Transport Workers' Union of Australia v Visy Paper Pty Ltd T/A Visy Recycling
[2018] FWC 4677
•10 AUGUST 2018
| [2018] FWC 4677 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Transport Workers' Union of Australia
v
Visy Paper Pty Ltd T/A Visy Recycling
(C2018/1728)
| COMMISSIONER CAMBRIDGE | SYDNEY, 10 AUGUST 2018 |
Dispute settlement procedure - preliminary question about representation by lawyers or paid agents - s. 596.
This matter involves an application made under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was made by the Transport Workers’ Union of Australia (TWU), and the respondent employer is Visy Paper Pty Ltd T/A Visy Recycling (Visy or the employer). The DSP upon which the application has been made is found at clause 27 of the Visy Recycling (Smithfield) Collections Employees Enterprise Agreement 2015 (the 2015 Agreement).
This Decision is confined to the discrete question as to whether the Commission should grant permission for the employer to be represented by a lawyer or paid agent (the representation question).
The application was filed on 3 April 2018, and the matter has been the subject of unsuccessful conciliation proceedings held on 20 April and 15 May 2018. On 25 June 2018, Herbert Smith Freehills lawyers (Freehills) filed a Notice of Representative Commencing to Act on behalf of the employer. On 29 June 2018, the Commission issued Directions in respect to an anticipated Hearing of the arbitration of the matter scheduled for 20 September 2018.
The Directions issued on 29 June included a requirement for the TWU to file and serve particulars of any Orders or other relief sought, and for Visy to subsequently file and serve submissions in support of permission being granted in respect to the representation question. The TWU has subsequently confirmed its objection to the employer being represented by a lawyer, and it provided submissions opposing permission being granted for Visy to be represented by lawyers. Further Directions were also made for the provision of evidence and other material in respect to the substantive Hearing fixed for 20 September.
The Commission has proceeded to determine the representation question upon careful examination and consideration of the documentary material which has been filed by the respective Parties.
Consideration
The question of representation in proceedings before the Commission is governed by section 596 of the Act which is in the following terms:
“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.”
The legislative intentions underpinning s. 596 of the Act have been the subject of various Decisions of the Commission and its predecessor, Fair Work Australia. Further, the approach to consideration of the representation question has been examined by way of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton[1] (Warrell) and it is relevant to note, in particular, paragraph 25 of that Judgment.
It is also relevant to note that the operation of s. 596 of the Act has been the subject of more recent examination by a Full Bench Decision in the case of Fitzgerald v Woolworths Limited [2] (Fitzgerald). The Full Bench Decision in Fitzgerald has established, inter alia, particular practical consequences that have application in circumstances where permission for a party to be represented by lawyers or paid agents is refused, or where lawyers or paid agents undertake a representative role without first obtaining the permission of the Commission.
Subsection 596 (2) of the Act identifies three factors which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a Party in proceedings such as an arbitration Hearing arising from a DSP. The three factors which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability/effectively; and (c) fairness.
In this case, Visy has submitted that those factors found in subsections 596(2) (a), (b) and (c) of the Act, respectively involving, complexity/efficiency, inability/effectively, and fairness, all operated to provide basis for the Commission to grant permission for the employer to be represented by lawyers. Conversely, the TWU submitted that all of the factors contained in subsection 596 (2) of the Act operated to establish that the Commission should refuse permission for the employer to be represented by lawyers.
Complexity/Efficiency - Subsection 596 (2) (a)
The employer submitted that the matter involved significant complexity such that its determination would be assisted by legal representatives. The complexity was asserted to arise from, inter alia, a jurisdictional issue that arose as a result of the confirmation provided by the TWU of the particular Orders sought in the arbitration of the matter.
Visy foreshadowed a jurisdictional challenge to the Orders sought by the TWU. The Orders sought by the TWU involved an asserted entitlement arising for employees of the employer covered by the Visy Recycling (Smithfield) Collection Employee Enterprise Agreement 2012 (the 2012 Agreement). Visy indicated that as the 2012 Agreement had been replaced by the 2015 Agreement it had ceased to operate and consequently a question arose as to whether the Commission had jurisdiction to make the Orders sought by the TWU which involved the interpretation of the terms of an enterprise agreement which had ceased to operate.
Alternatively, the TWU rejected the complexity attributed to the matter by those representing the employer. The TWU submitted that the matter for consideration and determination was not complex. The TWU submitted that the factual and legal matrix presented in the matter involved no particular complexity such that specialist skills would lead to the matter being dealt with more efficiently. Further, the TWU submitted that the matter was a very simple factual contest which did not require representation by any external legally qualified representative.
