Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2015] FWC 1221 of Commissioner Williams at Perth on 20 February 2015 in matter number U2014/7097 - permission to appeal granted - appeal upheld.

[1] This is an appeal by Mr Daniel King (the Appellant) against a decision 1 (Decision) of Commissioner Williams in relation to the granting of permission for Patricks Project Pty Ltd (the Respondent) to be legally represented in an application that the Appellant made under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for what he contended was an unfair dismissal.

Background

[2] On 4 March 2015, the Appellant made an application to the Fair Work Commission (FWC) pursuant to s.604 of the Act seeking a stay of the Decision of the Commissioner to grant the Respondent legal representation in the substantive proceedings before the parties.

[3] On 6 March 2015, the matter was listed for directions before Vice President Catanzariti in relation to the application for a stay only. During the directions hearing and by consent, the stay hearing due to take place the following week was vacated and the matter was relisted as an expedited appeal hearing before this Full Bench on the question of whether the Respondent should be granted legal representation pursuant to s.596 of the Act.

[4] At the directions hearing on 6 March 2015, Mr Fletcher of K&L Gates sought permission to appear on behalf of the Respondent. Having regard to s.596 of the Act, permission to appear was granted on the basis that it would enable to matter to be dealt with more efficiently. We note that the Appellant objected to this at the commencement of the appeal hearing. However, we find that there will be no prejudice to the parties if the Respondent is represented for the appeal on this narrow issue only.

Relevant Legislative Provisions

[5] Section 604 of the FW Act provides:

604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

[6] 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 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.

Permission to Appeal

[7] Before turning the merits of the appeal, we must make a finding pursuant to s.604(1) of the Act which requires the permission of the Commission in order to appeal a decision made by the Commission. In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 2 In GlaxoSmithKline Australia Pty Ltd v Colin Makin3 a Full Bench of the Commission 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...”

In all the circumstances of this matter, we consider that substantial injustice to the Appellant may result if leave is refused. We find that this enlivens the public interest and for that reason permission to appeal is granted.

Decision at first instance

[8] After considering s.596(2) of the act, the Commissioner made the following findings on the issue of the Respondent’s request to be represented:

“[6] In my view a lawyer representing the respondent will be able to assist the Commission in determining what elements of the applicant’s evidence is relevant to this application and assist the Commission when deciding what consideration, if any, should be had for prior Commission proceedings and whether the orders sought by Mr King are within jurisdiction.

[7] Further a lawyer representing the respondent is more likely to be able to limit its evidence and submissions in response to Mr King’s application to relevant matters that are within jurisdiction. For these reasons I am satisfied that the respondent being represented by a lawyer will enable this matter to be dealt with more efficiently.”

[9] And further:

“[9] Notwithstanding Mr King’s view that one of the respondent’s managers should represent the respondent there is nothing before the Commission as to that individual’s experience in advocacy or representation in courts or tribunals nor that of any other member of the respondent’s staff that demonstrates there are persons within the respondent’s business who could effectively represent them. The fact that an individual is a senior manager in a business does not of itself mean that they will be able to effectively represent their employer in proceeding such as these. There is no evidence the respondent is able to represent themselves effectively so consequently I am satisfied it would be unfair not to allow the respondent to be represented by a lawyer.

[10] Section 596(2)(c) of the Act considers potential unfairness to the person seeking to be represented (in this case the respondent) if they were not allowed to be represented taking into account fairness between them and other persons involved in the matter (in this case the applicant). This provision is not concerned with potential unfairness to other persons (in this case the applicant) if the person seeking to be represented (in this case the respondent) is granted permission to be represented. This provision would be relevant if perhaps the applicant was represented by a union or a skilled but unpaid advocate. In such a case to not permit the respondent to be represented may be unfair. The applicant is self represented so section 596(2)(c) of the Act is not relevant in this instance.

[11] In conclusion I have considered the provisions of section 596(2) of the Act in the context of this particular application and the circumstances of both parties and have decided to grant permission for the respondent to be represented by a lawyer or a paid agent.”

The Appeal

[10] The sole issue on appeal is whether the Commissioner made an error in exercising his discretion pursuant to s.596 to grant the Respondent the ability to be represented by a lawyer.

[11] The Respondent submitted that no error was made as the grant of permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)). The Respondent submitted that the matter has been made complex through the actions of the Appellant which have resulted in volumes of documents and the agitation of multiple legal issues which do not go to the question that needs to be determined in an unfair dismissal hearing.

[12] The Appellant objected to permission being granted on the grounds that there are no unduly complex issues raised in the application and that having regard to the size and resources of the Respondent, it would unfair if the Respondent were granted permission in circumstances where the Appellant is unrepresented.

Consideration

[13] It is well established that in order to exercise the discretion available to the Commission to grant permission to be represented, one of the conditions in s.596(2) must be met. Such conditions having been met does not make representation automatic but still requires the exercise of discretion on the part of the Commission.

[14] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in In Warrell v Walton 4:

“[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)...”

Complexity

[15] The complexity of the subject matter of the proceedings is the key consideration under s.(596)(2)(a) of the Act. In Urbanski v MSS Security Pty Ltd it was found that, even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity in the matter may still mean that permission to appear is declined. 5

[16] The Respondent seeks to assert that this matter is complex because of the high volume of documents and wide range of issues in the Appellant’s statement some of which are irrelevant to the issue of unfair dismissal.

[17] We do not find that this matter is one that can be characterised as complex. The Members of the Commission routinely deal with applications which are voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity. Sheer volume of documents or the existence of extraneous issues to the application will not in and of itself equate to complexity for the purposes of s.(596)(2)(a) of the Act.

Fairness to the parties

[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. 6 In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings. As such, the findings of the Commissioner were not open to him on the evidence.

Conclusion

[20] We find that the Commissioner erred in exercising his discretion to grant the Respondent legal representation, having regard to the objects of the Act and the proper application of s.596(2).

[21] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld in full.

(3) The Commissioner’s Decision in King v Patrick Projects Pty Ltd [2015] FWC 1221 is quashed.

(4) The Appellant’s unfair dismissal application in matter U2014/7097 is remitted to Senior Deputy President Drake who will make arrangements directly with the parties for the matter to be relisted for hearing.

VICE PRESIDENT

Appearances:

P. King in Person.

D. Fletcher for the Respondent.

Hearing details:

Sydney via video-link to Perth.

31 March 2015.

 1   King v Patrick Projects Pty Ltd [2015] FWC 1221.

 2   Fair Work Act 2009, s.400(1).

 3   [2010] FWAFB 5343 at [27].

 4   [2013] FCA 291.

 5   [2012] FWA 1789 at [8]

 6   Asciano Services Pty Ltd v Zac Hadfield [2015] FWCFB 2618 at [19]; Oratis v Melbourne Business School [2014] FWC 2838; Decision upheld by the Full Bench in Oratis v Melbourne Business School [2014] FWCFB 3869.

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