13. The reasoning in Notre Dame is apposite to this matter given that the Applicant is represented by a well-established union and has access to, and is using, the union's legal resources.

14. Given the above, there would be an unfair disparity between the parties' abilities to represent themselves should permission be denied. To deprive the Respondent of representation in those circumstances would be to give the Applicant a distinct advantage in the presentation of the case and would be unfair."

[13] I am very aware that the AMWU has a number of experienced advocates who could possibly be used to represent the Applicant in this matter. Where an Applicant is represented by a union and where the union provides an experienced industrial advocate to run the case for the Applicant, then it may be unfair, having regard to s.596(2)(c), to deny the employer permission to be represented by a lawyer or paid agent. But that will not always be the case. Having a union as the representative of the Applicant does not of itself mean that the union will send its best legally qualified and experienced industrial advocate to represent the Applicant in this matter. The Respondent relies upon the decision in Fisher, Davis, Shaw v Downer ED/ Mining Pty Ltd.[2] In that matter the Commissioner dealt with s.596(2)(c) as follows:

"[21] In this instance, both parties have made submissions which have stressed the question of fairness. The issue of fairness between the person and other persons in the matter has some significance. The employer submitted that unfairness would arise if it were denied an opportunity to be represented by lawyers. The CFMEU has submitted that it would be unfair to permit the employer to be represented by a lawyer.

[22] I am mindful of any imbalance that may be created if a party is granted permission to be represented by lawyer or paid agent. Such an imbalance can provide great potential for the absence of a fair and just Hearing, as was identified by the Federal Court Judgment in the Warrell case.

[23] However, in the circumstances where the applicants have the experienced and competent advocate, Mr Endacott from the CFMEU, I apprehend that no imbalance would be created with lawyers appearing for the other side. Consequently, I consider that there would be no unfairness created by the granting of the permission for legal representation for the employer."

[14] It is relevant to note that the decision did not find "that 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". Rather the Commission only decided "that there would be no unfairness created by the granting of the permission for legal representation for the employer".

[15] I would not be inclined to rely on the Commissioner's approach to s.596(2)(c). It must also be noted that in that matter the Commissioner addressed the issues raised by s.596(2)(a) and found that permission to be represented by a lawyer or paid agent should be granted to the employer in that matter because of the complexity of the case.

[16] In my considered view the decision in in Fisher, Davis, Shaw v Downer ED/ Mining Pty Ltd does not support the Respondent' case in relation to s.596(2)(c).

[17] The Respondent also relies on the decision in NTEU v The University of Notre Dame Australia,[3] and I have had regard to that decision and the consideration given by the Commissioner in that matter to the competing contentions of the parties and to the nature of the in-house legal personnel employed by the University and to the 2 persons who were identified by the NTEU as being "experienced employment relations practitioners". The Commissioner decided to grant permission for the University to be represented on the basis of each of ss.596(2)(a), (b) and (c). In relation to s.596(2)(c) the Commissioner concluded that:

"The applicant is a registered organisation and as such one of its regular activities, and one in which it specialises, is to appear before this Commission in dispute arbitrations and it employs staff to do just that. Notre Dame in contrast is a University and the evidence is that it does not employ staff to regularly appear in arbitrations before the Commission. Consequently I am satisfied that it would be unfair not to allow Notre Dame to be represented by a lawyer taking into account fairness between the Union and Notre Dame in this matter."

[18] The present matter can be distinguished from the facts and circumstances in Notre Dame.

[19] The Respondent's material filed in relation to the substantive matter identifies that Mr Warren Fridell, the Respondent's Senior Manager Workplace Relations was involved in aspects of the matter. The Commission's file in this matter also identifies that Mr Fridell has a continuing involvement in this matter. Mr Fridell is also involved in another matter before the Commission as currently constituted, C2017/4235, a section 739 matter involving the NUW and CSL Ltd. Mr Fridell is more than sufficiently qualified and experienced in advocacy to represent the Respondent.

[20] It is not surprising that the Respondent in seeking permission to be represented does not rely on s.596(2)(b). The Respondent, having Mr Fridell as its Senior Manager Workplace Relations, is able to represent itself effectively in this matter.

[21] In the context of s.596(2)(c) there is nothing to suggest that it would be unfair not to allow the Respondent to be represented taking into account fairness between the Applicant (represented by the AMWU) and the Respondent when the Respondent has, as an employee, a person of Mr Fridell's qualifications and experience.

[22] I am not satisfied, having regard to the matters identified in s.596(2) that the Respondent should be granted permission to be represented by a lawyer or paid agent. The application for permission is refused.

[1] [2014] FWCFB 1663.

[2] [2014] FWC 2159 at [23].

[3] [2014] FWC 2409.

Printed by authority of the Commonwealth Government Printer