Ms Jane Massey & Ors v Brighter Access Ltd & Ors - [2024] FWCFB 154

[2024] FWCFB 154

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

Fair Work Act 2009

Section 596 Representation by lawyers and paid agents

Ms Jane Massey & Ors

Brighter Access Ltd & Ors

(U2023/12620)

Various industries

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
COMMISIONER CRAWFORD

SYDNEY, 15 MARCH 2024

STATEMENT

Arising from the Statement of the President issued on 21 February 2024 in Samuel Howells v Elite Elevators[1] (President’s Statement) forty-six matters[2] brought under s365 and 394 of the Fair Work Act 2009 (FW Act) have been referred to this Full Bench to determine whether the applicant in each matter should be granted permission to be represented by Employee Dismissals as a paid agent.
The February Statement said at [12]:
[12] In addition, in light of Employee Dismissals’ conduct described in the Full Bench decision of 22 December 2023 and my recommendation of 24 January 2024, and the further conduct identified in this Statement, I have directed that all applications made pursuant to s 365 (general protections involving dismissal) and s 394 (unfair dismissal) of the FW Act that identify Employee Dismissals as the applicant’s representative as paid agent be referred to the same Full Bench in the first instance (that is, prior to the conduct of any conciliation process) to determine whether permission should be granted for Employee Dismissals to appear as a paid agent on behalf of the applicant pursuant to s 596 of the FW Act.
Representation by lawyers and paid agents in matters before the Commission is regulated by s 596 of the FW Act. A person in a matter before the Commission must normally appear on his or her own behalf unless the Commission grants permission for the person to be represented either by a lawyer or paid agent.[3] There are exceptions to this rule.[4]
The assessment of whether permission to be represented by a lawyer or paid agent should be granted under s 596 ordinarily involves a two-step process.[5] The first step is to consider whether one or more of the criteria in s596(2)(a) to (c) applies. Satisfaction of one or more of the requirements in s596(2) does not dictate that the discretion is automatically to be exercised in favour of granting permission.[6] The second step involves the exercise of a broad discretion to determine whether in all of the circumstances the permission sought should be granted.
The Full Bench in NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[7] observed that in exercising the general discretion under s596 the Commission may have regard to the fact that a particular paid agent in relation to whom permission is sought has been the subject of adverse integrity findings in earlier Commission decisions.[8] The President’s Statement brings that observation into sharp focus in the matters we are called upon to determine.
In these matters, one of the questions the Full Bench is required to consider is whether the adverse findings made about Employee Dismissals’ conduct described in the Full Bench…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCFB 154
Decision Date: 15 MARCH 2024

CaseChat Overview and Summary

The case of Ms Jane Massey & Ors v Brighter Access Ltd & Ors involves multiple applicants seeking permission to be represented by Employee Dismissals as a paid agent in various unfair dismissal and general protections matters before the Fair Work Commission. The Full Bench of the Commission was tasked with determining whether the applicants should be granted permission to be represented by Employee Dismissals, in light of previous adverse findings about Employee Dismissals' conduct. The legal issue before the court was whether the adverse findings about Employee Dismissals' conduct warranted a refusal to grant permission for any of the applicants to be represented by Employee Dismissals.

The Full Bench considered the two-step process for assessing permission to be represented by a paid agent, which involves considering whether the criteria in s596(2) apply and then exercising a broad discretion to determine whether permission should be granted. The Full Bench also considered the Full Bench decision of 22 December 2023 and the President's Statement, which highlighted Employee Dismissals' conduct and recommended that applications identifying Employee Dismissals as the applicant’s representative be referred to the Full Bench to determine whether permission should be granted. The Full Bench concluded that the adverse findings about Employee Dismissals' conduct warranted a refusal to grant permission for any of the applicants to be represented by Employee Dismissals.

The Full Bench issued an Order for Production of Documents requiring Employee Dismissals to provide all documents concerning Employee Dismissals’ representation of each of the applicants. The matters will be dealt with on the papers unless any party seeks a hearing to supplement the written material. The applicants were required to file submissions in support of permission being granted and witness statements for each of the witnesses they rely upon, while the respondents were required to file submissions in relation to the objections to permission being granted and witness statements for each of the witnesses they rely upon. The Full Bench provided directions for the filing of written material and the applicants were given the opportunity to file any submissions and witness statements in reply.

Orders