Fair Work Act 2009

s.604 - Appeal against decision

Appeal against decision of Deputy President Binet at Perth on 26 November 2020 and 22 December 2020 ( [2020] FWC 6947) in matter number U2020/11820 - Appeal upheld - rehearing - permission refused.

[1] Wellparks Holdings Pty Ltd t/as ERGT Australia (ERGT) has filed a notice of appeal in which it seeks permission to appeal and appeals a decision of Deputy President Binet. In the decision subject to appeal the Deputy President refused an application by the Appellant pursuant to s 596 of the Fair Work Act 2009 (the FW Act) to be represented by a lawyer in unfair dismissal proceedings (the Decision). The circumstances in which the Deputy President made the Decision require some explanation.

[2] On 1 September 2020, Mr Govender filed an application alleging he was unfairly dismissed by ERGT (the Substantive Application).

[3] On 23 September 2020, Mr Heathcote of APX Law contacted the Commission by email advising that he was acting on behalf of ERGT and foreshadowing filing a Form F3 - Employer's Response to unfair dismissal application on behalf of his client, alleging that Mr Govender's dismissal was a case of genuine redundancy.[1]

[4] The Substantive Application was listed for a Hearing at 10:00am on Friday 22 January 2020.

[5] On 6 November 2020, the Deputy President issued directions for the filing of materials in advance of the Substantive Hearing requiring the parties to file and serve outlines of submissions, signed and dated witness statements, copies of authorities and any documentary evidence on which they wished to rely.[2] The Directions also invited parties seeking to be represented by a lawyer or paid agent at the Hearing to make brief submissions in writing to Chambers, ensuring that they copy in the other party, by no later than 4pm on Friday 13 November 2020. The Directions specified that any submissions, with respect to representation, should address the provisions of s 596(2) of the FW Act. The Directions further provided 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 no later than 4pm on Friday 20 November 2020.

[6] On Friday 13 November 2020, in accordance with the Directions, Mr Govender filed his materials with respect to the merits of the Substantive Application.

[7] ERGT's materials, due on 13 November 2020, were filed late. The witness statement which was filed was unsigned and stated to be subject to revision. Mr Heathcote indicated that a finalised and signed statement would be filed by the middle of the following week. An application by Mr Heathcote for leave to represent ERGT at the Substantive Hearing was filed on the same day. The statement was only provided in a signed form as a part of the Digital Court Book, which was filed on Tuesday 1 December 2020.

[8] The Appellant's submissions in support of its application for permission to be represented by a lawyer are set out at pp 45 - 46 of the Digital Appeal Book. The gravamen of those submissions are at [2.1] - [2.3] and [4.2] - [4.6], as follows:

'2.1 The Respondent's management team has no relevant training or experience in matters before the Commission.

2.2 The Respondent's officers and senior staff, of which there are few, have only a rudimentary appreciation of the statutory framework underpinning the substantive application, and they know very little about the Commission's practices or procedures.

2.3 The Respondent is incapable of efficiently and effectively presenting its own case, or engaging with the evidence or relevant legal questions.

4.2 In the context described above, permitting a lawyer to represent the Respondent would enable the Commission and the parties to deal with the matter more efficiently than it otherwise would.

4.3 That efficiency is achieved because a suitably experienced lawyer is:

2. able to properly interpret and apply those provisions;

1. familiar with the Commission practices and procedures;

3. able to more effectively and succinctly examine and cross-examine witnesses; and

4. able to draw the Commission's attention to relevant law and applicable principles.

4.4 This matter is factually complex and engaging with it requires a party to be familiar with Part 3-2 of the Fair Work Act (Act) including, in particular, sections 385 and 386.

4.5 The Respondent is incapable of engaging with those matters without representation.

4.6 The Respondent does not have in its employ any staff member who could properly represent it and engage with the relevant legal issues.

[9] On 18 November 2020, Mr Govender wrote to the Commission opposing the granting of permission to ERGT for leave to be represented for two reasons:

'1. The issues are very clear and this is not a matter of a complex nature.

1. The respondent has not met the deadline to submit s 596 for the DPs consideration by 4pm Friday 13 November 2020.'

[10] On 23 November 2020, the parties were informed that the Substantive Application would be heard and determined by way of Determinative Conference.

