Ms Anne Pilbrow

[2019] FWC 5820

[2019] FWC 5820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Ms Anne Pilbrow
(AB2018/705)

COMMISSIONER BOOTH BRISBANE, 21 AUGUST 2019

Application for an order to stop bullying – s.596 request for representation by a lawyer or paid agent – request by employer opposed by applicant – permission granted.

[1] Ms Anne Pilbrow (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. The Applicant is employed by Ultrarad Pty Ltd T/A QLD Xray (the Employer).

[2] The Employer has sought permission to be represented in this matter under s.596 of the Act. The Applicant has objected to permission being granted.

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

Legislation

[4] Sections 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.”

Employer’s Submissions

[5] The Employer submits that, in accordance with s.596(2)(a) of the Act, the matter would be dealt with more efficiently if legal representation were granted, taking into account the complexity of the matter.

[6] The Employer submits that the matter is “factually dense”, given the length of the Applicant’s application, and the matters raised and evidence that will need to be provided by the Employer in relation to the question of whether the Applicant has been bullied at work. The Employer submits that legal representation will allow it to confine its evidence and assist in efficient running of the hearing.

[7] The Employer makes reference to its position that it does not believe bullying occurred, and further that there is no risk that the Applicant will be bullied in future given measures put in place by the Employer, and therefore no Order should be issued by the Commission. The Employer seeks that the Commission allow it to be legally represented, to assist in efficiently putting this submission.

Applicant’s Submissions

[8] The Applicant submits that permission should not be granted for the Employer to be represented under s.596 of the Act, for the following reasons.

[9] The Applicant disputes that the matter involves complex facts.

[10] Further, the Applicant submits that it would be procedurally unfair for the Employer to be allowed representation, taking into account the Employer’s resources, including its Human Resources team and the legal advice it has received so far in the matter, compared to the Applicant’s financial disadvantage and inability to seek paid representation.

[11] The Applicant submits that there is an ongoing, continued risk of bullying, that repeated unreasonable behaviour continues and there is a future risk to her due to the Employer’s refusal to investigate or acknowledge the bullying that she alleges has occurred. The Applicant submits that the Commission should find that an order to stop bullying should be made.

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 submissions of the Employer and the Applicant in relation to whether permission should be granted for the Employer to be represented in this matter, under s.596 of the Act. I have also had regard to the submissions filed in response to the substantive matter, which involves allegations by the Applicant of assault.

[14] I determine that the matter is factually complex and considerations of efficiency, having regard to the complexity of the matter, weigh towards a grant of permission under s.596.

[15] 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 allegations of assault made by the Applicant.

[16] I note however, as noted by Deputy President Anderson in Caruana v Shace Toop Trading Trust T/A Toop & Toop Real Estate, 2 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.3

Conclusion

[17] I am satisfied that permission should be granted for the Employer to be legally represented in the proceedings. 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.

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

COMMISSIONER

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 1   [2018] FWCFB 4362.

 2   [2018] FWC 2231.

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

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