1
Fair Work Act 2009
s.739—Dispute resolution
ASC Pty Ltd
v
The Australian Workers’ Union; “Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU); Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia
(C2013/6924)
DEPUTY PRESIDENT
GOSTENCNIK MELBOURNE, 22 JANUARY 2014
Application under section 596 for representation by lawyers and paid agents.
Introduction
[1] ASC Pty Ltd (ASC), the Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union (AMWU), The Australian Workers’ Union (AWU) and the
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia (CEPU) (collectively referred to as the unions) are covered by the
ASC Pty Ltd Enterprise Agreement 2012 – 2015 (Agreement). ASC, the unions and some of
their members are in dispute about a proposal by ASC to transfer some employees from the
ASC North site operated by ASC, to the ASC South site operated by a related entity of ASC
namely ASC Shipbuilding Pty Ltd.
[2] The dispute comes before the Fair Work Commission (Commission) pursuant to
section 739 of the Fair Work Act 2009 (Act) as an application for the Commission to deal
with a dispute in accordance with clause 13 of the Agreement. By clause 13 of the
Agreement, the matter has been dealt with by conciliation before another member of the
Commission.
[3] ASC has sought that the dispute now be determined by arbitration. The matter has
been referred to me. ASC seeks permission under section 596 (2) of the Act for it to be
represented by a lawyer. The grant of permission is opposed by the unions.
[4] I have decided to grant permission to ASC to be represented by a lawyer and these are
my reasons for doing so.
Matters requiring determination
[2014] FWC 544
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 544
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[5] It is accepted by the parties that in order to resolve the dispute by arbitration in
accordance with clause 13 of the Agreement, the following two issues require determination,
namely whether:
1. ASC has complied with the consultation obligations under the Agreement; and
2. On a proper construction of the Agreement, the transfer proposal by ASC is allowable
or permitted under the Agreement.
Permission to be represented by a lawyer
[6] Representation of parties by external lawyers and paid agents in matters before the
Commission is circumscribed.
[7] Section 596(2) of the Act confers on the Commission a discretion to grant permission
to a party to be represented by an external lawyer or paid agent in limited circumstances. The
discretion to grant permission may only be exercise 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.
[8] ASC advances its case for permission to be represented by a lawyer on all three bases
set out in section 596(2). ASC submits the grant of permission would enable the matter before
the Commission to be dealt with more efficiently taking into account the complexity of the
matter. Complexity is said to arise in part by reason of the manner in which the matters have
been progressed to date, the complex formulation of factual material and submissions, the
large number of witnesses proposed to be called and the construction of the Agreement
arguments involving the consideration and application of legal principles. It is said that this is
not a “run-of-the-mill” dispute and the resolution of the dispute involves complexity. It is also
said that it would be unfair not to allow representation because ASC is unable to represent
itself effectively. This arises from the fact that the in-house resources that are available to it
lack the necessary advocacy and industrial relations skills to effectively represent ASC.
[9] Finally ASC submits that it would be unfair for permission to be refused in
circumstances where it was left to be represented by inexperienced in-house resources whilst
the unions or at least some of them would be represented by in-house legally qualified
advocates who have expertise in industrial relations and dispute work.
[10] The unions submitted that the determination of the dispute by arbitration did not
involve complexity and no jurisdictional issues arose for determination. They submitted that
the subject matter of the dispute was narrow and was restricted to the interpretation of an
industrial instrument and the determination of some conflicting factual issues. They said that
the resolution of factual conflicts alone is no basis upon which permission should be granted,
and the principles of construction are well settled.
[2014] FWC 544
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[11] The unions submitted that ASC has ample in-house legal and human resources
capacity to enable it to be represented effectively and as such, external legal representation
was not necessary. Rather, representation is sought by ASC because of preference and
convenience, not because of any necessity for ASC to be represented effectively in the
proceeding. Further, the unions submitted that the grant of permission to ASC Pty Ltd to be
represented by a lawyer runs the risk that the proceeding, which is intended by the legislature
to be informal, will become burdened by unnecessary formality, and given the in-house
resources available to ASC, it would not be unfair to ASC that permission to be represented
by a lawyer be denied.