[11] On 26 November 2020, the parties were informed by email that ERGT's application for leave to be represented had been refused. The email is set out at Attachment 1 to the Notice of Appeal, as follows:

The Deputy President has considered the submissions of the parties in relation to section 596 of the Fair Work Act, 2009 (FW Act).

She notes the Federal Court decision of Warrell v Walton [2013] FCA 291, as approved by the Full bench in Asciano Services Pty Ltd v Hadfield [2015] FWWFB 2618, which stated:

"[24] A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission ...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission".

[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)..."

Having taken into account all of the submissions, the application by Wellparks Holdings Pty Ltd to be legally represented at the hearing is refused. The Deputy President is not satisfied that the requirements in section 596(2) of the FW Act are satisfied nor that it is appropriate in the circumstances to exercise her discretion to grant permission to Wellparks Holdings Pty Ltd to be represented.'

[12] On 16 December 2020 Mr Heathcote wrote to the Deputy President advising that he had been instructed to appeal the Deputy President's decision of 26 November 2020 to refuse permission for ERGT to be represented by a lawyer at the Substantive Hearing. The correspondence continues as follows:

'The purpose of this letter is to respectfully request you to change your mind and to grant permission for the Respondent to be represented. This request arises from our review of your decision in Tracey v BP Refinery (Kwinana) Pty Ltd (Tracey), and the Full Bench's reasons for upholding that decision on appeal.

In relation to the complex nature of the Matter, we make the following further observations:

• if the issues are legally or factually complex, permitting legal representation promotes efficiency;

• the parties are required to address a jurisdictional objection that is inherently complex. That point is made in Tracey; and

• dealing with the merits of the substantive application will also involve dealing with some other complex matters. The decided cases place the issues almost exclusively in the ambit of s387(h). Therefore, our capacity to extract and interpret statutory provisions and relevant decisions is essential to an effective and efficient hearing.

In relation to the position in which the Decision places the Respondent, we note the following:

• the Respondent does not have a person who can adequately represent it at the hearing or in a determinative conference;

• James Miller is the best suited of the Respondent's employees to conduct its case by reason of his HR training, but he is not an experienced advocate;

• the mere existence of in-house options, legal or otherwise, does not contra-indicate or dictate that permission to be represented should be denied.

• refusing permission to allow representation deprives the Respondent of the ability to effectively examine and cross-examine the witnesses, and that in turn hampers efficiency in a hearing.

• effectiveness and efficiency are increased by experienced counsel who can succinctly examine and cross-examine witnesses.

If you're not persuaded to change your mind, and assuming that a Full Bench upholds the Decision, the hearing will be conducted by two individuals with no experience or knowledge with the inevitable negative impact on efficiency.

[13] On 22 December 2020 the Deputy President issued an 'interim decision'. It is not clear to us what the Deputy President meant in characterising her decision as an 'interim decision'.

[14] An interim decision is a decision of a temporary or provisional character pending the making of a final decision. A decision in respect of an application under s 596 is plainly an interlocutory decision; but it is not an interim decision in the sense that it is made pending the making of a final decision in respect of the s 596 application.

[15] Further, it is not immediately apparent whether the decision published on 22 December 2020 merely constitutes the reasons given for the earlier decision communicated by email on 26 November 2020 or whether it is a decision in which the Deputy President rejects the Appellant's invitation to reconsider her earlier decision. We consider that it is the latter; because the 22 December 2020 decision plainly canvasses matters which occurred after the decision of 26 November 2020 and it is expressed in the present tense, rather than as reasons for a decision which had been made previously. For example, [45] of the 22 December 2020 decision states:

'I am not satisfied that the Application is complex. The Digital Court Book which includes the Form F2 Application and Form F3 - Employer Response, application and submissions on representation, statement of agreed and disputed facts, outlines of submissions on both merit and the jurisdictional objection plus all the witness and documentary evidence, in total consists of only 40 pages.'

[16] The Digital Court Book was only filed on Tuesday 1 December 2020, some time after the email of 26 November 2020 in which the Deputy President rejected ERGT's initial s 596 application.

[17] Further, at [26] the Deputy President states:

'This Interim Decision sets out my reasons for refusing to grant leave to ERGT to be represented at the Hearing based on the submissions and reply submissions filed by both parties.'

[18] It is plain from the context that the reference to the 'submissions and reply submissions filed by both parties' refers to the submissions filed by Mr Heathcote on 16 December 2020 and Mr Govender's reply submissions of 18 December 2020.

