1
Fair Work Act 2009
s.394—Unfair dismissal
Susana Gomes
v
OE & DR Pope Pty Ltd T/A Pope Packaging
(U2014/6388)
COMMISSIONER HAMPTON ADELAIDE, 8 JULY 2014
Representation - application for relief from unfair dismissal - whether permission should be
granted for employer to be represented - permission granted.
[1] This decision concerns a preliminary matter that has arisen in the context of an
application by Ms Susan Gomes made under s.394 of the Fair Work Act 2009 for relief
against an alleged unfair dismissal. The respondent employer is OE & DR Pope Pty Ltd T/A
Pope Packaging (Pope Packaging).
[2] Pope Packing has applied for permission to be represented by a lawyer pursuant to
s.596 of the Act and this is opposed by Ms Gomes. This decision deals with that matter.
[3] Ms Gomes is represented by the Legal and Industrial Officer of the SA Branch of the
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as
the Australian Manufacturing Workers’ Union (AMWU), Mr Hardie.
[4] The determination of the s.394 application will involve, amongst other matters, the
consideration of a jurisdictional issues associated with whether the dismissal was a genuine
redundancy within the meaning of s.389 of the Act, and if not, whether the dismissal was
unfair. It has been agreed that all matters would be heard together.
[5] 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:
[2014] FWC 4482
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 4482
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(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
(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.”
[6] Pope Packing contends that each of the considerations contemplated by s.596(2) apply
and that permission should be granted on the following basis:
The jurisdictional issue will involve legal argument about the operation of s.389 of
the Act and legal and factual disputes about the basis of the dismissal;
The employer wishes to challenge the evidence of the applicant and presumes that
the evidence of its officers will also be challenged;
These issues and processes involve a level of complexity that can be dealt with
more efficiently if the employer is represented;
The employer does not employ specialist human resources or industrial relations
management staff and the senior officers with direct knowledge of the matters are
likely to give evidence;
The employer does not therefore have the ability to represent itself effectively and
it would be unfair not to grant permission;
[2014] FWC 4482
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The applicant is represented by her Union and the matter is being conducted by
Mr Hardie, who is a lawyer; and
Permission for the employer would provide fairness between the parties.
[7] Pope Packaging provided evidence to support the factual basis for the relevant
contentions.
[8] Ms Gomes opposes the request for permission and advances the following contentions
in support of that position:
The intent of the Act is that the Commission should operate efficiently and
informally and that permission should only be granted where considerations of
efficient and fairness (rather than convenience or preference) necessitate that
action;
Where an employer has an alternative avenue of representation, this should be
given particular emphasis (Drew Hamilton v Colt Harvey Wood Products Australia
Pty Ltd1);
Pope Packaging is a member of the Australian Industry Group (AiG) and that
organisation is able to effectively represent the employer;
The jurisdictional issue involves the “simple” application of s.389 and as the
employer has failed to consult with Ms Gomes or the Union as required, the
absence of a concession by Pope Packing on that issue was an indication that the
legal advice was not realistic and appeared to be “motivated by commercial gain”;
Mr Hardie is not a “lawyer” in that he is not entitled to practice as a sole
practitioner and is not under professional supervision; and
As a result, it would not be inefficient for the process or unfair to the employer, for
permission to be denied.
[9] The intent of the Parliament regarding the question of representation is expressed in
the following passages of the Explanatory Memorandum issued at the time of the Fair Work
Bill’s introduction in 2008:
“2291. FWA is intended to operate efficiently and informally and, where appropriate, in
a non-adversarial manner. Persons dealing with FWA would generally represent
themselves. Individuals and companies can be represented by an officer or employee,
or a member, officer or employee of an organisation of which they are a member, or a
bargaining representative. Similarly, an organisation can be represented by a member,
officer or employee of the organisation. In both cases, a person from a relevant peak
body can be a representative.
2292. However, in many cases, legal or other professional representation should not be
necessary for matters before FWA. Accordingly, clause 596 provides that a person
may be represented by a lawyer or paid agent only where FWA grants permission.
...
2296. In granting permission, FWA would have regard to considerations of efficiency
and fairness rather than merely the convenience and preference of the parties.”
[2014] FWC 4482
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[10] A Full Bench of the Commission recently confirmed the approach to be adopted to
s.596 of the Act in the following terms when dealing with an appeal of a decision to grant
permission for representation (endnotes omitted):
“[3] The proper approach to the application of s.596 was discussed as follows by the
Federal Court (Flick J) in Warrell v Walton (followed by a Full Bench of this
Commission in New South Wales Bar Association v Brett McAuliffe):
“[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 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”.”
... ... ...
[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. ......”2
[11] It is therefore necessary to consider whether at least one of the three jurisdictional
prerequisites apply in this case, and if so finding, to then consider whether to exercise the
statutory discretion.
