National Tertiary Education Industry Union v The University of Notre Dame Australia

[2014] FWC 2409

[2014] FWC 2409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
The University of Notre Dame Australia
(C2013/6942)

COMMISSIONER WILLIAMS PERTH, 11 APRIL 2014

Respondent representation.

[1] This decision concerns an application made by the National Tertiary Education Industry Union (the Union or the applicant) under section 739 of the Fair Work Act 2009 (the Act). The respondent is the University of Notre Dame Australia (Notre Dame or the respondent).

[2] The application concerns a dispute brought to the Commission under Clause 21 Dispute Resolution Procedures of the University of Notre Dame in Australia Staff Enterprise Agreement 2011 - 2014 [AE892446] (the Agreement).

[3] The substance of the dispute concerns the interpretation and application of Clause 8.3 Conversion of Fixed-Term Employment to Continuing Employment of the Agreement. The dispute centres on the employment circumstances of a member of the Union who has been employed since 2007 and who the Union alleges has been wrongly denied conversion from a fixed term to continuing employment by Notre Dame.

[4] The clause which will be central to resolution of this dispute is set out below:

“8.3 Conversion of Fixed-Term Employment to Continuing Employment

Subject to sub-clause 8.4, a Staff Member who has been engaged on 2 or more consecutive Fixed-Term appointments in the same school or area over a period of 3 or more years, shall be eligible to apply for, and shall be granted, Continuing Employment, provided that the Staff Member:

a) is undertaking work of a continuing nature; and

b) was selected through a merit selection process for at least one of the Fixed-Term appointments; and

c) has the qualifications and experience required for the role; and

d) is not the subject of an unsatisfactory performance process and can demonstrate through annual review processes, teaching, student surveys or similar processes that the Staff Member’s performance has been satisfactory; and

e) any other item put forward by the Staff Member’s supervisor that warrants consideration.”

[5] The dispute has been the subject of a conference however remains unresolved and the applicant has now asked for the matter to be referred for arbitration by the Commission.

[6] The respondent has notified the Commission and the applicant that it seeks to be represented by a lawyer in the arbitration hearing. The Union has advised that it opposes the respondent being represented by a lawyer.

The legislation

[7] Section 596 of the Act deals with the Commission’s discretion to allow a party to be represented by a lawyer or paid agent and is set out below:

“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 employers that 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.”

Submissions

[8] The respondent has made submissions in support of its application to be represented by a lawyer under each of the sections 596 (2) (a), (b) and (c) of the Act.

[9] The respondent argues that the matter is not without factual complexity and will involve complexity surrounding the correct interpretation of the Agreement. Consequently this will involve the application of the principles of legal construction and the consideration of relevant authorities and allowing the respondent to be represented by a lawyer will enable the matter to be dealt with more efficiently.

[10] Separately it is submitted that without allowing legal representation the respondent will be unable to represent itself effectively which would be unfair. The respondent has three in-house Counsel across its campuses, one in Sydney and two at Fremantle in Western Australia. One of the Fremantle Counsel has no previous experience in appearing before the Commission and has never practised in employment or industrial law. The other similarly has never appeared in the Commission and has only one experience of advocacy as a junior lawyer under supervision several years ago. Her current work is focused on commercial contract drafting and review and not employment or industrial matters.

[11] The respondent’s Counsel based in Sydney and his legal role in that capacity is centred on reviewing contracts and he has never appeared before the Commission. Approximately 6 years ago he appeared twice in the Australian Industrial Relations Commission. He has some prior human resource experience but no industrial relations or litigation experience. In addition he may be required to give evidence in this matter having had some involvement in the drafting of the Agreement.

[12] The respondent’s Chief Operating Officer based at Fremantle is legally qualified but works in an executive role with broad responsibilities and his prior experience was in corporate law not employment or industrial law. Further this person was present during the negotiations of the Agreement is also likely to be called as a witness.

[13] The respondent simply does not have any employees who are experienced in workplace relations advocacy.

[14] It will be necessary in this matter for witness evidence to be called and tested in cross examination and it is likely that evidence regarding the background negotiations leading to the making of the Agreement will be required.

[15] Finally it is submitted that it would be unfair not to allow the respondent legal representation considering the employee about whom the dispute revolves, Mr Scapin, will be represented by the Union. Self-evidently the Union is a registered organisation that specialises in dealing with employment and industrial relations matters and arbitration before the Commission.

[16] The applicant disagrees that this application raises a matter of substantial complexity, including legal complexity.

[17] The issues at the heart of this matter are whether Mr Scapin was eligible to apply for conversion from fixed term employment to continuing and, if so, the extent to which or whether the respondent was entitled to rely on Clause 8.3(e) not to grant conversion.

[18] These are matters of interpretation over which the parties have not agreed, but that in itself does not make them substantially complex or legally complex.

[19] The respondent has had senior staff dealing with this matter, including their own in-house Senior Legal Counsel, their Manager of Staffing and their Executive Director, Professional Standards and Conduct. All are competent and experienced employment relations practitioners.

[20] The applicant submits, in this instance it is not the case that it would be unfair not to allow the respondent to be represented because it is unable to represent itself effectively.

[21] The respondent has a Manager of Staffing and an Executive Director, Professional Standards and Conduct, both of whom are experienced employment relations practitioners and based at Fremantle. The Chief Operating Officer at the Fremantle campus is also a Senior Legal Counsel and takes an active hands-on role in employment relations matters.

[22] Further, the respondent’s Senior Legal Counsel based in Sydney who has been dealing with this matter is an experienced legal practitioner. He was also responsible for negotiating the Agreement and is familiar with it in every sense, more so than an external legal representative.

[23] The respondent is not a small business and has specialist human resources and in-house legal staff who have already been dealing with the matter and capable of doing so.

