Rachel Peach v Heathcote Real Estate
[2014] FWC 6605
•19 SEPTEMBER 2014
| [2014] FWC 6605 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Rachel Peach
v
Heathcote Real Estate
(C2014/1563)
COMMISSIONER RYAN | MELBOURNE, 19 SEPTEMBER 2014 |
Application to deal with contraventions involving dismissal.
[1] The Applicant has filed an application under s.365 of the Act for the Fair Work Commission to deal with a general protections dispute involving the dismissal of the Applicant by the Respondent.
[2] The application is listed for conference pursuant to s.368 on 25 September 2014.
[3] The Respondent has sought permission to be represented by a lawyer or paid agent pursuant to s.596 of the Act.
[4] The relevant provisions of the Act are as follows:
- “368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
592 Conferences
(1) For the purpose of performing a function or exercising a power of the FWC (other than a function or power under Part 2-6), the FWC may direct a person to attend a conference at a specified time and place.
Note: Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2-6.
(2) An FWC Member (other than an Expert Panel Member), or a delegate of the FWC, is responsible for conducting the conference.
(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.
Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).
(4) At a conference, the FWC may:
(a) mediate or conciliate; or
(b) make a recommendation or express an opinion.
(5) Subsection (4) does not limit what the FWC may do at a conference.
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 employersthat 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.”
[5] Where a person makes an application under s.365 the Commission is required to deal with the application other than by way of arbitration. The Commission usually convenes a conference of the parties but the Commission may deal with the dispute other than by a conference.
[6] Where the Commission convenes a conference of the parties to a s.365 application the conference must be held in private.
[7] The Commission has very limited powers in relation to dealing with s.365 applications. This has been made clear in relation to challenges made by respondents to applications made under s.365. The Full Bench decisions in Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital 1 and Bartosiewicz v Monash University2 are both directly relevant.
[8] When the Commission holds a conference under s.368 the Commission does not receive evidence from the parties, the Commission does not hear submissions from the parties as to the merits of their case and the Commission most certainly does not exercise any arbitral function.
[9] The very purpose of a conference under s.368 is to give the parties an opportunity, with assistance from the Commission, to resolve the dispute without the need for the dispute to be referred to a court. If a conference is convened by the Commission it could take the form of a mediation where the Commission does no more and no less than facilitating effective communication between the parties or it could take the form of a conciliation in which the Commission actively assists the parties to come to an agreed resolution of the dispute or it can be anyway in between and can include the Commission making a recommendation to the parties on how the dispute should be settled or having the Commission express an opinion about the dispute.
[10] It is in this context that the Respondent seeks permission to be represented at the conference by a lawyer or paid agent.
[11] The Respondent has filed written submissions in support of its request for permission to be represented. The submissions were prepared and filed by the Respondents lawyer Ms Alexandra Klimovics, Senior Lawyer of Service Industry Advisory Group (Legal) Pty Ltd.
[12] The Respondents written submission seek permission under s.596 based on the criteria in s.596(2)(a) and (b).
[13] The Respondent’s submission in relation to s.596(2)(a) is expressed as follows:
“Section 596(2)(a)
5. In considering the Respondent’s request to be represented, it is submitted that the Commission must assess efficiency having regard to both the circumstances of the matter and the parties themselves.
6. Although this matter is not highly complex, there is sufficient complexity such that allowing the parties to be legally represented would enable the matter to be dealt with more efficiently. In particular, the basis of the Application suggests that essential elements of the general protections provisions of the Act may not, necessarily, be fully appreciated by the parties.
7. There are also several disputed facts between the parties which would, ultimately, need to be tested at hearing. The involvement of legal representation would not unnecessarily formalise the conduct of this matter, but would assist the Commission in confining discussions at the conference to the legal and factual issues in dispute.
8. The Respondent is reliant on its external advisors in relation to this matter, and inefficiencies would necessarily result if the Respondent were denied legal representation.”
