Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On Tuesday 7 July 2020, Mr Scott Tracey (Mr Tracey) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with BP Refinery (Kwinana) Pty Ltd (BP Refinery) in accordance with the dispute settlement procedure contained in clause 23 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Agreement 2014 (Agreement).

[2] The dispute concerns whether BP Refinery failed to re-grade the work classification of Mr Tracey from OT5 to CT1A under clauses 58.8 and 59 of the Agreement.

[3] BP Refinery have raised jurisdictional objections to the Application proceeding (Jurisdictional Objections).

[4] The Application was listed for a conciliation conference on 31 July 2020 (Conference). The Notice of Listing invited the parties to make submissions as to whether permission should be granted to the parties to be represented. On 27 July 2020, BP Refinery sought leave to be represented at the Conference. On 27 July 2020, Mr Tracey filed submissions opposing BP Refinery being granted leave to be represented at the Conference.

[5] Having reviewed both parties submissions on leave to be represented, I determined that it was appropriate to grant leave to BP Refinery to be represented at the Conference on the basis that it would enable the matter to be dealt with more efficiently in accordance with section 596(2)(a) of the FW Act. The parties were informed accordingly.

[6] On 31 July 2020, Mr Tracey filed further written submissions objecting to my decision to grant leave to BP Refinery to be represented at the Conference. Later the same day BP Refinery filed submissions in reply.

[7] Having reviewed the further submissions of both parties, I decided it was not appropriate to disturb my decision granting leave to BP Refinery to be represented at the Conference.

[8] The parties participated in conciliation at the Conference on 31 July 2020, however the dispute could not be resolved.

[9] The Application has therefore been listed for a hearing in Perth at 10:00am, Thursday 3 December 2020 to determine the Jurisdictional Objections (Jurisdictional Hearing).

[10] On Monday 7 September 2020, my Chambers issued directions for the filing of materials in relation to the Jurisdictional Objections (Directions).

[11] The Directions invited parties seeking to be represented by a lawyer or paid agent at the Jurisdictional Hearing to make brief submissions in writing to Chambers, ensuring that they copy in the other party by no later than 4pm, Thursday 17 September 2020. The Directions specified that any submissions, with respect to representation, should address the provisions of section 596(2) of the FW Act.

[12] The Directions further outlined that, if a party sought to object to a request for representation, a further brief submission setting out their objections should be made in writing to Chambers by 4pm, Thursday 24 September 2020.

[13] BP Refinery filed written submissions on Thursday 17 September 2020 seeking permission to be represented by a lawyer at the Jurisdictional Hearing.

[14] On Wednesday 23 September 2020, Mr Tracey sought an extension to file any written submissions objecting to BP Refinery being represented at the Jurisdictional Hearing until 4pm Thursday 1 October 2020. I granted this extension. I subsequently granted Mr Tracey a further extension until 9am on Monday 5 October 2020.

[15] On Monday 5 October 2020, Mr Tracy filed submissions opposing BP Refinery's application for leave to be represented.

[16] On Tuesday 27 October 2020, Chambers issued a Notice of Listing which noted that I proposed to grant BP Refinery leave to be represented at the Jurisdictional Hearing, on the basis that it would enable the Application to be dealt with more efficiently in accordance with section 596(2)(a) of the FW Act.

[17] I had intended to include my reasons for my determination with respect to representation in my written reasons for my decision with respect to the Jurisdictional Objection. However, on Thursday 29 October 2020, Mr Tracey filed an appeal against my decision to grant leave to BP Refinery to be represented at the Jurisdictional Hearing. I therefore provide my written reasons for my determination with respect to representation in this interim decision.

[18] A determination of this issue is necessary to ensure that the manner in which the Jurisdictional Hearing is conducted is fair and just.[1]

[19] Section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.

[20] Section 596(2) provides that 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:

1. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

2. 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

3. 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.

[21] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[2]

[22] In respect of sub-section 596(2)(a) of the FW Act, BP Refinery submits that granting permission would enable the Application to be dealt with more efficiently because:

1. BP Refinery's legal representatives are familiar with the background to the Application, having prepared BP Refinery's response to the Application and its materials filed in accordance with the Directions, and can therefore assist the FWC in its analysis of the relevant legislative provisions and case law.

2. The hearing will determine the Jurisdictional Objection, which will involve a degree of complexity and require a familiarity with the legislative provisions and case law relevant to the jurisdiction of the FWC to deal with disputes, under dispute settlement terms of an enterprise agreement.

[23] Mr Tracey submits that the issues to be determined at the Jurisdictional Hearing are not unduly complex and, bar one, can be easily disposed of. He submits that granting leave would provide no efficiency over BP Refinery representing itself, because BP Refinery has available to it a highly skilled in-house lawyer and an experienced HR Manager who is familiar with the matter.

[24] He further submits that granting permission to be represented will decrease the efficiency of proceedings because BP Refinery's lawyer will use 'a nomenclature not familiar to the Applicant' and that the duration of the proceedings has been extended by BP Refinery's lawyers raising a number of the jurisdictional objections that are 'devoid of merit and patently doomed to fail'.

[25] In relation to sub-section 596(2)(b) of the FW Act, BP Refinery submits it would be unfair to require it to represent itself as:

1. The matter is of importance to BP.

2. BP's employees do not have the level of knowledge, skill and experience to represent BP effectively at the Jurisdictional Hearing, taking into account the complexity of the matter. In this regard, BP Refinery note that none of its employees have conducted proceedings of this nature.

