Textile, Clothing and Footwear Union of Australia v Fastline Logistics Pty Ltd

[2015] FWC 7952

[2015] FWC 7952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Textile, Clothing and Footwear Union of Australia
v
Fastline Logistics Pty Ltd
(C2015/6759)

COMMISSIONER RYAN MELBOURNE, 18 NOVEMBER 2015

Alleged dispute about any matters arising under the enterprise agreement – representation refused.

[1] The Respondent has sought permission under s.596(2)(a), (b) and (c) to be represented by a lawyer or paid agent at a conciliation conference to be held on Friday 20 November 2015. The Applicant opposes the grant of permission.

[2] Both parties have filed written material in support of their respective positions. I have considered that material.

[3] The relevant provision of the Act is s.596 which is 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.”

[4] The issue in dispute concerns a single employee of the employer and is relatively straightforward. There is no complexity in the dispute at this stage of proceedings. Rather than enabling the dispute to be dealt with more efficiently having the Respondent represented in the conciliation conference would complicate the proceedings.

[5] The Commission on its own motion issued orders to attend against senior managers or owners of the business given that the previous scheduled conciliation conference failed because of the non-attendance of the Respondent. The most efficient dealing of this dispute will occur when the Respondent is present and speaking on its own behalf.

[6] I agree with the cases cited by the Respondent and in particular the observation by SDP Richardsin CEPU v UGL Resources Pty Ltd that in some circumstances “it may be prudent in aid of efficiency in the wider prospective conduct of the matter to grant permission to appear to a lawyer at the preliminary stage”. Indeed I have done so in other matters.

[7] However, every case is different and each application for permission to be represented must be decided in the context of the circumstances of the particular matter.

[8] In the present matte there is nothing under s.596(2)(a) which would warrant granting the Respondent permission to be represented at a conciliation conference in relation to a dispute that is not complex.

[9] The Respondent also relies on s.596(2)(b) and contends that:

“Self-Representation (section 596(2)(b))

7. While the Respondent may be able to communicate sufficiently well to participate in a conference it has previously been represented by its Accountant in previous conferences, submits that it does not have a dedicated human resources department and is not familiar dealing with matters of this nature or being an advocate in such proceedings.”

[10] In the context of the present matter the Respondent will not suffer any unfairness by not being granted permission to be represented by a lawyer or paid agent. The very purpose of the conciliation conference is to get the employee and the employer to engage in discussions to resolve the issue raised by the Applicant. Advocacy skills are not required on either side. What is required to make the conciliation conference effective is the presence of decision makers from the Respondent who can properly engage in the conciliation process.

[11] The Respondent also relies on s.596(2)(c) and contends that:

“Fairness between the parties (Section 596(2)(c))

8. The Applicant is represented by Textile, Clothing and Footwear union of Australia. If the Respondent is not allowed representation there would be a clear imbalance in favour of the Applicant and it would be unfair not to allow the Respondent to be represented by Employsure.”

[12] The purpose of the conciliation conference is to enable a dialogue or discussion to occur between the direct parties to the dispute namely the named employee and the managers and owners of the Respondent. The contention of the Respondent ignores the role of the Commission in conducting a conciliation conference under the dispute resolution terms of the relevant enterprise agreement and in managing the conduct of parties, whether represented or unrepresented.

[13] In the circumstances of the present matter the Commission does not accept that it would be unfair not to allow the Respondent to be represented by a lawyer or paid agent taking into account fairness between the Respondent and the employee who is represented by the TCFUA.

[14] The Commission declines to exercise its discretion to grant permission to the Respondent to be represented by a lawyer or paid agent.

[15] A refusal to grant the Respondent permission to be represented by a lawyer or paid agent does not affect the ability of the Respondent to seek advice from Employsure (or anybody else). Nor does it prevent Employsure from attending the conference as the Respondent’s advisor. This decision only prevents Employsure (or any other lawyer or paid agent) from representing the Respondent at the conciliation conference.

COMMISSIONER

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