Queensland Nurses' Union of Employees v Healthscope Limited T/A Allamanda Private Hospital
[2011] FWA 4121
•6 JULY 2011
[2011] FWA 4121 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Queensland Nurses' Union of Employees
v
Healthscope Limited T/A Allamanda Private Hospital
(C2011/3547)
| Healthscope Limited v Ms Francine Austin; Ms Cheryl Brickell; Ms Lynne Macanally (C2011/139) Health and welfare services | |
COMMISSIONER SIMPSON | BRISBANE, 6 JULY 2011 |
Application for permission to be represented by a lawyer - permission granted.
[1] This decision concerns the question of permission to appear.
[2] A Queensland Nurses’ Union of Employees (QNU) s.739 dispute application (matter C2011/3547) with Healthscope Limited was filed on 8 March 2011 regarding the redundancy entitlements of Ms Francine Austin, Ms Cheryl Brickell and Ms Lynne Macanally. I conducted a conciliation conference on 23 March 2011 at which the affected members of the QNU were represented by Ms Gayle McCaul, an industrial officer of the QNU. The conference did not resolve the dispute.
[3] On 28 March 2011 the employer, Healthscope Limited, filed its own s.739 dispute application (matter C2011/139) regarding the same matters and contesting an entitlement to redundancy. This dispute application was listed for a conciliation conference on 15 April 2011.
[4] Between the dates of the first conference and the second proposed conference, a Notice of a Representative Commencing to Act for the three QNU members was filed by Hall Payne Lawyers on 8 April 2011.
[5] On 13 April 2011 correspondence was received from Hall Payne Lawyers advising that discussion had occurred between the parties and it was agreed between them that further conciliation would be of no value.
[6] I agreed to the request that the scheduled conference proceed as a directions hearing and directions were subsequently issued for arbitration of the dispute. It was agreed the two dispute applications C2011/139 and C2011/3547 would be listed and heard together, however for the purposes of the hearing Healthscope would proceed as the Applicant and the affected employees as Respondents.
[7] At the hearing scheduled for 11 and 12 July 2011 Healthscope Limited will be represented by Mr John Douglas, the General Manager - Employee Relations, who will appear as of right as an employee of Healthscope. Mr Douglas is a lawyer.
[8] At a directions conference on 20 June 2011 I was asked to determine the matter of permission for legal representation of the Respondents at the hearing under s 596 of the Fair Work Act 2009.
[9] I advised that I would determine the question of permission to appear in advance of the hearing on the basis of written submissions of the parties.
Relevant legislation
[10] Section 596 of the Fair Work Act 2009 relevantly provides:
“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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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) FWA’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 employersthat is not registered under the Fair Work (Registered Organisations) Act 2009; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative”
Submissions of the parties
Section 596(2)(a)
[11] QNU submits that allowing representation by a lawyer will allow the matter in dispute to be dealt with more efficiently, as the QNU industrial officer Ms Gayle McCaul, who represented the affected QNU members on previous occasions including a conciliation conference, is currently on maternity leave. Her replacement is also covering the workload of another industrial officer who has not been replaced because he has been seconded to Queensland Health for a short term project.
[12] The QNU submits the representation by a lawyer in these circumstances allows the matter to be dealt with more efficiently than otherwise possible.
[13] In terms of complexity the QNU submits this is a complex matter in terms of the legal arguments and disputed facts, the law is complex and arguably not settled. Cross examination will be necessary.
[14] Healthscope argues as the QNU is part of the ANF, a large and sophisticated organisation, it is in a position to call on the federal body to provide representation in the absence of an industrial officer of its own, or alternatively it should devote its own resources to this matter as a priority.
Section 596(2)(b)
[15] The QNU argued its members as natural persons do not have the legal knowledge and skills to represent themselves and they have relied upon the legal expertise of Mr Ben Green of Hall Payne Lawyers to date.
[16] Healthscope submits that it is not contested that as natural persons the named employees require representation, the proper question however is whether the union should be permitted to be represented by a lawyer.
[17] Heathscope in its submission referred to the decision in Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria[2011] FWA 1520 (Lekos) where it was held that an employer who was a member of an employer organisation could appropriately be represented by that organisation.
Section 596(2)(c)
[18] The QNU contends as Mr Douglas is a lawyer it would be unfair not to allow their members to be legally represented taking into account fairness between the parties.
[19] Healthscope admits Mr Douglas is a lawyer however that is of no relevance as he appears as of right under s.596 (4).
Applying the test
[20] On the material filed in accordance with directions issued, at this stage there are seven witnesses expected to appear and a range of case law has been cited in submissions from both the Applicant and Respondents, foreshadowing considerable argument regarding interpretation of previous decisions going to questions of redeployment, redundancy, acceptable alternative employment and amendment to severance pay prescription.
[21] It would also appear likely there will be considerable cross examination of witnesses going to the factual circumstances surrounding the redundancies.
[22] In relation to the reference of Healthscope to the decision in Lekos, I make the distinction that in that decision, Lewin C did not see that any issue of complexity had been made out. In my view the complexity of issues which will inevitably arise in these matters means that the matter is likely to be dealt with more efficiently if both parties are legally represented.
[23] I also consider that the current disruption within the industrial staff at the QNU and the continuity that can be maintained by the participation of Mr Green from Hall Payne Lawyers, whose previous participation overlaps the period before and after the relevant QNU industrial officer taking maternity leave, will assist in the matter being dealt with more efficiently, taking into account the complexity of the matter.
[24] On that basis in the exercise of my discretion I have decided to grant permission for the legal representation of the Respondents.
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