[12] To the extent that these facts are relevant, I am satisfied for present purposes that Pope
Packing is a member of the AiG. I am also satisfied that Mr Hardie holds legal qualifications
and a practicing certificate according to the Law Society of SA; albeit that any practicing
certificate that he holds is restricted and he is not able to practice as a sole practitioner. I leave
aside whether this makes Mr Hardie a “lawyer” as it is unnecessary to determine this issue
given the import of s.596(4) of the Act in his circumstances as an employee of the AMWU.
[2014] FWC 4482
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[13] I also deal with this matter on the basis that the evidence demonstrates that Pope
Packing does not employ legally qualified or human resources employees with any advocacy
experience and that the officers of the employer who would otherwise “represent” it are
potential witnesses.
[14] I note that the submissions made on behalf of Ms Gomes seek to raise issues about the
quality and motivation of the advice apparently given to Pope Packaging. These are
speculative and unhelpful.
[15] The considerations of efficiency and fairness are central to the jurisdictional
prerequisites. It is also evident that the fact that “legal” issues arise in a matter is not sufficient
to justify legal representation on the grounds of efficiency. Almost all matters determined by
the Commission contain legal elements. The particular nature of the issues and complexity of
the matter, in the circumstances of the parties, must be considered.
[16] In terms of complexity, the s.398 matter in itself may not ordinarily be particularly
complex. However, I note that the applicant is seeking to contend that the applicant’s
dismissal was not a genuine redundancy due in part to the presence of casual and/or labour
hire employees within the workplace who might have been displaced as part of redeployment
options. There have been some decisions of the Commission touching upon this aspect
however the degree to which these matters should be considered is still developing. This adds
to the legal complexity of this particular matter.
[17] Fairness is to be assessed according to the capacity for the party seeking permission to
represent himself, herself or itself effectively (s.596(2)(b)) and taking into account fairness
between the party seeking permission and other persons in the same matter (s.596(2)(c)).
[18] The first of these involves an assessment of the capacity for Pope Packaging to
effectively represent itself. Even assuming the AiG is available to represent the employer and
that I should have regard to that potential, this would not fall within the compass of
s.596(2)(b) as this involves representation of the party itself. I note in that regard that the
authority cited on behalf of the applicant (Hamilton) involved a matter where the in-house
lawyer was considered to be an appropriate alternative representative. The absence of internal
legal or industrial relations expertise, and the fact that the relevant officers will be providing
(contested) evidence, are factors supporting a proposition that Pope Packaging has limited
capacity to effectively represent itself.
[19] The second consideration of fairness is a relative assessment having regard to the
nature and representation of the other party. Ms Gomes is a person whose first language is not
English. However, the applicant is represented by the resources of the AMWU and these
include Mr Hardie. Although Mr Hardie may not be a lawyer in the fullest sense of that title,
he is a legally qualified and experienced advocate and the absence of any experienced internal
resources within Pope Packaging is also a factor. Indeed, given the nature of the
representation being utilised by the applicant, it would be unfair not to afford the capacity for
the employer to have representation in this case.
[20] In terms of the impact of AiG membership of Pope Packaging upon the assessment of
the second fairness consideration, I would not completely discount that as being a potentially
relevant matter. However, the AiG are not, and have not been, representing the employer in
relation to the unfair dismissal matter and I have concerns about how this concept could be
[2014] FWC 4482
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applied if adopted more generally. For example, would the fact of union membership of an
applicant worker, even where they had chosen not to be represented by the union, be taken
into account when assessing the relative fairness of representation for present purposes?
[21] In any event, I am satisfied that grounds exist for the consideration of representation as
contemplated by s.596(2)(a) and (b) of the Act.
[22] Being satisfied that one or more of the statutory prerequisites have been established I
must consider whether I should exercise the discretion to grant permission. In all of the
circumstances of this case, I am satisfied that the discretion should be exercised and
permission granted.
[23] Accordingly, I grant permission pursuant to s.596 of the Act for Pope Packaging to be
represented by a lawyer in this matter.
Written submissions:
OE & DR Pope Pty Ltd T/A Pope Packaging: 26, 27 June and 3 July 2014.
Susana Gomes: 30 June 2014.
Printed by authority of the Commonwealth Government Printer
Price code C, PR552785
1 Drew Hamilton v Colt Harvey Wood Products Australia Pty Ltd [2012] FWC 5219 and the appeal - Colt Harvey Wood
Products Australia Pty Ltd v Drew Hamilton [2012] FWAFB 6832.
2 Emily Oratis v Melbourne Business School [2014] FWCFB 3869.
THE FAIR WORK COMMISSIONER NOISS THE SEAL
