Professional representation in the Fair Work Commission

 

This extract from an unfair dismisal case deals with the legal principles which apply to the issue whether permission should be granted by the Commssion for a party to be representated by a lawyer or paid agent.

“Background
[1] Mr Karl McKeown (the Applicant) filed an application with the Fair Work Commission
(the Commission) alleging that he was unfairly dismissed from The Smith’s Snackfood
Company Pty Ltd (the Respondent).
[2] The Applicant was working at the Tingalpa manufacturing location for the Respondent
as a maintenance technician. The Respondent terminated the Applicant’s employment for
exceeding his allotted break time per ‘The Smith’s Snackfood Company, Queensland –
Enterprise Agreement 2020’ on 10 different occasions spanning 5 different days and the
Applicant’s use swearing and disrespectful behaviour when questioned about his excessive
breaks. The Applicant contends that elongated breaks were not intentional and apologised for
the oversight. The Applicant contends that swearing was the result of a meeting feeling like an
interrogation and was not directed at management but was a description of the situation itself.
[3] The Applicant was represented by Mr Dermott Peverill, an Industrial Officer with the
United Workers Union (UWU) and the Respondent has sought to be legally represented by Mr
Mark Rodgers of Mapien pursuant to s.596 of the Fair Work Act 2009 (Cth) (the Act). The
UWU opposed representation for the Respondent and so I determined that as a preliminary
matter to be heard.
REPRESENTATION
Section 596(2) of the Act
[4] Section 596(2) of the Act relevantly provides:
[2023] FWC 91
DECISION
[2023] FWC 91
2
“(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.
Legal Principles
[5] Granting permission to be represented under s.596 requires the satisfaction of two
elements.1 The first pre-requisite is that s.596(2) does not immediately invoke the right to
representation. Granting permission to be represented “involves an evaluative judgment akin
to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves
consideration as to whether in all of the circumstances the discretion should be exercised in
favour of the party seeking permission.”3
[6] While not determinative, the Commission need only find that one of the sub-sections
above is satisfied to exercise its discretion to grant permission for a party to be legally
represented.
[7] The principles to be applied when determining s.596 applications were considered in
Warrell v Walton (‘Warrell’)
4
and subsequently adopted by a Full Bench of the Commission in
New South Wales Bar Association v McAuliffe.
5
[8] In Warrell, Flick J said at [24]:
“A decision to grant or refuse “permission” for a party to be represented by “a lawyer”
pursuant to section 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 section 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 section 596(2) have been taken into account and considered. The constraints imposed
by section 596(2) upon the discretionary poser 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” on or other of the requirements in section
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 section 596(2): i.e., “FWA may grant permission…”. The
satisfaction of any of the requirements set forth in section 596(2)(a) to (c) thus need not
[2023] FWC 91
3
of itself dictate that the discretion is automatically to be exercised in favour of granting
“permission”.
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
which provided in relevant part as follows:
“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 or 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, cl 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.”
[9] The Applicant was represented by Mr Dermott Peverill of the United Workers Union
(UWU). The Applicant opposed the representation for the Respondent who had requested
permission to have Mr Rodgers from Mapien appear on their behalf. As there was opposition
from the Applicant to the matter of representation, I requested submissions to be filed to
determine the question of representation at the hearing held on the 14 October.
Applicants’ submissions on representation
[10] The Applicant asserted that this matter was not complex as it involved two allegations
of misconduct which were routine in substance to satisfy s596(a). They state that the issues in
question regarding the alleged dishonesty, CCTV and access card evidence, and the remedy of
reinstatement do not support an argument of complexity legal or otherwise, necessitating an
external paid agent. They submit that the matter is clearly not beyond the knowledge or skill of
the Respondent’s own human resources and operational professionals, and its own in-house
legal department. The Applicant argues that the substantive proceedings are entirely routine
and therefore would not assist with efficiency.
[11] Furthermore, the Respondent is a large employer with considerable in-house resources
that include experienced legal and human resources staff who are be able to advocate effectively
[2023] FWC 91
4
without resorting to a paid agent would counter s596(b) in that it would not be unfair not to be
represented.
[12] The Applicant reasserts that there is no unfairness which would be created by the refusal
of representation in the preliminary hearing. Furthermore, the Respondent has already
benefitted from the assistance of the paid agent who has prepared written submissions and
witness statements putting the Respondent on fair footing with the Applicant.
[13] Further, the Applicant puts forth the view that the Fair Work Commission is well
equipped and competent to oversee the processes of the hearing in adducing evidence and there
are no novel legal arguments or jurisdictional matters which would make the matter complex.
[14] The Applicant’s argument in brief is that the matter, is absent of any factors that
establish such complexity that would exceed the ordinary purview of unfair dismissal
proceedings in the Commission would displace the legislative intent. Further, the Applicant
argues that permission to represent should be dismissed without any compelling argument that
supports an unfairness in the Respondent not being able to effectively represent their case, or
an unfairness between the persons in the same matter.
Respondents’ submissions on representation
[15] The Respondent asserted that the matter would be dealt more efficiently with a paid
agent considering the complexity of the matter. The Respondent argues that the matter has
sufficient complexity given the contested facts and the requirement of cross-examination from
five witness of which three were to be cross examined by the Respondent to adduce its evidence
satisfying s596(a) and s596(b).
[16] Furthermore, the Respondent states that it would be unfair not to allow the Respondent
to be represented per s596(c) stating that the staff available to represent the Respondent did not
have industrial advocacy experience or any skills in cross examination in comparison to Mr
Peverill who has many years of industrial advocacy experience. The Respondent argues this is
not a run of the mill unfair dismissal as it involved a union delegate being dismissed for serious
misconduct, with several witness from either side and where matters of witness credibility
would be paramount in determining the matter.
Consideration
[17] In addressing s596(a) of the Act regarding the efficiency of dealing with the matter, I
regard the significant amount of cross examination required that the matter would proceed more
efficiently with experienced advocates from both sides prosecuting their cases with due vigour
and precision regarding legal matters and factual evidence in order to satisfy my decision
making.
[18] The Applicant’s consideration that the matter is not complex has been factored, but it is
only one of the factors that must be taken into consideration. I consider that there may be some
complexity in unravelling the narratives and evidence of each party and building a factual basis
upon which I can apply the requisite law. In this subsection, I find some support for the notion
[2023] FWC 91
5
that the matter would be more efficiently managed by granting representation of the
Respondent.
[19] In addressing s596(b), both parties were able to seek representation and therefore I have
considered this to be a neutral consideration.
[20] In addressing s596(c), the requirement under this section is that it would be unfair not
to allow one party to be represented by a lawyer or a paid agent, taking into account fairness
between that party and the other party in the same matter.
[21] I refer to Commissioner Cloghan’s decision in Woodward v Greyhound Australia Pty
Ltd [2015] FWC 2015 at [13]– [17] regarding the approach in determining representation. He
notes the advocacy experience of a Union official compared to a Human Resources person
unfamiliar with dismissal proceedings from an employer.
“[17] For s.596(2)(c) of the FW Act to become operative, it is necessary to consider
whether it would be, in the circumstances of this application, unfair not to allow the
Employer to be represented by a lawyer or paid agent.
[18] If I adopt the statutory definition of “unfair” as set out in Part 3-2 – Unfair
dismissal, at s.385 of the FW Act, it is a dismissal which is, “harsh, unjust or
unreasonable”.
[19] Alternatively, if I adopt the definition in the Australian Concise Oxford Dictionary
“unfair”, is a situation which is, “not equitable or honest or impartial…”.
[20] In this case, if permission was not granted for the Employer to be represented by
a lawyer, an inequity or disparity would exist between representation by an experienced
TWU advocate for the Applicant, and a Human Resource person unfamiliar with
dismissal proceedings in the Commission, for the Employer. If I did not allow
representation by a lawyer or paid agent for the Employer, the Commission would be
affirming that the above situation was just and reasonable. I am not able to come to that
conclusion.

