Fair Work Act 2009

s.739 - Dispute resolution in relation to flexible working arrangements

Commissioner of State Revenue T/A State Revenue Office; Department of Treasury and Finance and State of Victoria

[1] Ms Megan Parolin has made an application to the Fair Work Commission (Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act) and the dispute settlement procedure of the Victorian Public Service Enterprise Agreement 2016[1] (VPS Agreement). At the same time Ms Parolin made an application pursuant to s.372 of the FW Act claiming a breach of the general protections provisions of the FW Act. Both applications were listed for conference before me on 8 August 2018.

[2] The respondents to the s.372 application each indicated, through their legal representative, that they did not consent to participate in conciliation. Accordingly, the conference with respect to that application was cancelled and the file closed. In these circumstances my considerations below relate only to the s.739 application.

[3] On 18 July 2018 my chambers received correspondence from the Victorian Government Solicitor's Office (VGSO) requesting the Attorney General be removed from the application as the contact for the State of Victoria. A copy of this correspondence was sent by the VGSO to Ms Parolin.

Permission to be represented by a lawyer or paid agent

[4] On 19 July 2018 Ms Parolin wrote to the Commission objecting to all legal representation for the respondents to her s.739 application on the grounds that the matters were not particularly complex and that the named respondent organisations had access to their own human resources and legal departments. Further, she sought that the Commission refuse permission for the respondents to be represented in relation to all activities specified in Rule 12 of the Fair Work Commission Rules 2013 (FW Rules).

[5] On 25 July 2018 Ms Alice Felman of the VGSO wrote to the Commission and submitted that the respondents do not require permission pursuant to s.596(1) of the FW Act on the basis that lawyers in the VGSO are employees of the State of Victoria and therefore fall within the exception to the requirement for permission in s.596(4)(a) of the FW Act. Ms Parolin responded that lawyers employed by the State of Victoria were not lawyers employed by the State Revenue Office or Department of Treasury and Finance and hence maintained her objection.

[6] On 26 July 2018 I sought further submissions should the parties wish to make them on the question of representation. Submissions were received from the VGSO and Ms Parolin.

[7] I shall deal first with the question of whether the VGSO needs to seek permission to represent the State of Victoria in the first instance. If such permission is not required the question of permission for activities in Rule 12 of the FW Rules does not arise.

[8] Section 596 of the FW Act states as follows:

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...

(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:

[9] The VGSO submits that s.596(4)(a) of the FW Act provides that, for the purpose of s.596 "a person is taken not to be represented by lawyer or paid agent if the lawyer or paid agent...is an employee or officer of the person". The term "person" in s.596 includes the body politic and the Crown (the State of Victoria).

[10] The VGSO relies on the authority in Gibbens v Department of Immigration and Border Protection[2](Gibbens) and Knight v Commonwealth of Australia (Australian Criminal Intelligence Commission)[3] (Knight) where it was held that, in each case, the employer was properly held to be the Commonwealth of Australia. In Gibbens it was found that both Mr Gibbens and the Australian Government Solicitor (AGS) lawyer were engaged by their respective departments as employees of the Commonwealth under the Public Service Act 1999 (Cth) (PS Act). That reasoning was affirmed in Knight where it was held that AGS lawyers and employees of the Commonwealth and are employed under the PS Act. Accordingly, in both cases, the Commission found that the AGS lawyer was an "employee of the person" and therefore did not require permission to represent the Commonwealth in the proceedings.

[11] The VGSO submits that the Commissioner of State Revenue (the first Respondent named in the applications) is employed under the Public Administration Act 2004 (Vic) (PA Act) and the Department of Treasury and Finance is a Department existing by virtue of an Order made under the PA Act. All respondents it says are therefore part of the State of Victoria.

[12] The VGSO is an Administrative Office (AO) within the Department of Justice and Regulation. The AO Head has the same powers and functions as a Departmental Head including the authority to engage employees on behalf of the Crown for the purposes of the VGSO. VGSO lawyers are therefore employed under the PA Act and hence employees of the Crown (the State of Victoria).

[13] As the respondents are each part of the State of Victoria and an employee of the VGSO is an employee of the Crown then a VGSO lawyer is an "employee of the person" (i.e. the Crown) and is therefore not required to seek permission to represent the respondents.

[14] Ms Parolin agrees that all parties in the proceedings currently before the Commission fall with the definition of the public service contained in s.9 of the PA Act. However, Ms Parolin submits that the VGSO, Department of Treasury and Finance and the State Revenue Office each has a different "public service body Head" and are therefore "distinctly different employers" by virtue of s.20 of the PA Act.