[14] The Respondent also relied upon a decision by DP Sams in Applicant v Respondent [2014] FWC 2860 at [18] to [21].
[15] There simply is no complexity in the matter before the Commission. There may very well be complexity in the matter that may go to court but the Commission is only holding a conference with the parties to explore the possibilities of the dispute being resolved by the parties making an agreement between themselves.
[16] To the extent that the Respondent is reliant on its external advisors in relation to this matter the request for permission to be represented by a lawyer or paid agent has no impact on the ability of the Respondent to rely on its external advisors. The issue here is whether the Respondent speaks on its own behalf at the conference or whether the Respondent has its representative speak for it.
[17] Even if the request for permission to be represented by a lawyer or paid agent is refused the Respondent can have their external advisor attend the conference to advise it.
[18] The authority relied upon by the Respondent is not to the point. The conference to be held in this matter is very different to the contested hearing before Sams DP.
[19] The Respondent’s submission in relation to s.596(2)(b) is expressed as follows:
“Section 596(2)(b)
12. Without allowing legal representation, the Respondent will be unable to represent itself effectively.
13. It is submitted that there are no employees of the Respondent who could effectively represent it.
14. The Respondent is a small employer, currently operated by its director, Ms Leigh Freeman, and employing one other staff member (sales agent). Ms Freeman’s background is in real estate. It would be highly onerous and ineffective for Ms Freeman to advocate on the Respondent’s behalf.
15. The Respondent does not employ any human resources specialists or anyone experienced in workplace laws or advocacy. The Respondent has outsourced its human resources function by engaging the specialist services of the Service Industry Advisory Group Pty Ltd (SIAG). SIAG (Legal) is the related body corporate that provides legal services.
16. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd (Project Aurora) [[2012] FWA 2966], Senior Deputy President Richards relevantly found:
[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”.”
17. On that basis, it is submitted that the Commission should find that without legal representation, the Respondent would be unable to represent itself effectively, and it would be unfair to refuse it to be legally represented.”
Conclusion
18. Although the Applicant does not seek to be represented, that should not weigh against leave being granted to the Respondent. The Commission has a role to ensure fairness in a hearing, and accordingly must accommodate any potential imbalance between the parties. The Respondent’s lawyer will also have a duty to the Commission, which would assist the Commission in the performance of its functions.”
[20] The Respondent relies on two paragraphs out of the decision of SDP Richards. However it is important to look at more than the two quoted paragraphs from that decision. Relevantly the decision of SDP Richards says:
“[7] The Act does not mandate self-representation by a person. Equally so, the Act does not confer on FWA a discretion at large to grant permission for representation. Rather, the Act invests FWA with a conditioned discretion to grant permission for a person to be represented by a lawyer or a paid agent. The conditions which qualify FWA’s discretion are set out at s.596(2)(a), (b) and (c) of the Act.
[8] FWA, therefore, is required to establish that the prescribed conditions are in existence before such time as it exercises its discretion to grant permission for representation of the relevant kind. Ordinarily at least, if the prescribed conditions are found to be in existence, the discretion to give permission to represent a person would be exercised in favour of the person.
[9] The method of verification of the prescribed conditions is an objective exercise. However, this is not to say that the conditions themselves can in each case be verified as being objective facts. Reasonable minds will differ as to whether legal representation will result in added efficiency, whether a certain circumstance is unfair or not, or whether a person is unable to be represented effectively.
[10] Indeed, in respect of this latter precondition (which arises in respect of s.596(2)(b) of the Act), an objective standard is particularly elusive. This is because there may be differences between persons not only in respect of the circumstance giving rise to the inability, but also to the degree or measure of effectiveness the person anticipates from their representation (which may itself be the cause of the inability). There is some further discussion of this concern 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 producing a striking impression. 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”.
[18] Equally, there may be innumerable circumstances which might render a person unable to represent himself, herself or itself “efficiently” (which the Australian Oxford Concise Dictionary (Third Edition) suggests is one further definition of “effectively”). Location, competing work priorities or other obligations come to mind as reasons why a person might be unable to represent him or herself (or itself) efficiently.