In respect of the issue of complexity, the contested construction question does not appear to involve any particularly unusual issues. However, the foreshadowed jurisdictional objection outlined on behalf of Visy introduces a significant level of complexity. The question as to whether the Commission would have power under s. 739 of the Act to provide a binding interpretation of the terms contained in an enterprise agreement that had ceased to operate is an issue of some significant legal conjecture. A question of this nature and complexity would be dealt with more efficiently with the assistance of legally qualified representatives.
Therefore, in this instance, the factor regarding complexity/efficiency has operated to strongly support permission being granted for the employer to be represented by lawyers or paid agents.
Inability/Effectively - Subsection 596 (2) (b)
Visy advanced an argument that it would be unfair not to allow it legal representation because it was unable to otherwise represent itself effectively. The inability to effectively represent itself was said to primarily arise from the absence of employees and officers that did not have legal experience, advocacy experience, or specialised knowledge in relation to industrial or employee relations. Visy submitted that it did not employ any person with the skills and experience to represent it in this matter. Consequently, it asserted that it would be unable to create a striking impression in the presentation of its case, and accordingly it would be unable to represent itself effectively.
The TWU rejected that Visy was unable to represent itself effectively. The TWU submitted that the employer was part of a large Australia wide group of companies which had a dedicated human resources department which comprised people with training and experience in employment law and industrial relations. Consequently, the TWU submitted that Visy had employees with long-standing qualifications in employment law and industrial relations who would be able to create a striking impression and thus represent Visy effectively.
Upon examination of the respective submissions, I am not convinced that the employer could not effectively represent itself without lawyers. I believe that given the size of the employer’s operation which includes specialist staff in a human resources department, those who would represent it would be capable of making a “striking impression” or be “impressive” or be “powerful in effect”.
Fairness - Subsection 596 (2) (c)
The issue of fairness between the Parties is a matter of recognised significance. In this instance both Parties have made submissions which have stressed the question of fairness.
The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers because it did not have skilled and experienced employees with previous experience in a matter such as was involved in this case. Further, Visy submitted that the TWU was a prominent and well-resourced industrial association with numerous experienced industrial advocates and lawyers at its disposal.
The TWU submitted that no unfairness would arise if Visy was not legally represented. The TWU stressed that the employer’s National Employee Relations Manager (Mr Angel) held formal qualifications, and he had over 20 years’ experience in industrial relations. Conversely, the TWU noted that its representative in the matter was a second year law student who had very little experience in advocacy. Further, the TWU submitted that as Visy was a large organisation with a well-resourced internal HR team including an in-house lawyer, it would be unfair to grant permission for it to be represented by external lawyers.
In this instance, if permission for legal representation for Visy was granted there would appear to be little if any, imbalance created because the TWU would be able to utilise legally trained personnel to assist in the matter generally. However, it should be recognised that a perception of some imbalance would be created in circumstances where one advocate was essentially partly qualified and the other an external lawyer. Therefore, in this instance there were competing perceptions of imbalance which have required evaluation.
Importantly, the evaluation of competing perceptions of imbalance has been considered in the context of what was recognised by his Honour in the Warrell Judgement; “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.”[3]
The qualifications and/or experience of the particular representatives are not, in the present circumstances, particularly persuasive considerations. The perception of imbalance between particular advocates can be quite illusionary, and, for example, the enthusiasm of an inexperienced advocate may often more than compensate for the staid approach of a learned and highly experienced legally qualified representative. Consequently, in this instance the fairness factor has not operated to assist one side or the other.
In this instance, the significant determinative factor has involved the complexity/efficiency issue that has arisen in respect to the foreshadowed jurisdictional challenge outlined in the employer’s submissions on the representation question. In this regard, the Parties may be assisted by reference to the Full Bench Decision of the Australian Industrial Relations Commission in Stephenson v Abetz [PR952743], (28 October 2004) (Stephenson)[4].
In view of the conclusions that I have reached in respect of each of the relevant aspects of subsection 596 (2) of the Act, on balance, the strong support for granting permission that has been provided by the complexity associated with the jurisdictional objection foreshadowed by Visy has essentially overshadowed and outweighed the other factors under consideration.
Therefore, I have decided that the permission sought by the employer to be represented by lawyers or paid agents shall be granted.
COMMISSIONER
<PR609805>
[1] Warrell v Walton [2013] FCA 291.
[2] Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.
[3] Ibid @ paragraph 25.
[4] Stephenson v Abetz [PR952743], (28 October 2004) Full Bench of AIRC (Acton SDP, Ives DP and Richards C).
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