DECISION

Fair Work Act 2009
Section 739 - Application to deal with a dispute

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Genesee & Wyoming Australia Pty Ltd
(C2018/5956)

Genesee & Wyoming Australia Pty Ltd T/A Genesee & Wyoming Australia
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2018/6260)

Alleged dispute about any matters arising under the enterprise agreement and the NES – section 739 Fair Work Act 2009 – representation – permission granted

[1] This decision concerns whether permission is to be granted for an employer to be represented in dispute notification proceedings under section 739 of the Fair Work Act 2009 (the FW Act).

[2] The Commission has before it two applications under section 739; the first dated 24 October 2018 lodged by the Australian Manufacturing Workers Union (AMWU) and the second dated 7 November 2018 by the employer, Genesee & Wyoming Australia Pty Ltd.

[3] Each dispute concerns the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016 (‘the Agreement’).

[4] The AMWU’s application was made by Mr McMillan a Northern Region Organiser of the AMWU. The employer’s application was made by Mr White of Mills Oakley solicitors for the employer.

[5] Both applications concern the proper interpretation and application of the Agreement. There is overlap between both applications. The AMWU application concerns the meaning of continuous shift worker, ordinary hours for continuous shift workers and the consequential provision of annual leave and allowances to employees whom the AMWU says are continuous shift workers. The employer’s application concerns the meaning of ordinary hours and extended hours for the purposes of the Agreement.

[6] The AMWU’s application was the subject of a conciliation conference on 5 November 2018. It has been adjourned to a further conference on 10 December.

[7] The employer’s application has been listed for a conciliation conference concurrently with the AMWU’s application on 10 December.

[8] Genesee & Wyoming Australia Pty Ltd seeks permission to be represented by a legal practitioner in proceedings on both applications. In the alternative, it seeks permission for its solicitor to be an observer at the proceedings on 10 December.

[9] The AMWU opposes permission being granted.

[10] Each has filed written submissions on the issue.

[11] I also note that I granted permission for the employer to be represented by a legal practitioner at the conference held on the AMWU application on 5 November. At that time permission was sought and not opposed by the AMWU.

Representation

[12] Section 596 of the FW 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.”

(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.”

[13] The principles governing the application of section 596 of the FW Act were recently summarised by a full bench of this Commission in Grabovsky v United Protestant Association of NSW Inc.:¹

“Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’ it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Fair Work Australia: 2

“It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.”

For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.” (footnotes omitted)

Consideration

[14] The employer can only be represented by a lawyer (or paid agent) in proceedings with permission of the Commission.³ Whether to grant permission is a discretionary matter made having regard to the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.

[15] A relevant starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in a matter before the Commission must normally appear on its own behalf (to paraphrase the words of Flick J in Warrell). This proposition is consistent with the statutory scheme:

“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.”4

[16] I now turn to the considerations in section 596(2).

Section 596(2) Efficiency

[17] These matters are industrial disputes and have a strong industrial character. However, the substance of each dispute concerns the language used in the Agreement and its proper application.

[18] Resolving these disputes, if they were to be arbitrated, would clearly be attended to by some complexity as an interpretation of the relevant clauses of the Agreement would involve legal issues including canons of construction.

[19] The consideration of efficiency having regard to complexity, at least in the context of arbitration of these matters, weighs in favour of permission being granted.

[20] I take into account however that these proceedings are currently listed for conciliation, not arbitration. The AMWU correctly point out that permission could be sought at a later stage of proceedings, and need not be provided at conciliation. There is some force in this submission. Conciliation is conciliation; it is not arbitration. The case for legal representation in conciliation proceedings is not as pronounced.

[21] No doubt there are instances where the efficiency of a conciliation conference would not be enhanced by the presence of a legal representative. However, it does not follow just because these proceedings are at the conciliation stage that such conferences would not be rendered more efficient with legal representation. Context matters.

