Fair Work Act 2009
s.394—Unfair dismissal

Emily Brown
v
Woolworths Group Limited
(U2022/3299)

Chantelle Brown
v
Woolworths Group Limited
(U2022/3316)

Application for an unfair dismissal remedy – section 596 – representation by lawyers and paid agents – permission to be represented granted.

[1] On 18 March 2022 the Applicants made applications to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for remedies, alleging that they had been unfairly dismissed from their employment with Woolworths Group Limited.

[1] Woolworths Group Limited (“Woolworths”) has sought the permission of the Commission to be represented by a lawyer pursuant to s.596 of the Fair Work Act 2009 (Cth) (the FW Act). This decision deals only with Woolworths’ application.

[2] Section 596 of the FW Act is relevantly in the following terms:

“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] Woolworths relies on each of the subsections in s.596(2).

[4] The following general principles can be drawn from earlier decisions of the Commission and of the Federal Court on permission to appear:

(a) the default position is that each party appears on their own behalf; 1

(b) permission may be granted “only if” at least one of the requirements of s.596(2) are made out;

(c) the assessment of whether permission should be granted under s 596 involves a two-step process: firstly considering whether one or more of the criteria in s 596(2) is satisfied, and secondly considering whether the Commission’s discretion should be exercised in favour of the party seeking permission in all of the circumstances of the case; 2

(d) a decision to grant or refuse permission is not a mere procedural decision, it is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted; 3

(e) the Commission must perform its functions and exercise its powers in a manner that is fair and just, quick and informal, and avoids unnecessary technicalities; 4.

(f) allowing lawyers to appear in Commission proceedings runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality; 5

(g) representation by lawyers or paid agents who are familiar with and/or experienced in the Commission’s jurisdiction will generally be of assistance; 6

(h) a grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the legal representative to whom leave is granted will conduct themselves with probity, candour and honesty; 7

(i) the power to grant permission does not include any power to select who the legal representative will be; 8

(j) the only test the Commission must apply under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently”. In applying this test, the Commission must take into account the complexity of the matter, but it does not have to find that the matter is actually complex, nor does it have to find that a matter is more complex than other matters; 9

(k) experienced legal representatives are more likely to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy.¹⁰ Where competent legal representation is involved there are greater prospects of the case being run more efficiently and focused on the relevant issues to be determined;¹¹ and

(l) the Commission must give reasons for granting permission; 12 and

(m) a decision to grant permission can be reviewed or revoked under s.603. 13

[5] In these matters the Applicants are represented by Mr Alex Smith, who insists he is neither a lawyer nor a paid agent. The materials filed on behalf of the Applicants are hundreds of pages in length, much of which appears to have limited relevance to the cases at hand. The filed written submissions contain various assertions about the lawfulness of covid vaccinations generally, submissions about the application of the Australian Constitution, allegations of jurisdictional misfeasance, nonfeasance and malfeasance by the Commission in refusing to “recognise the supremacy of the current Commonwealth-Constitution over all States’ and Territories’ Laws/Acts and Regulations, such as s5, s109, s51(xxiiiA) of the current Commonwealth-Constitution is established as prima facie”, an argument that there is some kind of “estoppel by silence” that applies because there is said to be “a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole” and so on.

[6] Woolworths has implemented a policy across its workforce requiring its employees to provide proof of vaccination against COVID-19. The applications challenge the lawfulness of Woolworths’ policy, and ask the Commission to make findings that would have significant legal consequences for Woolworths. The challenges are, at least in appearance, based on matters of law.

[7] Woolworths argues that the matters involve “issues of considerable complexity”, that the disposition of the matter will require the consideration of a continually evolving body of case law in the Commission and other jurisdictions in relation to directions that employees be vaccinated against COVID-19. The Applicants say in response:

“The Respondent’s claims of complexity in point 3 of the Respondents’ submission are null and void ab initio as the current direction/policy is invalid by the simple prima facie evidence the current direction/policy/mandate involves participation in a clinical trial whereby estoppel of silence is practiced.”

[8] The Applicants’ submissions neither engage with the issue at hand, nor actually makes sense.

[9] Without commenting on the strength of the arguments put more generally by the Applicants in their filed material, I accept Woolworths’ submission that the Applicants’ case relies upon, and calls into play, questions of law with potentially significant consequences.

[10] The question to be determined under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently.”

[11] Recognising the presumption that the legal representatives will conduct themselves with probity, candour and honesty, and give close regard to the boundaries of the matters subject to the dispute, I am satisfied that there are greater prospects of the case being run more efficiently and focused on the relevant issues to be determined if permission is granted.

[12] Woolworths also relies on two further submissions, not supported by evidence, that:

(a) while Woolworths does engage employees with human resources, industrial relations and legal experience, it is “unable to effectively represent itself with the resources it has available” because its inhouse staff not having experience in the conduct of contested hearings in the Commission and there are several proceedings currently on foot in relation to COVID-19 vaccination related terminations effected by Woolworths; and

(b) because MinterEllison has a “close familiarity with the material relevant to this matter [because it] has been advising the Respondent on general matters relating to the COVID-19 pandemic”, it would be unfair not to allow it to be represented by MinterEllison.

[13] Neither submission is particularly compelling, and I do not need to make any decision about them.

[14] I am satisfied that s.596(2)(a) is enlivened and that I am able to grant the permission sought.

[15] I am also satisfied that I should exercise my discretion to grant permission. The Applicants made the following submission, which I take to be relevant to the exercise of my discretion:

“Any and all costs must be borne by the Respondent on the basis of our submission. Under no circumstances are any requests for costs to be incurred by the Applicant and any inferred costs are declined.

All requests for legal representation are declined.”

[16] Of course the question of costs does not directly arise at this stage of the proceedings, but it is not for the Commission to impose a condition or restriction on permission to appear (such as a condition that Woolworths not ever apply for an order for costs).

[17] It remains to be seen whether the costs provisions of the Act, either s.611 or s.400A, are enlivened in these proceedings. I note in this regard that if Mr Smith was a paid agent or a lawyer then he would personally carry the risk of a cost order being made against him (per s.401). If he is not a paid agent or a lawyer then the risks are wholly borne by the Applicants.

[18] In the circumstances I grant Woolworths permission to be represented by a lawyer.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR743373>

 1   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [24].

 2   Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender [2021] FWCFB 268 at [48], Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2018] FWCFB 4362 at [44].

 3   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [24], Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2018] FWCFB 4362 at [37].

 4   Fair Work Act 2009 (Cth), s.577.

 5   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [25].

 6   Priestley v Department of Parliamentary Services [2011] FWAFB 5585 at [13].

 7   Allen v Fluor Construction Services Pty Ltd (2014) 240 IR 254, [2014] FWCFB 174 at [48], citing Oram v Derby Gem Pty Ltd [2004] 134 IR 379 at [62].

 8   Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA [2018] FWCFB 4362 at [38] citing NSW Bar Association v McAuliffe [2014] FWCFB 1663 and Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [32].

 9   Toby Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130 at [19]-[21].

10 CEPU v UGL Resources Pty Ltd [2012] FWA 2966 at [25].

11 Applicant v Respondent [2014] FWC 2860 at [20].

 12   Warrell v Walton (2013) 233 IR 335, [2013] FCA 291 at [26].

 13   Oratis v Melbourne Business School [2014] FWCFB 3869 at [8].