[19] The issue regarding proper characterisation of the Deputy President's decision of 22 December was put to the parties during the course of the Appeal Hearing. Neither party cavilled with the proposition that the decision was responsive to ERGT's invitation for the Deputy President to reconsider her earlier decision, rather than merely constituting the reasons given for the earlier decision of 22 November.

[20] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". Permission to appeal may otherwise be granted on discretionary grounds.

[21] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[4] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[5] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[6]

[22] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[7]

[23] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permissio[9] to appeal.9

[24] The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not usually be the case that permission would be granted to appeal against an interlocutory decision under s 604 of the FW Act, whether or not s 400(1) applies.[10]

[25] It is convenient to first summarise the decision subject to appeal before turning to the submissions advanced on the appeal.

[26] In her decision of 22 December 2020 the Deputy President sets out the procedural history (at [1] to [26]) and then canvasses the relevant statutory provisions and authorities (at [27] to [37]). The parties' submissions are summarised at [38] to [44].

[27] In the appeal proceedings no party took issue with the Deputy President's analysis of the relevant statutory provisions or with her summary of the submissions.

[28] At [48] of the decision the Deputy President states that she is 'not satisfied that granting leave would enable the matter to be dealt with more efficiently, nor that ERGT is unable to represent itself effectively' and at [57] the Deputy President dismisses the Appellant's s 596 application, in the following terms:

'Mr Govender is a self-represented litigant who was employed by ERGT as an accountant. There is no evidence before me that he has any relevant skills, experience or qualifications relevant to the proceedings. In all the circumstances of this Application, I am of the view that refusal to grant leave to ERGT to be represented at the Hearing is fair and just and in accordance with the FW Act and will allow the proceedings to occur in a manner which is quick, informal and avoids unnecessary technicalities.'

[29] The reasons advanced in support of the finding that the criteria in ss 596(2)(a) and (b) were not satisfied are set out at [45] to [47] and [49] to [54], as follows:

'[45] I am not satisfied that the Application is complex. The Digital Court Book which includes the Form F2 Application and Form F3 - Employer Response, application and submissions on representation, statement of agreed and disputed facts, outlines of submissions on both merit and the jurisdictional objection plus all the witness and documentary evidence, in total consists of only 40 pages.

[46] Each party is calling only one witness. The witness statements are one and two pages

[47] The Jurisdictional Objection is not of a complex nature. Its elements are codified in

section 389 of the FW Act. There is a large volume of decided case law in relation to jurisdictional objections of this nature. There is nothing novel about the facts or law in dispute.

[49] ERGT's failure to file materials in accordance with Directions and the failure to file

materials on time whilst represented gives no indication that granting leave to be represented

would enable the matter to be deal with more efficiently.

[49] ERGT's only witness is Mr James Miller (Mr Miller) and, on Mr Heathcote's submission, the ERGT officer who is most likely to represent ERGT in the event that leave to be represented is not granted. According to Mr Miller's witness statement he has a Bachelor of Business majoring in Human Resource Management and Industrial Relations. Mr Miller has responsibility for the human resource function in ERGT, which on the evidence before me, consists of at least three other human resource practitioners.

[51] Presumably Mr Miller's education, role and experience equips him with some familiarity with the legal principles in relation to genuine redundancies and, one would have thought, at least a rudimentary understanding of FWC processes.

[52] The Application is to be heard by way of a Determinative Conference therefore the

parties will not require familiarity with FWC process, practices or the rules of cross-examination as these will be explained to the parties during the proceedings and the

proceedings will be conducted informally. The FWC also provides extensive resources on its

website in both written and video format in relation to the conduct of proceedings.

[53] The evidence in chief has already been given by way of witness statements filed in

advance of the proceedings. Each party has only one witness. Cross-examination questions

can be prepared in advance of the proceedings. Mr Govender will conduct the cross

examination of ERGT's only witness. ERGT's representative will only have one witness to

[54] Outlines of submissions have already been filed setting out the relevant legal

The parties will have the opportunity to provide written closing submissions.'

[30] Finally, at [55] to [56] the Deputy President distinguishes the matter before her from the circumstances in a decision relied upon by the Appellant, Tracey v BP Refinery[11] (Tracey).

