National Tertiary Education Industry Union v Victoria University

[2016] FWC 8716

[2016] FWC 8716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
Victoria University
(C2016/5082, C2016/5129, C2016/6868)

COMMISSIONER BISSETT MELBOURNE, 6 DECEMBER 2016

Alleged dispute about any matters arising under an enterprise agreement - permission to be represented - permission granted.

[1] The National Tertiary Education Industry Union (NTEU) has made a number of related applications to the Fair Work Commission (Commission) in relation to disputes it has with Victoria University (the University) over the operation of clause 45 – Academic Workload Allocation Frameworks of the Victoria University Enterprise Agreement 2013 1(Agreement) (the 2016 disputes). The applications to the Commission to deal with the 2016 disputes have been made in accordance with the dispute settlement procedure of the Agreement and pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[2] The disputes have been subject to conciliation and in the conciliation conferences to date I have, at the commencement of each one, granted the University permission to be represented by a lawyer pursuant to s.569(2) of the FW Act. The NTEU continues to press its objection to permission being granted. In the circumstances, where efforts to resolve the dispute are moving into a new arena where the parties have agreed that the Commission should issue a recommendation (which by virtue of the dispute settlement procedure will be binding), I sought written submissions from the parties on the question of permission and indicated I would decide the matter prior to the next conference of the parties.

Legislation

[3] Section 596 of the FW 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] It is trite to say that a two-step process is necessary in reaching a decision as to whether or not to grant permission. In the first instance, the Commission must satisfy itself that one of the conditions precedent in s.596(2)(a)-(c) has been met. If the condition has been met, the Commission must then decide whether permission should be granted. Needless to say, if one of the conditions precedent has not been met, permission cannot be granted.

[5] Despite these provisions, the FW Act is based on the premise that parties will normally represent themselves. This can only be departed from where an application has been made and permission granted.

Submissions

Section 596(2)(a) – complexity and efficiency

[6] The University says that the matter before the Commission goes to the ability of a College (faculty) of the University to propose:

(a) An Academic Workload Framework (AWF) based on common principles;

(b) A variation or replacement to an AWF where the NTEU contends that AWFs made under the Agreement cannot be dismantled;

(c) An AWF during the life of the Agreement given the NTEU’s assertion that that opportunity was only available during the 2014 transition year.

[7] Further, the University submits that a number of matters contribute to difficult issues in construction, including:

● The binding nature of a recommendation of the Commission made in a related (and finalised) matter with respect to a dispute over the same clause;

● The nature of the interpretation proposed by the NTEU and the consequences of adopting the NTEU construction;

● The University’s belief that the intention of clause 45 was to allow change to occur in a rapidly changing environment.

[8] The University submits that the clause has a long and involved contested history and prior proceedings including factual evidence about implementation of AWFs.

[9] The University says that it intends to advance a range of legal propositions in support of its interpretation that it is not precluded from ‘prospectively advancing’ an AWF for consultation with and a vote of the Collegium.

[10] For these reasons, the University says that the matter involves some complexity that could be more efficiently dealt with if permission was granted.

[11] The NTEU submits that disagreement over the interpretation of a provision of an agreement does not make the matter inherently complex. In this regard, the NTEU says that the construction of clause 45 of the Agreement does not contribute to making the matter complex and that ‘both parties to this dispute have provided interpretations in relation to the words of clause 45…and argued in support of such interpretation long before…lawyers became involved…’

[12] Further, the NTEU says that the matter will not be dealt with more efficiently and will be made ‘overly complex, unnecessarily legally technical, [and] more adversarial’ leading to less efficiency if permission is granted.

Section 596(2)(b) – it would be unfair as the University is unable to represent itself effectively

[13] The University submits that, whilst it is a large institution, none of its legal and human resources staff has experience in advancing the types of legal arguments that will arise in this matter. In circumstances, where the University has been granted permission to be represented in prior proceedings, it submits it would make it unfair to do so now given the complexity of the matter.

[14] The NTEU submits that the University is a large organisation employing senior staff in workplace relations roles. It also has a legal division employing senior lawyers. It says that there is no reason the University could not find sufficiently capable people to appear for it.

