Ross Wunungmurra v East Arnhem Regional Council

[2019] FWC 1931

[2019] FWC 1931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Wunungmurra
v
East Arnhem Regional Council
(U2018/3803)

COMMISSIONER BISSETT MELBOURNE, 27 MARCH 2019

Application for revocation of permission – no basis to reconsider the exercise of discretion to withdraw permission – application dismissed.

[1] On 12 April 2018 Mr Ross Wunungmurra (Mandi) 1 (Applicant) made an application seeking relief from unfair dismissal. Mr Wunungmurra had been employed by East Arnhem Regional Council (Council). Directions were issued for the filing of submissions and evidence and a hearing date set for the application.

[2] On 13 June 2018 I granted permission to the Council to be represented pursuant to s.596 of the Fair Work Act 2009 (FW Act). At the time permission was granted the Council was represented by Mr Sheldon Smith of Latitude 12, a human resources (HR) company based in Darwin. Mr Wunungmurra was represented by Ms Dianne Yali of United Voice. The Applicant did not require permission to be represented.

[3] On 9 November 2018 I issued a decision 2 in which I found that Mr Wunungmurra was unfairly dismissed from his employment. In that decision I determined that the question of remedy would be dealt with separately and issued directions for the filing of material on that question. The Applicant was required to file his submissions by 7 December 2018 and the Council by 21 December 2018.

[4] On 21 December 2018 MinterEllison filed submissions in accordance with my directions for the Council. Later that day Ms Yali sent correspondence to the Fair Work Commission (Commission) in which she said:

Dear Commissioner

We note that Minter Ellison have not filed a Form F53 in this matter. Once they do that, we intend to oppose their application for permission to appear.

As you would be aware Latitude 12 Pty Ltd sought and were granted (unopposed) permission to appear in this matter. We are now of the view that Latitude 12, as a subsidiary of East Arnhem Regional Council, are deemed an associated entity pursuant to the Fair Work Act so should not have sought permission to appear in that matter. But should have appeared automatically.

On the other hand, Minter Ellison are not a subsidiary of East Arnhem Regional Council so are required pursuant to the Act to seek permission to appear. And we oppose that.

Kind regards

[5] On 8 January 2019 MinterEllison filed a Form F53 indicating that it now represented the Council.

[6] Given the correspondence from Ms Yali on 21 December 2018 I issued directions to the parties for submissions in relation to what I took to be an application from United Voice that the Commission should revoke the permission granted to the Council to be represented.

[7] A subsequent application by MinterEllison for the Council that I recuse myself from dealing with remedy for the unfair dismissal and the revocation of permission application meant that application needed to be addressed prior to dealing with the revocation issue. To this extent United Voice indicated that it would not oppose MinterEllison having permission in relation to the application for recusal.

[8] On 7 March 2019 I issued a decision 3 in which I refused the application that I recuse myself.

[9] Prior to dealing with remedy it is necessary to decide if I should revoke the permission granted to the Council under s.596(2) of the FW Act.

Background

[10] On 28 May 2018 the Council filed a submission with the Commission in which it sought to be represented pursuant to s.595(2) of the Fair Work Act 2009 (FW Act). In making the application Council said:

I am seeking permission from the Commissioner, to be represented the abovementioned matter by the Councils HR service provider Sheldon Smith of Latitude 12. East Arnhem Regional Council does not have an ‘in-house’ HR function and as a result, it is reliant on a service agreement with Latitude 12 to provide HR services to the Council. Latitude 12 is a wholly owned subsidiary of East Arnhem Regional Council.

Latitude 12 delivers all of the HR support services as required by the Council, inclusive of representing the Council in all employee relations matters. If Mr Smith were permitted to represent the Council in this matter, it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Additionally, I do not have the same level of information regarding this matter as Mr Smith and therefore I would be at some disadvantage. [sic]

[11] No opposition to the grant of permission was received from United Voice. On this basis on 13 June 2018 I issued a decision by email that said:

Dear Parties

I have received an application from East Arnhem Council (Respondent) for permission pursuant to s.596(2) of the Fair Work Act 2009 (FW Act) to be represented in the matter of U2018/3803: Wunungmurra v East Arnhem Regional Council.

I am satisfied that it would be unfair not to allow the Respondent to be represented as it is unable to represent itself effectively (s.596(2)(b)) given its reliance on it representative to provide HR services.

In these circumstances I am satisfied that permission should be granted to the Respondent to be represented. Permission is therefore granted.

Submissions of United Voice

[12] United Voice, in its submission that permission should be withdrawn, submits that Latitude 12 is an associated entity of the Council. For the purposes of the FW Act it says therefore the Council and Latitude 12 are one and the same “which means Latitude 12 Pty Ltd did not require permission to appear because it had permission to appear pursuant to s.596(4) of the Act.” For this reason it submits that permission should be withdrawn.