[31] The Appellant advances a number of arguments in support of its contention that the Deputy President erred in refusing permission for it to be represented by a lawyer. For reasons which will become apparent we need only deal with one of the arguments advanced, namely the proposition that the Deputy President 'failed to provide the Appellant with procedural fairness by not providing it with an opportunity to respond to information treated as evidence'.[12]

[32] The essence of the Appellant's procedural fairness point is that the Deputy President accepted, and relied upon, certain assertions made by Mr Govender in his submissions of 18 December 2020 and took into account ERGT's failure to file materials in accordance with the Commission's directions, whilst represented. It is submitted that ERGT was not given an opportunity to make submissions in respect of these matters.

[33] The Deputy President summarises Mr Govender's submissions at [41] to [44] of her decision of 22 December 2020:

'[41] Mr Govender opposes the granting of leave to ERGT. He asserts the Application is not complex and points to Mr Heathcote's email to Chambers on 23 October 2020 in relation to ERGT's availability for a conference in which Mr Heathcote states that:

"The Respondent's preference was always to take the matter to a hearing. The issues are very clear ...".

[42] He also suggests that the late filing of materials by Mr Heathcote is inconsistent with the assertion that granting leave will enable the matter to be dealt with more efficiently.

[43] Mr Govender disputes that ERGT is incapable of representing itself effectively. According to Mr Govender, ERGT is a medium/large size company with an average annual turnover of around 20 million, employing 200-250 employees across Australia. Mr Govender says that ERGT has a dedicated human resource team which comprises:

d. Mr James Miller - General Manager Corporate Services

[44] Mr Govender says that unfairness would result if ERGT were permitted to be

[34] Further, at [49] the Deputy President refers to ERGT's non-compliance with Commission directions, as follows:

'[49] ERGT's failure to file materials in accordance with Directions and the failure to file materials on time whilst represented gives no indication that granting leave to be represented would enable the matter to be deal with more efficiently.'

[35] The Appellant submits, in essence, that:

1. The Deputy President's decision is based, in part, on the assertions made in the Respondent's submissions of 18 December 2020 and on ERGT's failure to file materials in accordance with the Commission's directions, at a time when they were represented.

2. The Appellant was not afforded an opportunity to respond to the assertions made in the Respondent's submission; nor was the Appellant given the opportunity to address the Deputy President's reliance upon the Appellant's non-compliance with directions.

3. The Appellant says that had it been afforded such an opportunity it would have 'refuted those assertions'.[13]

[36] We accept that the Appellant was denied procedural fairness insofar as it was not given an opportunity to address the Deputy President's reliance on ERGT's non-compliance with the Commission directions. On that basis we grant permission to appeal, uphold the appeal and quash the Deputy President's decision.

Reconsideration of application for permission to be represented

[37] Some time prior to the hearing of the appeal we informed the parties that if we were minded to grant permission to appeal and to uphold the appeal then we would determine ERGT's application for permission to be represented by a lawyer. The parties were told to ensure that they were in a position to make submissions during the course of the Appeal Hearing on the question of whether ERGT should be granted permission to be represented by a lawyer during the Hearing before Deputy President Binet scheduled for Friday 22 January 2021.

[38] On the morning of the Appeal Hearing the Appellant filed a submission in support of its application that it be granted permission to be represented by a lawyer in the Hearing on 22 January 2021.

[39] In support of its s 596 application ERGT contends that:

1. granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (the s 596(2)(a) contention); and

2. it would be unfair not to allow ERGT to be represented because ERGT is unable to represent itself effectively (the s 596(2)(b) contention).

[40] In support of the s 596(2)(a) contention ERGT advances two broad lines of argument:

1. The substantive matter involves a jurisdictional objection to Mr Govender's unfair dismissal application. Jurisdictional objections are complex by their nature and legal representation would enable the matter to be dealt with more efficiently.

2. The grant of permission to be represented by a lawyer would be in conformity with other Commission decisions, including the first instance and appeal decisions in Tracey v BP Refinery.[14]

[41] In support of the s 596(2)(b) contention ERGT submits that it is 'incapable of efficiently and effectively presenting its own case or engaging with the evidence or legal principles.'[15]

[42] ERGT did not rely on s 596(2)(c) in support of its application for permission to be represented by a lawyer, but did make submissions in the event that Mr Govender relied on this provision in support of his position that permission should be refused. We return to s 596(2)(c) later.

