National Tertiary Education Industry Union v Monash University

[2016] FWC 4589

[2016] FWC 4589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
Monash University
(C2015/6661)

COMMISSIONER BISSETT MELBOURNE, 8 JULY 2016

Permission to be represented.

[1] On 5 July 2016 I issued a decision 1 in which I refused an application by Monash University for permission to be represented by a lawyer in the hearing of the above matter.

[2] In a highly unusual move, Monash University made a further submission on 7 July 2016 seeking that I reverse my earlier decision and grant it permission. The grounds it relied on were:

● That the Commissioner now had the benefit of having the material and witness evidence sought to be relied upon by Monash University and this material was extensive;

● There would be a need for Monash University witnesses to be re-examined if they were cross-examined by the National Tertiary Education Industry Union (NTEU);

● The construction issues are central to the matter to be determined and not peripheral;

● The relevant consideration under s.596(2)(a) of the Fair Work Act 2009 (the Act) is not if the matter is complex, although the level of complexity is required to be taken into account, but rather if the matter could be dealt with more efficiently;

● It would be unfair not grant permission to Monash University as the dispute has implications for many staff across the university;

● The NTEU is represented by an experienced industrial advocate. Monash University’s material was prepared with the heavy by its lawyers and proposed counsel. The decision of permission was only handed down one week prior to the arbitration date leaving little time for an employee of Monash University to get across the detail; and

● The changes in dates for filing sought by the NTEU were accommodated by Monash University. These date changes mean that Monash University only has one week for human resource staff who do not normally appear in ‘significant contested arbitration’ to prepare – providing a significant advantage to the NTEU.

[3] The NTEU oppose the application on grounds, in addition to those put in relation to the first decision, include that:

● The volume of material filed by Monash University is at its choosing, much is not relevant and is, in some cases, repetitive.

● Complexity is a critical matter. Even if representation would enable a matter to be dealt with more efficiently a lack of complexity on the matter may still mean that permission is declined; 2

● The issue of witness evidence was dealt with in the first decision;

● This is the first time Monash University has raised the issue of fairness;

● Monash University appears to have prepared for the matter on the assumption that permission would be granted;

● By making a second application for permission Monash University is distracting the NTEU from preparing for the hearing and dealing with the substantial material filed by it and hence the NTEU is disadvantaged in the matter;

● The NTEU is representing itself and its advocate does not have legal training and has limited experience in arbitral proceedings

Consideration

[4] This is a highly unusual request. Whilst I accept that a decision on permission might change, I see no grounds to change the decision I have already made on this question.

[5] I have considered the complexity of the matter. My view has not changed since receipt of the materials filed by Monash University – that is, I do not consider the matter to be particularly complex.

[6] I do accept that, given any degree of complexity, it is highly likely that a matter could be dealt with more efficiently should permission be granted. However in this case, there is a large employer that has a relatively large human resource department. Monash University is not a stranger to matters before the Commission. Representatives from its human resource group are generally in attendance at such matters. That the matter could be dealt with more efficiently because of some complexity is not an absolute and should not be assumed.

[7] In Urbanski v MSS Security Pty Ltd 3 Senior Deputy President Bartel stated:

[8] I tend to the view that the conduct of the hearing will proceed more efficiently if the respondent is legally represented. However section 596(2)(a) of the Act makes it clear that in assessing the efficiency that would result from legal representation FWA must have regard to the complexity of the matter. There are no jurisdictional issues to be determined in this case and there do not appear to be any particularly complex matters involved in the substantive issues that fall for determination.

[8] This approach was endorsed in King v Patrick Projects Pty Ltd where the Full Bench found:

[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined. 

[9] The finding of the Full Bench is contrary to the submissions of Monash University.

[10] In this case, I remain unconvinced of the complexity of the matter and am not convinced that it could be dealt with more efficiently given the complexity of the matter. Even if I am wrong, I am not convinced that the increase in efficiency that might arise with the appearance of legal representation would be such that I should exercise my discretion and grant permission on this ground.

[11] A party to proceedings in the Commission should not assume that permission will be granted. That Monash University chose to have its lawyers prepare its material without the engagement of human resource staff from within is its decision – that decision cannot then be advanced as serious grounds to argue that, as a matter of fairness between the parties, it should be granted permission to be represented by lawyers. If this were the case, all a party would need to do to ensure permission was granted would be to have an external third party prepare all of its materials.

[12] Should Monash University consider that it does not have enough time to get a human resource or other relevant employee to the level of understanding to deal with the matter it can seek an adjournment (although should not assume it will be granted). Alternatively, it might seek to put in final submissions following the hearing and receipt of transcript.

[13] As the advantage to the NTEU, it seems to me there are swings and roundabouts. In seeking extensions within which it was required to file its material – requests that were accommodated by Monash University – the NTEU has not sought to change the date for hearing meaning it has only one week to get across the extensive material, including witness statements, filed by Monash University.

[14] The NTEU does not seek to be represented by a lawyer. I accept its submissions that its advocate is not legally trained and does not have substantial experience in arbitrating matters (although I accept that his experience is increasing). I therefore do not see where the unfairness comes from if permission is not granted to Monash University. Monash University is a large employer, as was put by the NTEU leading to the first decision, it has an office of General Counsel, it has a large human resource department with a 41 staff engaged in the workplace relations group. Nothing has been put to me by Monash University suggesting that there is not the necessary skills within Monash University to deal with the matter such that it would be unfair if permission was not granted. Rather, submission as to unfairness seem primarily to go to the time required to properly brief an employee to appear.

Conclusion

[15] There is no question that the presumption is that parties will represent themselves in matters before the Commission. It seems to me that what Monash University is attempting to do is portray s.596(2)(a) and (c) as providing a presumption that permission will be granted or that there are relatively simple ways of getting around the presumption that clearly exists.

[16] I am not convinced that the matter would be dealt with more efficiently given the complexity of the matter and I am not convinced that it would be unfair not to allow Monash University to be represented taking into account fairness between M University and the NTEU.

[17] For these reasons, had I not already done so permission would not be granted.

[18] If I am wrong on either of these, I should make it clear that I would not, in the circumstances of this case, otherwise exercise my discretion to grant permission. I am not convinced that lawyers are necessary to have the issues in dispute put before the Commission, particular in circumstances where extensive written material has already been filed.

[19]
The application for permission and/or to reverse my earlier decision is rejected.

COMMISSIONER

 1   National Tertiary Education Industry Union v Monash University[2016] FWC 4437.

 2   King v Patrick Projects Pty Ltd[2015] FWCFB 2679, at [15].

 3   [2012] FWA 1789.

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