1
Fair Work Act 2009
s.604 - Appeal of decisions
Appellant
v
Respondents
(C2014/5033)
SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER RYAN MELBOURNE, 30 JUNE 2014
Appeal against decision [[2014] FWC 4198] of Deputy President Kovacic at Melbourne on
24 June 2014 in matter number AB2014/1169 – permission to be represented
[1] The Appellant, being the Applicant at first instance, has lodged an appeal with the
Fair Work Commission (the FWC) against a decision1 of Deputy President Kovacic. In the
decision the Deputy President granted permission for three Respondents to be represented by
a lawyer in respect of an application made by the Appellant under s.789FC of the Fair Work
Act 2009 (Cth) (FW Act). The application seeks an order of the FWC to stop bullying
(the bullying application).
[2] 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.
[2014] FWCFB 4297
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 4297
2
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] Section 596 of the FW Act was considered in Warrell v Walton.2 In Warrell, Flick J
said:
“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
[2014] FWCFB 4297
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‘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
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 deciding to grant permission for the three Respondents to be represented by a
lawyer, the Deputy President said:
“[2] In this case, the Applicant, a medical practitioner, provides medical services to
one of the Respondents, a health and community services provider located in regional
Victoria. The relationship is governed by a services contract between that Respondent
and a company of which the Applicant is the sole director and secretary and the sole
provider of services. A number of issues going to the performance of the contract have
been raised by the parties and remain unresolved, despite the parties having
participated in mediation conducted by an independent party...
[5] In their Form F73 - Response from an employer/principal to an application to
stop bullying, submitted on 17 April 2014, the Respondents expressed a number of
jurisdictional objections to the application. The jurisdictional objections raised by the
Respondents are:
the person making the application does not meet the definition of a ‘worker’;
the worker is not working in a ‘constitutionally covered business’;
the application has no reasonable prospects of success; and
the worker was subject to reasonable management action, carried out in a
reasonable manner...
[14] The jurisdictional objections raised by the Respondents in this matter raise a
number of potentially complex issues. Key among these is whether the Applicant
meets the definition of ‘worker’. The complexity around this aspect stems from the
nature of the relationship between the parties, with the contractual relationship being
between one of the Respondents, i.e. the health and community services provider, and
a legal entity which is different to the Applicant but of which the Applicant is the sole
Director and secretary and sole provider of services on behalf of. The other
potentially complex issue raised by the Respondents’ jurisdictional objections is
whether or not the health and community services provider is a ‘constitutionally
covered business’ for the purposes of Part 6-4B of the Act. The complexity around
this issue goes to the legal status of this Respondent which is established under
Victorian state legislation. More particularly, the complexity flows from the need to
consider that legislation and relevant jurisprudence on the issue of ‘constitutionally
covered business’.
[2014] FWCFB 4297
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[15] Considered together, the complexity attaching to these issues supports a
finding that representation would assist the Commission in dealing with the
jurisdictional objections more efficiently than would be the case if both parties were
self represented. A further consideration supporting such a finding is the relative
newness of both the Act’s bullying jurisdiction; Part 6-4B of the Act only commenced
operation on 1 January 2014. This is compounded by virtue of the fact that the broader
definition of ‘worker’ reflected in Part 6-4B of the Act is drawn from national work
health and safety legislation which itself only came into operation on 1 January 2012.
[16] Also relevant is the Respondents’ submission highlighting their lack of
familiarity with employment law and/or the workings of the Commission. In
circumstances where the threshold issues to be determined in this matter are the
jurisdictional objections raised by the Respondents and given the complexity attached
to some of those jurisdictional objections, the application to be represented raises
issues of fairness to the Respondents in circumstances where it is argued that they
would not be able to effectively argue these jurisdictional objections because of their
lack of familiarity with the jurisdiction. While I have no doubt that as senior managers,
the Respondents could certainly ‘explain their actions and policies’, to use the
Applicant’s language, the need for them to do so only arises if and when the
Commission is required to deal with the merits of the application. However, before
that point is reached, the jurisdictional objections raised by the Respondents need to be
dealt with and as noted above those jurisdictional objections raise a number of
complex issues.