[43] We turn first to the relevant statutory provisions before turning to ERGT's submission.

[44] 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.

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.

[45] Sections 577 and 578 are also relevant, they provide:

1. Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

1. Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[46] In terms of the objects of the Act, the Appellant submits that the object in s 3(g) is relevant to the matter before us, it provides:

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(g) acknowledging the special circumstances of small and medium-sized businesses.

[47] The principles concerning the proper interpretation and application of s 596(2) are well established.

[48] The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step 'involves the making of an evaluative judgment akin to the exercise of a discretion'.[16] It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.[17]

[49] We turn first to ERGT's contention that granting permission would enable the substantive matter to be dealt with more efficiently, taking into account the complexity of the matter. At the outset we record we are in agreement with the following observation of the Full Bench in Tracey:

'the criterion in s 596(2)(a) is whether the grant of permission for legal representation would enable the matter to be dealt with more efficiently, not whether it would enable the party seeking to be legally represented to be presented more efficiently.'[18]

[50] As to the complexity of the substantive matter ERGT contends that it is a jurisdictional objection 'which is by its nature complex'.[19] In support of that proposition ERGT relies on CEPU v UGL Resources Pty Ltd in which Senior Deputy President Richards said:

'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.'[20]

[51] We reject the proposition that jurisdictional issues are 'by their nature' complex. Some jurisdictional issues may properly be characterised as complex and others not. A case by case assessment is required, rather than the adoption of some general decision rule which assumes that all matters in which a jurisdictional issue arises are 'complex in their own right' and that 'representation by a lawyer would be a reasonable course'. To the extent that Senior Deputy President Richards is to be understood as expressing a contrary view, we respectfully disagree.

[52] ERGT also relied on the first instance and appeal decisions in Tracey in support of its s 596 application, submitting that:

'The two cases may be different, but they are comparable on a relative basis. For example, the issues were more complex in Tracey, but BP had in-house counsel to deal with them. Mr Tracy and BP's representatives were involved to a greater and longer degree, but the complexity of the issues required greater involvement.'[21]

[53] It seems to us that the submission put conflates those matters which are relevant to the assessment of whether one or more of the criteria in s 596(2)(a) to (c) is satisfied and the matters which are relevant to the second step in determining whether permission should be granted under s 596, that is, whether in all the circumstances the discretion should be exercised in favour of the party seeking permission. As we have mentioned, it is only where the first step is satisfied that the second step arises.

[54] Whether one or more of the criteria in s 596(2) is satisfied is an evaluative exercise. The range of considerations that may bear on whether the criterion in s 596(2)(a) is satisfied renders reliance on other s 596 decisions a somewhat arid exercise. It is inherently unlikely that all of the circumstances in any two matters are identical.

[55] As to ERGT's reliance on the decisions in Tracey, that matter concerned a s 739 application to deal with a dispute under the dispute settlement procedure in the BP Refinery (Kwinana) Pty Ltd v AWU Operations & Laboratory Employees Agreement 2014. The matter proceeded to conciliation however the dispute was not resolved.

[56] The Tracey matter was subsequently listed for a hearing to determine a number of jurisdictional objections raised by BP, which were formulated by BP as following five questions:

"1. Do the matters set out in section 2.1 of the Form F10 dated 31 August 2020 give rise to a dispute under clause 16 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations and Laboratory Employees Workplace Determination 2020?

1. Do the matters set out in section 2.1 of the Form F10 give rise to a dispute that can be dealt with by the Commission under s 739 of the FW Act in circumstances where the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Agreement 2014 is no longer in operation?

2. Further or in the alternative, do the matters set out in section 2.1 of the Form F10 dated 31 August 2020 give rise to a dispute under clause 23.1 of the 2014 Agreement?

4. Further or in the alternative, does clause 23.2 of the 2014 Agreement limit the

powers that may be exercised by the FWC in dealing with the matters set out in the Form F10 having regard to ss 739(3) and 739(4) of the FW Act?

