1
Fair Work Act 2009
s.604 - Appeal of decisions
Emily Oratis
v
Melbourne Business School
(C2014/4266)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOOLEY
COMMISSIONER LEWIN MELBOURNE, 11 JUNE 2014
Appeal against decision [[2014] FWC 2838] of Commissioner Bissett at Melbourne on 30
April 2014 in matter number U2013/14884.
[1] The appellant in this matter, Ms Emily Oratis, seeks permission to appeal and appeals
from a decision of Commissioner Bissett issued on 30 April 2014 (Decision)1 Ms Oratis has
made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal
remedy in respect of her former employment with the Melbourne Business School (MBS).
The MBS sought permission to be represented by a lawyer in that matter pursuant to s.596 of
the Act. By the time that the MBS sought such permission, Ms Oratis was representing herself
in the matter (she had earlier been represented by a union, the NTEU2). In the Decision, the
Commissioner granted such permission.
[2] Section 596 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
1 [2014] FWC 2838
2 National Tertiary Education Industry Union
[2014] FWCFB 3869
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 3869
2
(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.
[3] The proper approach to the application of s.596 was discussed as follows by the
Federal Court (Flick J) in Warrell v Walton3 (followed by a Full Bench of this Commission in
New South Wales Bar Association v Brett McAuliffe4):
“[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
3 [2013] FCA 291
4 [2014] FWCFB 1663
[2014] FWCFB 3869
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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”.”
[4] In the Decision, the Commissioner’s reasons for granting permission under s.596 to
the MBS were 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 the Court said:
(not reproduced)
Complexity
[15] Whilst this is a jurisdictional matter I am not convinced that that matter, on its
own creates a level of complexity such that permission should be granted. Ultimately
the determination of the jurisdictional issue will rest on contested factual matters.
[16] However, what cannot be divorced from this is the complexity that does arise in
dealing with the admissibility of the extensive material filed by Ms Oratis. Having
granted the Order, I am also aware of the material sought to be subpoenaed and of the
associated matters raised by Ms Oratis.
Fairness to the Respondent
[17] Whilst I accept the that GM HR for MBS will be a witness in these proceedings
that cannot, on its own, be a satisfactory reason for the grant of permission to appear. I
agree with the submission of Ms Oratis that, if that were the case it would create an
almost automatic right for an employer in any matter where its HR area is involved in
a dismissal to be represented. This is not the intention of the Act.
[18] MBS is a large employer. It has over 200 employees. It is suggested that is has a
number of HR staff and extensive expertise amongst its employees. Whilst Ms Oratis
says MBS has a substantial number of faculty experts, I do not accept that I should
take into account the skills of those employees of MBS who are engaged for their
academic expertise in determining if MBS is capable of representing itself.
[19] I note that MBS is a school in the Faculty of Business and Economics in the
University of Melbourne. To that extent it would suggest that there is wider expertise
within the University available to MBS beyond the GM HR. However, no submissions
have been received on this matter. I have therefore not taken it into account in making
my decision.
Conclusion
[2014] FWCFB 3869
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[20] I am satisfied that, given the complexity of the matter - caused in part by the
extensive material sought to be relied on the by the Applicant - that the matter could
be dealt with more efficiently if permission to be represented was granted to MBS. It
should be noted that I do not consider that it would be unfair to MBS not to allow it to
be represented.
[21] In this case I am satisfied that I should exercise my discretion and grant
permission to MBS to be represented in the matter.
[22] Permission is therefore granted to MBS in accordance with s.596 of the Act to be
represented in the hearing of the above matter.”
[5] It is apparent from the above reasoning 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. It
is further apparent that the Commissioner was satisfied that the jurisdictional prerequisite in
s.596(2)(a) applied. The primary consideration which the Commissioner considered relevant
in this context was the admissibility of the extensive material filed by Ms Oratis, and further
material required to be produced pursuant to an order for production issued by the
Commissioner upon the application of Ms Oratis.
