Fair Work Australia|2009-10-09

Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Ltd - re Termination of employment - representation by lawyers and paid agents [2009] FWA 572 (9 October 2009)

s.394 - Application for unfair dismissal remedy

Termination of employment - representation by lawyers and paid agents.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has objected to Freehills (solicitors) acting for Hunter Valley Earthmoving Company Pty Ltd (HVE) in unfair dismissal proceedings listed for arbitration before me in Toronto on 14 October 2009.

[2] In written submissions opposing permission for leave to appear, the CFMEU contend that none of the circumstances in which the Tribunal may grant permission for a person to be legally represented arise in this matter.

[3] The relevant provisions of the Fair Work Act 2009 (the Act) are set out in s.596(1) and (2):

"1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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] The CFMEU also referred me to the procedural provisions set out in Division 5 of the Act and advised that on 22 September 2009 Mr Endacott for the CFMEU wrote to HVE in the following terms:

"I note that with the introduction of the Fair Work Act 2009, there is a new environment/process in which Applications for Unfair Dismissal Remedy's [sic] are dealt with by Fair Work Australia and I specifically set out Sections 397, 398 and 399 for your information.

FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

(1) This section applies in relation to a matter arising under this Part if FWA conducts a conference in relation to the matter.

(2) Despite subsection 592(3), FWA must conduct the conference in private.

(3) FWA must take into account any difference in the circumstances of the parties to the matter in:

(b) informing itself in relation to the application.

(4) FWA must take into account the wishes of the parties to the matter as to the way in which FWA:

(b) informs itself in relation to the application.

(1) FWA must not hold a hearing in relation to a matter arising under this Part unless FWA considers it appropriate to do so, taking into account:

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If FWA holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) FWA may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

I would welcome discussions with you on how the Parties may wish to reach agreement on a process to be suggested to the Fair Work Australia Member hearing the case, which would either eliminate or significantly reduce the aspects of the Application that would require formal hearing and enable [a] more informal process being adopted that would be the most effective and efficient way for this matter to be determined.

If you have any questions, please don't hesitate to give me a call."

It was submitted by the CFMEU that HVE did not reply to the correspondence.

If HVE was represented, it would enable the matter to be dealt with more efficiently, taking into account the complexity of the facts;

It would be unfair not to allow HVE to be represented taking into account the effectiveness of HVE to represent itself;

It would be unfair not to allow HVE to be represented taking into account the fairness between the parties; and

The new test under section 596 is wider than that of the previous legislation. Section 596 requires that FWA needs only to be satisfied of one of the elements at s.596(2) of the Act to grant permission for HVE to be represented at the arbitration hearing/conference.

[6] In relation to the first point, it is submitted Freehills can assist the Tribunal in that given that there are a number of witnesses, they can efficiently manage the evidence and summarise complex legal argument in a succinct manner. Furthermore, it was stated there is a requirement for forensic cross-examination of the Applicant given alleged omissions from his statement of evidence.

[7] Prior to Freehills being engaged HVE was represented by Mr Adrian McCowan, HR-ER Manager of the parent company, Thiess Pty Ltd. It was submitted that Mr McCowan is not legally qualified and has not previously appeared in arbitral proceedings. In this context it is asserted that it would be unfair not to allow HVE to be legally represented.

[8] Freehills submitted that there is no reason why the Tribunal should not continue to apply the long established principles allowing legal representation in unfair dismissal matters. It cited the Full Bench of the Australian Industrial Relations Commission in two decisions as authority:

"In Re Colonial Weighing Australia Pty Ltd (Print Q1048, 20 May 1998, per Watson SDP, Duncan DP and Hingley C) stated that "in the normal course of events an ordinary s.170CE (unfair dismissal) applicant should be allowed legal representation". Similarly, in Timothy Visscher v Teekay Shipping (Australia) Pty Ltd ( [2004] AIRC 1235 (8 December 2004)), the Full Bench affirmed that "it has become almost a formality that leave to be represented by counsel, solicitor or agent be granted to a party in such matters."

[9] In summary Freehills submitted that the objects of the Act which provide for effective and speedy procedures to resolve matters, whilst ensuring a "fair go all round", would be best served by permitting leave to appear.

[10] In respect to the authorities cited by Freehills, a comparison between the provisions regarding representation of parties under the former Workplace Relations Act 1996 and the current Act shows that leave or permission to appear has been tightened.

[11] The intent of the Parliament regarding the question of representation is expressed in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill's introduction in 2008:

"2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

.…2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties."

[12] In practice the Tribunal would usually grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Tribunal will be exercised on the facts and circumstances of the particular case.

[13] In this matter I am aware that Mr Endacott appearing for the Applicant is not legally qualified, albeit he is an experienced advocate. I am also familiar with Mr McCowan's history of industrial advocacy in the coal industry, having been previously assigned to the industry for several years.

[14] Without prejudging the merits or otherwise of the substantive application, on my reading of the submissions and witness statements I am of the opinion that this is not a matter which requires forensic cross-examination or is of a complex nature. I note the Applicant admits to engaging in the behaviour which gave rise to his termination. In my view this matter is a relatively simple factual contest.

[15] In this matter I have decided to refuse permission to Freehills to represent HVE in proceedings on 14 October 2009.

[16] I am satisfied that no question of fairness or efficiency in the conduct of the application arises in this matter.

Printed by authority of the Commonwealth Government Printer

Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Ltd - re Termination of employment - representation by lawyers and paid agents [2009] FWA 572

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Judgment (51 paragraphs)

Rodney James Rodgers v Hunter Valley Earthmoving Company Pty Ltd - re Termination of employment - representation by lawyers and paid agents [2009] FWA 572 (9 October 2009)

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Legislation Cited (2)