National Tertiary Education Industry Union v Monash University

[2016] FWC 5539

[2016] FWC 5539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

National Tertiary Education Industry Union
v
Monash University
(AG2016/1210)

COMMISSIONER BISSETT MELBOURNE, 9 AUGUST 2016

Application for variation of the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 – permission granted.

[1] The National Tertiary Education Industry Union (NTEU) has made an application for the Commission to resolve an ambiguity or uncertainty it says exists in the Monash University Enterprise Agreement (Academic Professional Staff) 2014 1 (the 2014 Agreement) pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] Monash University has made an application pursuant to s.596(2) of the Act for permission to be represented by a lawyer or paid agent in the hearing of the matter. The NTEU opposes the grant of such permission.

[3] I have decided to grant permission. These are my reasons.

Legislation

[4] 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.

[5] It is well accepted that a decision on whether to grant permission is a two stage process. In the first instance the Commission must be satisfied that at least one of the conditions in s.596(2) is met. It is then a discretionary decision for the Commission to decide if permission should be granted. Permission cannot be granted if one of the conditions in s.596(2) is not met.

Submissions

Monash University

[6] Monash University submits that the dispute will ‘involve submission of legal complexity’ with respect to the proper interpretation of clause 5 of Schedule 3 of the 2014 Agreement. An outcome adverse to Monash University will have a significant impact.

[7] It says that the case involves a determination as to the existence of ambiguity or uncertainty in the 2014 Agreement and, if it is found to exist, the proper way to resolve it.

[8] The determination of the ambiguity or uncertainty will require a consideration of the history of the clause, including bargaining for the Agreement and previous Agreements. This, it submits, will require a consideration of case law in respect to admissibility and the relevance of extrinsic material. It therefore says it would enable the mater to be dealt with more efficiently, taking into account the complexity of the matter, if permission was granted.

[9] Monash University submits that the material filed in this matter is extensive with substantial documentation filed in conjunction with witness evidence. This material, it submits, demonstrates the legal and factual complexity of the matter. This is further evidenced by the time allocated by the Commission (three days) to hear the matter.

[10] Monash University relies on the statement of Mr Matthew Condello to support its contention that it would be unfair not to allow it to be represented because it is unable to represent itself effectively having regard to the complexity of the matter and the experience of Monash University staff who would otherwise have to represent it. Further, it says it would be unfair not to allow it to be represented taking into account fairness between itself and the NTEU.

National Tertiary Education Industry Union

[11] The NTEU contests that the matter is complex. It submits that a contest of facts does not make a matter complex and if this was grounds for granting permission, the Act would have said so and it does not. Nor, it says, is a contest of interpretation of an Agreement grounds alone on which to find a matter is complex and permission should be granted.

[12] The NTEU says that the volume of material does not mean the matter is complex and submits that, if admissibility of evidence was an issue, Monash University should have identified disputed areas in it submissions. It submits that there is adequate time for such matters to be identified prior to hearing, obviating the need to grant permission.

[13] The NTEU submits that the fact that the matter has been listed for hearing for three days does not mean it is complex. It says that the matter is not likely to go for three days and that fact that three days has been set aside would allow a Monash University staff member representing it to seek instructions should these be needed.

[14] In any event, the NTEU says that Monash University staff are no strangers to matters before the Commission and are generally in attendance in matters before the Commission.

[15] The NTEU says that just because a matter could be dealt with more efficiently because of some complexity is not an absolute.

[16] The NTEU says that Monash University is a large employer with a large Human Resource Division of over 260 staff of whom 41 work in Workplace Relations. It submits it is more than capable of representing itself. That fact that a lawyer may be able to represent it better is not the right questions. The NTEU disputes Mr Condello’s statement that Ms Beecher is not capable of representing the University.

[17] The NTEU says that it will be represented by Mr Josh Cullinan, an employee of the NTEU, in proceedings who will also be its only witness.

Monash University in reply

[18] Monash University was granted permission to make a submission in reply to that of the NTEU. It asks rhetorically, on the basis of the NTEU submission, under what circumstances the NTEU would consider the grant of permission acceptable.

[19] Monash University accepts that permission is not granted as a matter of course.

[20] It says that while the approach to interpretation of agreement is well settled, this does not mean that such an exercise is not complex. It reiterates that the extent of the outline for submissions of the NTEU – going to 18 pages – demonstrates the complexity in this matter. It relies on the length of oral submissions in NTEU v Monash University 2 to support its argument.

[21] Monash University submits that there will be legal argument to be had with respect to the admissibility of much of the witness statement of Mr Cullinan.

[22] Further, it submits that Mr Cullinan has extensive experience before the Commission in contested matters. It distinguishes this from the circumstances in Warrell v Walton 3where permission was granted for a lawyer to appear against an individual who ‘was functionally illiterate and brain damaged.’ The circumstances in this case are markedly different.