[26] Mr Tracey submits that being denied leave to be represented would not effect BP Refinery's ability to be effectively represented as:

1. There is unlikely to be any witnesses requiring any special skills to cross-examine;

2. BP Refinery is part of a large multinational company with significant internal resources including in-house lawyers with skills in advocacy;

3. Ms Taya Hill who leads BP Refinery's Human Resource Department holds relevant qualifications including a Bachelor of Commerce and a Post Graduate Diploma in Commercial Law and has prior experience in industrial and employment relations. In addition, she is familiar with the events related to the Application and prior litigation involving Mr Tracey;

4. Ms Cheryl Chan is BP's legal counsel for the Asia Pacific region, who was in 2019 named in Doyles as a leading employment and work health and safety lawyer. In addition, she is familiar with prior litigation involving Mr Tracey; and

5. There has been sufficient time between Mr Tracey raising the dispute and the Jurisdictional Hearing for BP Refinery's lawyers to adequately brief its in-house personnel.

[27] BP Refinery submit that sub-section 596(2)(c) of the FW Act is not directed to a consideration of any unfairness towards the person objecting to an application for representation, and, given that Mr Tracey is not seeking to be represented, therefore sub-section 596(2)(c) is not relevant.

[28] Furthermore, BP Refinery submits there is no apparent prejudice to Mr Tracey if permission is granted to BP Refinery to be represented. BP Refinery also notes that Mr Tracey has made reference to receiving advice from 'his lawyer', and obtaining support from a representative of the Australian Workers Union in connection with the matters he has raised in the Application.[3]

[29] Mr Tracey submits that it would create a significant imbalance or inequality between the parties, taking into account the following:

1. it would present circumstances where unnecessary formality would be created;

2. he is not being represented; and

3. it would create additional and unnecessary costs for BP that could potentially be passed on to him.

[30] I do not accept that the issues to be determined at the Jurisdictional Hearing are simple or straightforward. The Jurisdictional Hearing requires the determination of a number of different jurisdictional objections requiring consideration of a variety of different legal principles and reference to an array of case law.

[31] The submissions of the parties make reference to an assortment of statutory provisions and authorities. Mr Tracey has, subsequently, sought and been granted leave to file additional authorities. Mr Tracey's own submissions run to twenty-seven pages. He has also filed a witness statement of thirteen pages.

[32] Mr Tracey, in fact, concedes in his own submissions that the issues to be determined at the Jurisdictional Hearing "may not be characterised as straight forward" and admits that at least one of the issues "may be considered complex".

[33] I do not agree with Mr Tracey's assertion that the Jurisdictional Objections raised by BP Refinery are on their face entirely devoid of merit. Nor do I accept that the balance of the Jurisdictional Objections are uncomplex or easily disposed of.

[34] BP Refinery's lawyers represented BP Refinery in his related unfair dismissal application, U2019/1141, and in the subsequent appeal filed by Mr Tracey, in C2019/5255. They represented BP Refinery in the conferences held to as an attempt to resolve this Application. They have liaised with Mr Tracey to prepare a summary of the issues to be determined and a statement of agreed facts for these proceedings. They have also prepared concise submissions in response to Mr Tracey's multiple interlocutory applications, and are likely to be well placed to assist the FWC with any procedural issues arising at the Jurisdictional Hearing.

[35] As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd[4]:

"[23] It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.

[24] In the situation currently before me, permission to appear for purposes of any jurisdictional considerations appears to me to be justified. That is, by granting permission for Mr Copeland to appear the efficiency with which the jurisdictional issue is dealt with would be assisted.

[25] It also appears to me that permission to appear in the substantive considerations should be granted to Mr Copeland for other reasons. Where jurisdiction is in question, it is important in any subsequent considerations to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy. In such circumstances, a lawyer familiar with jurisdictional argument would ensure the matter would be dealt with more efficiently than would otherwise be the case."

[36] I am satisfied that given the complexity of the issues to be determined at Hearing, their advocacy skill set and their intimate knowledge of the Application (and the events leading to it) that the involvement BP Refinery's legal representatives will enable the matter to be dealt with more efficiently than if BP Refinery relied on its employees to conduct the Jurisdictional Hearing.

[37] Notwithstanding that Mr Tracey does not have legal training, he has prepared detailed submissions both in relation to the Jurisdictional Objection and in support of his multiple applications for Orders for Production, an Order to Attend and an application for 'summary judgement'. My observations of Mr Tracey to date have been that he is more than capable of researching and distilling legal principles, and articulating and responding to complex legal arguments. At the conference and in correspondence with Mr Tracey, BP Refinery's legal representatives appear to be conscious and accommodating of the fact that Mr Tracey is unrepresented. I am therefore, not of the view that granting leave to BP Refinery in circumstances where Mr Tracey is unrepresented will make the Jurisdictional Hearing more complex or lengthier because he is unable to understand the language they use.

[38] Having considered the submissions of the parties and being satisfied that the requirements in sub section 596(2)(a) of the FW Act have been met I consider it appropriate in all the circumstances to exercise my discretion to grant leave to BP Refinery to be represented by a lawyer because I am satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[1] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].

[3] See for example the Witness Statement of Paul Julian Alford dated 17 September 2020, at [7] and [10], 'PA-

[4] [2012] FWA 2966, [23] - [26].

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