[6] Ms Oratis remained self-represented in the appeal. Her notice of appeal did not clearly
identify how it was said that the Decision was attended by appellable error; indeed her notice
of appeal stated that there were “no errors”, and concentrated upon her omission in not
submitting that, as the MBS was part of the University of Melbourne, it had the resources of
the entire University to draw upon in respect of representation. However, in her written
submissions on the appeal, Ms Oratis contended that the Commissioner erred in a number of
respects. We will consider Ms Oratis’s appeal as founded upon those contentions.
[7] Ms Oratis firstly contended that the Decision was “guided by irrelevant factors”.
However it is difficult to discern from her submissions what are said to be the irrelevant
factors which guided the Commissioner. As earlier stated, the primary factor which the
Commissioner took into account was the admissibility of the extensive material filed by Ms
Oratis, and the further material required to be produced by the MBS. We have perused the
materials in the case file, and they are indeed very extensive and will, if sought to be placed
into evidence, undoubtedly lead to real questions as to whether they are sufficiently relevant
to be admissible. We consider that this was relevant in the Commissioner’s evaluative
assessment as to whether s.596(2)(a) was applicable, and that it was also relevant to the
exercise of her discretion.
[8] We note that Ms Oratis has submitted to us that “The information/material was
provided in addition to the case materials and the Applicant will not be relying upon them in
the court proceedings to prove the Unfair Dismissal case”. That submission, however it is to
be understood, was not made before the Commissioner, and cannot therefore be a proper basis
to find appellable error. We reject the first ground of appeal. However, we observe that if, at
the hearing of her unfair dismissal application, Ms Oratis makes it clear that she does not
intend to rely on the material filed (or a substantial portion of it), it would be open to her to
[2014] FWCFB 3869
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make an application under s.603 of the Act that the Commissioner’s order granting
permission for the MBS to be represented by a lawyer be revoked. The Commissioner could
then consider that application based upon the facts applying at that time.
[9] Secondly, Ms Oratis submitted that the Commissioner had failed to take “some
material consideration” into account. Ms Oratis’s submissions relied in this respect on
s.596(2)(c), and also on the statutory note thereunder which refers to the situation where a
person “is from a non-English speaking background or has difficulty reading or writing” as
being a circumstance in which the Commission might grant permission for representation by a
lawyer or paid agent. Ms Oratis submitted that one of the issues which led to her dismissal
concerned her English ability, and that the grant of permission for representation to the MBS
in that circumstance would create unfairness taking into account fairness between her and the
MBS.
[10] We do not accept that submission. Section 596(2)(c) is one of the jurisdictional bases
upon which permission for representation might be granted; it is not a ground requiring
refusal of permission. We accept that the capacity of a party to speak, write or understand
English might be a relevant consideration in the exercise of the discretion under s.596(2)
(once one of the three jurisdictional prerequisites has been satisfied). However, we cannot
identify that it was clearly put to the Commissioner by Ms Oratis that the grant of permission
to the MBS would cause unfairness to her because of any incapacity on her part to speak,
write or understand English. Having read Ms Oratis’s written submissions and heard her oral
submissions, we do not consider that she suffers from any incapacity in this respect.
[11] Thirdly, Ms Oratis submitted that the Decision was unreasonable or plainly unjust. It
would only be in rare circumstances that appellate intervention on this basis would be
justified.5 Although reasonable minds might differ about whether the MBS should have been
granted permission for representation under s.596, we are not satisfied that there is anything
about the Decision which is so unreasonable or unjust that it would cause us to intervene on
that basis alone.
[12] Finally, Ms Oratis’s submission that she was not aware that she could have submitted
that permission should not have been granted on the basis that the MBS had access to the
entire resources of the University cannot mean that there was any error on the part of the
Commissioner. We note that the Commissioner took no account of this matter because there
was nothing before her which could allow her to reach any conclusion about it. We are in no
better position in this respect. This submission is also rejected.
[13] Accordingly we refuse permission to appeal.
VICE PRESIDENT
5 Michael King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194 at [39]-[41]
OF THE FAIR WORK MISSION THE
[2014] FWCFB 3869
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Appearances:
E. Oratis on her own behalf
N. Ruskin with K. Sweatman solicitors for Melbourne Business School
Hearing details:
2014.
Melbourne:
11 June.
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