Tobias Little v Qantas Airways Limited T/A Qantas (First Respondent) Ashley Stevenson (Second Respondent) Jeannine Whitmore (Third Respondent) Reema Barri (Fourth Respondent) Gemma Henry (Fifth Respondent)
[2019] FWC 5577
•13 AUGUST 2019
| [2019] FWC 5577 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Tobias Little
v
Qantas Airways Limited T/A Qantas
(First Respondent)
Ashley Stevenson
(Second Respondent)
Jeannine Whitmore
(Third Respondent)
Reema Barri
(Fourth Respondent)
Gemma Henry
(Fifth Respondent)
(AB2019/65)
COMMISSIONER GREGORY | MELBOURNE, 13 AUGUST 2019 |
Application for an FWC order to stop bullying – permission to appear.
[1] Mr Tobias Little has applied to the Fair Work Commission under s.789FC of the Fair Work Act 2009 (Cth) (“the Act”) seeking orders intended to stop bullying at work. The application was previously dealt with in conference on two occasions but was unable to be resolved. Mr Little now seeks to have the matter arbitrated. Qantas Airways Limited T/A Qantas (“Qantas”) and the other above-named individuals seek permission under s.596 of the Act to be legally represented in the proceedings. Mr Little opposes this application. This decision accordingly deals with the issue of whether permission to appear should be granted.
Relevant Legislation
[2] Section 596 of the Act states:
“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.” 1
The Respondents’ Submissions
[3] The Respondents, firstly, seeks permission to appear under s.596(2)(a) on the basis that the proceedings will likely involve significant legal, factual and procedural complexity, and the granting of permission for legal Counsel to appear will accordingly enable the matter to be dealt with more efficiently. It highlights the following matters in this context.
• The proceedings will be conducted in an adversarial manner and will involve a number of contested issues.
• The Applicant is a current Qantas employee and has made a number of serious allegations against the other named individuals, who are all senior Managers in the organisation. Given the nature of these relationships it would be highly undesirable for each to be involved in cross-examination of the other.
• The Commission will be required to have regard to whether jurisdiction exists to make the orders sought. In its submission Mr Little has failed to demonstrate that jurisdiction does exist, and this will need to be determined by the Commission. It also argues, in the alternative, that even if the jurisdictional prerequisites are satisfied then there are compelling reasons why the Commission should not exercise its discretion to make the orders sought.
• The matter involves various legal and procedural complexities. Legal Counsel has a degree of detachment and owes important duties to the Tribunal, as well as to his/her client. He/she also has an obligation to act in the interests of justice. This will be of assistance to the Commission in dealing with the matter efficiently. The involvement of Counsel will also ensure that the proceedings are focused on what is relevant to the Commission’s determination.
[4] Qantas and the named individuals also submit that they should be allowed to be represented under s.596(2)(b) because they would otherwise be unable to represent themselves effectively. It is submitted in this context that they each lack legal training, apart from Ms Whitmore, and have no experience in advocacy of any kind. The difficulty of being both a witness and an advocate is also emphasised in this context.
The Applicant’s Submissions
[5] Mr Little opposes permission to appear being granted on either of the grounds cited. He refers in his submissions to the Explanatory Memorandum that accompanied the Fair Work Bill 2009, and points to the emphasis on proceedings being conducted in an efficient and informal way, with parties generally being expected to represent themselves. He also submits that efficiency and fairness, rather than the convenience and preference of the parties, should be the principal consideration.
[6] In this context Mr Little rejects the submissions of the Respondents that having its employees represent themselves would unreasonably divert them from their normal duties. He submits instead that they have had adequate time to prepare, given that the application was first lodged on 14 February 2019. He also submits that he faces the same, if not greater difficulty in preparing for the proceedings, given his important work responsibilities and the lack of other additional support.
[7] He also submits that Qantas has other internal resources that could be utilised to represent it in the proceedings and refers, in particular, to its Manager of Employee Relations, who is legally trained and has often been involved in Commission proceedings.
[8] Mr Little also submits that any consideration of complexity should not be based simply on the volume of materials filed by the parties, but should instead have regard to the relative complexity of any jurisdictional or other legal questions that need to be considered and determined. He submits that in this case the Commission is only required to have regard to various “commonplace occurrences that do not constitute legal or factual complexity.” 2
[9] He submits, in conclusion, that all parties possess the requisite literary and academic skills to represent themselves efficiently, and the “Commission would not be served any more efficiently in the granting of permission to the Respondents.” 3
Consideration
[10] The approach to the application of s.596 was recently considered by a Full Bench of the Commission in the matter of Grabovsky v United Protestant Association of NSW Ltd. 4 It concluded (footnotes omitted):
“[35] Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’ it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).
[36] Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.
[37] While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:
‘It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.’
[38] For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.”