1. Further or in the alternative, does the relief sought in section 3.1 of the Form F10, as to what conditions represent 'Company Appointment', invite a decision that is inconsistent with a term of a fair work instrument and therefore, in accordance with s 739(5) of the FW Act, a decision that cannot be made by the Commission?"[22]

[57] At first instance the Deputy President concluded that given the complexity of issues to be determined at the hearing granting BP permission to be represented by a lawyer would enable the matter to be dealt with more efficiently. In refusing the appeal the Full Bench said:

'[25] We are not satisfied in this case that the grant of permission to appeal would be in the public interest such as to require the grant of permission in accordance with s 604(2), nor are we satisfied that permission to appeal should be granted on discretionary grounds. The decision made by the Deputy President was an interlocutory one concerning legal representation at a hearing specifically concerned with the five jurisdictional questions raised by BP, which we have set out above. Although the last issue is not in truth a preliminary jurisdictional issue, the other issues raised clearly involve questions of legal complexity. The first three questions are difficult ones involving the broader issue of how dispute resolution mechanisms are to operate where a dispute arises under an enterprise agreement which ceases to apply prior to the Commission being able to determine the dispute. This issue has been the subject of three recent Commission Full Bench decisions which are arguably not consistent with each other, namely BlueScope Steel (AIS) Port Kembla Pty Ltd v AWU and Ors, Battye v John Holland Pty Ltd (JHPL) t/as Territoria Civil and Simplot Australia Pty Ltd v AMWU. Most recently, one aspect of the issue was the subject of analysis by the Federal Court of Australia (Colvin J) in Maersk Crewing Australia Pty Ltd v CFMMEU (No 2). The fourth question is whether clause 23 of the 2014 Agreement, on its proper construction, authorises the Commission to arbitrate disputes brought to it under that clause once the nominal expiry date of the agreement has passed. On a very preliminary basis, we can express the view that clause 23 is not textually straightforward and requires proper analysis in accordance with the principles of construction of industrial instruments.

[26] In these circumstances, we do not consider it to be reasonably arguable that it was not reasonably open for the Deputy President to consider that the jurisdictional prerequisite for the grant of permission for legal representation in s 596(2)(a) - namely that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter - was made out or to exercise her discretion in favour of granting permission. The complexity of the issues involved would clearly make available the conclusion that the legal representation of a party seeking permission would likely assist her in the task of reaching a legally correct determination of the jurisdictional issues.'[23]

[58] In terms of whether the criterion in s 596(2)(a) is satisfied, the circumstances in Tracey bear no relationship to the matter before us.

[59] We have reviewed the digital court book in respect of the substantive matter. Each party is only calling one witness - Mr Govender, on his own behalf and Mr Miller, for ERGT. Mr Govender has filed a one-page statement with three attachments, amounting to 8 pages in total.[24] Mr Miller's statement amounts to 3 pages.[25] Indeed in total the digital court book only comprises some 40 pages, which includes:

• the Form F2 Application

• the Form F3 Employer Response

• a Statement of Agreed Facts

• Statements on the Disputed Facts

• Submissions on the ERGT application for permission to be represented

• Outlines of Submissions on the Jurisdictional Objection and on the Merits

• the two witness statements.

[60] We agree with the Deputy President's assessment in the decision subject to appeal; this is not a complex matter. We have had regard to the submission put by ERGT as to why the matter is said to be complex,[26] but we find them unpersuasive. The relevant legal issues are well established and there is nothing particularly novel about the issues in dispute. The evidentiary case is of short compass. We are not persuaded that the substantive matter in this case is complex.

[61] We are not persuaded that granting ERGT permission to be represented by a lawyer 'would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.'

[62] We now turn to ERGT's contention that it would be unfair not to allow ERGT to be represented because it is unable to represent itself effectively.

[63] It is common ground that ERGT employs two Human Resource Co-ordinators (Ms Garven and Ms Colman), a Human Resource Manager (Mr McKernan) and a General Manager of Organisational Performance (Mr Miller). Mr Miller has responsibility for the human resources function on behalf of the Senior Leadership Team. Mr Miller's qualifications include a Bachelor of Business, majoring in Human Resource Management and Industrial Relations at Charles Sturt University. ERGT submits that:

'The named officers are all highly accomplished and capable HR officers. However they do not have the requisite knowledge nor skills to effectively represent the Appellant at a hearing.'[27]

'2.1 The Respondent's management team has no relevant training or experience in matters before the Commission.

2.2 The Respondent's officers and senior staff, of which there are few, have only a rudimentary appreciation of the statutory framework underpinning the substantive application, and they know very little about the Commission's practices or procedures.

