Sherry Lewis v G Plus G Global Trading Pty. Ltd. T/A Victorian Institute of Culinary Arts and Technology

[2018] FWC 1884

[2018] FWC 1884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Sherry Lewis
v
G Plus G Global Trading Pty. Ltd. T/A Victorian Institute of Culinary Arts and Technology
(C2017/5036)

COMMISSIONER BISSETT MELBOURNE, 29 MARCH 2018

Alleged dispute about any matters arising under the modern award and the NES; [s146] – permission for representation by lawyers and paid agents.

[1] Ms Sherry Lewis has made an application for the Fair Work Commission (Commission) to deal with a dispute in relation to her correct classification and other matters under the Educational Services (Post- Secondary Education) Award 2010 1 (the Award). G Plus G Global Trading Pty. Ltd. T/A Victorian Institute of Culinary Arts and Technology (VICAT) argues that Ms Lewis is not covered by the Awardorthat, to the extent that she is, it is as a Student Services Officer and not a Tutor/Instructor.

[2] The dispute had been subject to conciliation where it failed to settle. The matter is now listed for arbitration.

[3] Ms Lewis is represented by the Independent Education Union of Australia (IEU).

[4] VICAT seeks permission pursuant to s.596(2) of the Fair Work Act 2009 (FW Act) to be represented by a lawyer. The IEU oppose the grant of permission.

[5] Section 596 of the FW Act states, in part:

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.

Submissions

[6] VICAT submits that:

•  it is not a large employer, is not experienced in dealing with matters before the Commission and does not have any in-house counsel or qualified legal persons while Ms Lewis is professionally represented;

•  the application will involve consideration of legal principles of Awards, legal contentions and legal conclusions. It submits that the evidence of Mr Victory relied on by Ms Lewis raises legal issues and contains legal assertions. Further, it submits that Ms Lewis relies on documentation that may be subject to legal interpretation;

•  the reputation and professional standing of VICAT could be harmed should adverse findings be made against it;

•  the monetary amounts involved in the claim are substantial;

•  there is no prejudice to Ms Lewis in it being represented.

[7] The IEU submits that:

•  the prime facie position of the FW Act is that parties should represent themselves and representation may only be considered if one of the criteria in s.596(2) of the FW Act is met;

•  the test under s.596(2) is more stringent than previous legislation;

•  the application does not involve matters of legal complexity but is a straight forward determination of classification against an award. This is a simple matter of fact involving little interpretation of the Award;

•  whilst some cross examination will be required it will only go to the work required of Ms Lewis;

•  VICAT has three senior managers each with a thorough understanding of the matters;

•  VICAT’s submissions on representation were made by the person who failed to comply with the Commission’s directions to file materials in the matter.

Consideration

[8] The matter before the Commission is not complex. It is a straight forward argument as to the duties required to be undertaken by Ms Lewis (on which I accept there is dispute) and the appropriate classification of her position taking into account the classification descriptors in the Award. There are few, if any, legal principles or matters of interpretation involved in this matter.

[9] A review of the witness statement of Mr Victory discloses no legal argument but appears, on its face, to be an expression of his views, based on his experience, of the classifications of employees undertaking certain tasks that may have been undertaken by Ms Lewis.

[10] It is not apparent to the Commission why any findings as to the appropriate classification of Ms Lewis and other entitlements under the Award should adversely affect the professional standing or reputation of VICAT unless such findings were indicative of systemic issues at VICAT and there is no suggestion of such or evidence before the Commission that could lead to such a conclusion. It is not clear how this could ground the grant of permission.

[11] I am therefore not satisfied that VICAT has demonstrated that the matter before the Commission would be dealt with more efficiently because of its complexity. I do not accept that the matter is complex such that the requirements of s.596(2)(a) have been met.

[12] I do accept, however, that VICAT does not employ in-house legal counsel or qualified legal persons. Whilst VICAT does have three managers who have been present in proceedings to date and who clearly understand the matter in dispute, this does not mean, in and of itself, that they can effectively deal with an arbitration hearing.

[13] I am therefore satisfied that it would be unfair not to allow representation as the current managers are unable to represent VICAT effectively (s.596(2)(b)).

Conclusion

[14] Having found that the requirements of s.596(2)(b) have been met I have decided to grant permission to VICAT to be represented. In doing so, I am aware that the lawyer who filed the submissions on representation has been remiss in his communications with the Commission and Ms Lewis’ representative to date. VICAT should be aware that, having granted permission to it to be represented, the Commission will not accept any further delay occasioned by its representative (whoever that may be) and that, should this occur, the Commission may consider a request to reconsider the grant of permission.

COMMISSIONER

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