[2021] FWC 4582

Fair Work Act 2009

s.739 - Application to deal with a dispute in relation to flexible working arrangements

The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria

Permission for representation by lawyers and paid agents.

[1] Victoria Police has applied for permission to be represented by a lawyer in arbitration of a dispute in relation to a request for a flexible working arrangement. The substantive matter is set down for arbitration in the coming week following unsuccessful conciliation of the matter. The application for permission has been made pursuant to s.596(2) of the Fair Work Act 2009 (FW Act). The application is opposed by the Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria (the Police Association).

[2] Section 596 of the FW Act provides:

(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.

[3] Victoria Police seeks permission pursuant to s.596(2)(a) on the grounds of efficiency and s.596(2)(c) on the grounds of fairness.

[4] On the matter of efficiency Victoria Police submits that its lawyers will be able to assist the Commission in understanding of both the legal and factual matrices raised by the application and, in this way, narrow the matters in dispute between the parties leading to efficiency in dealing with the application. Further, it says that there is some complexity in the question of construction of the clause and in its interaction with the related provisions in the FW Act.

[5] In relation to fairness, the Victoria Police says, firstly that the aggrieved member is represented by a registered organisation which can 'deploy experienced industrial advocates' to argue the case and fairness dictates that advocates be opposed by advocates. Secondly, Victoria Police submits that clause 10.3 (in the dispute settling procedures) of the relevant Agreement provides that:

A party may choose to be represented at any stage by a representative, including a union representative or employer's organisation.

[6] Victoria Police submits that the provision expressly allows for representation and, if it had been the intention of the parties that representation be dealt with by way of the FW Act only, it would have been so expressed. Having been included, Victoria Police submits that the clause must have work to do. Victoria Police submits in the alternative that, if it is that the clause confers no absolute right to be represented by a lawyer (or whomever a party may choose), it impacts the assessment of fairness. Victoria Police submits that in circumstances where the parties have bargained for a dispute settling procedure that allows for arbitration (in circumstances where arbitration is not otherwise legislated and where there is limited ability to seek judicial review, refusing representation where it has been expressly specified in the dispute settling procedure would be inconsistent with that bargain.

[7] The Police Association opposes the application for permission on the grounds that it says the application to be determined by the Commission is not complex and has a 'relatively simple' factual contest which can be differentiated from jurisdictional matters. Further, it submits that the volume of material and witness evidence is not complex or voluminous. The application for permission is therefore based on convenience in circumstances with Victoria Police has a well-resourced workplace relation division which is capable of representing Victoria Police. Further, it says the Commission should take into account that the default position under the FW Act is that lawyers are excluded from representing parties.

[8] The Police Association submits that, in deciding fairness, consideration should be given to the resources available to the party seeking to be represented. Further, it submits that clause 10.3 of the Agreement is not constructed to remove the requirement for permission to be granted pursuant to s.596 of the FW Act. The Police Association submits that there is no unfairness to Victoria Police if it is denied permission.

[9] I have decided that permission should be granted to Victoria Police to be represented by a lawyer in the matter before me.

[10] In reaching this decision I have taken into account the matter I am being asked to decide. Whilst the provisions of the Agreement itself may not appear complex the evidence to come before the Commission as to the 'reasonable business grounds' on which the decision to refuse the request for flexible working hours need to be marshalled and set out with clarity to ensure the Commission can properly decide if those grounds are, in fact, 'reasonable'. The factual matrix - and how the evidence supports these facts - is critical to a determination of the dispute.

[11] It has been emphasised to the Commission that there is some urgency in getting this matter resolved - both for Victoria Police in rostering and hence deployment of officers, and for the officer involved in being able to settle his personal circumstances. The application has been subject, for these reasons, to conciliation within a compressed timeframe, the officer required to quickly make a decision as to whether certain options were suitable for him and his family and, finally, an expedited hearing. Interim arrangements have been agreed by the parties to support the officer and there is some need for an efficient turnaround in a final decision.

[12] I am satisfied that, in the circumstances of this case, the ability to marshal the evidence and submissions in a way that assists the Commission in coming to a decision and publishing this in a timely manner is important for both parties. The efficiency to be derived from the presence of lawyers and well-trained advocates cannot be ignored.

[13] I do not consider that the Commission is required to find complexity in the matter as a pre-condition to considering if the matter could be dealt with more efficiently, but rather accept that complexity is a matter that needs to be considered.[1] I accept that the provisions of the Agreement may not be complex but that does not mean that the facts, applied within the Agreement provisions, is a simple task or that it will not be more efficient if permission was granted.

[14] I do not consider that the provisions of clause 10.3 (set out above) provide for representation of a party's choosing as of right, separate to the provisions of the FW Act.[2] Given my decision I do not need to otherwise consider matters of fairness. I would observe however that nothing has been put to indicate that the capabilities of staff in the workplace relations group of Victoria Police are such that it would be unfair to not consider the grant of permission given the skills and capabilities of the Police Association.

[15] I do not accept that Victoria Police must show that it cannot effectively represent itself when it is not, in this application, relying of s.596(2)(b) of the FW Act as the basis of the grant of permission.

[16] For the reasons set out above I am satisfied that the requirements of s.596(2)(a) of the FW Act have been met.

[17] The decision as to whether to grant permission to a party to be represented by a lawyer is, however, a two-step process. Having found that the requirements of s.596(2) have been met I must now consider how my discretion should be exercised.

[18] I acknowledge that the grant of permission may introduce a degree of formality in proceedings, but this is not grounds for refusing permission. In the particular circumstances of this case where the factual circumstances must be established to enable a sound decision to be made I am satisfied that permission should be granted.

[1] Toby Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130, [21].

[2] United Voice v Serco Group Pty Limited [2013] FWC 9911, [15]-[18].

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