[13] United Voice submits that the circumstances can be distinguished from those in New South Wales Bar Association v McAuliffe 4 as Latitude 12 did not require permission and the grant of permission was superfluous.

[14] Alternatively, United Voice submits that permission was granted to be represented by a “paid agent”. A “paid agent” is defined in s. 12 of the FW Act. The Council did not seek to be represented by a “lawyer” also defined in s.12 of the FW Act and a lawyer and a paid agent are distinguishable.

[15] United Voice submits that the Council should not be granted permission to be represented by a lawyer in dealing with remedy. It says that the Council submitted in seeking permission in May 2018 that the matter could be dealt with more efficiently if permission was granted, it would be inconsistent with such efficiency for lawyers to now make an application for permission.

[16] United Voice relies on the Explanatory Memorandum to the Fair Work Bill 2009 in support of its contention that permission should not be granted. Further, it says that a question of remedy is not a complex matter and it would be contrary to the intent of s.596(2) to grant permission.

[17] United Voice says that this case is distinguishable from the decision in Queensland Nurses’ Union of Employees v Healthscope Limited and Healthscope Limited v Ms Francine Austin and ors 5 where Commissioner Simpson found that considerable cross-examination of witnesses was one reason to grant permission. It says that submissions and witness statements have been filed. In the hearing of the substantive unfair dismissal application Council was represented by Latitude 12 through two and one half days of hearing involving examination-in-chief and cross-examination of witnesses. Latitude 12 is a related entity and can continue to provide support and representation to Council. The grant of legal representation will not aid efficiency in this regard.

[18] Further, United Voice says that Latitude 12 is yet to file a Notice of representative ceasing to act (Form F54) and that Council is a member of the Local Government Association of the NT which has access to resources of the Western Australia Local Government Association (WALGA). That organisation provides advocacy services. The “fair and efficient course” would be to use those resources.

[19] United Voice submits that Latitude 12 advertises on its website as being capable of dealing with industrial relations issues and there is no warrant to believe it does not have the expertise to deal with this matter. Further, Latitude 12 has already been involved in the application of Mr Wunungmurra in drafting the Form F3, participating in conciliation and representing Council in the hearing of the application.

[20] United Voice further says that Latitude 12 does more than provide strict administrative support to Council as is evidenced by its involvement in negotiating the most recent enterprise agreement of the Council including lodgement of that agreement for approval.

Submissions of Council

[21] Council submits that Latitude 12 is engaged through a service agreement to provide HR assistance to the Council. Those services go to generalist human resource advice and payroll processing. The services do not generally extend to appearances before the Commission and this case is the first time it has represented the Council in a Commission appearance.

[22] In November 2018 Latitude 12 advised Council that it could no longer represent it in matters before the Commission.

[23] Council agrees that Latitude 12 is a wholly owned subsidiary of the Council but says it does not have the authority to direct Latitude 12 as to the handling of matters before the Commission. For this reason Council sought permission under s.596(2) of the FW Act in May 2018 to be represented by Latitude 12 as Latitude 12 is, in fact, a paid agent.

[24] The Commission granted permission to the Council in June 2018 and the grounds on which permission was granted have not altered since that time – that is, the Council is unable to represent itself effectively. To this, Council submits that it does not employ staff with legal training or experience in appearing before the Commission, it does not have an in-house lawyer and it cannot direct Latitude 12 to appear for it.

[25] In these circumstances Council submits that Mr Barry Bonthuys, Acting Chief Executive Officer of Council, is the best person to represent Council. However, Mr Bonthuys does not feel confident that he could represent the Council effectively and would be unable to effectively examine and cross-examine witnesses.

[26] Council also submits that Ms Yali of United Voice, representing Mr Wunungmurra, is legally qualified and it would be unfair not to allow the Council to be represented by a lawyer in the further proceedings.

[27] Council submits that s.596 of the FW Act enables the Commission to grant permission but is silent with respect to being able to direct a party as to who that representative should be. It says that it should be up to Council, having been granted permission, to decide to engage a lawyer. For this reason it says that permission already given should not be revoked.

Consideration

[28] Section 596 of the Act states 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.

[29] A “person” in s.596 includes an employer. 6

[30] It is now well established that the grant of permission to be represented is not an automatic right with the grant of permission being acknowledged to have the potential to alter the dynamics of the conduct of a matter.

[31] Further, the grant of permission is a distinct, two-step process with the Commission required first to determine if any of the conditions in s.596(2)(a)-(c) have been me and, if they have, deciding whether the discretion should be exercised to grant permission or not. 7

Is an associated entity exempt from the requirement to seek permission?

