Transport Workers' Union of Australia v Transit Systems WA Pty Ltd
[2012] FMCA 637
•23 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRANSPORT WORKERS' UNION OF AUSTRALIA v TRANSIT SYSTEMS WA PTY LTD | [2012] FMCA 637 |
| PRACTICE AND PROCEDURE – Whether to grant leave to lawyer to represent a party in small claims proceedings under Fair Work Act 2009 (Cth). |
| Fair Work Act2009 (Cth), ss.524, 548(5), (6) and (7) Federal Magistrates Court Rules 2001 (Cth), r.45.13 Judiciary Act 1903 (Cth), ss.55A, 55B, 55C Working with Children and Criminal Record Checking Act (2004) (WA), s.6(1)(a) |
| Hughes v Mainrange Corporation Pty Ltd (2009) 190 IR 191; [2009] FMCA 1025 |
| Applicant: | TRANSPORT WORKERS' UNION OF AUSTRALIA |
| Respondent: | TRANSIT SYSTEMS WA PTY LTD T/AS SWAN TRANSIT RIVERSIDE |
| File Number: | PEG 141 of 2012 |
| Judgment of: | Lucev FM |
| Hearing date: | 23 July 2012 |
| Date of Last Submission: | 23 July 2012 |
| Delivered at: | Perth |
| Delivered on: | 23 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Dzieciol |
| Solicitors for the Applicant: | Transport Workers' Union |
| Counsel for the Respondent: | Ms E Moran |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The respondent have leave, pursuant to s.548(5) of the Fair Work Act 2009 (Cth), to be represented by a lawyer in these proceedings.
The applicant file and serve any reply to the response filed by the respondent by 13 August 2012.
The matter be referred for mediation before a registrar of this court. That mediation to occur on or before 30 August 2012.
If mediation if unsuccessful:
(a)the applicant file and serve any further affidavits in support of the application; and
(b)an outline of contentions of fact and law,
by 7 September 2012.
The respondent to file and serve:
(a)any affidavits in support of the response;
(b)an outline of contentions of fact and law by 14 September 2012; and
(c)the matter be listed for hearing 1 day at 10.15 am on 19 September 2012.
There be liberty to apply.
The costs of today, if any, are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 141 of 2012
| TRANSPORT WORKERS' UNION OF AUSTRALIA |
Applicant
And
| TRANSIT SYSTEMS WA PTY LTD T/AS SWAN TRANSIT RIVERSIDE |
Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons – edited from transcript)
These are the reasons of the Court for judgment in relation to the respondent's application for leave to be represented by a lawyer in this matter.
The Court has discretion as to whether or not to grant leave to be represented by a lawyer in small claims proceedings under the provisions of s.548(5) of the Fair Work Act2009 (Cth).[1] The question as whether to the respondent ought to be granted leave arises in this case. Whether the discretion ought to be exercised to allow leave in this case requires consideration of a number of issues which the respondent relies on as being raised by the circumstances of the case. Those issues include:
a)the interpretation of the provisions of the Working with Children (Criminal Record Checking) Act (2004) (WA),[2] especially as it relates to child related work and child related employment in the transport sector and in particular, the use of the phrase "a transport service specifically for children" in s.6(1)(a) of the Working with Children Act;
b)the interpretation of cl.13 of the Transit Systems WA trading as Swan Transit Riverside Collective Agreement 2008, [3] a federally registered industrial instrument in respect of matters associated with:
i)an employee complying with all legislation and regulations governing the driving of public passenger vehicles for the purposes of cl.13.3 of the Collective Agreement; and
ii)the provisions of cl.13.1 and 13.2 of the Collective Agreement which might require consideration, given that there are requirements in the Collective Agreement that an employee must observe and comply with all lawful directions given by an employer, and that an employee must comply with all rules, regulations and policies of the employer as varied from time to time. Those are matters which might also be raised by the contractual provisions, either express or implied, which apply to the employee in this case;
c)the interpretation of the stand down provisions of s.524 of the FW Act, which fall for interpretation by the Court in the somewhat unusual circumstances of this particular case.
[1] “FW Act”
[2] “Working with Children Act”
[3] “Collective Agreement”
On the above bases the Court is satisfied that there are complex, or relatively complex, legal issues arising in this matter, which would ordinarily support the grant of leave for a lawyer in small claims proceedings under the FW Act.[4] Although Mainrange Corporation relates to an objection to jurisdiction, the same principles apply. In Mainrange Corporation the Court observed that a lawyer by reason of training and expertise ought to have the ability to provide the Court with appropriate and logical arguments based on research to be of assistance to the Court in a case such as this where a legal issues arises.[5]
[4] Hughes v Mainrange Corporation Pty Ltd (2009) 190 IR 191; [2009] FMCA 1025 (“Mainrange Corporation”)
[5] Mainrange Corporation IR at 192 per Lucev FM; FMCA at para.2 per Lucev FM.
The Court also notes that there is an appearance for the applicant Union, the Transport Workers’ Union[6], by Mr Dzieciol who is, he told the Court, at least 20 years admitted as a barrister and solicitor of the Supreme Court of Western Australia, and is on the High Court roll of practitioners for federal courts appearance purposes.[7] Mr Dzieciol is a lawyer but, as he disclosed in announcing his appearance, also an employee of the TWU. Therefore, by reason of s.548(7) of the FW Act and r.45.13 of the Federal Magistrates Court Rules 2001 (Cth) the party for which he appears, the TWU, is taken not to be represented by a lawyer because it appears by a lawyer who is also an employee. Although the TWU is taken not to be represented by a lawyer, it does not alter the fact that the person who appears is a lawyer and is legally qualified and, in this case, it is not in dispute, a very experienced industrial lawyer. Those are circumstances which are relevant to the question of whether leave ought to be granted by this Court for a lawyer to appear for the respondent.
[6] “TWU”
[7] Judiciary Act 1903 (Cth), ss.55A, 55B and 55C.
The Court is prepared to grant, pursuant to s.548(5) of the FWAct, leave to a lawyer to represent the respondent in this matter on the basis that:
a)there are complex, or potentially complex, issues arising with respect to the interpretation of the FW Act, the Working with Children Act and the Collective Agreement; and
b)there is a person appearing for the TWU who is a legally qualified and very experienced industrial lawyer.
In the circumstances, there will be no restriction for the purposes of s.548(6) of the FW Act on the right of a lawyer to appear for the respondent. It follows, therefore, that there will be an order that the respondent have leave pursuant to s.548(5) of the FW Act to be represented by a lawyer in these proceedings.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 25 July 2012
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