[2009] FWA 572

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Rodney James Rodgers
v
Hunter Valley Earthmoving Company Pty Ltd
(U2009/10533)

COMMISSIONER HARRISON

SYDNEY, 9 OCTOBER 2009

Termination of employment – representation by lawyers and paid agents.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has objected to Freehills (solicitors) acting for Hunter Valley Earthmoving Company Pty Ltd (HVE) in unfair dismissal proceedings listed for arbitration before me in Toronto on 14 October 2009.

[2] In written submissions opposing permission for leave to appear, the CFMEU contend that none of the circumstances in which the Tribunal may grant permission for a person to be legally represented arise in this matter.

[3] The relevant provisions of the Fair Work Act 2009 (the Act) are set out in s.596(1) and (2):

[4] The CFMEU also referred me to the procedural provisions set out in Division 5 of the Act and advised that on 22 September 2009 Mr Endacott for the CFMEU wrote to HVE in the following terms:

It was submitted by the CFMEU that HVE did not reply to the correspondence.

[5] Freehills submit that:

[6] In relation to the first point, it is submitted Freehills can assist the Tribunal in that given that there are a number of witnesses, they can efficiently manage the evidence and summarise complex legal argument in a succinct manner. Furthermore, it was stated there is a requirement for forensic cross-examination of the Applicant given alleged omissions from his statement of evidence.

[7] Prior to Freehills being engaged HVE was represented by Mr Adrian McCowan, HR-ER Manager of the parent company, Thiess Pty Ltd. It was submitted that Mr McCowan is not legally qualified and has not previously appeared in arbitral proceedings. In this context it is asserted that it would be unfair not to allow HVE to be legally represented.

[8] Freehills submitted that there is no reason why the Tribunal should not continue to apply the long established principles allowing legal representation in unfair dismissal matters. It cited the Full Bench of the Australian Industrial Relations Commission in two decisions as authority:

[9] In summary Freehills submitted that the objects of the Act which provide for effective and speedy procedures to resolve matters, whilst ensuring a “fair go all round”, would be best served by permitting leave to appear.

Considerations

[10] In respect to the authorities cited by Freehills, a comparison between the provisions regarding representation of parties under the former Workplace Relations Act 1996 and the current Act shows that leave or permission to appear has been tightened.

[11] The intent of the Parliament regarding the question of representation is expressed in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill’s introduction in 2008:

[12] In practice the Tribunal would usually grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Tribunal will be exercised on the facts and circumstances of the particular case.

[13] In this matter I am aware that Mr Endacott appearing for the Applicant is not legally qualified, albeit he is an experienced advocate. I am also familiar with Mr McCowan’s history of industrial advocacy in the coal industry, having been previously assigned to the industry for several years.

[14] Without prejudging the merits or otherwise of the substantive application, on my reading of the submissions and witness statements I am of the opinion that this is not a matter which requires forensic cross-examination or is of a complex nature. I note the Applicant admits to engaging in the behaviour which gave rise to his termination. In my view this matter is a relatively simple factual contest.

[15] In this matter I have decided to refuse permission to Freehills to represent HVE in proceedings on 14 October 2009.

[16] I am satisfied that no question of fairness or efficiency in the conduct of the application arises in this matter.

COMMISSIONER




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