Paula Taylor
[2019] FWC 8101
•29 NOVEMBER 2019
| [2019] FWC 8101 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 789FC - Application for an order to stop bullying
Paula Taylor
(AB2018/558)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 29 NOVEMBER 2019 |
Application for an FWC order to stop bullying – application to vary or supplement orders – application by person named to be represented in variation proceedings – section 596 Fair Work Act 2009 – efficiency – complexity – fairness – permission granted on conditions
[1] On 10 September 2018 Paula Taylor (Mrs Taylor or the Applicant) applied (AB2018/558) to the Fair Work Commission (Commission) under section 789FC of the Fair Work Act 2009(FW Act) seeking an order to stop bullying 1. The application identified two respondents: Mrs Taylor’s employer Hoad Water Cartage Pty Ltd (Hoad Water Cartage or the employer) and a person named Mr (William) Mark Hoad (Mr Hoad).
[2] Hoad Water Cartage is a business operated by former husband and wife Mr Hoad and Mrs Charmaine Hoad (Mrs Hoad), each a co-director.
[3] Mrs Taylor is a part-time manager employed by the business.
[4] By decision dated 21 March 2019 I found Mrs Taylor to have been subject to workplace bullying and that a risk of future bullying at work existed. 2 I made orders consequent on that decision.3
[5] The orders I made included the following: 4
“I grant Paula Louise Taylor, William Mark Hoad, Charmaine Joy Hoad and Hoad Water Cartage Pty Ltd (the parties) liberty to apply on short but reasonable notice should it be considered necessary to vary or supplement this Order in light of changed circumstances, significant practical necessity, changes to the Court Order or agreement between the parties.”
[6] On 30 September 2019 Mrs Hoad applied to the Commission to vary or supplement the Order of 21 March 2019 concerning Mrs Taylor’s anti-bullying application (the variation application).
[7] On 21 October 2019 I issued directions concerning the variation application.
[8] The variation application is set down for hearing on 11 December 2019. Mrs Hoad has filed materials as directed, as has Mr Hoad and Mrs Taylor.
[9] On 18 November 2019 Mr Hoad sought permission to be represented by a legal practitioner at the hearing of the variation application. Mr Hoad’s request is opposed by Mrs Hoad and by Mrs Taylor.
[10] This decision concerns that matter.
[11] I received written submissions from Mr Hoad on the representation issue on 18, 19 and 20 November 2019. I received submissions in opposition from Mrs Hoad on 18 and 20 November 2019 and from Mrs Taylor on 18 November and twice on 20 November 2019.
[12] By way of further background, Mrs Taylor’s substantive anti-bullying application was filed on 11 September 2018 and dealt with by the Commission in the shadow of an acrimonious matrimonial dispute between Mr and Mrs Hoad which is now before the Family Court of Australia, having been transferred from the Federal Circuit Court of Australia (the Court).
[13] Separate but related anti-bullying proceedings in the Commission were commenced by Mrs Hoad, also citing Mr Hoad as a named person. 5 For reasons published on 29 March 2019 I declined to hear Mrs Hoad’s application on the merits having found a binding settlement agreement to exist.6 By further decision dated 13 November 2019 I declined a request by Mrs Hoad to re-open her anti-bullying application.7
The Submissions
[14] Mr Hoad submits that representation would contribute to the efficient conduct of proceedings. He says that the matter is characterised by emotional distress and tension, and that involvement of a legal practitioner will likely lessen personal emotion.
[15] Mr Hoad also submits that there is factual and legal complexity. He submits that some of the variations sought involve questions of law including the relationship of the Commission’s orders with Mr Hoad’s responsibilities under the Return to Work Act 2014 (SA), the Work Health and Safety Act 2011 (SA) and the Court orders of 21 May 2018.
[16] Mrs Hoad submits that granting permission is neither necessary nor fair. She submits that all prior proceedings on Mrs Taylor’s application, including the hearing in February 2019, were conducted with parties being self-represented, including Mr Hoad. She considers that the variation application can be similarly conducted on an efficient basis. She says that matters are not necessarily complex simply because a large volume of documents are relied upon.
[17] Mrs Hoad also submits that she does not have funds to finance legal representation.