[15] Alternatively, Ms Parolin submits that the intention of s.596(4)(a) of the FW Act was to ensure that an employer was not denied the right to be represented, in the ordinary course of events, by a legal representative which it directly employs. This, she submits, can be distinguished from the current circumstances where each of the respondents is distinct, is allocated its own resources and acts independently of the others.

[16] Ms Parolin therefore submits that s.596(4)(a) of the FW Act is not relevant.

[17] Whilst the decisions in Gibbens and Knight were in relation to employees of the Commonwealth, the reasoning as to the exemption from the requirement to seek permission in those cases holds when consideration is given to the State of Victoria.

[18] I am satisfied that the AO Head for the VGSO holds the same relevant powers as a Departmental Head. An AO Head therefore has the authority on behalf of the Crown to engage employees. Employees so engaged are employees of the Crown. I am therefore satisfied that lawyers working for VGSO are employees of the Crown.

[19] Ms Parolin names the respondents to her dispute as being Mr Paul Broderick "in his capacity as Commissioner of State Revenue", the State of Victoria (although she names the Attorney General specifically) and the Department of Treasury and Finance.

[20] I am satisfied that the Commissioner of State Revenue is employed under the PA Act. He is an employee of the Crown. I am also satisfied that the Department of Treasury and Finance is a department established pursuant to s.10 of the PA Act. It is, therefore, part of the State of Victoria.

[21] The State of Victoria ("a person") does not require permission to be represented in a matter before the Commission if the lawyer (in this case) is also an employee of the Crown. A VGSO lawyer is an employee of the State of Victoria. A lawyer employed by the VGSO therefore is exempt by virtue of s.596((4)(a)from the requirement to seek permission of the Commission to represent the respondents in this matter (who are also part of the State of Victoria).

[22] It is not relevant that the State Revenue Office has engaged lawyers other than VGSO to act for it in other matters (external to the s.739 application) involving Ms Parolin. That is their right. That her employer might have chosen to engage the VGSO in this matter "as a means of getting around the requirement to seek permission for legal representation" is not a relevant consideration. The State of Victoria can be represented as of right by the VGSO. That is what it chooses to do. Its motivations for doing so are not grounds on which I could reject such representation.

[23] I also reject Ms Parolin's alternative submission. Ms Parolin seeks to draw a distinction between the State of Victoria which has a number of departments that act independently of each other and an employer (regardless of size) who should not be denied use of an employee who is a lawyer to represent it. The difficulty in this argument is that there are no grounds for Ms Parolin's presumed intention. It is not obvious from the words of the FW Act that s.596 should be read in such a way. Further, it would lead to outcomes which required a consideration of matters in addition to those in s.596 in deciding permission of a party to be represented.

[24] Having found that the State of Victoria does not require permission to be represented by the VGSO it follows that there is no requirement to consider if it requires permission to have VGSO deal with activities arising under Rule 12 of the FW Rules.

[25] Ms Parolin's objection to VGSO representing the respondents is therefore dismissed.

[26] VGSO also raises in its submissions the proper identity of the employer.

[27] Ms Parolin raised her dispute pursuant to the dispute settlement procedure of the VPS Agreement. The VPS Agreement defines an employee as:

Employee means an employee of the Crown employed pursuant to Division 4 of Part 3 or Division 3 of Part 6 of the Public Administration Act 2004 (Vic) other than...

[28] None of the exemptions then listed obviously apply to Ms Parolin.

[29] The employer is defined in the VPS Agreement as:

Employer means the State of Victoria acting through its servant who, for the purposes of this Agreement, is the relevant Public Service Body Head in the Agency in which the Employee is employed

[30] VGSO states that Ms Parolin was employed by the Department of Treasury and Finance. It says that the Commissioner of State Revenue is not a Public Service Body Head within the meaning of the PA Act nor is it a body designated to have powers of a public service body head. It therefore says that the Commissioner of State Revenue is not the employer and therefore not a proper respondent to the application. It submits that the proper respondent to the application is the "State of Victoria as represented by the Department of Treasury and Finance."

[31] Ms Parolin has made no submissions on this issue. Whilst I consider the submissions of VGSO have merit I shall not amend the file pending anything she may wish to say as to the identity of the respondent at the conference in relation to her application.

[2] [2017] FWCFB 2812.

[3] [2017] FWCFB 3896.

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