National Tertiary Education Industry Union v Deakin University

[2020] FWC 3647

[2020] FWC 3647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
Deakin University
(C2020/4738)

COMMISSIONER BISSETT MELBOURNE, 16 JULY 2020

Permission.

[1] The National Tertiary Education Industry Union (NTEU) has made an application for the Fair Work Commission to deal with a dispute arising under the Deakin University Enterprise Agreement 2017 1(Agreement). The dispute relates to the consultation requirements in clause 58 of the Agreement as they apply to change occurring at Deakin University (University).

[2] The matter first came before the Commission for interim orders on Friday 26 June 2020. The interim orders sought were granted and a decision 2 and separate reasons for decision3 issued.

[3] In hearing the application for interim orders the University sought, and I granted, permission to be represented by a lawyer pursuant to s.592(2) of the Fair Work Act 2009 (FW Act). In granting that permission I said, on transcript:

Can I say that I am not convinced by your first point, Mr Spargo. Unless the agreement specifically allows for representation by any one of any party's choosing the requirements of section 596(2) of the Act are enlivened and need to be dealt with. Having said that, and one day we will hear perhaps a longer and more detailed argument on that one, but having said that I am satisfied that there is some complexity given the compressed timeframe and what is being sought today which is interim orders. Arguments in favour of and against seeking interim orders are slightly different to the issue itself being resolved. So I am satisfied there is some complexity driven by the compressed timeframe, and that the matter would be dealt with more efficiently if permission was granted, so permission is granted, Mr Spargo. Can I just say noting what Ms Gale has said we might need to revisit this matter if the matter goes to full hearing, but otherwise permission is granted for the interim orders hearing.

[4] The application by the NTEU is now subject to a formal hearing of the merits of the claim within compressed timeframes. Following the issue of my reasons for decision in granting the interim order and following a conference of the parties on 7 July 2020 direction were issued which require the NTEU to file and serve its evidence and submissions by 13 July 2020, the University to file its evidence and submissions by 17 July 2020 and the NTEU to file its evidence and submissions in reply by 21 July 2020 with a hearing on 22 July 2020. A dispute as to whether the Commission should issue an order for production of documents was resolved between the parties just prior to a hearing of the application on 8 July 2020.

[5] The University has now sought permission to be represented in the hearing for final determination of the dispute on 22 July 2020. The NTEU opposes the grant of permission.

Section 596(2) of the FW Act

[6] The University submits that the matter could be dealt with more efficiently given its complexity if permission was granted (s.596(2)(a)). In summary it says (relevantly) that:

•  The University has been represented to date and it would be inconvenient to not allow that representation to continue;

•  Determination of the matter needs to occur within a compressed timeframe given the urgency of resolution of the dispute;

•  There is some complexity in terms of legal questions. The application involves the determination of rights and liabilities. The issue to determine is if the University failed to consult in accordance with clause 58 of the Agreement which will involve a consideration of the meaning of clause 58 and when it is triggered;

•  There is an inherent complexity in the determination of the facts as to when a final decision was made such that clause 58 of the Agreement is enlivened;

•  The application involves the proper construction of the Agreement;

•  The decision of the Commission in this matter is not reviewable by the Federal Court yet could result in the University being found to be in breach of the Agreement in separate proceedings (should I find it has failed to consult) should the NTEU take action for breach against the University.

[7] The NTEU oppose the grant of permission on this ground. It submits that:

•  University staff have been present in all proceedings to date and in the dispute since it commenced;

•  The matter to be determined is “bread and butter” industrial relations and there is nothing that makes this matter inherently complex;

•  The need to cross-examine witness regularly occurs in the Commission and does not make the matter complex;

•  The University will be able to defend itself in any Court proceedings that may arise.

Consideration

[8] Section 596 of the Act states:

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 employersthat 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.

[9] It is well settled that, in order to consider the exercise of discretion as to whether to grant permission, the Commission must first find that at least one of the requirements in s.596(2)(a)-(c) has been met.

[10] In this matter I am satisfied that the requirements of s.596(2)(a) of the FW Act, set out above, have been met.

[11] I am satisfied that there is complexity to this issue driven by the need to have it resolved urgently. This urgency is recognised by all parties in setting tight compliance times for filing evidence and submissions. From the Commission’s perspective the ability to quickly turn around a decision from the time of hearing is enhanced when evidence and arguments are marshalled in an efficient and effective manner. The skills present in legal practitioners (but that is not to say all) and skilled advocates before the Commission increase the chance for this to occur.

[12] The University has been represented to date by lawyers in the matter. Efficiency will also arise from consistent representation.

[13] I am also satisfied that there is some complexity in this matter because of the dispute as to when the “formal decision” under clause 58 of the Agreement was made such that the requirement to consult was enlivened. This is a critical aspect of what will be put in hearing the application. This may turn on a nuanced interpretation of consideration and determination of matters within the University Council. That the dispute has come so far without the ability to find some resolution suggests no simple answer to this question. Its resolution will require a careful balancing of competing claims and consideration of the meaning of resolutions from Council meetings.

[14] I would note that s.596(2)(a) is not about whether there are others who work for the party seeking to be represented who can represent that party but whether the matter will be dealt with more efficiently given its complexity.

[15] As to the NTEU’s argument that the matter before the Commission is a “bread and butter” issue that may be so. But it does not mean that it is not a complex matter. The determination of complexity cannot be based on the frequency by which certain types of matters come before the Commission. If this was to be a particular consideration it would have been included in s.596(2) of the FW Act. It is not. It must therefore be dismissed as a reason for not considering the matter before the Commission as complex.

[16] For these reasons I am satisfied that the matter could be dealt with more efficiently given its complexity if permission is granted.

[17] In deciding to exercise my discretion to grant permission I have taken into account that representation has been granted to date. I have therefore determined that permission should be granted.

COMMISSIONER

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 1   AE424763.

 2   [2020] FWC 3415.

 3   [2020] FWC 3458.