[12] The AMWU also relies on the decision in Hamilton v Carter Holt Harvey Wood
Products Australia Pty Ltd1 to make good it’s argument in opposition and highlighted the fact
that in Hamilton permission to be represented by a lawyer was denied to the respondent
because, inter alia, of the lack of complexity in the issues that fell for determination and the
respondent’s in-house legal resources available to it.
Consideration
[13] The resolution of the issues earlier identified will, in my view, requires a
determination of questions of both fact and of law. Questions of whether provisions of the
Agreement are ambiguous will arise, as well questions of whether and to what extent extrinsic
material should be admissible, and if admissible, the use to which such material might be put
in resolving questions of construction. It is not to the point that principles of construction of
industrial instruments are well settled. Complexity can and often does arise from the
application of those principles. Given the kind of evidence that the unions will seek to adduce,
in particular from persons attending bargaining meetings for the Agreement, I anticipate that
such complexity will arise in the determination of this dispute.
[14] Based on indications given by the parties, a large number of witnesses are likely to be
called and cross examination of a forensic kind is likely to be required in order to assist me in
resolving disputed questions of fact. Documentary evidence is also likely to be sought to be
admitted into evidence and questions of relevance, purpose and weight that is to be attached
to such evidence will also likely arise.
[15] When viewed in its totality the resolution of this dispute by arbitration is not without
complexity of a kind that travels well beyond mere factual disputes and simple undisputed
application of well settled principles.
[16] In my view, having regard to the complexity involved in the matters that require
resolution, the grant of permission to ASC to be represented by a lawyer would enable the
matters to be dealt with more efficiently. I note that ASC has available to it in-house resources
but I accept the submission of ASC that the persons comprising such resources as are
available to it, do not possess the necessary advocacy and industrial law skills to enable ASC
to be effectively represented in this matter. In any event the question, for the purposes of
granting permission for the reasons set out in section 596 (2)(a) of the Act, is not whether
ASC can be represented or even effectively represented by in-house resources, rather the
relevant question is whether, taking into account the complexity of the matter, the grant of
1 [2012] FWA 5219
[2014] FWC 544
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permission to ASC to be represented by a lawyer (in this case one experienced in advocacy
and industrial law) would enable the matter to be dealt with more efficiently. The in-house
capacity of ASC has a bearing on that assessment but I am satisfied that in this case the grant
of permission to ASC for external legal representation will have that result. Representation of
ASC by persons (even if legally qualified) who are inexperienced in advocacy and industrial
law, in this complex matter, will not in my view enable this matter to be dealt with as
efficiently as representation for which permission is sought. I am satisfied therefore that
permission for ASC to be represented by a lawyer should be granted.
[17] Although it is strictly unnecessary for me to deal with the decision in Hamilton, as it
was relied upon by the AMWU, I will make the following observations. The decision in
Hamilton turns on its own facts. It is not a decision of general application. In any event so far
as the question of complexity is concerned, the decision is of little assistance to the resolution
of the permission question here, as permission in Hamilton was sought in an unfair dismissal
remedy application in which the only apparent area of complexity was said to arise from
disputed facts, the resolution of which might turn on questions of witness credibility. To that
extent, I agree with the submission more generally advanced by the unions that the resolution
of factual disputes alone is not a basis for the grant of permission to be represented by a
lawyer, but that is not the case here. As I have earlier indicated, matters which fall for
resolution in this proceeding extend well beyond merely resolving factual disputes.
[18] As permission may be given to a person to be represented by a lawyer in a matter
before the Commission if any one of the three matters set out in section 596 (2) applies, it is
unnecessary for me to consider the other bases advanced by ASC for the grant of permission.
Conclusion
[19] Permission is given to ASC to be represented by a lawyer in the arbitration of this
dispute.
[20] As a postscript I note that the dispute resolution provision of the Agreement provides
that “[P]arties to the dispute (before the Commission) are entitled to representation”2. As no
party raised this issue or made any submission as to the way in which the provision might
affect the exercise of the discretion in section 596 (2), I have not taken it into account in
arriving at my decision.
DEPUTY PRESIDENT
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