Representation of a party before the Commission - s.42(3).

[1] The issue before me for decision concerns s. 42(3), representation of a party before the Commission, as presently constituted, in relation to a review of the Austar Entertainment Pty Ltd Award 1997 (the award). Matter No. C00432 of 1999 has a history, which I will not elaborate upon in this decision, as it is not relevant to the question before me. Suffice to say the review of the award under Item 51 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) commenced in September 1999. The draft-simplified award, which has been subject to conferences before me, is in the final stage of review albeit some provisions require further discussion. The parties to the award are the Media, Entertainment and Arts Alliance (MEAA) and Austar Entertainment Pty Ltd (Austar).

[2] The matter was listed for conference in the Commission for 28 September 2001. The Notice of Listing was forwarded to the MEAA, Austar and Middletons Moore & Bevins, who have attended previous conferences with Austar without objection. This conference was cancelled and the matter listed for hearing. The hearing was to address the question of representation in proceedings associated with the Item 51 review of the award, as a consequence of the following correspondence.

[3] On 5 September 2001 I received correspondence from the MEAA, which, for present purposes, stated:

"The Media, Entertainment and Arts Alliance has entered into an Agreement with the Australian Services Union authorising them to act as agent on MEAA's behalf in relation to matters related to Austar." (Exhibit H1)

[4] Correspondence received from Middletons, Moore & Bevins on 10 September 2001, for present purposes, stated:

"Please note that our client does not recognise the Australian Services Union's participation in any matters relating to the Austar Entertainment Award 1997." (Exhibit H3)

"A party (including an employing authority) may be represented by counsel, solicitor or agent:

(a) by leave of the Commission and with the consent of all parties;

(b) by leave of the Commission, granted on application made by a party, if the Commission is satisfied that, having regard to the subject-matter of the proceeding, there are special circumstances that make it desirable that the parties may be so represented; or

(c) by leave of the Commission, granted on application made by the party, if the Commission is satisfied that the party can only adequately be represented by counsel, solicitor or agent."

[6] I presume that the MEAA correspondence to the Industrial Registrar (Exhibit H7), and possibly correspondence to me of 5 September 2001 (Exhibit H1), is to be taken as the MEAA's application under s.42(3) (b) and/or (c), albeit the correspondence is silent in this regard. Exhibit H7 states:

"Re: Authorisation for Australian Services Union to act for MEAA.

Please note that the MEAA has authorised the Australian Services Union to appear on behalf of the MEAA with regard to any proceedings in the Australian Industrial Relations Commission dealing with the

• Austar Entertainment Pty Ltd Award 1997 and the

and to generally represent the interests of any Austar or Foxtel Call Centre and related employees in any proceedings in the Commission with regard to those Awards or in regard to any matter coming before the Commission relating to the employment of any such employee employed under either of those two awards.

This authority remains in force until and unless it is revoked by the MEAA in writing or until the Australian Services Union becomes a party to both Awards in its own right.

This authorisation arises from an agreement reached between the MEAA and ASU operative from 12 September 2001."

[7] At the hearing of the s.42(3) matter on 26 October 2001 Mr. Hatcher, of counsel, sought leave to appear on behalf of Austar. MEAA did not record an appearance. Mr. Nucifora recorded his appearance as: "If the Commission pleases, I appear for the Australian Services Union acting as the authorised agent for the MEAA pursuant to section 42(3)." Mr. Nucifora stated that subject to "whether I am granted leave to appear, we would also be opposing Mr Hatcher appearing as counsel for Austar."

[8] After hearing Mr. Hatcher and Mr. Nucifora I adjourned proceedings to consider the submissions and material presented. The following is my decision based on that material.

[9] I have decided to grant Mr. Hatcher leave to appear, limited to the question raised in proceedings of 28 September 2001. I grant Mr. Hatcher leave because of the nature of the question and because, in my view, his submission would be of assistance to the Commission in resolving the issue.

[10] I have decided not to grant leave to appear to Mr. Nucifora appearing for the Australian Municipal, Administrative, Clerical and Services Union (ASU). My reasons follow.