[22] Here, in the context of these disputes, the conciliation necessarily involves discussing and exchanging views on the competing interpretations of the Agreement. The conciliation proceedings have the potential to achieve an industrial settlement, but they are not entirely divorced from the competing legal issues. Ensuring those legal issues are explained clearly and efficiently can assist the Commission and may clear the pathway to an industrial settlement or help narrow the issues in dispute.

[23] Further, having already conducted one conciliation conference on the AMWU dispute, and having observed the role undertaken (with permission) by the employer’s solicitor at that time, I consider that the legal representative did in fact add to the efficiency of that conference, at least in terms of efficiently explaining the employer’s position. This may well be a product of the fact that this employer’s legal representative has apparently been associated with and advising on this dispute since 2017; well prior to it being notified to the Commission. Depending on the circumstances, participants to conciliation with historic familiarity with a dispute may be of assistance to the process of conciliation particularly if they have not historically been or are not being obstructionist.

[24] I am satisfied that conciliating or arbitrating this dispute involves mixed legal and industrial issues of some complexity, and this weighs in favour of granting permission. The weight in favour of granting permission is somewhat diminished by the fact that these proceedings are at the conciliation stage only, but there is nonetheless some weight in favour of permission to be attributed to this consideration.

[25] Section 596(2)(a) is made out.

Sections 596(2)(b) and (c) - Fairness

[26] The fact that sub-section (1) of section 596 is made out does not compel the exercise of discretion in favour of the person requesting permission.⁵ All factors in the section need to be considered, including fairness, although not all factors need be made out.

[27] Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.

[28] The employer says it has human resource personnel but no in-house expertise in agreement interpretation or in industrial advocacy.

[29] Having regard to the overall circumstances and my observations during the first conference, and given the apparent longstanding involvement of the employer’s legal practitioner in advising its human resource and operations personnel on these matters, I find that the employer would be able to represent itself in conciliation proceedings but may be unlikely to do so in a suitably effective and efficient manner.

[30] Section 596(2)(b) is made out and weights somewhat in favour of granting permission.

[31] I now turn to sub-clause 596(2)(c) of section 596. This sub-section requires the Commission to take into account fairness between the person seeking permission (the employer) and other persons in the matter (the AMWU).

[32] The AMWU is not seeking permission; indeed if it were to be legally represented it would not require permission if it was represented by a legally qualified employee or officer of the association (section 596(4)(b)(i)). Mr McMillan is not so qualified. He is however an organiser with apparent industrial expertise and working knowledge of the Agreement.

[33] In observing the first conference in this matter, I did not consider the AMWU to be at a disadvantage from the point of view of fairness when it put its position to me through Mr McMillan nor in response to what the employer’s legal representative put. Mr McMillan was capable of doing so and did so, and did so effectively.

[34] While I accept that in some instances a union organiser being pitted against a legal practitioner in a conciliation conference would be unfair to the union, in the context of this matter this is, at this point in time, a neutral factor.

[35] On balance, I am satisfied that permission should be granted on both applications particularly having regard to the fact that the conciliation proceedings on the AMWU application have already commenced with the involvement of the employer’s legal representative, that the applications are being listed concurrently at this stage, that permission was granted to the employer at the earlier conference without unfairness or compromise to the purposes of conciliation, and the apparent historic involvement the employer’s representative with these matters.

[36] However, if at any stage of proceedings I consider the presence or the role of the employer’s legal practitioner to be frustrating the efficient conduct of these matters or be otherwise unfair I will review this grant of permission.

[37] I grant permission under section 596 of the FW Act for Genesee & Wyoming Australia Pty Ltd to be represented by a legal practitioner in these proceedings.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702612>

1 [2018] FWCFB 4362 at [35] – [38], 31 July 2018

 2   [2013] FCA 291 at [24]

3 Section 596(4) does not apply to the employer in this matter

4 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291

5 Warrell v Fair Work Australia [2013] FCA 291 at [24]