[19] Alternatively, a person may be unable to be represented effectively out of a concern the manner of their representation will not achieve an intended result or outcome, which is a further definitional context for s.596(2)(b) of the Act.
[20] In this latter respect, the belief that a person might hold as to their ability to represent himself, herself or itself effectively will need to be well grounded, but it is a notion that might travel widely in meaning. For example, the management of commercial and reputational risk might be an important consideration by a person in a dispute. Therefore, to be represented effectively might be the means to achieve the intended or desired result of managing either or both of those risks. There will be other examples.
[21] Generally, in determining the existence of the prescribed precondition(s) (along with the other requirements of s.596(2)(b) of the Act), the totality of the observed circumstances will be important, as will the genuineness of any asserted belief that is said to be held.
[22] A refusal to accommodate any such concerns or an expression of indifference to a declared state of personal belief (for example) may give rise to procedural fairness concerns.”
[21] I agree with the proposition advanced by SDP Richards at [19] to [21].
[22] I strongly disagree with the proposition advanced by SDP Richards at [15] to [18].
[23] Dictionaries can be a helpful guide to understanding the language of an act but they must be used carefully. As the authors of Statutory Interpretation in Australia (7th edn, Pearce and Geddes) comment:
“The use of a dictionary to assist in the understanding of words used in an Act must not, however, result in the words of the Act being abandoned in favour of synonymous expressions. The legislature will have chosen a particular word and it follows that other like words have been considered and rejected.” ([3.30] page 95)
[24] As was noted by Underwood CJ in The Honourable Mr David Llewellyn v The Resource Management and Planning Appeal Tribunal 3:
“36 Although recourse to dictionaries is an accepted practice to ascertain the common meaning of a word (R v Peters (1886) 16 QBD 636 at 641), every word must be construed in the context of the legislation in which it appears and in accordance with its purpose as directed by the Acts Interpretation Act, s8A. As Anderson J said in Falconer v Pederson [1974] VicRp 24; [1974] VR 185 at 187:
"Mr Alston also referred to a number of dictionaries which gave a variety of meanings to the verb 'traffic', ... I do not think one can select any one of the several meanings given in the various dictionaries and attribute to the phrase 'traffic in' appearing in s32(a) that particular dictionary meaning, and leave it at that. One must interpret the phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary definitions."”
[25] The very structure of the Act does not support a conclusion that the word “effectively” in s.596(2)(b) means “producing a striking impression”, the third definition in the Macquarie Dictionary or “producing a striking impression” the second definition in the Concise Oxford Dictionary.
[26] If regard is to be had to the dictionary definitions of “effectively’ it appears that the context in which the word is used in s.596 would support a conclusion that “effectively” had the meaning of “1. serving to effect the purpose; producing the intended or expected result” as defined in the Macquarie Dictionary and “1a having a definite or desired effect. b efficient” as defined in the Concise Oxford Dictionary”.
[27] In the present matter the Respondent is effectively its Director Ms Leigh Freeman, who has background in real estate.
[28] As a Director of a real estate firm it would appear that Ms Freeman would be well experienced in the art and practice of negotiation. This skill (and not a skill in advocacy) is directly relevant to effective representation of the Respondent’s interests at the conference to be held under s.368.
[29] Apart from the contention made by Ms Klimovics there is nothing before the Commission which would allow the Commission to conclude that the contention that “It would be highly onerous and ineffective for Ms Freeman to advocate on the Respondent’s behalf” was well founded.
[30] In the present matter I am not satisfied that either of the preconditions identified in s.596(2)(a) or (b) have been made out.
[31] I refuse permission for the Respondent to be represented by a lawyer or paid agent.
COMMISSIONER
1 [2013] FWCFB 6321.
2 [2014] FWCFB 2745.
3 [2007] TASSC 21 (cited in Statutory Interpretation in Australia at [3.30]).
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