[17] Taken together, the above supports a finding that the grounds set out in
ss.596(2)(a) and (b) have been met in this matter.
[18] Further, in deciding to exercise the discretion available to the Commission to
grant permission to the Respondents to be represented by a lawyer, I was also mindful
of the following:
dealing with the jurisdictional issues efficiently would, if those objections are
not upheld, enable the substance of the bullying application to be dealt with
more expeditiously which is to the Applicant’s advantage;
should the matter ultimately proceed to dealing with the merits of the
application, I do not consider that legal representation will of itself result in
greater formality in the proceedings than would otherwise be the case; and
the Act also requires the Commission to have regard to fairness for all
parties, not solely one party at the expense of the other party/parties
Conclusion
[19] For all these reasons, I considered that the requirements of s.596 of the Act had
been met and granted the Respondents permission to be represented by a lawyer.”3
[5] It is apparent that in deciding to grant the three Respondents permission to be
represented by a lawyer, the Deputy President was satisfied as to the jurisdictional
prerequisite to the exercise of his discretion. In this regard, he found the grounds set out in
[2014] FWCFB 4297
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ss.596(2)(a) and (b) had been met, essentially having regard to the potentially complex issues
raised in the jurisdictional objections of the three Respondents to the bullying application and
the three Respondents lack of familiarity with employment law and/or the workings of the
FWC in circumstances where complex jurisdictional objections needed to be dealt with by the
FWC.
[6] The Deputy President then decided to exercise his discretion to grant permission to the
three Respondents to be represented by a lawyer because he considered it would enable the
bullying application to be dealt with more expeditiously, would not result in any greater
formality than would otherwise be the case and having regard to fairness for all parties.
[7] The Deputy President’s approach was consistent with that set out in Warrell.
[8] The Appellant submitted the Deputy President in effect automatically granted the three
Respondents permission to be represented by a lawyer. We think it is apparent from the
Deputy President’s decision that this submission is unfounded.
[9] The Appellant also submitted that the jurisdictional objections to his bullying
application are not complex. We are not persuaded there was any error in the Deputy
President being satisfied the jurisdictional prerequisite to the exercise of his discretion was
met, having regard to his conclusions about the complexity associated with the jurisdictional
objections. That the FWC may have to deal with complex jurisdictional objections in the
absence of a party or parties being represented by a lawyer or paid agent does not preclude the
FWC being satisfied as to the jurisdictional prerequisites in s.596(2).
[10] The Appellant went on to submit that it was unfair and unjust to allow the three
Respondents to be represented by a lawyer when he was not so represented. We think it is
apparent that, in the exercise of his discretion to grant permission to be represented, the
Deputy President had regard to matters of fairness and justice to the Appellant, including that
it would enable the bullying application to be dealt with more expeditiously to the Appellant’s
advantage, the affect on the formality of the proceedings and fairness for all parties.
[11] For the reasons we have given, we are not persuaded the Deputy President’s decision
is affected by appealable error. Nor are we satisfied it is in the public interest or otherwise for
us to grant permission to appeal. We refuse permission to appeal and, to the extent necessary,
dismiss the appeal. An order4 to that effect is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Hearing details:
2014.
Melbourne.
June 27.
Printed by authority of the Commonwealth Government Printer
Price code C, PR552528
F THE FAIR WOR AU TRALL OMMISSION SE SEAN THE
[2014] FWCFB 4297
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Endnotes
1 Applicant v Respondents, [2014] FWC 4198.
2 [2013] FCA 291.
3 Applicant v Respondents, [2014] FWC 4198.
4 Appellant v Respondents, PR552531.
