FWA 1520
REASONS FOR DECISION
Fair Work Act 2009
Zoological Parks and Gardens Board T/A Zoos Victoria
MELBOURNE, 18 MARCH 2011
Application for permission to be represented by a lawyer - new statutory provision - limited grounds for permission - no unfairness - person able to effectively represent them self - no complexity - permission refused.
 This decision concerns an application for permission for a respondent to an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act), Zoos Victoria, to be represented by a lawyer. The application for permission to be represented by a lawyer was made pursuant to s.596 of the FW Act on 9 March 2011 and was refused. I now publish my reasons for that decision as requested.
 The application under s.394 was made on 18 October 2010 by Mr Chris Lekos in respect of the termination of his employment by Zoos Victoria. Zoos Victoria filed an Employer’s Response to that application, Form F3, on 8 November 2010. In that response Zoos Victoria named the Australian Industry Group as it representative in the matter and Mr Robert Rondinelli as the contact person for such representative purposes.
 The matter was the subject of conciliation on 12 November 2010 which was unsuccessful. On 16 December 2010 the application was listed by the Unfair Dismissal Team of Fair Work Australia for Conference/Hearing on 8 and 9 March 2011 and allocated to me for that purpose accordingly.
 Directions were issued by Fair Work Australia (FWA) on 16 December 2010 as follows:
“1. The applicant (Chris Lekos) is directed to file with Fair Work Australia, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent, an outline of submissions and any witness statements and other documentary material the applicant intends to rely on in support of the application in this matter, by no later than noon on Wednesday, 19 January 2011.
2. The respondent (Zoological Parks and Gardens Board T/A Zoos Victoria) is directed to file with Fair Work Australia, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant, an outline of submissions and any witness statements and other documentary material the respondent intends to rely on in opposition to the application in this matter, by no later than noon on Wednesday, 9 February 2011.”
 On 19 January 2011 Mr Lekos filed an outline of submissions, a witness statement for himself, a witness statement of Ms Bronwyn Dawes and various other documents in support of his application.
 On 9 February 2011 the Australian Industry Group filed witness statements of Mr John Gibbons, Ms Lynn Johnson, Mr Ted McNamara, Mr Russel Traher and Mr Angus Hanson on behalf of Zoos Victoria.
 On 15 February 2011 Mr Lekos filed additional documents in support of his application.
 On 3 March 2011 the Australia Industry Group filed an outline of submissions, a supplementary witness statement for Mr Russel Traher, witness statements for Mr Michael Taylor, Ms Carla Srb and Ms Bronwyn Macreadie, and various documents from Mr Lekos’ personnel file.
 On the day of the Conference/Hearing Mr Patrick Wheelahan sought permission to appear on behalf of Zoos Victoria. Mr Wheelahan, for the purposes of the relevant statutory provisions, is a lawyer. Mr Wheelahan was accompanied by Mr Rondinelli who is an officer or employee of the Australian Industry Group.
 I asked Mr Wheelahan to outline the basis upon which the Tribunal could be satisfied that the discretion to grant the permission sought should be exercised. Mr Wheelahan submitted that the matter would proceed more efficiently if he were allowed to represent Zoos Victoria.
 It is convenient to note here that where a person seeks to be represented by a lawyer or paid agent the Fair Work Australia Rules 2010 prescribe as follows:
“17.1 A person who commences to act as a solicitor, paid agent or other representative of a party to a matter already before FWA must lodge a notice in accordance with Form F53.
17.2 Subject to section 596 of the Act, FWA may permit a person to represent a party in a matter before FWA despite the person’s failure to lodge a notice in accordance with subrule 17.1.”
 Mr Wheelahan did not file a Form F53 in accord with Rule 17.1. However, as noted above, the Australian Industry Group was listed as the representative of Zoos Victoria on the Employer’s Response (Form F3) filed on 8 November 2010. By virtue of Rule 17.2, the failure to file the Form F53 does not prevent FWA from exercising the discretion to allow a party to be represented before the Tribunal pursuant to s.596 of the FW Act.
 The Tribunal may only grant permission for Zoos Victoria to be represented by a lawyer in certain circumstances specified in s.596 of the FW Act. Section 596 was enacted as part of the FW Act in different terms to the predecessor provisions of the Workplace Relations Act 1996 (the WR Act) which dealt with representation before the Australian Industrial Relations Commission.
 It is convenient to set out the respective provisions.
1. The Workplace Relations Act 1996
(1) A party to a proceeding before the Commission may appear in person.
(2) Subject to this and any other Act, a party to a proceeding before the Commission may be represented only as provided by this section.
(3) A party (including an employing authority) may be represented by counsel, solicitor or agent if:
(a) all parties have given express consent to that representation; and
(b) the Commission grants leave for the party to be so represented.
