Shop, Distributive and Allied Employees Association v Officeworks Limited T/A Office Works

[2021] FWC 4230

[2021] FWC 4230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Shop, Distributive and Allied Employees Association
v
Officeworks Limited T/A Office Works
(C2021/1643)

COMMISSIONER RIORDAN SYDNEY, 19 JULY 2021

Application to deal with a dispute – s.596 application – permission refused.

[1] The Shop, Distributive and Allied Employees Association (SDA) has made an application for the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to the application is Officeworks Limited T/A Officeworks.

[2] The matter has been listed for Hearing on 21 July 2021. The Respondent has sought permission pursuant to s.596(1) of the Act, to be represented by Herbert Smith Freehills at the hearing. The SDA has objected to that request.

[3] Section 596 of the Act provides the matters to be considered by the Commission, in determining whether to exercise its discretion to grant permission for a party to be represented in proceedings:

“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.”

Respondent’s submissions

[4] The Respondent submitted that legal representation would enable the hearing to be dealt with more efficiently, having regard to the issue of interpretation of clauses 25.2.1 and 21.7.2(e) of the Officeworks Store Operations Agreement 2019 (the Agreement). The Respondent submitted that legal representation would assist the Commission in focussing on the areas in dispute and avoid the introduction of irrelevant evidence.

[5] The Respondent submitted that while it has an internal human resources team, its human resources professionals are responsible for managing issues relating to more than 9,000 employees. It submitted that it does not engage in-house counsel who are specialists in employment law or industrial relations and therefore its human resources team is dependent on the support of external legal representation in proceedings such as the current proceedings before the Commission.

[6] The Respondent submitted that the construction of the Agreement and the potential outcome of the current dispute, may have ramifications for approximately 6,900 employees covered by the Agreement. Accordingly, the Respondent submitted that it requires effective external legal representation and it would be unfair for representation to be denied.

[7] The Respondent submitted in contrast, the Applicant is a Union with significant experience in contested matters before the Commission. It submitted this is another factor to be considered regarding fairness between the parties, in the event representation is not granted.

Applicant’s submissions

[8] The SDA submitted that it opposes permission for the Respondent to be legally represented. The SDA cited the decision in matter Michael Taylor v Startrack Express T/A Startrack, in which Commissioner Cambridge refused permission for an employer to have legal representation in an unfair dismissal proceedings.

[9] The SDA submitted that in coming to his decision, the Commissioner considered in that matter:

i. Complexity/Efficiency (subsection 596(2)(a) FWA) – although the employer’s representative submitted that the matter’s complexity would be assisted by legal representatives and that the nature of the evidence (including potential cross examination) made representation appropriate. The TWU asserted in response that the matter was not complicated nor did it involve a particularly voluminous amount of evidence. Commissioner Lander decided at paragraph 19 that upon examination of the material filed he was unable to recognize a level of complexity beyond that which would ordinarily be found in a routine unfair dismissal matter. Similarly this is a straightforward payroll issue. The Respondent has also filed correspondence with the Commission noting the ability of Ms Heidi Dorman to adequately represent its interests in this matter.

ii. Inability/Effectively (subsection 596(2)(b)) – the representatives submitted the employer would not be able to effectively without the assistance of lawyers or paid agents. Reference was also made to the employer having limited previous experience in advocacy. The TWU submitted in response that the employer had a dedicated HR department. Commissioner Lander decided at paragraph 23 that he was not convinced the employer could not effectively represent itself without lawyers, particularly because the operation included specialist staff in a human resources team.

iii. Fairness (subsection 596(2)(c)) – The employer’s representative submitted it would be unfair if the employer was denied an opportunity to be represented by lawyers, noting the employee was represented by a legal officer of the TWU and that the employer had limited capacity in its HR or legal department. The TWU responded that it was the clear intention of the Act that the general rule would be that parties would represent themselves. Furthermore it pointed out that its own representative had limited experience compared to the paid lawyers of the employer. Commissioner Lander decided at paragraph 31 that the default position is that lawyers and paid agents are excluded from representation of Parties in proceedings before the Commission. In particular he refers to the judgment in Warrell “The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.”He concluded that there would be no imbalance created by a circumstance where an applicant was represented by an officer from a registered organization and a large respondent employer utilised one or more of its specialist employment staff.

[10] Having regard to these matters, the SDA submitted that permission should be refused in the current matter.

Consideration

[11] As a result of a Conference on 25 June 2021, the agreed question to be answered by the Commission is no longer embedded with legal or jurisdictional issues but is a simple issue in relation to the operation of the Enterprise Agreement.

[12] Further to the submissions as made by the parties, I also note that a Conference was conducted in this matter on 18 June 2021. At that conference, I advised the Respondent that I would require the attendance of its Managing Director and its Executive responsible for the management of payroll at a future Conference and requested their contact information. Ms Heidi Dorman, Head of People Advisory, provided reply correspondence to my Chambers on 18 June 2021 as follows:

“Dear Associate

We refer to this morning’s matter listed for Conference by telephone with Commission Riordan. Commissioner Riordan verbally directed Officeworks to provide details of its Managing Director and its Executive responsible for the management of payroll.

The Commissioner foreshadowed that he would require the attendance of these people to explain the delay of further remediation activities in light of Officeworks’ ongoing compliance review. Officeworks foreshows that is reserves its rights to raise any jurisdictional or such objections as may be available to it. Ms Dorman, in her role as Head of People Advisory, is tasked with managing the remediation process and is Officeworks’ authorised delegate in respect of these matters.

At previous conferences before Commissioner Riordan, Officeworks through Ms Dorman, has transparently explained its position to the timeframe for further remediation activities. In light of this, Officeworks’ position is that it is not appropriate nor necessary for these matters to be repeated by members of Officeworks’ executive leadership team.

Kind regards,

Heidi Dorman
Head of People Advisory”

[13] This response by Ms Dorman was to the effect that the Respondent has full trust and confidence in Ms Dorman, as being the most appropriate representative in relation to the issues in dispute. I therefore intend to take the Respondent at its word, that Ms Dorman, as the Head of People Advisory, is the appropriate representative in this matter. I am of the opinion that legal representation would only confuse the matter, rather than make it more efficient.

[14] The fact that Ms Dorman is a witness in the proceedings is of little or no consequence. A large proportion of parties who appear in the Commission are self represented. Further, as Ms Dorman is the only witness in the proceedings, her involvement in the entire proceeding will not prejudice her evidence or that of any other witness.

Conclusion

[15] Having considered the parties’ submissions and for the reasons outlined above, leave for the Respondent to be legally represented is refused.

COMMISSIONER

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