[2012] FWA 9906 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Rail Corporation New South Wales T/A RailCorp
(C2012/854)
COMMISSIONER CAMBRIDGE |
SYDNEY, 22 NOVEMBER 2012 |
Dispute settlement procedure - interpretation of provisions of enterprise agreement - preliminary question about representation by lawyers and paid agents - s.596 - permission refused.
[1] This Decision is made in respect of an application made pursuant to section 739 of the Fair Work Act 2009 (the Act), for Fair Work Australia (FWA) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 25 July 2012. The application was made by the Australian Rail, Tram and Bus Industry Union (RTBU) and taken against Rail Corporation New South Wales (RailCorp).
[2] The matter is referable to a DSP found at Clause 9 of the RailCorp Enterprise Agreement 2010 (the 2010 Agreement). The question in dispute involved the interpretation and application of sub-clause 157.1 of the 2010 Agreement.
[3] The matter was the subject of unsuccessful conciliation and the arbitration of the dispute is scheduled for a Hearing to be conducted on 4 and 5 December 2012. Prior to the commencement of the scheduled Hearing, RailCorp has sought permission to be represented by a lawyer. The RTBU has opposed the grant of such permission.
[4] A Hearing to deal with the contest about legal representation was held on 21 November at which time Mr D Lloyd solicitor from Ashurst Australia, appeared for RailCorp and Mr B Edghill appeared for the RTBU.
[5] Mr Lloyd submitted that RailCorp should be granted permission to be represented by a lawyer. In brief, Mr Lloyd submitted that one or more of the requirements of sub-section 596(2) of the Act were satisfied in this instance. Mr Edghill submitted that FWA should not grant permission for RailCorp to be represented by a lawyer because in his view the provisions of sub-section 596(2) of the Act were not satisfied.
Consideration
[6] The question of representation in proceedings before FWA is governed by section 596 of the Act which is in the following terms:
“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:
(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.
(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:
(i) an organisation; or
(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.”
[7] These provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of FWA which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before FWA as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the more recent Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520.
[8] Upon examination of sub-section 596 (2) there appears to be three, and only three, criteria which separately or in combination, provide basis upon which FWA can grant permission for a lawyer or paid agent to represent a party in proceedings such as the arbitration of a dispute. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity; (b) inability; and (c) fairness.
[9] In this case RailCorp argued that all of the criteria contained in sub-section 596(2) of the Act were satisfied in a manner which provided basis to grant permission for RailCorp to be represented by a lawyer. Further, RailCorp stressed that it was sufficient for just one of the criteria to be satisfied in order to allow for the permission to have legal representation to be granted.
Complexity
[10] RailCorp contended that the matter involved sufficient complexity such that its determination would be assisted by legal representatives. Alternatively, the RTBU rejected the complexity attributed to the matter by those representing RailCorp.
[11] In respect of the issue of complexity, there appears to be little to distinguish the nature of the determination required in this case from that involved with numerous matters concerning questions of interpretation and application of particular provisions of an industrial instrument. I am unable to discern any aspect of this matter which has some level of complexity beyond that which regularly exists as part of the routine characteristics of dispute arbitration proceedings.
[12] Consequently I am not convinced that the matter is of sufficient complexity as to be assisted by legal representatives.
Inability
[13] RailCorp advanced argument that it was unable to represent itself effectively based upon the consideration of the term “effectively” as contained in the Decision in the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited [2012] FWA 2966 (UGL Resources).
[14] The inability criterion was strongly advanced in this instance. RailCorp sought to rely upon the reasoning contained in the UGL Resources Decision to establish that, without lawyers, RailCorp would be unable to represent itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.
[15] In my view there is a fundamental difficulty with the application of such subjective factors for consideration of the legislative use of the term “effectively” as contained in sub-section 596 (2) (b) of the Act. In simple terms what might be of “striking impression” or “impressive” or “powerful in effect” is a matter of highly subjective assessment. Some people are inherently more impressed by lawyers than others. In any event, even if I was inclined to follow the ratio decidendi adopted in the UGL Resources Decision, there are important factual distinctions between that case and the circumstances of this matter.
[16] The UGL Resources Decision involved circumstances where there was some jurisdictional challenge and there was apparently only an inexperienced alternative representative. Neither of those factors exist in this case. In particular I have had considerable exposure to many RailCorp industrial advocates who regularly appear before FWA and they have all impressed me as competent and persuasive advocates.
[17] Consequently I do not believe that RailCorp would be unable to represent itself effectively without a lawyer.
Fairness
[18] On the question of fairness RailCorp noted that the applicant was a large employee organisation with considerable experience in appearing before FWA and it had previously instructed lawyers to represent it in matters before the Tribunal. Further, RailCorp submitted that matters relevant to fairness included that RailCorp was a State-owned corporation and that there were significant potential cost impacts flowing from the determination of the dispute. The RTBU argued that it would be unfair to permit legal representation for RailCorp when the RTBU was not legally represented.
[19] The issue of fairness between the person and other persons in the matter has some significance. Importantly the RTBU advocate is not legally qualified. Consequently if permission for legal representation for RailCorp was granted something of an imbalance would emerge whereby it would be represented by the legally qualified, highly skilled and experienced lawyer Mr Lloyd, while the RTBU would need to rely upon an unqualified advocate with limited experience appearing before the Tribunal.
[20] In these circumstances I consider that if any unfairness arose it would be created by the granting of the permission for legal representation and the resultant imbalance created by what, at least in perception, would be the more advantageous representation of RailCorp. Therefore the fairness criterion would in this instance, operate against the grant of permission.
[21] In view of the conclusions that I have reached in respect of each of the relevant aspects of sub-section 596(2) of the Act the permission sought by RailCorp to be represented by a lawyer is refused.
COMMISSIONER
Appearances:
Mr B Edghill on behalf of the RTBU.
Mr D Lloyd, solicitor from Ashurst Australia, on behalf of RailCorp.
Hearing details:
2012.
Sydney:
November, 21.
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