Fair Work Act 2009_

s.596 - Representation by lawyers and paid agents

Representation by lawyers and paid agents - permission for Respondents to be represented by a lawyer granted.

[1] This decision sets out in writing my reasons for deciding to grant permission for the three Respondents in this matter to be represented by a lawyer. My verbal decision was given in the context of a mention and programming conference conducted by telephone on 6 June 2014. As this matter involves allegations of bullying, I have decided to protect the identity of the parties involved. Accordingly, this decision simply refers to the parties as either the Applicant or the Respondents.

[2] In this case, the Applicant, a medical practitioner, provides medical services to one of the Respondents, a health and community services provider located in regional Victoria. The relationship is governed by a services contract between that Respondent and a company of which the Applicant is the sole director and secretary and the sole provider of services. A number of issues going to the performance of the contract have been raised by the parties and remain unresolved, despite the parties having participated in mediation conducted by an independent party.

[3] Against that background, the Applicant made an application on 8 April 2014 under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. The Respondents cited in the application are the health and community services provider and two of its senior managers, including its Chief Executive Officer.

[4] On 11 April 2014, the Respondents gave notice of a representative commencing to act (Form F53).

[5] In their Form F73 - Response from an employer/principal to an application to stop bullying, submitted on 17 April 2014, the Respondents expressed a number of jurisdictional objections to the application. The jurisdictional objections raised by the Respondents are:

• the person making the application does not meet the definition of a 'worker';

• the worker is not working in a 'constitutionally covered business';

• the application has no reasonable prospects of success; and

• the worker was subject to reasonable management action, carried out in a reasonable manner.

[6] The application was listed for conference on 28 May 2014. At that conference the Respondents formally sought permission under s.596 of the Act to be represented by a lawyer. As the conference was focussed on exploring the scope for a consensual resolution of the matter, the Commission indicated that it was not willing to grant permission for the Respondents to be represented in the conference. The conference proceeded on the basis that the Respondents' legal representative was allowed to remain in the conference to provide advice to his clients. However, it was acknowledged that the Respondents reserved their right to press their application to be represented by a lawyer should the matter proceed to a hearing of their jurisdictional objections.

[7] The conference concluded on the basis that the parties would have further discussions regarding revised hours of work/working arrangements for the Applicant and the revised remuneration arrangements that may flow from that. I also made it clear that, were the matter to be relisted, the Fair Work Commission (the Commission) would need to deal with the jurisdictional issues raised by the Respondents prior to considering whether or not to make an order under s.789FC of the Act.

[8] Those further discussions failed to result in a mutually acceptable resolution.

[9] The application was then listed for a mention and programming teleconference on 6 June 2014. In addition two further issues were identified to be dealt with at that teleconference. First, a request by the Applicant for permission to amend his application to add an additional respondent and second, the Respondents' request to be represented by a lawyer. In respect of the first issue, I decided to defer consideration of the request pending determination of the Respondents' jurisdictional objections. As to the second issue, as noted above, I determined to grant permission to the Respondents to be represented by a lawyer for the reasons set out below.

[10] On 2 June 2014 the Applicant wrote to the Commission objecting and opposing the Respondents' appointment of a lawyer in this matter. In short, the Applicant argued, inter alia, that:

(i) the matter was not a complex matter;

(ii) the Respondents were all senior managers capable of representing themselves and "to explain their actions and policies"; and

(iii) it would be unfair for the Respondents to be represented while he was representing himself.

[11] Those views were reiterated at the teleconference of 6 June 2014.

[12] The Respondents submitted on the other hand that permission to be represented by a lawyer should be granted on the basis of s.596(2)(a), i.e. the jurisdictional issues involved in this matter were complex and that representation would assist the Commission to efficiently deal with the matter. It was further submitted that the Respondents are health and community services managers who are not familiar with employment law and/or the workings of the Commission, which goes to the circumstances contemplated in s.596(2)(b) of the Act.

[13] Section 596 of the Act deals with the issue of representation by lawyers and paid agents. The relevant provisions are set out below.

"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."

[14] The jurisdictional objections raised by the Respondents in this matter raise a number of potentially complex issues. Key among these is whether the Applicant meets the definition of 'worker'. The complexity around this aspect stems from the nature of the relationship between the parties, with the contractual relationship being between one of the Respondents, i.e. the health and community services provider, and a legal entity which is different to the Applicant but of which the Applicant is the sole Director and secretary and sole provider of services on behalf of. The other potentially complex issue raised by the Respondents' jurisdictional objections is whether or not the health and community services provider is a 'constitutionally covered business' for the purposes of Part 6-4B of the Act. The complexity around this issue goes to the legal status of this Respondent which is established under Victorian state legislation. More particularly, the complexity flows from the need to consider that legislation and relevant jurisprudence on the issue of 'constitutionally covered business'.

[15] Considered together, the complexity attaching to these issues supports a finding that representation would assist the Commission in dealing with the jurisdictional objections more efficiently than would be the case if both parties were self represented. A further consideration supporting such a finding is the relative newness of both the Act's bullying jurisdiction; Part 6-4B of the Act only commenced operation on 1 January 2014. This is compounded by virtue of the fact that the broader definition of 'worker' reflected in Part 6-4B of the Act is drawn from national work health and safety legislation which itself only came into operation on 1 January 2012.

[16] Also relevant is the Respondents' submission highlighting their lack of familiarity with employment law and/or the workings of the Commission. In circumstances where the threshold issues to be determined in this matter are the jurisdictional objections raised by the Respondents and given the complexity attached to some of those jurisdictional objections, the application to be represented raises issues of fairness to the Respondents in circumstances where it is argued that they would not be able to effectively argue these jurisdictional objections because of their lack of familiarity with the jurisdiction. While I have no doubt that as senior managers, the Respondents could certainly "explain their actions and policies", to use the Applicant's language, the need for them to do so only arises if and when the Commission is required to deal with the merits of the application. However, before that point is reached, the jurisdictional objections raised by the Respondents need to be dealt with and as noted above those jurisdictional objections raise a number of complex issues.

[17] Taken together, the above supports a finding that the grounds set out in ss.596(2)(a) and (b) have been met in this matter.

[18] Further, in deciding to exercise the discretion available to the Commission to grant permission to the Respondents to be represented by a lawyer, I was also mindful of the following:

• dealing with the jurisdictional issues efficiently would, if those objections are not upheld, enable the substance of the bullying application to be dealt with more expeditiously which is to the Applicant's advantage;

• should the matter ultimately proceed to dealing with the merits of the application, I do not consider that legal representation will of itself result in greater formality in the proceedings than would otherwise be the case; and

• the Act also requires the Commission to have regard to fairness for all parties, not solely one party at the expense of the other party/parties.

[19] For all these reasons, I considered that the requirements of s.596 of the Act had been met and granted the Respondents permission to be represented by a lawyer.

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