[24] Before concluding, it is notable that the Applicant’s submission did not particularly
address the requirements of s.596(2)(c) of the FW Act. I do not intend to speculate on
the reasons why the Applicant did not address this requirement, but the Employer’s
submission was plain to read.
[25] Having been satisfied that the requirements in s.596(2)(c) of the FW Act have been
met, it is not necessary to consider the remaining requirements in s.596(2)(a) and (b)
of the FW Act.
CONCLUSION
[2023] FWC 91
6
[26] For the reasons set out above, I am satisfied that the requirement in s.596(2)(c)
of the FW Act has been met. I am also satisfied, in the circumstances, that I should
exercise my general discretion in s.596 of the FW Act, and give the Employer leave to
be represented by a lawyer in the hearing on 13 April 2015.”
[22] The Respondent has several HR employees who deal with human resource related
matters. The human resources function is one that covers a broad field – payroll, recruitment,
policy development, administration of benefits, engagement and diversity programs, workcover
management, learning and development and in some cases employee relations. The employees
put forth by the Union as resources for the advocacy for the matter were not in fact properly
regarded as available for the Respondent, but part of the larger enterprise with little to no
knowledge of this matter, unskilled or tested in industrial advocacy and based at a corporate
office or at other operations. The best resource available for the Respondent was in fact a central
witness for the Respondent and although having had limited involvement with matters in the
Commission, the witness might have been capable of advocating for the Respondent.
[23] Although Mr Peverill was not legally qualified, he is a UWU official who has significant
advocacy experience in the Fair Work Commission. The Respondent is unable to provide
someone of similar experience and skills in industrial advocacy, noting that they are a very
different skill set to those of an experienced HR manager, the skills are not interchangeable and
quite specific. I weigh this factor in favour of granting representation to the Respondent.
Conclusion
[24] On balancing the considerations, I exercised my discretion and granted permission
pursuant to s.596(2) to the Respondent, as I was satisfied that the matter would be dealt with
more efficiently and effectively, considering the complexity of the matter and the capabilities
of the parties.”

 

Mckeown v The Smith’s Snackfood Company Pty Ltd (2023) FWC 91 delivered 10 February 2023 per Lake DP