1
Fair Work Act
2009
s.596—Representation by lawyers and paid agents
Applicant
v
Respondents
(AB2014/1169)
DEPUTY PRESIDENT KOVACIC MELBOURNE, 24 JUNE 2014
Representation by lawyers and paid agents - permission for Respondents to be represented by
a lawyer granted.
[1] This decision sets out in writing my reasons for deciding to grant permission for the
three Respondents in this matter to be represented by a lawyer. My verbal decision was given
in the context of a mention and programming conference conducted by telephone on 6 June
2014. As this matter involves allegations of bullying, I have decided to protect the identity of
the parties involved. Accordingly, this decision simply refers to the parties as either the
Applicant or the Respondents.
Background
[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.
[3] Against that background, the Applicant made an application on 8 April 2014 under
s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance
with Part 6-4B of the Act. The Respondents cited in the application are the health and
community services provider and two of its senior managers, including its Chief Executive
Officer.
[4] On 11 April 2014, the Respondents gave notice of a representative commencing to act
(Form F53).
[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:
[2014] FWC 4198 [Note: An appeal pursuant to s.604 (C2014/5033) was
lodged against this decision - refer to Full Bench decision dated 30 June
2014 [[2014] FWCFB 4297] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB4297.htm
[2014] FWC 4198
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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.
[6] The application was listed for conference on 28 May 2014. At that conference the
Respondents formally sought permission under s.596 of the Act to be represented by a lawyer.
As the conference was focussed on exploring the scope for a consensual resolution of the
matter, the Commission indicated that it was not willing to grant permission for the
Respondents to be represented in the conference. The conference proceeded on the basis that
the Respondents’ legal representative was allowed to remain in the conference to provide
advice to his clients. However, it was acknowledged that the Respondents reserved their right
to press their application to be represented by a lawyer should the matter proceed to a hearing
of their jurisdictional objections.
[7] The conference concluded on the basis that the parties would have further discussions
regarding revised hours of work/working arrangements for the Applicant and the revised
remuneration arrangements that may flow from that. I also made it clear that, were the matter
to be relisted, the Fair Work Commission (the Commission) would need to deal with the
jurisdictional issues raised by the Respondents prior to considering whether or not to make an
order under s.789FC of the Act.
[8] Those further discussions failed to result in a mutually acceptable resolution.
[9] The application was then listed for a mention and programming teleconference on
6 June 2014. In addition two further issues were identified to be dealt with at that
teleconference. First, a request by the Applicant for permission to amend his application to
add an additional respondent and second, the Respondents’ request to be represented by a
lawyer. In respect of the first issue, I decided to defer consideration of the request pending
determination of the Respondents’ jurisdictional objections. As to the second issue, as noted
above, I determined to grant permission to the Respondents to be represented by a lawyer for
the reasons set out below.
The Applicant’s submission
[10] On 2 June 2014 the Applicant wrote to the Commission objecting and opposing the
Respondents’ appointment of a lawyer in this matter. In short, the Applicant argued, inter
alia, that:
(i) the matter was not a complex matter;
(ii) the Respondents were all senior managers capable of representing themselves
and “to explain their actions and policies”; and
(iii) it would be unfair for the Respondents to be represented while he was
representing himself.
[2014] FWC 4198
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[11] Those views were reiterated at the teleconference of 6 June 2014.
[2014] FWC 4198
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The Respondents’ submission
[12] The Respondents submitted on the other hand that permission to be represented by a
lawyer should be granted on the basis of s.596(2)(a), i.e. the jurisdictional issues involved in
this matter were complex and that representation would assist the Commission to efficiently
deal with the matter. It was further submitted that the Respondents are health and community
services managers who are not familiar with employment law and/or the workings of the
Commission, which goes to the circumstances contemplated in s.596(2)(b) of the Act.
The statutory framework
[13] Section 596 of the Act deals with the issue of representation by lawyers and paid
agents. The relevant provisions are set out below.
“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.”
Consideration of the issues
[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
[2014] FWC 4198
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‘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’.
[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.
[2014] FWC 4198
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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.
DEPUTY PRESIDENT
Appearances:
The Applicant on his own behalf.
B. Tallboys for the Respondents.
Hearing details:
2014.
Melbourne (telephone conference):
June 6.
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