1
[2013] FWC 3405
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Emmanuel Azzopardi
v
Serco Sodexo Defence Services Pty Limited
(U2013/6012)
COMMISSIONER CAMBRIDGE SYDNEY, 29 MAY 2013
Termination of employment - representation by lawyers and paid agents.
[1] This Decision involves an application for unfair dismissal remedy made pursuant to
s.394 of the Fair Work Act 2009 (the Act). The application was made by Emmanuel John
Azzopardi (the applicant). The respondent employer is Serco Sodexo Defence Services Pty Ltd
(the employer).
[2] This Decision is confined to the discrete question as to whether the Fair Work
Commission (the Commission) should grant permission for the employer to be represented by
a lawyer or paid agent.
[3] The application was filed on 29 January 2013 and the employer filed a response on 15
February 2013. The matter was the subject of unsuccessful conciliation held on 22 February
2013.
[4] On 8 April 2013, lawyers for Ashurst Australia filed a Notice of Representative
Commencing to Act on behalf of the employer. On 6 May 2013, the applicant formerly raised
objection to the employer being represented by a lawyer. This objection was primarily
advanced on what I perceive to be a proposition that the Commission should refuse
permission for the employer to be represented by a lawyer in the interests of justice and
fairness.
[5] The applicant provided a written submission attached to his communication dated 6
May 2013, which maintains the objection to the Commission granting permission for the
employer to be represented by a lawyer. The employer has provided written submissions in
support of permission being granted for it to be represented by a lawyer.
[6] The Commission conducted a Hearing on 28 May 2013 to deal with the question of
whether permission should be granted for the employer to be represented by a lawyer or paid
agent.
[7] I have carefully examined and considered the respective submissions of the parties as
the basis for this Decision.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3405
2
Consideration
[8] The question of representation in proceedings before the Commission is governed by
section 596 of the Act which is 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) 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
[2013] FWC 3405
3
(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.”
[9] It should be noted that these provisions represent a more stringent requirement for the
granting of permission than existed under the predecessor provisions of the Workplace
Relations Act 1996. There have been a number of Decisions of the Commission which have
recognised the legislative intention to broadly restrict and limit the basis upon which
permission would be granted for legal (and paid agent) representation in proceedings before
the Commission as compared with the Australian Industrial Relations Commission. In this
respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter
Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in
Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520.
[10] Further, the legislative intention underpinning s.596 of the Act has been the subject of
Judicial Review in the (incorrectly named) Judgment of Warrell v Walton1 (Warrell) and I
refer in particular to paragraph 25 of that Judgment.
[11] Upon examination of subsection 596 (2) there appears to be three, and only three,
criteria which separately or in combination, provide basis upon which the Commission can
grant permission for a lawyer or paid agent to represent a party in proceedings such as the
Hearing of a claim for unfair dismissal. The three criteria which can be identified in
paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a)
complexity/efficiency; (b) inability; and (c) fairness.
[12] In this case the employer submitted that the criteria involving efficiency, inability and
fairness contained in subsection 596(2) of the Act were satisfied in a manner which provided
basis to grant permission for it to be represented by a lawyer.
Complexity/Efficiency - Subsection 596 (a)
[13] The employer submitted that the matter involved sufficient complexity such that its
determination would be assisted by legal representatives. The complexity was asserted to arise
from the nature of the circumstances surrounding the dismissal of the applicant.
Alternatively, the applicant rejected the complexity attributed to the matter by those
representing the employer.
[14] In respect of the issue of complexity, the circumstances that surround the dismissal of
the applicant encompass a considerable period of time and touch upon matters raised in some
earlier proceedings taken by the applicant under s.365 of the Act. Although the volume of this
material might appear to be significant, the matters under examination involve questions
which routinely require determination in unfair dismissal proceedings.
[2013] FWC 3405
4
[15] On balance, I am not convinced that the matter is of sufficient complexity that it would
be dealt with more efficiently with the assistance of legal representatives.
Inability - Subsection 596 (b)
[16] The employer advanced an argument that it was unable to represent itself effectively
without a lawyer. The alleged inability was said to primarily arise from the requirement that
particular persons who would provide evidence for the employer would, without lawyers, also
be required to advocate the case on behalf of the employer.
[17] The difficulty that is presented when a person has to be both witness and advocate is
also experienced by the unrepresented applicant.
[18] Upon examination, the employer’s submissions represented a reflection of desirability
for legal representation rather than any inability to adequately represent itself. Consequently, I
do not believe that the employer would be unable to represent itself effectively without a
lawyer.
Fairness - Subsection 596 (c)
[19] In this instance, both parties have made submissions which have stressed the question
of fairness. The issue of fairness between the person and other persons in the matter has some
significance. The employer submitted that unfairness arose if it were denied an opportunity to
be represented by lawyers. The applicant has submitted that it would be unfair to permit the
employer to be represented by a lawyer.
[20] Importantly, if permission for legal representation for the employer was granted,
something of an imbalance would emerge whereby it would be represented by a lawyer while
the applicant would be self represented. The resultant imbalance would create great potential
for the absence of a fair and just Hearing as was identified by the Federal Court Judgment in
the Warrell case.
[21] In these circumstances, applying the reasoning contained in the Judgment in Warrell, I
consider that unfairness would be created by the granting of the permission for legal
representation. The resultant imbalance created by the more advantageous representation of
the employer against the self represented applicant should be avoided. Therefore the fairness
criterion would, in this instance, operate strongly against granting permission.
[2013] FWC 3405
5
[22] In view of the conclusions that I have reached in respect of each of the relevant aspects
of subsection 596(2) of the Act, the permission sought by the employer to be represented by a
lawyer is refused.
COMMISSIONER
Appearances:
Mr E Azzopardi, appearing as the applicant in person
Ms J Seymour, Counsel with Ms E Raynor, Solicitor on behalf of the respondent
Hearing details:
2013.
Sydney:
May, 28.
Printed by authority of the Commonwealth Government Printer
Price code C, PR537353
1 Warrell v Walton [2013] FCA 291.
JAL OF F THE ORK COMMISSION Hra
