[2011] FWAFB 5585 |
FAIR WORK AUSTRALIA |
DECISION |
Workplace Relations Act 1996
s.120 - Appeal to Full Bench
VICE PRESIDENT WATSON |
|
Appeal against refusal to issue reasons for a decision in matter number DR2009/1356 and appeal against decision [2010] FWA 2684 of Vice President Lawler at Melbourne on 20 July 2010 in matter number DR2009/1356 - leave to appear - Workplace Relations Act 1996 - s 100
Introduction
[1] This decision concerns the question of leave to appear in forthcoming hearings in relation to appeals by Mr Michael Priestley against two decisions of Vice President Lawler in matters C2010/4187 and C2010/4490. The appeals are made under s 120 of the Workplace Relations Act 1996 (the Act)
[2] The background to the various matters subject of the appeals is set out in [2011] FWAFB 2702. The proceedings relate to a dispute about the allocation of duties in the Parliamentary Library some years ago.
[3] In a number of preliminary proceedings in the appeals, Mr Priestley has objected to legal representatives appearing on behalf of the Department of Parliamentary Services (DPS). We consider it desirable that the question of leave to appear be determined in advance of the hearing date. Directions were issued to the parties to file written submissions on this issue on 7 February 2011. Written submissions were received on behalf of the DPS and Mr Priestley.
[4] The scheduled hearings of the appeals were then vacated because of an appeal lodged by Mr Priestley against the decision of Vice President Watson to decline to disqualify himself arising from a decision to grant DPS leave to be represented in the hearings of an application for a stay of Vice President Lawler’s decisions. 1
[5] In the appeal proceedings in relation to Vice President Watson’s decision the issue of representation of the DPS arose again. The Full Bench granted Mr Lovell of counsel leave to appear. In its subsequent decision the Full Bench said:
“[11] When this appeal came on for hearing Mr Lovell sought leave to appear as counsel on behalf of the respondent to the appeal. The appellant raised a preliminary issue about the respondent’s appearance. It became clear that the substance of the submission was that his employer is the Secretary of the DPS personally, no one else, and that the Secretary is required to attend for the purpose of any application to be represented by counsel. He attempted to add to the argument by submitting that the DPS is not a party to the agreement and the agreement does not apply to it. He relied on s.100(4) of the WR Act which reads:
“(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.”
[12] According to the argument, it is only the Secretary personally who can make an application for representation under s.100(4).
[13] In the alternative, it was submitted that the proceedings are governed by terms in the agreement which deal with appeals in relation to disputes and that those provisions do not permit legal representation.
[14] We indicated during the hearing that we were satisfied that Mr Lovell had authority to represent the Secretary of the DPS. We also indicated that representation by counsel was appropriate and, without deciding whether leave was required, indicated that we would grant leave in any event. We shall elaborate briefly.
[15] We accept Mr Lovell’s submissions that the appellant’s employer is the Commonwealth of Australia, that the Secretary of DPS is the employing authority for all relevant purposes and that the agreement applies to the employer. We have no reason to doubt that Mr Lovell is properly authorised. It is not necessary that the Secretary attend in person to make an application to be represented by counsel, there is no reason of statutory construction, policy or practice why that should be so. While the tribunal might have a discretion to require that a party itself rather than counsel put the argument for legal representation, we would not do so in this case. If s.120 applies to the appeal leave is necessary. We would grant leave because of the variety of legal issues raised by the appellant’s grounds of appeal and submissions.
[16] We turn to the alternative argument, that the appeal is governed by the dispute settlement provisions in the agreement rather than by s.120 of the WR Act. Assuming that the appeal is so governed, it is true that the agreement provisions do not deal with legal representation during the dispute settlement process. We reject the submission that the consequence is that representation by counsel is not permitted by the provisions. To the contrary, as the agreement does not deal with questions of legal representation at all, it is a matter for each party how they are to be represented.” 2
[6] The appeals by Mr Priestley concern disputes brought under the Department of Parliamentary Services Union Collective Agreement 2008 - 2011 (the Agreement). The Agreement is made under the relevant provisions of the Act. By virtue of Schedule 19 to the Fair Work (Transitional and Consequential Amendments) Act 2009, the Act continues to apply to disputes relating to the Agreement and Fair Work Australia (FWA) may exercise relevant powers vested in the Australian Industrial Relations Commission under the Act and the Agreement.
Relevant Legislation
[7] It is common ground that the question of leave to appear is to be considered by reference to s 100 of the Act. Section 100 relevantly provides:
“100 Representation of parties before Commission
(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.
... “
The Application
[8] It is submitted on behalf of the DPS that having regard to the relevant matters to which the Tribunal is required to have regard, the DPS would be assisted in bringing the best case possible if represented due to the complex questions of fact, law and interpretation that are likely to arise. It is submitted that the DPS does not have in house counsel and has been represented in all substantive hearings before the Tribunal in relation to these matters.
[9] Mr Priestley has filed an 18 page written submission with various attachments opposing leave to appear being granted. He contends that the DPS submission “mitigates” against the exercise of the discretion to grant leave. He submits that the application by the representatives of DPS for leave to appear on behalf of the DPS should be refused as the application has not been made by the Secretary of the DPS who Mr Priestley contends is the proper respondent.
[10] Mr Priestley further submits that the relevant enterprise agreement makes no reference to legal representation and therefore legal representation is not available. Mr Priestley contends that DPS has several legally trained employees to assist it and the true picture of the resources available to each party is closer to a “David and Goliath” comparison.
Conclusions
[11] We have considered all of the matters raised by the parties on the question of leave to appear. In a general sense we agree with the conclusions of the Full Bench quoted in paragraph [5] above. Mr Priestley’s employer is the Commonwealth of Australia through the Secretary of the DPS as the employing authority. We accept that Blake Dawson has authority to represent the employer and seek leave on its behalf. We also accept that as the relevant enterprise agreement is silent on the question of legal representation, there is no agreement to render representation unavailable and it would appear that the agreement permits representation of parties as they each see fit.
[12] We consider that we should apply the terms of s 100 of the Act to the application for leave to appear.
[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.
[14] Further we consider that the complexity of the matters to be raised in the appeal justify leave to appear being granted. In appeals before this Tribunal and its predecessor parties commonly seek and are granted leave to be represented. These appeals are unusual and are characterised by numerous technical arguments raised by Mr Priestley. By their very nature most appeals contain sufficient complexity to satisfy leave being granted. It appears to us that these appeals involve more complexity than many appeals in this jurisdiction.
[15] In addition, we are of the view that the lengthy history, and the earlier involvement of the relevant lawyers in the proceedings before Vice President Lawler constitute special circumstances that make it desirable that representation be permitted.
[16] For these reasons we grant leave to DPS to be represented by counsel.
VICE PRESIDENT WATSON
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