2.3 The Respondent is incapable of efficiently and effectively presenting its own case, or engaging with the evidence or relevant legal questions.'[28]

[65] In its submission of 18 January 2021 ERGT submits that Mr Miller was awarded his Bachelor of Business about 30 years ago, prior to the introduction of the federal statutory unfair dismissal regime. ERGT asserts that it 'is incapable of efficiently and effectively presenting its own case or engaging with the evidence or relevant legal questions.'[29]

[66] We are prepared to accept ERGT's assertion that its management team 'has no relevant training or experience in matters before the Commission'; 'have only a rudimentary appreciation of the statutory framework underpinning the substantive application' and that 'none of them have any experience in advocacy or legal analysis'. It may also be accepted that ERGT would be more effectively represented if it were granted permission to be represented by a lawyer. But, in the context of this matter, the acceptance of these propositions does not carry ERGT the requisite distance.

[67] The criterion to be satisfied is that 'it would be unfair not to allow the person to be represented because the person is unable to represent... itself effectively.' In considering whether the criterion is satisfied context is important. As we have mentioned, we do not consider that the substantive matter is complex. Further, as noted by the Deputy President in her decision of 22 December 2020:

'[52] The Application is to be heard by way of a Determinative Conference therefore the parties will not require familiarity with FWC process, practices or the rules of cross-examination as these will be explained to the parties during the proceedings and the proceedings will be conducted informally. The FWC also provides extensive resources on its website in both written and video format in relation to the conduct of proceedings.

[53] The evidence in chief has already been given by way of witness statements filed in

advance of the proceedings. Each party has only one witness. Cross-examination questions can be prepared in advance of the proceedings. Mr Govender will conduct the cross examination of ERGT's only witness. ERGT's representative will only have one witness to cross-examine.

[54] Outlines of submissions have already been filed setting out the relevant legal

principles. The parties will have the opportunity to provide written closing submissions.'[30]

[68] As noted by the Deputy President, the matter is to be heard by way of determinative conference and the parties will be afforded an opportunity to provide written closing submissions. There is no requirement for ERGT to obtain permission for it to engage a legal representative to prepare those written submissions.

[69] ERGT employs about 200 employees including four human resource management practitioners who, on ERGT's submission, are 'all highly accomplished and capable HR officers'. ERGT is plainly not a small business, indeed we doubt that it is properly characterised as a 'medium sized business', within the meaning of s 3(g).[31]

[70] The submissions advanced by ERGT in support of its s 596(2)(b) contention amount to little more than a bare assertion that it is incapable of effectively representing itself; a proposition which is contested by Mr Govender and which is unsupported by any evidence.

[71] We are not persuaded that it would be unfair not to allow ERGT to be represented because it is unable to represent itself effectively.

[72] We now turn to s 596(2)(c).

[73] As mentioned earlier, ERGT does not rely on s 596(2)(c) in support of its application for permission to be represented by a lawyer, but does advance the following submission:

'4.13 Without presuming Mr Govender's position, the Appellant anticipates that he, as he has done previously, may submit that permission should be refused under this limb because it is unfair to allow the Appellant to be represented when Mr Govender chooses to be unrepresented.

4.14 This is not the situation that s 596(2)(c) was intended to deal with.

4.15 Even if it were, there is no evidence that permitting the Appellant to be represented would cause unfairness to Mr Govender.

4.16 The Appellant's representatives have been, and will continue to be, mindful of the fact that the Respondent is self-represented.

4.17 An accurate, just and efficient outcome will be assisted by granting the Appellant permission to be represented. An accurate, just and efficient outcome does not create unfairness for Mr Govender.'[32]

[74] To the extent that Mr Govender is seeking to rely on s 596(2)(c) in opposing ERGT's application for permission to be represented by a lawyer, those submissions are misconceived. Section 596(2)(c) is directed at the circumstances of the person who is applying for permission, so much is clear from the words 'it would be unfair not to allow the person to be represented.'

[75] Any unfairness to the other party - in this case Mr Govender - is not relevant to whether the criterion in s 596(2)(c) is established.

[76] That said, granting permission to one party may give rise to unfairness in circumstances where the other party is a litigant-in-person. Such a consideration is relevant to the second step in the s 596 process, that is whether in all the circumstances the discretion should be exercised in favour of the party seeking permission. But, as we have mentioned, you only get to the second step if the first step is satisfied.