[15] Further, the NTEU says that the University has not indicated how it would be unfair to the University if permission was not granted.

Section 596(2)(c) – fairness between the University and the NTEU

[16] The University says that it would be unfair not to allow it to be represented given it was granted representation in related proceedings and in earlier proceedings on these matters.

[17] It says that the NTEU is a large, sophisticated union and has been represented in all of the related and earlier proceedings by Ms McGrath who is a legally qualified practitioner. Further, it has a number of other staff who are legally qualified or experienced legal practitioners. To the extent that it might seek permission to be represented by a lawyer, the University submits it has the resources to do so.

[18] The NTEU rejects arguments in relation to equivalency of representation and says that unions are often under-resourced which may impact on the way a matter is prepared and presented. On the other hand, it says that K&L Gates is a large, national law firm with extensive experience and resources. It says there would be inequity for it should permission be granted. Further, the NTEU says that, again, the University has not properly outlined any unfairness that would accrue to it were permission not granted.

Consideration

[19] The current disputes have been before me since August 2016. A dispute over the same clause had earlier been notified to the Commission in December 2015 (2015 dispute) which resulted in a binding recommendation of the Commission in July 2016. Whilst the 2015 dispute and the 2016 disputes are not in precisely the same terms, they all deal with the operation of clause 45 of the Agreement including the rights and obligations of the parties with respect to its operation. Clearly, the effluxion of time has not brought any clarity with respect to the application of clause 45.

[20] Two of the three current disputes have their genesis in the right or otherwise of the University to put forward an amended AWF; if it can, the steps that must be taken and by whom; how a proposal comes into being; and the basis of consultation around any proposal. Given my knowledge of the history of disputes about this clause it is highly likely that the role of the Monitoring and Advisory Committee (MAC) will arise. The third dispute has yet to be ventilated in conference before the Commission (and there is a disagreement if it should be heard with the other 2016 disputes).

[21] Further, the Commission has issued a binding recommendation in relation to the 2015 dispute and there is a live question as to what impact it has on the 2016 disputes and any recommendation I may consider making.

[22] I am satisfied that the disputes before me have a level of complexity about them. Clause 45 of the Agreement has been subject to dispute between the parties for over a year. That the University and the NTEU have been capable of putting forward competing interpretations of the clause without the intervention of lawyers to date and been able to argue in support of such interpretations but have not been able to find some way through the impasse suggests that the dispute has developed a level of complexity.

[23] There are potentially a number of disparate strands to be pulled together in this dispute. These include the interpretation of various aspects of clause 45 of the Agreement, the previous recommendation of the Commission and the terms of the existing AWFs. I am satisfied that these matters can be more efficiently dealt with if permission was granted.

[24] I am therefore satisfied that the requirements of s.596(2)(a) of the FW Act have been met.

[25] There is no need for me to consider the requirements of s.596(2)(b) or (c) of the FW Act. I would, however, make two observations with respect to the submissions on these matters. Firstly, it is not relevant, in any consideration, who the lawyer is that might represent a party if permission is granted or the size of the law firm. It could be a one person firm from the suburbs or a large multinational company. The decision to be made is if permission should be granted, not who it might be granted to.

[26] Second, the decision to be made cannot be based on the resourcing of unions generally. The question with respect to fairness is in relation to the parties before the Commission in the matter for which permission is sought and not some broader group who are not before the Commission.

[27] In the 2015 dispute I granted permission to the University to be represented by a lawyer. Since that time, the University has made use of one legal firm to assist it and has seconded a lawyer from the firm to the University for a period of time. This, of course, raises questions as to whether or not permission is required where a person works on secondment but I have not dealt with that question and make my decision as to whether to grant permission taking into account that fact but not relying on it.

[28] In the circumstances, where the dispute over this clause has been long running and permission has been granted to date, I have decided that such permission should continue to be granted.

[29] Permission to the University to be represented by a lawyer in respect to the three applications currently before me is therefore granted.

COMMISSIONER

 1   AE406376.

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