[32] Section 596(4) of the FW Act sets out the exceptions to the need to be granted permission to be represented by a lawyer or paid agent. In this case the exceptions would be enlivened if Latitude 12:

•  was (effectively) the Council;

•  was a registered organisation or a peak council or a bargaining representative that is representing the Council; or

•  is a bargaining representative.

[33] Latitude 12 is none of these and Mr Smith of Latitude 12 is therefore not an employee of any of these.

[34] Further, Mr Smith is not an employee of Council. Even if Latitude 12 is an associated entity of Council Mr Smith is employed by Latitude 12 and not the Council and could not be viewed as an employee of Council.

[35] United Voice makes submissions that Latitude 12 is an “associated entity.” It submits Latitude 12 has the skills to represent Council but because it is an associated entity of Council it does not require permission to be represented.

[36] Section 596(4) of the FW Act does not suggest that an associated entity falls within the exceptions to the requirement to have permission granted such that Council would not be required to seek permission to be represented by it. Even if an employee of an associated entity did not need permission I do not consider this an answer as to whether I should revoke the permission already given.

Have circumstances changed such that Council can now effectively represent itself?

[37] Whether Latitude 12 was required to seek permission in the first instance is not a relevant consideration as to whether I should revoke the permission granted. Council sought permission to be represented and I granted that permission. In doing so I was satisfied that the Council could not represent itself effectively. In granting permission I did not grant permission for it to be represented by a “paid agent” rather I granted permission for it to be represented. Council’s chosen representative at the time was Latitude 12. Whilst no argument was put before me on the matter I do not see how my consideration as to whether any of the conditions necessary for the exercise of my discretion to grant permission would have been different had it been a lawyer or paid agent that Council sought to have represent it. Rather, it seems that these matters might more properly be considered in the exercise of the discretion of whether to grant the permission, the necessary requirements in s.596(2) having been met.

[38] I was satisfied in June 2018 that Council was unable to represent itself effectively. I remain of that view. I do not consider the Latitude 12 is the “employer” as defined in the FW Act such that I should now find that the requirements of s.596(2)(b) are no longer met. There is no basis therefore to withdraw permission because the condition necessary to the grant of that permission has changed.

Should I exercise my discretion to revoke permission?

[39] I do not accept the view expressed by United Voice that because Council is a member of the NT Local Government Association and can therefore access representation services from the WALGA permission should not be granted. To accept this argument would mean that no union member could ever be granted permission to be represented and no employer who was a member of an employer organisation could be granted permission to be represented. For such a finding to be made would remove the discretion of the Commission granted by s.596(2) of the FW Act.

[40] I do not consider that the change of representative by Council is a ground to consider afresh the exercise of my discretion to allow it to be represented. Latitude 12 performed the role it did in the hearing of the substantive matter. That Council withdrew its instructions to Latitude 12 is a matter for it.

[41] The matter of remedy for Mr Wunungmurra is a highly contested matter. Mr Wunungmurra seeks reinstatement and this is vigorously opposed by Council. The question of reinstatement will include a consideration of what other employment opportunities exist in Galiwin’ku. United Voice consider this so important they have sought that remedy be heard in Galiwin’ku. Council, on the other hand, submits that there are ample employment opportunities in Galiwin’ku but that Mr Wunungmurra has just not taken these up. It is apparent that the matter before me is not a simple case of how much compensation should be granted.

[42] For these reasons I see no basis to reconsider the exercise of my discretion to grant permission to Council to be represented.

[43] The application that I should revoke the permission granted to Council is therefore refused.

[44] If I was wrong on the question of revocation for the reasons outlined above I remain satisfied that Council could not represent itself effectively and, subject to some general comments below, I am satisfied that permission should be granted to Council to be represented.

[45] My decision not to revoke permissions is a decision that can be revisited on application. Since submissions were received on the issue immediately before me, Ms Tegan Harris of MinterEllison, the particular lawyer assigned to this matter, has indicated very limited availability of the next six to eight weeks. MinterEllison is a large firm and I expect that, should Ms Harris not be able to attend to this matter, it will be able to find another lawyer who can. I am mindful that the application of Mr Wunungmurra for relief from unfair dismissal is taking an extensive period of time to finalise. Delays caused by unavailability of a specific lawyer will not be an acceptable reason for further unnecessary delay.

COMMISSIONER

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 1   The Applicant is known as Ross Wunungmurra or sometimes as Ross Mandi.

 2   [2018] FWC 6808.

 3   [2019] FWC 1465.

 4   [2014] FWCFB 1663.

 5   [2011] FWA 4121.

 6 See s.15 of the Fair Work Act 2009.

 7   Warrell v Walton (2013) 233 IR 335.