[2017] FWC 2796

The attached document replaces the document previously issued with the above code on 22 May 2017.

Paragraphs [18] and [27] have been replaced in their entirety to correct a party name.

Lisa Powell

Associate to Commissioner Bissett

22 May 2017

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Dr Michael McShane
(AB2017/13)

Application for permission to be represented – permission granted.

[1] Dr Michael McShane has made an application for orders to stop bullying. He seeks that these orders be made against a number of named individuals and his employer, Deakin University (Deakin) (collectively the Respondent parties). A number of interlocutory matters are due to be heard on 30 May 2017 with the substantive application scheduled for hearing on 13-15 June 2017.

[2] Clayton Utz has given notice as a representative commencing to act for the Respondent parties. The Respondent parties now seek permission to be represented in the hearings in the matter.

[3] In accordance with directions issued by the Fair Work Commission (the Commission) on 5 May 2017 the Respondent parties filed submissions with the Commission as to why they should be granted permission to be represented.

[4] Dr McShane declined to file any submissions as to why the Respondent parties should or should not be represented although in a later email suggested that questions of fairness do not arise.

Legislative framework

[5] Section 596 of the Fair Work Act 2009 (FW Act) provides:

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.

(3) The FWC’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 Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.

[6] In Emily Oratis v Melbourne Business School 1 I found as follows:

[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 first be met. Such condition having been met does not them make representation automatic but still requires the exercise of discretion on the part of the Commission.

[14] In Warrell v Walton 2 the Court said:

[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”. [Endnote omitted]

[7] In Emily Oratis v Melbourne Business School 3 the Full Bench of the Commission said:

[5] It is apparent…that the Commissioner understood and applied the correct approach to s.596 as stated in Warrell v Walton, namely that in order for permission for representation to be granted under the section, it was necessary first to be satisfied that at least one of the three alternative jurisdictional prerequisites in s.596(2) applied, and second to exercise the statutory discretion in favour of the grant of permission.

[8] I have, therefore, considered each of the grounds advanced by the Respondent parties as to why permission should be granted. Even though Dr McShane declined to make any submissions it is still necessary for the Commission to be satisfied that one of the conditions necessary to the exercise of the discretion to grant permission is made out before considering the exercise of discretion. These are matters for the Commission to determine and cannot be accepted as satisfied purely on the absence of any submissions of a party to the contrary.

Consideration

Complexity and efficiency

[9] The Respondent parties submit that the matter before the Commission could be dealt with more efficiently because:

a. There is a complex factual matrix around the claim that remains in dispute;

b. There is a jurisdictional issue in respect of Professor Gopalan (a named individual);

c. There are witnesses who will most likely be subject to cross examination;

d. There are witnesses to be summonsed, some of whom are likely to be employees of Deakin.

[10] Further, the Respondent parties say that Mr Dan Trindade of Clayton Utz has attended conciliation of the matter and is familiar with the factual and procedural elements of the case.

[11] I should firstly say that, because a party has been represented in conciliation (where permission was granted but only for the purpose of the conciliation conference) or has been involved in preparation of materials for filing with the Commission, is not, grounds in and of itself, to find that the matter could be dealt with more efficiently, taking into account the complexity of the matter. If this were the case the mere fact of a representative commencing to act for a party or preparing materials for the Commission in a matter (which does not require permission) would be enough to satisfy the jurisdictional prerequisite.

[12] In Gilchrist and Another v Habiku Pty Ltd T/A The Daily Dose 4 Wilson C said:

[13] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 5 Sheer volume of documents or the existence of extraneous issues does not equate to complexity.6 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.7 There may be many grounds for a consideration of “efficiency” and familiarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter, as may the increased alacrity with which cross-examination may be carried out, as well as familiarity with the Act and authorities in the context of a jurisdictional question.8 The expertise and familiarity with the issues before the Commission of human resource practitioners or in-house counsel may also be relevant.9

[13] In reaching my conclusion on this criterion I have the benefit of having received submissions and witness evidence from all parties. Further, I have taken into account those matters set out in Gilchrist.