(4) A party (including an employing authority) may be represented by counsel, solicitor or agent if:
(a) the party applies to the Commission to be so represented; and
(b) the Commission grants leave for the party to be so represented.
(5) In deciding whether or not to grant leave under subsection (3), the Commission must have regard to the following matters:
(a) whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible;
(b) the capacity of the particular counsel, solicitor or agent to represent the party concerned;
(c) the capacity of the particular counsel, solicitor or agent to assist the Commission in performing the Commission’s functions under this Act.
(6) In deciding whether or not to grant leave under subsection (4), the Commission must have regard to the following matters:
(a) the matters referred to in paragraphs (5)(a), (b) and (c);
(b) the complexity of the factual and legal issues relating to the proceeding;
(c) whether there are special circumstances that make it desirable that the party concerned be represented by counsel, solicitor or agent;
(d) if the party applies to be represented by an agent—whether the agent is a person or body, or an officer or employee of a person or body, that is able to represent the interests of the party under a State or Territory industrial relations law.
(7) An appeal to a Full Bench under section 120 may not be made in relation to a decision under subsection (3) or (4) to grant leave or not to grant leave.
(8) A party that is an organisation may be represented by:
(a) a member, officer or employee of the organisation; or
(b) an officer or employee of a peak council to which the organisation is affiliated.
(9) An employing authority may be represented by a prescribed person.
(10) Regulations made for the purposes of subsection (9) may prescribe different classes of persons in relation to different classes of proceedings.
(11) A party other than an organisation or employing authority may be represented by:
(a) an officer or employee of the party; or
(b) a member, officer or employee of an organisation of which the party is a member; or
(c) an officer or employee of a peak council to which the party is affiliated; or
(d) an officer or employee of a peak council to which an organisation or association of which the party is a member is affiliated; or
(e) a bargaining agent.
(12) Where the Minister is a party (other than in the capacity of employing authority), the Minister may be represented by counsel or solicitor or by another person authorised for the purpose by the Minister.
(13) Where the Minister is a party (other than in the capacity of employing authority), another party (including an employing authority) may, with the leave of the Commission, be represented by counsel, solicitor or agent.
(14) In this section (other than paragraph (3)(a)):
party includes an intervener.”
2. The Fair Work Act 2009
“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.”
 It will be observed that there are significant differences and some similarities between the relevant provisions of the FW Act and the WR Act, in relation to representation of a party by a lawyer before the AIRC and FWA respectively.
 Furthermore, the extrinsic materials to the Fair Work Bill 2008 (the FW Bill) are indicative of the intention to make significant changes to the representation provisions existing under the WR act. The following paragraphs of the Explanatory Memorandum to the FW Bill may be noted:
“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a nonadversarial 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.
2298. Subclause 596(4) provides that a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent is a bargaining representative, or an employee or officer of the person, organisation, peak council or bargaining representative. The effect of this subclause is that in these circumstances FWA’s permission is not required. For example, an officer or employee of a registered organisation or peak council who is legally qualified will be able to represent that body without having to have permission from FWA under this clause.”
 In addition, the regulatory analysis section of that Explanatory Memorandum contains the following:
“r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will also be a higher bar set for representation. Permission for representation will only be granted to parties (including the Minister) where it would enable the matter to be dealt with more efficiently or fairly. 57(Currently, the Minister may intervene in full-bench and public sector matters be advising the Registrar, and parties may be represented by counsel, solicitors or agents where both parties agree and the AIRC grants leave). It is envisaged that in most cases legal representation will not be necessary.”
 It requires no elaborate observation concerning the abovementioned changes than to note that the legislative intention reflected in the changed provisions should be applied and given effect to by the Tribunal. This has been duly effected by the Tribunal in relation to other differences between the provisions of the FW Act and the WR Act which deal with common subject matters.
 The FW Act introduced a number of changes to statutory provisions governing the field of jurisdictions and discretions hitherto covered by the WR Act and now by the FW Act. A number of changes in the statutory language dealing with matters of discretion of longstanding effect within those fields have resulted in different criteria for decisional purposes when exercising a relevant discretion.
 An example is the introduction into s.394(3) of the FW Act of a requirement that the discretion to extend the time in which an application for relief in relation to an alleged unfair dismissal may be accepted must only be exercised in “exceptional circumstances”. That this provision provides a more restrictive test to the predecessor provision of s.643(14) of the WR Act has been noted by the Tribunal in a number of decisions 1 and demonstrated by the approach adopted by the Full Bench (Acton and Cartwright SDPP and Thatcher C) in Cheval Properties Pty Limited v Smithers  FWAFB 7241.