[18] Mrs Taylor submits that it would be unfair and distressing to her if Mr Hoad was granted permission to be legally represented. She alleges that Mr Hoad’s solicitor was a party to the bullying conduct and that permission should be refused on that ground alone. She too relies on the fact that the proceedings to date have been conducted without legal representatives being involved in Commission hearings. She says that Mrs Hoad’s application simply seeks clarification of orders made, and that this is not a complex matter.
[19] Mrs Taylor also submits that she does not have funds to finance legal representation.
[20] In reply, Mr Hoad submits that he intends to be represented by independent counsel from the South Australian bar, not his solicitor.
The Legal Principles
[21] Section 596 of the FW Act provides as follows:
“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.”
Consideration
[22] Mr Hoad can only be represented by a lawyer (or paid agent) at the hearing with permission of the Commission.8
[23] Whether to grant permission is a discretionary matter to be made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.
[24] The starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in proceedings before the Commission must normally appear on their own behalf. This proposition is consistent with the statutory scheme:
“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.”9
[25] I now turn to the considerations in section 596(2).
Section 596(2)(a) - Efficiency
[26] The variation application has a number of unique features. It self-evidently concerns an application which has already been substantively heard and determined.
[27] The hearing of the matter, across two days in February 2019, was conducted in person with the parties self-represented. No party sought permission to be represented at that time.
[28] The hearing was characterised by emotion and a certain degree of tension and anxiety. For example, prior to the hearing I agreed to a request by Mr Hoad that a security officer be present in the hearing room. The officer was present, but not actively required. Although no party had experience in conducing proceedings of this nature, with my oversight and guidance each was able to present their case and test that of the other to a minimum acceptable level, notwithstanding the emotion and tension.
[29] Whilst a legal practitioner, with their professional duties to the tribunal, is capable of advocacy without the natural emotion of a client litigant, given the history of this matter I conclude this conclusion would but not overwhelmingly add to the efficient conduct of proceedings.
[30] I now turn to complexity. The variation application appears, at least in part, to be based on certain factual matters that have arisen since my decision of 21 March 2019 including (but not limited to) views expressed by an inspector of SafeWork SA. Should fresh evidence be required to be taken on the variation application, the process of taking and testing evidence would be more efficiently conducted via a legal representative.
[31] The issue of complexity arises in the context that my orders and any variations to them do not sit in isolation from other existing legal obligations on the business and its directors.
[32] Mr Hoad intends to refer to his responsibilities under the Return to Work Act 2014 (SA), the Work Health and Safety Act 2011 (SA) and the Court orders of 21 May 2018.
[33] Whilst these obligations existed at the time of my decision of 21 March 2019, I accept that submissions may need to be made to me on the interaction between my orders and any or each of these obligations if only in light of the apparently recent observations of the SafeWork SA inspector on which Mrs Hoad relies. Submissions on these questions are of a legal nature and may be more efficiently made by a legal practitioner. However, it is also the case that views can be expressed by informed self-represented parties on these questions, and that ultimately it is for the Commission, not the parties, to consider the relevance (if any) of such issues.
[34] I am satisfied that sub-section 596(2)(a) is made out. Granting permission for Mr Hoad to be represented by a lawyer in these proceedings would enable the hearing to be conducted more efficiently, taking into account complexity.
Sections 596(2)(b) and (c) – Fairness
[35] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission.10 All factors in the section need to be considered, including fairness (although not all need to be made out).
[36] Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.
[37] Mr Hoad is a businessman, not a person versed in conducting litigation. His capacity to effectively represent himself is limited. In proceedings such as this, his ability to remove emotion or personal considerations arising from an acrimonious matrimonial breakdown and an already lengthy period of litigation would be tested and may affect the efficient conduct of his case. The same applies to Mrs Hoad and Mrs Taylor.
[38] I have observed that the parties conducted the substantive proceedings as self-represented litigants, and that at least a minimum level of efficiency and fairness was achieved. With some assistance from the Commission, Mr Hoad was able to present and test evidence at a basic level. However, in light of my orders having been made and the implementation of those orders now being reviewed by way of Mrs Hoad’s variation application, there is an additional challenge presented for each litigant. The issues are not just factual, but also have a legal overlay given my orders.