[14] The supporting materials filed by Dr McShane are extensive. I am also aware of the interlocutory matters not yet resolved including objections to orders to produce by Deakin and further orders sought by Dr McShane. There is an outstanding application by Professor Gopalan that the application against him be dismissed on the grounds that, because of a change in the position he occupies at Deakin, no effective orders against him to stop bullying could be made and an application by Dr McShane to amend his application to include a further named individual. Further, there will be a number of subpoenaed witnesses who will need to be examined from the bar table without the benefit of witness statements provided in advance.

[15] There are a number of strands to the application by Dr McShane. These include the role of a complaint against him in subsequent decisions of Deakin, the management of a course for which Dr McShane had some responsibility (although the extent of that responsibility is in dispute), some medical limitations on Dr McShane and a decision by Deakin to refer him for an independent medical examination, the authority to do so and the reasons for non-attendance. These matters need to be pulled together in some coherent fashion. These strands, and how they sit together, will not become clear until the interlocutory matters are resolved, the Respondent parties are resolved and the evidence is before the Commission.

[16] In these circumstances I am satisfied that there is some complexity in the matter.

[17] Given the breadth of issues I am satisfied the matter could be dealt with more efficiently if permission was granted. Further, that all Respondent parties are represented by the one lawyer will ensure further efficiency by reducing repetition in dealing with a number of the matters.

It would be unfair because the person is unable to represent him, her or its self effectively

[18] The Respondent parties consist of Deakin (the employer), Professor Gopalan, a professor of law at Deakin, Ms Gwen Tinkler, human resource practitioner and Professor Trevor Day, the Executive Dean of Faculty of Science, Engineering and Built Environment at Deakin. It may, depending on a further application before the Commission, include another human resources staff member.

[19] Deakin submits that Ms Tinkler and/or Ms Davies are the employees of Deakin who would be most likely to represent Deakin (and presumably any Respondent parties). Neither, it says, has experience in contested arbitral matters before the Commission. Further, the Respondent parties submit that Dr McShane’s claims include that of bullying by the human resources team making it unfair that they represent the University while defending themselves.

[20] For these reasons the Respondent parties submit that they could not represent themselves effectively.

[21] I am satisfied, absent any submissions to the contrary, that this criterion is met. This is particularly so where some of the claims of bullying are against those who would otherwise represent Deakin and any named individuals in proceedings before the Commission.

Fairness between the parties

[22] The Respondent parties submit that Dr McShane is a law lecturer and presents himself as a “lawyer and Barrister (Ontario)”. It says he is able to represent himself effectively.

[23] In a late, brief comment on this matter Dr McShane says he is not a practising lawyer or barrister so matters of fairness do not arise.

Conclusion

[24] I am satisfied that the matter could be dealt with more efficiently, given the complexity of the matter, such that I should consider the exercise of my discretion to grant permission.

[25] That one (or more) of the conditions necessary for the grant of permission to be represented has been made out does not automatically mean that permission will be granted. That is a discretionary decision of the Commission to be made following a consideration of all of the relevant material.

[26] In the absence of any submissions to the contrary and, being aware of the totality of the matters before the Commission to be resolved both prior to and in the substantive matter, I am, in this case, satisfied that permission should be granted.

[27] Permission is therefore granted to Deakin and Professor Gopalan, Ms Tinkler and Professor Day to be represented by a lawyer or paid agent pursuant to s.596(2) of the FW Act.

COMMISSIONER

 1   [2014] FWC 2838.

 2    [2013] FCA 291.

 3   [2014] FWCFB 3869.

 4   [2017] FWC 2416.

 5   King v Patrick Projects Pty Ltd [2015] FWCFB 2679 [15].

 6   Ibid [17].

 7   Singh v Metro Trains Melbourne [2015] FWCFB 3502 [16].

 8   Smith v James Cook University [2016] FWC 6010, [6]–[7].

 9   Ibid [18].

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