 Of some significance in this matter is the introduction in s.596 of a consideration that the permission for a person to be represented by a lawyer may be granted only if certain conditions precedent to the discretion to grant the permission exist. While the words “only as” appear in s.100(2) of the WR Act, when those words are viewed in comparative context, overall, there has clearly been a change in the syntax of the respective provisions which indicates a different intention by the use of the words “only if” in the relevant context of the FW Act.
 More broadly still, the structure and content of the provisions of the relevant FW Act provisions are quite different to the predecessor provisions in the WR Act.
 To illustrate that difference, attention may be drawn to the provisions of s.100(3) of the WR Act. By that provision, where all parties to a proceeding expressly consented and the Australian Industrial Relations Commission (AIRC) granted leave, a right to representation by “counsel, solicitor or agent” was created.
 It will also be noted that by operation of s.100(5), the considerations which the AIRC was required to have regard to when considering the leave required for a party to be represented by “counsel, solicitor or agent” were quite different in those particular circumstances than the provisions of s.596(2) of the FW Act, which apply in all circumstances where application is made for permission for a party to be represented by a lawyer or paid agent, except those dealt with in s.596(3) and (4).
 Likewise by s.100(4) of the WR Act, where there was no express consent by all parties to a party or person being represented by “counsel, solicitor or agent” a party may have been so represented taking into account the matters in s.100(5) and other matters set out in s.100(6).
 The consequence was that, where there was no express consent by all parties to representation by counsel, solicitor or agent under the WR Act, the AIRC had the discretion to grant leave having regard to the following:
 It will be observed that the above considerations are much more different than they are similar to those which must exist in order for the discretion to grant permission to a party to be represented by a lawyer or paid agent provided by s.596 of the FW Act to arise. Most notably the following considerations do not apply under s.596 of the FW Act:
 The provisions of s.596 which have direct similarity to the predecessor provisions of the WR Act are s.596(2)(a):
“(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.”
which would seem to cover a field with some but not complete similarity to that contemplated by s.100(6)(b) of the WR Act.
 A feature of note and which is relevant to this matter is the provisions of s.596(3) and (4). These provisions have the effect of allowing parties, without the permission of Fair Work Australia, to be represented by persons who would otherwise need permission to represent a person as lawyers or paid agents. Also of note is the modification of the Minister’s entitlements.
 All of these matters involve significant changes to the representational provisions of the WR Act with both differences of form and content, no doubt having regard, among other things, to differences in the scope and subject matter of the legislation.
 Viewing the relevant provisions of the WR Act and the FW Act it is to be concluded that the discretion to permit representation is to be exercised having regard to a more attenuated and arguably stricter range of considerations. The difference is further indicated in the Note to s.596 as follows:
“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.”
 In this case for instance, even if the applicant had expressly consented to the application of Zoos Victoria to be represented by a lawyer, that consideration is not one which arises under s.596 of the FW Act, neither do issues of assistance to the party seeking such representation, the individual capacity of a representative to assist the person who seeks the relevant representation or special circumstances which make such representation desirable.
 The conditions precedent to granting permission for a person to be represented by a lawyer or paid agent in a proceeding before Fair Work Australia are: additional or greater efficiency taking into account the complexity of the matter; inability to represent oneself effectively; fairness as between the various persons in the same matter. Any one or all of these considerations, but no others, may give rise to the power to exercise the discretion to give permission to a person to be represented by a lawyer or paid agent in a matter before the Tribunal. If a relevant condition precedent to the discretion exists the discretion is otherwise at large and should be exercised appropriately, having regard to the intention of the legislature and the pursuit of justice.
 At this point it is convenient to note that the applicant is self represented. It seems logical in this matter, having regard to the relative capacity of the applicant, who was employed as a zookeeper, and Zoos Victoria, which is more significantly resourced (which will be dealt with further below), to conclude that no unfairness as between the applicant and the respondent would accrue if Zoos Victoria was not granted permission to be represented by a lawyer.
 Zoos Victoria is a statutory authority of Victoria. It is substantially resourced, which is a notorious fact. The 2009-2010 Annual Report available on Zoos Victoria’s website shows that Zoos Victoria has assets of $226 million and an annual income of over $51 million. The materials filed by the Australian Industry Group show that Zoos Victoria employs a Human Resources Director and a Senior Human Resource Advisor. Moreover, there are additional reasons why Zoos Victoria would not be unfairly affected as between itself and Mr Lekos in the relevant circumstances if it were required to be otherwise represented than by a lawyer, which will be dealt with further below.
 The discretion to grant permission in s.596 would arise where it would be unfair not to allow a person to be represented by a lawyer or a paid agent because the person is unable to represent them self effectively.