[11] Mr. Nucifora's submissions quite clearly articulated the point that it was the ASU, as represented by him that sought leave to appear under s.42(3) as agent for MEAA. This fact is obvious by reference to Mr. Nucifora's terminology as recorded in transcript as follows:

"the ASU, as we say the authorised agent acting for the MEAA..." (PN143)

"...whether the ASU can act as an agent for the MEAA. That is the only question, threshold question that is before you today." (PN159)

"We say that the ASU, and it may not mean if I was authorised as the agent, as an employee of the ASU, it may not mean me appearing in the next matter, but at the end of the day we say, Commissioner, you have the discretion, the discretion, and we believe there is no technical impediment for you to exercise that discretion to grant leave to the ASU pursuant to 42(2)(3)(b) and (c)." (PN161)

"...or any impediment to recognising a union and an employee on behalf of that union acting as the agent for another union," (PN179)

[12] Mr. Nucifora sought to rely upon the agreement between the MEAA and the ASU in support of the argument (Exhibit N1). I make no comment in relation to the agreement, which the MEAA and the ASU have entered into. I note that the agreement states "The MEAA hereby appoints the ASU to act as its agent...". The agreement as such is not an issue before me. As an officer of the ASU, Mr Nucifora appears on behalf of the ASU. However, as an agent, Mr Nucifora would seek leave to appear on behalf of a party to the proceedings.

[13] Mr. Hatcher submitted that the ASU couldn't be an agent for the purposes of s.42(3) as the ASU is an organisation and not a natural person. He submitted that: "42(3) is directed to persons, natural persons having a capacity to appear on behalf of a party." (PN74) After referring to s.42(4), Mr. Hatcher continued:

"[T]he reason for a rule such as that is that the organisation itself cannot appear before the Commission, it can't represent itself any more than a corporation can. It's a fictional entity in the sense that whilst it's given legal personality, it doesn't have a physical presence, and so in order to overcome that difficulty, having created this legal fiction, the law needs to find a way of allowing the legal person to be heard before the Tribunal. Now this Act overcomes the problem in respect to an organisation by allowing any member or employee of the organisation to appear, or an officer or employee, again natural persons of a peak counsel to which the organisation is affiliated to effect the appearance....it is clear that leave to be represented by counsel, solicitor or paid agent is a leave to be represented by an individual, a natural person, who is counsel, solicitor or agent because, again, the ASU or MEAA or indeed Austar Entertainment Pty Limited, cannot physically put a submission before the Commission; that requires a natural person." (PN81 - 83)

"MEAA is caught by 42(4) because MEAA is the party to the proceedings, there is no dispute about that. MEAA can appear through a member or officer of MEAA or a member or officer of the ACTU, 42(4) grants it that right. It can also appear, subject to leave being granted by the Commission, through a nominated natural person who is a counsel, solicitor or agent, but the counsel, solicitor or agent must be a natural person, they can't be a corporation or an organisation." (PN107)

[15] I agree with Mr. Hatcher's submission. Subsection 42(3) envisages the appearance of a natural person as counsel, solicitor or agent and not an organisation. An organisation, as Mr. Hatcher suggested, has no physical presence. An organisation cannot physically walk and/or talk and therefore cannot represent before the Commission. An organisation is not capable of appearing and presenting submissions and material for the consideration of the Commission. This fact is remedied by s.42(4), which states:

"A party that is an organisation may be represented by:

(a) a member, officer or employee of the organisation; or

(b) an officer or employee of a peak council to which the organsiation is affiliated."

[16] Mr Nucifora submitted that the ASU has members employed by Austar and, in the future, would seek to be a party to the award. The ASU, however, on my understanding, have not sought the finding of an industrial dispute nor placed a demand on Austar. Whether or not the ASU has members employed by Austar and whether or not it will seek to be a party to the award is not relevant to the proceedings before me. The matter before me concerns a review of the award under Item 51 of the WROLA Act. If prior to the conclusion of the review of the award the ASU becomes a party to the award, then obviously it will have a right to appear and be heard.

[17] On the basis of the submissions, correspondence and material tendered and record of appearance it is clear that Mr. Nucifora, as an officer of the ASU, sought leave for the ASU to appear as agent under s.42(3) for the MEAA. In my view, I cannot grant the application and therefore I must refuse leave to the ASU to represent the MEAA in the matter before me.

G. Hatcher on behalf of Austar Entertainment Pty Ltd.

J. Nucifora for the Australian Municipal, Administrative, Clerical and Services Union.

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