[77] ERGT has failed to establish any of the criteria in s 596(2)(a) to (c). It follows that the discretion to grant permission for ERGT to be represented by a lawyer is not enlivened.

[78] For the reasons given, we refuse ERGT's application for permission to be represented by a lawyer in U2020/11820.

[79] There is one final matter. It seems to us that the approach taken at first instance to the determination of ERGT's application for permission to be represented by a lawyer was not consistent with the Commission's obligation to exercise its powers in a manner which is 'fair and just' and 'is quick, informal and avoids unnecessary technicalities'.

[80] Section 596 applications are interlocutory applications and s 601 makes it clear that there is no obligation to publish written reasons. In the context of an unfair dismissal matter in which a s 596 application is contested the most expeditious course would be for the Member to conduct a short telephone hearing to deal with the application. At such a hearing the parties would have an opportunity to say whatever they wish to submit in respect of the application for permission to be represented by a lawyer. Such a course would avoid potential procedural fairness issues, such as arose in the present matter.

[81] The timing of such a hearing is also important. If held after the materials relating to the substantive hearing have been lodged the Commission will be better placed to assess the complexity of the substantive matter.

[82] In most cases a s 596 application should be determined ex temporare, with brief reasons, at the conclusion of a short hearing. As we have mentioned, there is no obligation to publish written reasons in respect of such applications.

[1] On 30 September 2020 ERGT filed a Form F3 - Employer Response.

[2] See Digital Appeal Book at pp 17 - 19.

[3] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4]O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44]- [46].

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], [2010] FWAFB 5343; (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], [2010] FWAFB 10089; (2010) 202 IR 388, affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

[6] [2010] FWAFB 5343 at [27], [2010] FWAFB 5343; (2010) 197 IR 266.

[7] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481.

[8] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], [2010] FWAFB 5343; (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], [2010] FWAFB 10089; (2010) 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe [2014] FWCFB 1663 at [28].

[10] See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.

[11] [2020] FWC 5787 and [2020] FWCFB 6388.

[12] Appellant's Outline of Submissions at [39.1].

[13] Appellant's Outline of Submissions at [23] and [23.1].

[14] [2020] FWC 5787 and [2020] FWCFB 6388.

[15] Digital Appeal Book, [2.3] on p. 45.

[16] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19(3)].

[17] See generally Warrell v Fair Work Australia [2013] FCA 291, 233 IR 335; Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]; Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]; Kaur v Hartley Lifecare Incorporation [2020 FWCFB 43.

[18] [2020] FWCFB 6388 at [27].

[19] Appellant's Outline of Submissions at [12.1(a)] and ERGT's submissions of 18 January 2021 at [4.3].

[20] [2012] FWA 2966 at [23].

[21] Appellant's Outline of Submissions at [12.3].

[22] Scott Tracey v BP Refinery (Kwinana Pty Ltd) [2020] FWCFB 6388 at [6].

[24] Digital Court Book in matter U2020/11820 at pp 30 - 37.

[26] Appellant Submissions of 18 January 2021 at [4.3].

[27] Appellant's Outline of Submissions at [28].

[29] Appellant Submissions of 18 January 2021 at [2.6], also see [4.8] - [4.11].

[30] [2020] FWC 6947 at [52] - [54].

[31] While s 23 of the FW Act defines a 'small business employer', there is no definition in the Act of 'medium-sized business'. Nor does the Explanatory Memorandum to the Fair Work Bill 2008 include an explanation of a 'medium-sized business' means. However, the discussion in the Explanatory Memorandum about the number of businesses impacted by changes to unfair dismissal laws (r. 244 to r. 247) refers to the August 2005 Sensis Business Index. The footnote to r. 246 says: 'Historically, the Sensis Business Index has focused specifically on businesses employing 19 people or fewer. In November 2000 it was expanded to cover the medium business sector, while the regional and industrial sectors were also enhanced. The August 2005 Sensis Business Index results are based on telephone interviews conducted with 1,800 small and medium business proprietors. The sample size is divided between 1,400 small businesses and 400 medium businesses (the latter defined as businesses employing between 20 and 199 people).' We note that that the Australian Bureau of Statistics defines a medium-sized business as a business employing between 20 and 199 employees (see for example https://www.abs.gov.au/statistics/economy/business-indicators/business-indicators-business-impacts-covid-19/latest-release).

[32] Appellant Submissions of 18 January 2021 at [4.13] - [4.17].

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