Consideration

[23] The NTEU is correct when it says that just because a matter involves contested facts or there is contest of interpretation this does not mean that the matter is inherently complex. However, the decision as to whether the requirements of s.596(2)(a)-(c) have been met such that permission might be considered in any particular case requires a consideration of the circumstances of that case. Broad statements as to complexity are of little use in making such an assessment. Assumptions should be avoided.

[24] Monash University is also correct that permission should not be presumed. Given this, it is unexpected that it should file a submission of such brevity as to that it filed in the first instance in support of its application for permission to be represented.

[25] Statements of generality from either a party seeking permission or one opposing the grant of permission are of little use to the Commission. The consideration of the application requires that the parties engage with respect to the particular facts in front of the Commission in a particular case.

[26] I do not consider it a relevant consideration who Monash University seek to have represent them should permission be granted. The decision required of s.596(2) is if permission should be granted, not if it should be granted to a particular lawyer or paid agent.

[27] Inevitably however, it is for the Commission to be satisfied as to complexity and efficiency or other matters in s.596(2).

[28] The task required of the Commission in the application of the NTEU is not an easy one. It requires that the Commission first of all determine if ambiguity exists. An argument between parties as to the operation of the clause does not mean the clause itself is ambiguous or uncertain. If the clause is found to be so however, a decision must then be made as to if the clause should be amended and how. There are, it seems to me, a number of critical steps in the decision making process. The basis for reaching any decision in the process must be sound. In this case, it is not a simple task with an obvious outcome. It is a highly contested matter. The matter is before the Commission in the context of the broader dispute as to the payment to certain staff for marking time.

[29] The question pursuant to s.596(2)(a) is whether the matter could be dealt with more efficiently taking into account its complexity. The matter does not have to be complex per se or reach some threshold level of complexity before permission might be considered. The test is one of efficiency taking into account the complexity that is in the matter.

[30] In any event, I am satisfied that there is a level of complexity in the matter before me. In these circumstances I am satisfied that the matter could be dealt with more efficiently if permission was granted.

[31] I acknowledge that the matter has been set down for three days of hearing. I reject the arguments of the NTEU that this would provide plenty of time for a Monash University employee representing it to gain any instructions as needed during the hearing and such efficiency is not such a great consideration. Again, the test is if the matter could be dealt with more efficiently (that if permission was not granted). I am satisfied that the matter could be dealt with more efficiently given the complexity of the matter if permission was granted.
[32] Having found that the requirements of s.596(2)(a) of the Act has been met it is not necessary to deal with s.596(2)(b) or (c).

[33] I would observe however that while I consider that Monash University could represent itself I am not convinced that, given the subject matter of the application, it could do so effectively.

[34] I would also observe that the consideration under s.596(2)(c) is not about lawyers compared to lay person but about fairness. The NTEU does have a number of staff with extensive experience in advocacy before the Commission. A consideration of the application by Monash University requires a consideration if it would be unfair not to allow it to be represented taking into account fairness between it and the NTEU. I do not have to decide this but would note that it would be a finely balanced consideration.

[35] The second matter to decide is if the Commission should grant permission given that the requirement in s.596(2)(a) has been met.

[36] Mr Paul Condello, a lawyer from Clayton Utz, filed a statutory declaration in which he attested to various matters associated with the ability of Monash University to effectively represent its self in proceedings. The nub of his evidence is that there are only four staff employed as workplace relations practitioners in Monash University’s Human Resources area and none of these have advocacy experience. He says that the Office of General Counsel (OGC) at Monash University does not deal with workplace relations matters. Ms Glenda Beecher in the OGC practices in discrimination law and has not represented Monash University in the Commission. It is not for the Commission to tell Monash University what staff it should employ to deal with matters that might come before the Commission. It is however a large employer which regularly appears before the Commission.

[37] It might be observed that a person trained in the law is not necessarily a good advocate in workplace relations matters and a good advocate in workplace relations matters does not need to be legally trained.

[38] The decision as to whether permission should be granted is not a contest as to who has the most lawyers or has done the most or best advocacy. It is a discretionary decision of the Commission as to whether to grant permission. This is a finely balanced decision but in this case I have decided to grant permission. I have done so because of the subject of the dispute and the contest involved. Monash University should not assume that this will be the norm. Each application for permission will be decided on its merits and in context. It would be encouraged however to improve its ability to undertake advocacy before the Commission from within its own staff, keeping in mind the presumption in the Act that parties represent themselves in matters before the Commission.

[39] Permission is therefore granted to Monash University to be represented by a lawyer or paid agent in the matter before the Commission.

COMMISSIONER

 1   AE410374.

 2   C2016/6661.

 3 [2013] FCA 291.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR583950>