Representation in the Fair Work Commission

This extract from an unfair dismissal decision deals with the legal principles which are applied to whether or not professional representation will be permitted.

“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:

 

“(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’)

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and subsequently adopted by a Full Bench of the Commission in

New South Wales Bar Association v McAuliffe.

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[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

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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.

  1. 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. …

  1. 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

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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

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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

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[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