Rainer Kiessling v Fire Rescue Victoria T/A FRV
[2023] FWC 2334
•13 SEPTEMBER 2023
| [2023] FWC 2334 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Rainer Kiessling
v
Fire Rescue Victoria T/A FRV
(C2023/3219)
| COMMISSIONER BISSETT | MELBOURNE, 13 SEPTEMBER 2023 |
Alleged dispute about any matters arising under an enterprise agreement – permission to be represented – permission granted
Mr Rainer Kiessling (Applicant) has made an application for the Commission to deal with a dispute pursuant to s.739 of the FW Act. The Applicant’s dispute is in relation to his employment with Fire Rescue Victoria (FRV) under the terms of the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (Agreement). The application is made pursuant to the dispute settling procedure of the Agreement.
FRV seeks permission to be represented by a lawyer in relation to the determination of the matters in dispute. The Applicant opposes the grant of permission.
For the reasons given below I have determined that permission be granted.
The dispute
In short, the dispute between the Applicant and FRV relates to the terms and conditions of employment to be afforded to the Applicant in circumstances where he has entered FRV as a ‘lateral entry’ employee and where it is said that he has a common law contract which curtails his rights under the Agreement in some respects.
The resolution of the dispute will require the Commission to determine if there is such curtailment and, if there is, to what extent that exists.
Further, and regardless of any finding in relation to the common law contract of the Applicant a dispute exists as to what terms and conditions within the Agreement apply to an employee of the rank of the Applicant.
Permission
Section 596 of the FW Act states:
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.
…
FRV relies primarily on s.596(2)(a) to ground its application.
FRV submits that legal representation will enable the Commission to focus on the ‘key issues of facts and law, leading to a more efficient hearing and/or resolution of the matter.’ Allowing representation will enable FRV to put forward its position efficiently and hence allow for the timely resolution and finalisation of the dispute.
FRV submits that the application before the Commission involves complexity firstly because of the question of interaction of the common law contractual arrangements and, secondly, because of the complexity of the Agreement itself.
In relation to the Agreement FRV says the dispute involves determination of multiple clauses and their interactions. In relation to the Applicant’s contract, the dispute involves common law contractual principles.
While FRV submits that a finding of complexity is not necessary to engage s.596(2)(a) of the FW Act, it is a significant matter in the process of determining if the criteria is satisfied. It submits the Commission can be satisfied the matter has complexity embedded in it and that representation will enable a focus on the matters to be determined and will be of assistance in ensuring the matter runs efficiently.
FRV further submits that it would be unfair on FRV to not grant permission as it is not able to represent itself efficiently (s.596(2)(b)).
In respect of fairness between the parties (s.596(2)(c)) FRV submits that ‘holistically’ it would not be unfair on the Applicant for FRV to be granted permission to be represented. In any event FRV says that it only need satisfy one of the criteria in s.596(2) of the Commission to consider the grant of permission.
The Applicant opposes the application of permission as he says that it will create a greater imbalance between the parties and that such permission comes with costs and an administrative burden.
The Applicant also submits that the grant of permission may lead to a longer and more complex hearing. Rather, he submits, the matter is not complex and could be resolved by the Commission ‘providing guidance on clauses and conditions which are provided…and protected under the EBA’.
The Applicant further submits that his letter of engagement does not allow FRV to exercise any controls inconsistent with the Agreement and that a case of ‘no consideration’ could be made in the interpretation of the letter of engagement in the context of the Agreement. The Applicant submits, in any event, that contractual matters should be subject to separate argument outside the Commission.
The Applicant submits that the primary goal of the Commission is to facilitate the resolution of disputes and that allowing of legal representation may shift the focus away from the provision of a ‘simple interpretation’ of the Agreement and ‘confuse the matter through adversarial legal tactics.’
Consideration
I have carefully considered the submissions of both FRV and the Applicant.
I accept that, given the range of matters in dispute between the parties, and the interaction of various clauses in the Agreement, there is some complexity on the matter such that a focus on the key issues brought to bear by legal representation may enable the matter to be dealt with more efficiently. I do not accept the Applicant’s argument that the grant of permission may shift the focus from a ‘simple interpretation’ to adversarial tactics and therefore result in less efficient conduct of the proceedings. To the extent the grant of permission might result in the matter not being dealt with more efficiently than it otherwise would, any permission granted can be taken away.
I am however satisfied that the requirements of s.596(2)(a) are met. It is therefore not necessary to consider s.596(2)(b) or (c).
Having reached this conclusion it is necessary to consider if permission should be granted.
I take most of the submissions of the Applicant to be primarily focussed on why I should not exercise my discretion and grant permission.
The matters subject to dispute between the parties have been ongoing for some time with a somewhat difficult history caused by matters outside those I am to consider but which add context to the dispute.
The task before me in the current matter is not about providing ‘guidance’ as to the operation of the clauses. This dispute is now at the stage where a determination of the matters in dispute is required. Any finding of the Commission may well have an effect beyond the Applicant as there cannot be more than one answer as to the operation of the clauses.
I do not consider that the grant of permission will add any administrative burden to the proceedings. To the extent the matter is complex any additional burden may be lightened by the presence of a legal practitioner with experience in such matters who may efficiently marshal the arguments before the Commission. In any event the Commission has managed proceedings in the past where only one of the parties is represented by a legal practitioner without it creating any burden.
In these circumstances I consider that I should exercise my discretion and allow FRV to be represented.
Permission is therefore granted.
COMMISSIONER
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