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

v

Brighter Access Ltd & Ors

(U2023/12620)

Various industries

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
COMMISIONER CRAWFORD SYDNEY, 15 MARCH 2024

STATEMENT

1. 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.

2. 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.

3. 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]

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.

5. 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.

6. 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 decision of 22 December 2023[9], the recommendation of 24 January 2024,^[10] and the President’s Statement warrant a refusal to grant permission for any of the applicants to be represented by Employee Dismissals.

7. The applications for permission to be represented by Employee Dismissals will be heard together. Directions follow for the filing of written material.

8. An Order for Production of Documents will issue separately 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.

DIRECTIONS

1. The Applicant in each matter in Schedule A is required to file the following material in the Fair Work Commission, and serve a copy on the Respondent, by no later than 4:00pm on Friday 5 April 2024:

i.Submissions in support of permission being granted to be represented;

ii.Witness Statements for each of the witnesses they rely upon.

2. If the Respondent to a matter in Schedule A objects to the Applicant seeking permission to be represented, the Respondent is required to file the following material in the Fair Work Commission, and serve a copy on the Applicant, by no later than 4:00pm on Friday 12 April 2024:

i.Submissions in relation to the objections to permission being granted;

ii.Witness Statements for each of the witnesses they rely upon.

3. The Applicant may file any submissions and witness statements in reply by 4:00pm on Friday 19 April 2024.

4. If any party requires a hearing to supplement the written material, they are required to advise Deputy President Wright’s Chambers by 4:00pm on Friday 19 April 2024.

5. Each party is required to file copies, at the time of service, of their material in Fair Work Commission in the following way:

One (1) electronic copy in Microsoft Word and/or PDF format is to be provided by email to [email protected].

DEPUTY PRESIDENT

SCHEDULE A

U2023/12590	Brent Cameron v BHP
C2024/756	Mr Antony Zebisch v MTM Critical Metals Limited
C2024/454	Mr Stephen Myers v Bodman Employment Services Pty Ltd
U2024/633	Danielle Windsor v Helping Hand Aged Care Inc
U2024/451	Lee Follett v BHP WAIO Pty Ltd
C2023/8063	Ms Karen Westergreen v Southern Cross Care (Tasmania) Inc
C2024/788	Mr Hinwai Roberts v Sevtoy Pty. Limited
C2024/819	Mr Troy Leyshon v Mexican Express Pty. Ltd.
C2024/822	Mr Mathew Vendittelli v Crushing Services International Pty Ltd
C2024/1058	Pucho Paye v Plumb Now Pty Ltd
C2024/825	Lopez v Safe Steps Family Violence Response Centre Inc
C2024/832	Danre v Drummond Street Services Incorporated
C2024/917	Wallace v The Trustee For Kemp Family Trust
C2024/945	Sayed v Goldstar Assets Pty Ltd
U2024/882	Haak v Optimum Performance Training Pty Ltd
U2024/1865	Tollmar v Australian Leisure And Hospitality Group Pty Limited
U2024/1434	Schubert v Crown Worldwide (Australia) Pty Ltd
C2024/1055	Armstrong v Ferrovial Construction (Australia) Pty. Ltd.
U2024/1682	Wittner v Glad Security Pty. Ltd
U2024/1679	Giddings v Alcoa Of Australia Limited
U2024/1616	Tucker v B & T BEANS PTY LTD
U2024/1452	Vargas v The Trustee For Brightlite Unit Trust
U2024/1430	Ernawati v Comensura Pty Limited
U2024/1425	Simpson v South Coast Mariculture Pty Ltd
U2024/1373	Mabuoc v Marathon Food Industries Proprietary Limited
U2024/1298	Robertson v Australian Leisure And Hospitality Group Pty Limited
U2024/1146	Ferguson v Reid Stockfeeds Pty Ltd
U2024/1039	Culshaw v BHP COAL PTY LTD
U2024/1673	Angelis v Arthur, Shaun Nicholas
U2024/1986	Mealamu v Connectability Care Services Pty Ltd
C2024/1052	Pavlovic v South East Conveyors Pty. Ltd.
C2024/1157	Mcintosh v Mulpha Hotel Pty Ltd T/A Hayman Island
U2024/453	Darrell Kay v Fulton Hogan Construction Pty Ltd
U2024/2149	Ms Natasha Gill-Symons v Bendigo Hotel Fund Op Co Pty Ltd
C2024/416	Mr Giorgio Gava v Laguna Beach Pty Ltd
U2024/2161	Mr Michael Trindall v Maules Creek Coal Pty Ltd
U2024/2226	Mr Shaun Neukother v Aboriginal Family Support Services Limited
C2024/657	Mr Jeremy Johnston v Odell Resources Pty Ltd
U2024/1154	Mr Faiga Su'A v Darley Aluminium Trading Pty Ltd
C2024/1361	Mr Anthony Harpur v Rebian Investments Pty. Ltd
C2024/1352	Mr Michael Brook v Australian Postal Corporation
C2024/1388	Mr Nicholas Costello v Eighty9 Limited
U2024/2339	Mr Shawn Stowe v Karuah Local Aboriginal Land Council
U2024/2692	Sharon Phillis v Ultimate Cleaning & Gardening Solutions Pty Ltd
U2024/2691	Ric Belic v DNA Construction Pty Ltd

[1] [2024] FWC 466

[2] These matters are listed in Schedule A

[3] See Warrell v Walton [2013] FCA 291 at [24]

[4] See s596(3),and (4) and Fair Work Commission Rules 2013 r 12

[5] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19(3)]; Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 at [48]

[6] See See generally Warrell v Fair Work Australia [2013] FCA 291, 233 IR 335; Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]; Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]; Kaur v Hartley Lifecare Incorporation [2020 FWCFB 43;  Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 at [48]

[7] [2014] FWCFB 1663; 241 IR 177

[8] Id at [25]

[9] [2023] FWCFB 265

[10] [2024] FWC 206

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