[39] It would not be unfair to allow Mr Hoad to be represented having regard to limits on his ability to do so effectively. Sub-section 596(2)(b) is made out but to a moderate extent only.
[40] I now turn to sub-section 596(2)(c). This sub-section requires the Commission to take into account fairness between the person seeking permission (Mr Hoad) and other persons in the matter (Mrs Hoad and Mrs Taylor).
[41] This consideration weighs against a grant of permission. It is not made out by Mr Hoad.
[42] Both Mrs Hoad and Mrs Taylor are self-represented. Although each now has some familiarity with Commission proceedings (having participated in the substantive proceedings, and Mrs Hoad also on her own anti-bullying application) a grant of permission would result in significant inequality in representative capacity, including on the legal issues arising.
[43] Each has had the right to request permission to be represented, but for reasons financial or otherwise neither has done so.
[44] It would not be unfair to refuse Mr Hoad’s request on that ground.
Conclusion
[45] Granting permission under section 596 involves a two-step process. The first is that at least one criteria in section 596(2) needs to be satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”.11 The second is that the discretion must be exercised in favour of the applicant for permission12 in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.
[46] The considerations of efficiency having regard to complexity and also fairness having regard to Mr Hoad’s interests being effectively represented weigh in favour of a grant of permission under section 596 of the FW Act.
[47] The issues of fairness to Mrs Taylor and to Mrs Hoad weigh against such a grant, as does the default statutory position.
[48] On balance, I am satisfied that permission should be granted given that the variation application seeks to vary legally binding orders that have already been made. I note that Mr Hoad’s submission, via his intended legal representative, provides as follows:
“The submissions to be made by me will largely, if not entirely, be restricted to matters of law, for instance the operation of and interpretation of the within Orders of 21 March 2019 (Orders), the relationship of the Orders with Mr Hoad’s obligations under the Return to Work Act 2014 (SA) and the Work Health and Safety Act 2011 (SA) and with the Order of the Federal Circuit Court 21 May 2018.”
[49] The grant of permission will be on this basis. I will not limit Mr Hoad’s legal representative to submissions on matters of law only, as factual issues may need to be determined and tested and inefficiency could arise by a strict distinction being fact and law being imposed. I note however that submissions on legal questions are intended to be the primary purpose of the representation.
[50] I also note that Mr Hoad seeks to be represented via a member of the independent bar. Whilst it is not for the Commission to grant a party permission based on a particular legal representative, representation by a solicitor who is also associated with the factual narrative may add rather than detract from inefficiency or complexity. Based on the submissions advanced by Mr Hoad, his intended representative would avoid that consequence.
[51] Should I consider that Mr Hoad’s legal representative is not contributing to the fair or efficient conduct of proceedings, the Commission has the power to withdraw or qualify the grant of permission.
[52] In order to address questions of fairness between the parties I will take two steps.
[53] Firstly at the hearing I will provide a measure of guidance and assistance to both Mrs Hoad and to Mrs Taylor to advance their positions (both factually and legally) and to test that of Mr Hoad. I will do so consistent with my duties as an independent decision-maker.
[54] Secondly, I will amend my Directions of 21 October 2019 so as to extend the time for either Mrs Hoad or Mrs Taylor to seek to be legally represented. If either or both seek to be legally represented, they will be required to do so by written submission provided to the Commission and to the other parties by 12.00 noon (ACDT) Wednesday 4 December 2019. If any party opposes any request made, they will be required to detail the grounds of their objection to the Commission and to the other parties by 12.00 noon Friday 6 December 2019. If such a request is made, I will determine that question in advance of the hearing set down for 11 December 2019.
[55] Permission is granted to Mr Hoad on the terms set out in this decision. Further directions are issued in conjunction with its publication.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR714700>
1 Application filed 11 September 2018
2 [2019] FWC 1794
3 PR705994
4 Order T, 21 March 2019
5 AB2018/537
6 [2019] FWC 2034
7 [2019] FWC 7739
8 Section 596(4) does not apply in this matter
9 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291
10 Warrell v Fair Work Australia [2013] FCA 291 at [24]
11 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]
12 Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]
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