[11] I am accordingly satisfied that in determining the present application the Commission is first required to determine whether one or more of the criteria in s.596(2) has been satisfied. If this requirement is met I must then determine whether it is appropriate to exercise the discretion available to grant permission.
[12] I am satisfied that the following matters are relevant to the determination of this matter.
[13] The factual circumstances set out in the application describe long-standing and unresolved issues. They concern circumstances that first arose in 2017, and have since escalated to encompass claims of workplace bullying behaviour by other senior employees within Qantas. It appears that the claims about bullying at work by Mr Little have accumulated as the matter has been escalated within the organisation.
[14] A review of the materials filed by the parties in accordance with the directions issued indicates that in determining the application the Commission will be required to make findings about a series of contested facts. However, given the nature of the Respondents’ submissions the Commission will also be required to give consideration to whether the jurisdictional preconditions in s.789FD(1) have been satisfied before any consideration is given to the making of orders. It will also be required to consider whether s.79FD(2) applies instead. It is noted in this context that the Respondents’ submissions go in considerable detail to the relevant legislative framework, and to what is required for the Commission to be satisfied that the relevant preconditions have been met to enable anti-bullying orders to be made. They also deal in some detail with various authorities the Commission will be required to have regard to in dealing with the legislative requirements contained in s.789FD(1) and (2).
[15] The application involves claims of workplace bullying that derive from actions and interactions between Mr Little and a number of senior employees within Qantas, who each continue to be employed by the organisation on an ongoing basis. Those claims obviously involve allegations of workplace bullying, and are to be determined in an adversarial setting. It would, at the very least, be an extremely difficult exercise to have the named individuals represent themselves and engage in cross-examination without causing further damage to their respective relationships.
[16] It is acknowledged that Ms Jessica Farah, Manager of Employee Relations at Qantas, is both legally qualified and has experience of being involved in Commission proceedings. However, this does not necessarily equip a person to undertake advocacy or, more particularly, to be able to relevantly cross-examine witnesses in regard to the nature of their evidence. In my experience these are abilities that are generally confined to skilled and experienced advocates, and the Commission is therefore best assisted in this regard when experienced and competent advocates are involved.
[17] I am also of the view that the involvement of competent legal representatives does not necessarily disadvantage the other party. In this context I note the Full Bench decision in E. Allen and Ors v Fluor Construction Services Pty Ltd 5 when it considered, amongst other things, the role of legal representatives in proceedings before the Commission. It concluded at [48] (footnotes omitted):
“In this context it is important to appreciate that legal representatives have a duty to bring all relevant authorities to the attention of the Commission, whether or not they assist the party they represent. A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission. As a Full Bench noted in AFMEPKIU v Energy Developments Ltd:
“It is a long standing principle of this Commission and its predecessors that there is a duty on persons appearing before the Commission to ensure that there is full and frank disclosure of all matters which are relevant to the proper determination of the matter before the Commission (see Municipal Officers Association of Australia v City of Greater Brisbane (1927) 25 CAR 932 at 935 per Lukis J.)””
[18] Mr Little has also indicated that he is going to be represented, or will at least be supported in the proceedings by his partner, Ms Angela Cowan. Ms Cowan is legally qualified and has demonstrated in the conduct of the matter to date that she is a skilled and articulate person, who has an extensive grasp of the relevant subject matter and the associated legal principles. This is demonstrated by a review of the original application and the accompanying submissions and materials attached to that application, and by the materials that have since been filed in accordance with the directions provided in anticipation of the matter being arbitrated. Both of the above circumstances respond to any concerns that might exist about the Respondents being advantaged if the Commission exercises its discretion to allow permission to appear. Mr Little has also acknowledged in the recent past that the matter involves a degree of complexity and this has been demonstrated by his cautious and considered approach to the pursuit of the matter.
Conclusion
[19] I am satisfied, in conclusion, that permission should be granted to Qantas and the other named individuals to be legally represented in the proceedings. I have arrived at this conclusion on the basis of s.596(2)(a), in particular, as the matter does involve a degree of complexity, both in terms of its subject matter, potential jurisdictional issues, and the likely conduct of the proceedings. The granting of permission will accordingly enable it to be dealt with more efficiently. I am also satisfied that s.596(2)(b) is of some relevance in that it can be said to be unfair not to allow representation on the basis that Qantas and the named individuals would otherwise not be able to represent themselves effectively. In coming to this conclusion I have not had regard to what might be most convenient for the parties involved, but what instead might assist in them being represented effectively in the conduct of the proceedings before the Commission.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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1 Fair Work Act 2009 (Cth) s 596.
2 Applicant’s Submission in objection to the Respondent’s Application to seek leave for a Lawyer or Paid Agent to participate in the hearing, dated 7 August 2019 at [30].
3 Ibid at [34].
4 Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 4362.
5 [2014] FWCFB 174.
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