Mrs Penelope Vickers

[2016] FWC 5951

[2016] FWC 5951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mrs Penelope Vickers
(AG2016/3797)

COMMISSIONER SPENCER BRISBANE, 1 SEPTEMBER 2016

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 – threshold issue - permission to be represented by a lawyer pursuant to s.596

Introduction

[1] An application was made by Mrs Penelope Vickers (the Applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act), seeking the termination of an enterprise agreement, after its nominal expiry date. The application specifically sought the termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 (the 2011 Agreement).

[2] The Applicant sought the termination of the 2011 Agreement on the basis that, if the 2011 Agreement was terminated, the General Retail Industry Award 2010 (the Award) would be applicable. The Applicant set out that, in relation to her particular roster, she would receive a greater total amount of remuneration for the rostered work under the Award.

[3] The matter was brought on for Mention, and a range of interested parties sought to be heard, including Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd (Coles), the Shop, Distributive and Allied Employees Association – Federal Branch (SDA), the Australian Workers’ Union – Queensland Branch (AWU) and the Australasian Meat Industry Employees Union Federal and Queensland Branches (AMIEU- Federal and AMIEU – Qld) (collectively, the Respondents).

[4] This Decision relates to applications by Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd (Coles), and the Shop, Distributive and Allied Employees Association (SDA), to be represented by a lawyer under s.596 of the Act. Coles sought to be represented by Mr C. Gardner, Partner, of Seyfarth Shaw and the SDA sought representation by Mr D. Macken, Solicitor, of A J Macken & Co.

[5] Directions were set for the provision of submissions in relation to s.596. Coles, the SDA and the Applicant filed submissions in relation to the applications for permission to be legally represented. The Applicant opposed the granting of permission for the Respondents to be represented by a lawyer. The Applicant’s main objections were that legal representation would result in “voluminous submissions and legal argument” which would delay the matter, and would prejudice the Applicant’s ability to make her case against the resources of those with legal representation. Further, the Applicant objected to the on-going representation of Coles by Mr Gardner, given his involvement in a prior matter.

Relevant Legislation

[6] The substantive application has been made under s.225 of the Act. The circumstances in which the Commission must terminate an enterprise agreement are set out in s.226. Directions have been set in relation to the initial determination of preliminary matters. The legislative matters to be considered in the merits of the application relate to issues relevant to the Applicant, and to the whole workforce covered by the Agreement. These provisions are extracted as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[7] The relevant provisions of the Act relating to legal representation are set out in s.596(1) and (2):

“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 Federal Court in Warrell v Walton 1 considered the matter of permission to appear, pursuant to s.596 of the Act. Justice Flick stated:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 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. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

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. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008...” 2

[9] The Explanatory Memorandum to the Fair Work Bill’s introduction in 2008 relevantly reads as follows:

“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 of 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, clause 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.”

Consideration

[10] The application of s.596 of the Act allows the Commission to exercise discretion to grant permission in formal proceedings, however, as set out, this is not automatic. The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case, against the legislative tests 3.

[11] In considering the grant of legal representation, the Commission is required to establish that the prescribed conditions exist prior to exercising the discretion to grant permission. Accordingly, if the prescribed conditions are considered to be in existence, the discretion to grant permission for a person to be represented by a lawyer or paid agent will be exercised in favour of the person. This assessment of the prescribed conditions is an objective exercise.

[12] The resources and circumstances of the parties, particularly those of the Applicant, being self-represented, have been considered in relation to the material, to be examined against the legislative tests in sections 225 and 226.

[13] This matter also raises questions of the effectiveness of the representation. This issue has been dealt with by Senior Deputy President Richards as follows in the Decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) 4:

“[11] That said, some guidance might be found in the definitional context of the adverb “effectively”, which is used in s.596(2)(b) of the Act.

[12] The Macquarie Dictionary (Revised Third Edition) defines “effective” in the following way:

Adjective 1. serving to effect the purpose; producing the intended or expected result: effective measures, effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture - noun 4. a solider or sailor fit for duty or active service. 5. the effective total of military force. Effectively, adv effectiveness n.

[13] The Australian Concise Oxford Dictionary (Third Edition) defines “effective” as:

adj 1a having a definite or desired effect. b efficient. 2 powerful in effect; impressive. 3a actual; existing in fact rather than officially or theoretically (took effective control in their absence). b actually usable; realisable; equivalent in its effect [...]. 4 coming into operation [...] 5 (of manpower) fit for work or service. [...] effectively adv. effectiveness n. [...]

[14] In the context used in the s.659(2)(b) of the Act, the adverb “effectively” is used to condition the verb “to represent”. Thus, a person must be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted.

[15] It seems sufficiently clear that Parliament did not intend that permission to be represented be granted when a person is unable to be represented “satisfactorily”, “sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to represent” in s.596(2)(b) of the Act is “effectively”.

[16] It appears, then, that 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”.

[14] The Applicant has also objected to permission being granted to particular legal representatives, given their representation in prior associated matters with this application. In this respect, the Decision of Deputy President Sams, in Applicant v Respondent 5, was referred to. The Deputy President, in this Decision, noted a legal practitioner’s professional obligations to the Commission and the Courts and referred to the comments of Mason CJ in Giannarelli v Wraith6, as follows:

“ ‘[A] barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.’ ”

[15] The Deputy President in Applicant v Respondent 7, also referred to a Fair Work Commission Full Bench Decision in this respect:

“[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 said at para [48]:

‘A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission [footnotes omitted].’ ”

…

“[21] In my view, balancing fairness between parties is as much a case of courtroom management, as it is a case of legislative mandate...”

[16] In assessment of the matters raised, it is clear that the legal representatives have duties to the Commission, and any issues of conflict in representation or the giving of evidence are professional matters for those legal practitioners, and I do not intend to exclude legal representation on this basis.

[17] Section 226 requires the consideration of the views and circumstances of the employees, employers and each employee organisation covered by the Agreement, in relation to the likely effect that the termination of the Agreement would have on each of them. The statutory tests will require the presentation of comparisons of the associated industrial instruments, relevant to the Applicant and the workforce covered by the Agreement. The Employer employs a large workforce of approximately 74 000 employees 8. The views and circumstances of these employees, pursuant to s.226(b) (i) and (ii) will have to be sought. The matter also raises question of law in relation to a number of matters, including the public interest test. The matter (as referred to by the parties) has some history and complexity and the volume of evidence and the information (relevant to the legislative tests in s.226) will need to be dealt with before the Commission in an effective and efficient manner.

[18] All of the facts and circumstances relevant to the hearing of this matter have been taken into account, including that the issues in this matter are significant and affect the whole workforce (covered by the Agreement), as well as the Commission’s obligation to manage the process in an efficient manner that also provides fairness between the parties. Legal representation is reasonable as it will “enable the matter to be dealt with more efficiently, taking into account the complexity of the matter”.

[19] For the reasons set out, permission is granted pursuant to section 596(2)(a) for the legal representation as sought.

[20] I Order accordingly.

COMMISSIONER

 1   Warrell v Walton [2013] FCA 291.

 2   Ibid at [24]-[25].

 3   Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572.

 4   [2012] FWA 2966.

 5   [2014] FWC 2860

 6 (1988) 165 CLR 543; [1988] HCA 52

 7   [2014] FWC 2860

 8   Respondent’s Submissions on Permission to Appear filed 15 July 2016, at 4(b).

Printed by authority of the Commonwealth Government Printer

<Price code C, PR584550>