circumstances. It is clear from Mr Tracey’s correspondence with Chambers that he is currently employed. Mr Tracey has chosen to represent himself. As an unrepresented applicant he is assessed and treated as such. Accommodations are made for him by the Commission and BP Refinery’s representatives to assist him put his case.
Notwithstanding that Mr Tracey does not have legal training, he has prepared detailed submissions in relation to each interlocutory and substantive issue which I have determined where he has represented himself. My observations of Mr Tracey to date have been that he is more than capable of researching legal principles and articulating and responding to complex legal arguments. For example, in previous proceedings considering the granting of leave to be represented Mr Tracey prepared a thirty page ‘Aide Memoir’ for the assistance of the Commission which extensively reviewed the relevant case law. It is the most detailed analysis of the relevant case law that has been submitted to me since my appointment. In prior proceedings and in correspondence with Mr Tracey, BP Refinery’s legal representatives appear to be conscious and accommodating of the fact that Mr Tracey is unrepresented. I am therefore, not of the view that granting leave to BP Refinery in circumstances where Mr Tracey is unrepresented will make the Recusal Hearing more complex or lengthier.
In fact, given the obligations of legal practitioners to the Commission and the manner in which they must conduct themselves when dealing with unrepresented parties inclines me to the view that the granting of leave in the particular circumstances of this case will result not only in more efficient proceedings but also provide a fairer opportunity for Mr Tracey to ventilate his claims.
Having considered the submissions of the parties and being satisfied that the requirements in sub section 596(2)(a) of the FW Act have been met I consider it appropriate in all the circumstances to exercise my discretion to grant leave to BP Refinery to be represented by a lawyer because I am satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
DEPUTY PRESIDENT
Appearances:
Mr S Tracey, for the Applicant.
Mr R Boothman, for the Respondent.
Hearing details:
2023
PERTH
3 February
[1] Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd [2022] FWC 1640.
[2] Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd[2022] FWCFB 210.
[3] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268 at [80].
[4] Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd[2019] FWC 4113
[5] Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd[2020] FWCFB 820, 293 IR 170
[6] Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FCAFC89, 378 ALR 120.
[7] Ibid.
[8] Ibid [38].
[9] Ibid [39].
[10] Ibid [40].
[11] Ibid [45].
[12] Ibid [46].
[13] Ibid [49].
[14] Ibid [51].
[15] Ibid [55].
[16] Ibid [56].
[17] Ibid [57].
[18] Ibid [58].
[19] Ibid [59].
[20].Ibid.
[21] Mr Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd (n 1).
[22] Ibid [97].
[23] Warrell v Walton (2013) 233 IR 335, 341 at [24].
[24] Ibid.
[25] Ibid.
[26] Ibid [25].
[27] Dr Nitya Karmakar v Australian Campus Network Pty Ltd[2013] FWC 2340 at [9].
[28] Deeney, Jason & Hughes, Christopher Darwin and Others v Patrick Projects Pty Ltd[2017] FWCFB 6449 at [13].
[29] Ibid; McKerlie, Colin v RateIt Australia Pty Ltd T/A RateIt[2020] FWCFB 5131 at [3].
[30] Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd (n 2).
[31] Witness Statement of Christopher James Lynch filed on 19 January 2023 at [8].
[32] Applicant v Respondent[2014] FWC 2860 at [18]-[21].
[33] An issue raised by Mr Tracey at [33] of his Submissions Opposing Representation filed on 12 January 2023.
[34] Witness Statement of Christopher James Lynch filed (n 11) at [9].
[35] Ibid.
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