Steven Day v Drake Trailers Pty Ltd
[2015] FWCFB 3997
•25 JUNE 2015
| [2015] FWCFB 3997 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Drake Trailers Pty Ltd
(C2015/3784)
VICE PRESIDENT HATCHER |
|
Appeal against decision [[2015] FWC 2644] of Deputy President Gooley at Melbourne on 17 April 2015 in matter number U2014/13602.
[1] On 4 May 2015 Mr Steven Day filed a notice of appeal against a decision issued by Deputy President Gooley on 17 April 2015 (Decision) 1 which, among other things, concerned an issue of permission for representation by lawyers under s.596 of the Fair Work Act 2009 (FW Act). The issue arose in the following way. Mr Day has lodged an unfair dismissal remedy application under s.394 of the FW Act with respect to his former employment with Drake Trailers Pty Ltd (Drake). Drake seeks to be represented in the matter by Mr David Miller. It is not factually in dispute that Mr Miller has been admitted to practice as a lawyer by the Supreme Court of Queensland and holds a current practising certificate issued by the Queensland Law Society under the Legal Profession Act 2007 (Qld). Mr Day contended that those facts mean that it was necessary for Drake to obtain the permission of the Commission to be represented by Mr Miller under s.596(1) of the FW Act. He opposed the grant of such permission. The Deputy President rejected this contention. The Deputy President found that because Drake was represented in the matter by the Australian Industry Group (the AIG), an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act), and because Mr Miller was an employee of the AIG, permission for him to appear on behalf of Drake was not required by virtue of s.596(4) of the FW Act.
[2] Mr Day contends that this conclusion by the Deputy President was in error. He relies in that respect upon the fact that the AIG has established a subsidiary incorporated law practice, Ai Group Legal Pty Ltd (Ai Group Legal), and that Mr Miller is a director of Ai Group Legal. He pointed to documentary evidence adduced before the Deputy President, including an email from the Queensland Law Society dated 5 December 2014 identifying that Mr Miller was “employed with Ai Group Legal”, and correspondence concerning various legal matters under the letterhead of Ai Group Legal which were signed by Mr Miller as “Legal Practice Director”. He contended that the evidence before the Deputy President demonstrated that Mr Miller was a lawyer engaged in independent professional practice as the Legal Practice Director of Ai Group Legal, which was legally and commercially a separate entity from the AIG, and the Deputy President erred in finding otherwise.
[3] Section 596 relevantly provides:
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.
. . .
(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.
[4] The word “lawyer” is defined in s.12 of the FW Act to mean “a person who is admitted to the legal profession by a Supreme Court of a State or Territory”. There was no dispute that Mr Miller met this definition.
[5] It is plainly the case that if a lawyer appears on behalf of a party in circumstances where the lawyer is an employee of a registered organisation that is representing the party in the matter, then the effect of s.596(4) is that the party is not taken to be represented by a lawyer and therefore that permission is not required under s.596(1).
[6] We consider that the evidence before the Deputy President made available, and indeed compelled, the conclusion that s.596(4) applied in this case such that the permission of the Commission under s.596(1) was not required in order for Mr Miller to appear on behalf of Drake. Firstly, it was clear that the AIG, and not Ai Group Legal, was representing Drake in the matter. The “Form F53 - Notice of representative commencing to act” filed (probably unnecessarily) pursuant to rule 11 of the Fair Work Commission Rules 2013 in the matter identified “The Australian Industry Group - Mr David Miller” as Drake’s representative. Mr Miller, who gave evidence before the Deputy President, said in his witness statement that it was in his capacity as the “National Manager - Workplace Legal Services” of the AIG that he was “providing advice and assistance” to Drake in the matter. Although Ai Group Legal had acted for Drake in relation to some other court matters, there was no evidence that Ai Group Legal was Drake’s representative in respect of Mr Day’s unfair dismissal remedy application. It was not in contest that the AIG was “an organisation” for the purpose of s.596(4)(b)(i) (noting that “organisation” is defined in s.12 to mean an organisation registered under the RO Act). Drake was therefore represented by an organisation in the matter.
[7] Secondly, Mr Miller’s evidence made it clear that he was employed by the AIG (as National Manager - Workplace Legal Services) and, although he was a director of Ai Group Legal, he was not employed by that latter entity (which in fact employed no one). He further said that to the extent that the Queensland Law Society’s records indicated that he was employed by Ai Group Legal, those records were in error. We do not consider that there was any basis upon which it could be said that the Deputy President erred in accepting Mr Miller’s unequivocal evidence in this respect. He was therefore properly to be characterised as a lawyer employed by the organisation which was representing Drake.
[8] It is clear that Mr Miller wears two hats. In some matters, he acts as the Director of Legal Practice for Ai Group Legal. In those circumstances, where Ai Group Legal is acting as an incorporated legal practice on behalf of a client, Mr Miller is effectively operating as a solicitor in private practice. In other matters, he acts as an in-house lawyer for the AIG organisation on behalf of its members. In the former situation, if there was a matter before this Commission, permission under s.596(1) would probably be required (subject to s.596(3)). However, it was the latter situation which applied in relation to Mr Day’s unfair dismissal remedy application. Permission was not required in that situation because s.596(4) applied for the reasons explained.
[9] We do not consider that the Decision was attended by sufficient doubt or that the appeal raises any issue of significance such as to warrant the grant of permission to appeal. To the extent that s.400(1) applies to this appeal 2, we do not consider that it would be in the public interest to grant permission to appeal. Permission to appeal is refused.
VICE PRESIDENT
Appearances:
S. Day on his own behalf.
D. Miller and S. Rinkevich of the Australian Industry Group for Drake Trailers Pty Ltd.
Hearing details:
2015.
Sydney:
17 June.
1 [2015] FWC 2644
2 See the discussion in Asciano Services Pty Ltd v Zak Hadfield[2015] FWCFB 2618 at [8]-[12]Printed by authority of the Commonwealth Government Printer
<Price code A, PR568330>
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