[24] The applicant notes the respondent’s submission that the in-house staff at Fremantle are not experienced at appearing in the Commission and are neither legally qualified nor experienced in dealing before the Commission however all are experienced employment relations practitioners as is the respondent’s Senior Legal Counsel.

[25] The applicant advises that it will not be legally represented, and the practitioner dealing with the matter has appeared only once in the Commission for a conciliation.

[26] The Act specifically provides that applicants are not to be considered as represented by a lawyer or paid agent if the paid agent is an employee of the union. This is the case here.

[27] By way of conclusion the applicant does not accept the claim by the respondent that the appearance of legal counsel will make the resolution of this matter more efficient. The applicant is not represented by legally qualified practitioners and so there is no inherent disadvantage to the university by some inequity in representation or experience. Mere convenience is not a sufficient reason for a lawyer to be given leave to appear. While the applicant agrees that this is a matter around the interpretation of an enterprise agreement, it is not a complex one. There are essentially only two questions to be asked. There are sufficiently qualified people within the Respondent’s organisation to deal with the matter, including those who were directly involved in the negotiation of the Agreement.

Consideration

Section 596(2 )(a)

[28] The resolution of this dispute by arbitration will require the determination by the Commission of the facts of the matter relating to the employee in question and in particular of the contracts under which he has been engaged. It will also involve the interpretation of the terms of the Agreement and how these are to be applied to that factual matrix.

[29] It is also apparently likely that there will be evidence led about negotiations leading up to the making of the Agreement and potentially debates about the objective mutual intention of the parties to the extent that there is any ambiguity in the terms of the Agreement. It is also apparent that there will be a number of witnesses called who will necessarily be cross-examined.

[30] While I would not characterise this matter as a highly complex case there is in my view sufficient complexity involved in this matter that allowing the respondent to be represented by a lawyer would enable this matter to be dealt with more efficiently.

Section 596(2 )(b)

[31] The question of whether a party is unable to effectively represent itself was considered in the decision of Senior Deputy President Richards which was the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd (Project Aurora) [[2012] FWA 2966]. The relevant paragraphs of that decision are set out below:

“[11] That said, some guidance might be found in the definitional context of the adverb “effectively”, which is used in s.596(2)(b) of the Act.

[12] The Macquarie Dictionary (Revised Third Edition) defines “effective” in the following way:

Adjective 1. serving to effect the purpose; producing the intended or expected result: effective measures, effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture - noun 4. a solider or sailor fit for duty or active service. 5. the effective total of military force. Effectively, adv effectiveness n.

[13] The Australian Concise Oxford Dictionary (Third Edition) defines “effective” as:

adj 1a having a definite or desired effect. b efficient. 2 powerful in effect; impressive. 3a actual; existing in fact rather than officially or theoretically (took effective control in their absence). b actually usable; realisable; equivalent in its effect [...]. 4 coming into operation [...] 5 (of manpower) fit for work or service. [...] effectively adv. effectiveness n. [...]

[14] In the context used in the s.659(2)(b) of the Act, the adverb “effectively” is used to condition the verb “to represent”. Thus, a personmust be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted.

[15] It seems sufficiently clear that Parliament did not intend that permission to be represented be granted when a person is unable to be represented “satisfactorily”, “sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to represent” in s.596(2)(b) of the Act is “effectively”.

[16] It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[17] In this definitional context, it might not be unusual for a person to be unable to represent himself, herself or itself “effectively”.”

[32] On the basis of the information before the Commission I conclude the respondent using its own staff is able to represent itself to a standard that would be satisfactory, sufficient or adequate however I agree with Senior Deputy President Richards that that is not the consideration under section 596(2) of the Act. Rather the question is whether the respondent is unable to represent itself in a manner that allows it to create a striking impression, or to have an impressive or powerful effect. In my view considering the limited advocacy or litigation experience of those respondent’s staff whom could potentially be its representative I am satisfied that the respondent would not be represented in this manner and it would therefore be unfair not to allow the respondent to be represented by a lawyer because it is otherwise unable to represent itself effectively.

Section 596(2 )(c)

[33] The final question is whether it would be unfair not to allow the respondent to be represented by a lawyer taking into account fairness between the respondent and the applicant.

[34] In this matter the employee whose contracts are the subject of the dispute is not the applicant, rather the applicant is the Union. Consequently the persons referred to in section 596(c) of the Act in this matter are Notre Dame and the Union. The Commission is to consider whether it would be unfair not to allow Notre Dame to be represented by a lawyer taking into account fairness between Notre Dame and the Union.

[35] The Union of course is a organisation registered under the Fair Work Registered Organisations Act 2009 and as a registered organisation it objects are to represent its members including in conciliation and arbitration and to provide legal assistance in the prosecution of their members rights 1.

[36] The applicant is a registered organisation and as such one of its regular activities, and one in which it specialises, is to appear before this Commission in dispute arbitrations and it employs staff to do just that. Notre Dame in contrast is a University and the evidence is it does not employ staff to regularly appear in arbitrations before the Commission. Consequently I am satisfied that it would be unfair not to allow Notre Dame to be represented by a lawyer taking into account fairness between the Union and Notre Dame in this matter.

[37] For the above reasons I will exercise my discretion and do grant permission for the respondent, Notre Dame, to be represented by a lawyer in this matter before the Commission.

[38] An order to that effect will now be issued in conjunction with this decision.

COMMISSIONER

Appearances:

M Braithwaite from the National Tertiary Education Industry Union.

E Moran, representative for the respondent.

Hearing details:

2014.

Perth:

February 28

 1   Clause 3 Objects of the Rules of the National Tertiary Education Industry Union

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549540>