 In addition to the capacity of Zoos Victoria to represent itself, as already noted, the case of Zoos Victoria was filed by the Australian Industry Group and the materials filed on 9 February 2011 and 3 March 2011 were filed by Mr Robert Rondinelli, who is a “Senior Workplace Advisor” of that organisation. It is, however, to be noted that the submissions filed were signed by Mr Wheelahan. It is also to be noted that Mr Rondinelli is a registered legal practitioner. Mr Rondinelli may represent Zoos Victoria without need of permission. Further, while the capacity of a particular counsel, solicitor or agent to represent the party concerned was a feature of the predecessor provisions of the WR Act, the legislature has excised that consideration from the FW Act. Thus Mr Wheelahan’s personal attributes or circumstances are not relevant considerations except, perhaps, in relation to “more” efficiency, which might be gained as a result of permission for Zoos Victoria to be represented by a lawyer taking into account any “complexity” of this matter. Although, without the need to decide the question and by way of observation only, the change in the relevant statutory provisions might suggest that the consideration of permission for a person to be represented by a lawyer or paid agent might now be a generic concept rather than one contingent on the personal dimensions of any particular lawyer or paid agent and/or that person’s relationship to the matter or any complexity therein.
 I was advised that Zoos Victoria is a member of the Australian Industry Group. It is therefore reasonable to proceed on the basis that Zoos Victoria could choose to represent itself in an effective manner by an employee or officer of an organisation of which it is a member. Moreover, the Australian Industry Group is a pre-eminent organisation of Australian employers and has been so now for more than 100 years. Mr Rondinelli is a legal practitioner and an experienced Senior Workplace Advisor who is involved in this matter and who is respected by the Tribunal. Effective representation for Zoos Victoria is readily available by means expressly provided for by s.596(4).
 Finally, it is appropriate to consider if, in these circumstances, it is necessary or desirable to grant permission for Zoos Victoria to be represented by a lawyer as provided for to create “more” efficiency in dealing with the matter by granting the permission sought, taking into account any relevant complexity. In my view there is no great complexity in this matter if, in fact, any at all. On what was said in support of permission being granted I can see no complexity having been made out. There are no jurisdictional issues. If there were, in any event, Zoos Victoria could choose to have those addressed by an experienced legally qualified officer or employee of its employer organisation, the Australian Industry Group, which has filed as the representative of Zoos Victoria in the matter. Witness statements, exhibits and written submissions have all been filed. I was advised that there was no need for a significant supplementation, if any at all, of the evidence of the witnesses for Zoos Victoria who have filed their statements. There is little fundamental conflict concerning the central historical narrative of the circumstances leading to the termination of the applicant’s employment.
 I see no reason in all of the circumstances to conclude that the permission sought would create “more” efficiency in dealing with the matter than if the permission is not granted, taking into account that no demonstrable complexity in the matter arises or has been made out.
 Given the statutory language, in light of the above conclusions, I may not grant the permission sought. Even had I thought that granting permission may have provided “more” efficiency in these circumstances, and the condition precedent to the exercise of the discretion thus arose, I consider that such additional efficiency would not have arisen out of any complexity of the matter but rather might have arisen out of convenience, and then only marginally, because of Mr Wheelahan’s personal involvement in the preparation of the respondent’s case. This would not, in my view, have been sufficient to convince me to exercise the discretion to grant the permission in the particular circumstances of this case. Convenience to Zoos Victoria is not a relevant statutory provision. To grant permission on the basis of a consideration of convenience would cut against the grain on the statutory provisions and not be in accord with the legislative intention clearly evident in the new statutory provisions and the extrinsic materials. It would follow, if this consideration were sufficient to determine an application of this kind, that wherever a lawyer or paid agent was engaged to prepare a case for an applicant or a respondent in a matter before the Tribunal, permission would have to be granted as a matter of course. The effect of this approach would be to remove the discretion of the Tribunal so that parties could determine that they would be represented by lawyers or paid agents whenever they chose to involve such persons in the preparation of matters before the Tribunal as a matter of convenience, by submissions that their choice of doing so governed the greater efficiency with which the Tribunal would be able to deal with any matter before it regardless of any lack of relevant complexity in the matter.
Mr C Lekos on his own behalf.
Mr P Wheelahan of Counsel with Mr R Rondinelli of the Australian Industry Group for Zoos Victoria.
1 See for example, the decisions of Whelan C in Parker v Department of Human Services, Southern Metropolitan Region  FWA 1638, paragraphs -; Kaufman SDP in Bernadette Shields v Warringarri Aboriginal Corporation  FWA 860 paragraphs  - ; Lawler VP in Christopher Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery  FWA 1394 paragraphs -; and Sams DP in Attracta Gallagher v Kidz Biz Pty Ltd T/A Kidz Biz Pre-School & Long Day Care  FWA 3778 paragraphs  - .
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