[2012] FWA 2966 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
UGL Resources Pty Limited (Project Aurora)
(C2012/3216)
SENIOR DEPUTY PRESIDENT RICHARDS |
BRISBANE, 10 APRIL 2012 |
Summary: section 596 - objection to appearance by lawyer – s.596(2)(a) - conditioned discretion – meaning of adverb “effectively” - “impressive” or “striking effect” etc – “efficiency” - “achieving desired result” - adverbs not used in section - procedural fairness - s.596(2)(b).
[1] On 4 April 2012, a conference was convened following an application under s.739 of the Fair Work Act 2009 (“the Act”) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”). The Respondent was UGL Resources Pty Ltd (Project Aurora). The dispute concerned a number of issues relating to hours of work and transportation (of personal tools from site).
[2] Prior to the convening of the conference, a Form F53 Notice of Representative Commencing to Act was received from Mr Phillip Copeland of Copeland Workplace Law.
[3] Attached to that notice was correspondence from Mr Copeland raising a number of jurisdictional objections to the dispute application brought by the CEPU. Briefly put, Mr Copeland maintained that the issues in contention were not about matters arising under the applicable agreement or alternatively did not constitute a dispute in relation to the Act.
[4] Prior to and at the commencement of the conference, the CEPU agitated the issue of Mr Copeland’s status. I granted permission to Mr Copeland to represent the Respondent, and at that time I gave some brief reasons for my decision in this regard. The CEPU thereafter requested that I provide full written reasons for my decision in this respect. I now do so.
The Statutory Context
[5] Section 596 of the Act provides as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:
(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.
(3) FWA’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
[6] The Explanatory Memorandum to the Fair Work Bill’s introduction in 2008 relevantly reads 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 of 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, clause 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.”
[7] The Act does not mandate self-representation by a person. Equally so, the Act does not confer on FWA a discretion at large to grant permission for representation. Rather, the Act invests FWA with a conditioned discretion to grant permission for a person to be represented by a lawyer or a paid agent. The conditions which qualify FWA’s discretion are set out at s.596(2)(a), (b) and (c) of the Act.
[8] FWA, therefore, is required to establish that the prescribed conditions are in existence before such time as it exercises its discretion to grant permission for representation of the relevant kind. Ordinarily at least, if the prescribed conditions are found to be in existence, the discretion to give permission to represent a person would be exercised in favour of the person.
[9] The method of verification of the prescribed conditions is an objective exercise. However, this is not to say that the conditions themselves can in each case be verified as being objective facts. Reasonable minds will differ as to whether legal representation will result in added efficiency, whether a certain circumstance is unfair or not, or whether a person is unable to be represented effectively.
[10] Indeed, in respect of this latter precondition (which arises in respect of s.596(2)(b) of the Act), an objective standard is particularly elusive. This is because there may be differences between persons not only in respect of the circumstance giving rise to the inability, but also to the degree or measure of effectiveness the person anticipates from their representation (which may itself be the cause of the inability). There is some further discussion of this concern below.
[11] That said, some guidance might be found in the definitional context of the adverb “effectively”, which is used in s.596(2)(b) of the Act.
[12] The Macquarie Dictionary (Revised Third Edition) defines “effective” in the following way:
Adjective 1. serving to effect the purpose; producing the intended or expected result: effective measures, effective steps towards peace. 2. actually in effect: the law becomes effective at midnight. 3. producing a striking impression; striking: an effective picture - noun 4. a solider or sailor fit for duty or active service. 5. the effective total of military force. Effectively, adv effectiveness n.
[13] The Australian Concise Oxford Dictionary (Third Edition) defines “effective” as:
adj 1a having a definite or desired effect. b efficient. 2 powerful in effect; impressive. 3a actual; existing in fact rather than officially or theoretically (took effective control in their absence). b actually usable; realisable; equivalent in its effect [...]. 4 coming into operation [...] 5 (of manpower) fit for work or service. [...] effectively adv. effectiveness n. [...]
[14] In the context used in the s.659(2)(b) of the Act, the adverb “effectively” is used to condition the verb “to represent”. Thus, a person must be unable to represent himself, herself or itself effectively in order for the requisite permission to be granted.
[15] It seems sufficiently clear that Parliament did not intend that permission to be represented be granted when a person is unable to be represented “satisfactorily”, “sufficiently” or “adequately” etc. These are not the adverbs that Parliament has put to work in s.596(2)(b) of the Act. Rather, the adverb performing the conditioning work upon the verb “to represent” in s.596(2)(b) of the Act is “effectively”.
[16] It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.
[17] In this definitional context, it might not be unusual for a person to be unable to represent himself, herself or itself “effectively”.
[18] Equally, there may be innumerable circumstances which might render a person unable to represent himself, herself or itself “efficiently” (which the Australian Oxford Concise Dictionary (Third Edition) suggests is one further definition of “effectively”). Location, competing work priorities or other obligations come to mind as reasons why a person might be unable to represent him or herself (or itself) efficiently.
[19] Alternatively, a person may be unable to be represented effectively out of a concern the manner of their representation will not achieve an intended result or outcome, which is a further definitional context for s.596(2)(b) of the Act.
[20] In this latter respect, the belief that a person might hold as to their ability to represent himself, herself or itself effectively will need to be well grounded, but it is a notion that might travel widely in meaning. For example, the management of commercial and reputational risk might be an important consideration by a person in a dispute. Therefore, to be represented effectively might be the means to achieve the intended or desired result of managing either or both of those risks. There will be other examples.
[21] Generally, in determining the existence of the prescribed precondition(s) (along with the other requirements of s.596(2)(b) of the Act), the totality of the observed circumstances will be important, as will the genuineness of any asserted belief that is said to be held.
[22] A refusal to accommodate any such concerns or an expression of indifference to a declared state of personal belief (for example) may give rise to procedural fairness concerns.
CONSIDERATION AND CONCLUSION
[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.
[26] I add that it is not always apparent that a particular issue in dispute is so self-evidently straight-forward so as to be free of any risk of escalation in its degree of complexity. This is particularly so where a conference may be a preliminary step towards an arbitral procedure, or where the conduct of the parties in the course of a conference may lead to arbitration being pressed. All processes being contiguous, in the circumstances observed it may be prudent in aid of the efficiency in the wider prospective conduct of a matter to grant permission to appear to a lawyer at the preliminary stage. 1
[27] Further, in this particular case, the Respondent’s Human Resources Manager position currently is filled only on an acting basis. It appears reasonable to me in such a circumstance, which is unchallenged, that a lawyer should be granted permission to represent the Respondent for the purposes of s.596(2)(b) of the Act. My particular reasons for coming to this view are as follows.
[28] The unchallenged presumption is that the Acting Human Resources Manager appears to have been insufficiently experienced in representing her employer’s interests and/or not to have necessarily possessed the full range of responsibilities applicable to the permanently appointed Human Resources Manager.
[29] Permission to appear was granted in such circumstances as it appeared to me that the Acting Human Resources Manager was unable to represent her employer’s interests effectively.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms P. Rogers of the CEPU, for the Applicant
Mr P. Ong of the CEPU, for the Applicant
Mr P. Copeland, solicitor, for the Respondent
Hearing details:
2012
Brisbane
4 April
1 Such considerations as this may also ground an application for permission to appear under s.596(2)(b) of the Act. This much was alluded to in my earlier discussion.
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