1
Fair Work Act 2009
s.394—Unfair dismissal
Boguslaw Bienias
v
Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia
(U2016/3008)
SENIOR DEPUTY PRESIDENT
O’CALLAGHAN
ADELAIDE, 30 AUGUST 2016
Permission to be represented by a 'lawyer or paid agent' pursuant to s.596 of the Fair Work
Act 2009.
[1] Mr Bienias has made an unfair dismissal application pursuant to s.394 of the Fair
Work Act 2009 (the FW Act), in relation to the termination of his employment with Iplex
Pipelines Australia Pty Limited T/A Iplex Pipelines Australia (Iplex). The application is listed
for a determinative conference on 21 September 2016.
[2] I note at the outset that Mr Bienias’ application was lodged outside of the statutory
time limit but an extension of that time limit was granted by Deputy President Clancy on 3
August 2016.1 A grant of permission was made to an Ashurst Australia lawyer in that
extension of time matter.
[3] In directions issued on 8 August 2016, I stated:
“[2] I note that Mr Wade has given notice that he requests a grant of permission to
represent Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia (Iplex)
and that Mr Bienias has foreshadowed that he opposes that request. Mr Wade is
required to provide to the Commission and to Mr Bienias, by close of business 16
August 2016, a brief submission detailing the basis upon which that permission is
requested. If Mr Bienias opposes that request, he is required to provide to the
Commission and to Iplex, by close of business 23 August 2016, a brief submission
setting out the basis for his opposition. In that event, and in that event only, a decision
on the representation issue will be provided as soon as practicable. For the
information of the parties, I have attached a copy of s.596 (2) of the Fair Work Act
2009 (the FW Act), which deals with the issue of representation.”
[4] Consistent with these directions I have now received written submissions from
Ashurst Australia, seeking permission for a lawyer to represent Iplex, and from Mr Bienias, in
opposition to that request.
[5] Section 596(2) states:
[2016] FWC 6166
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 6166
2
“596 Representation by lawyers and paid agents
…
(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.”
[6] In considering the position put by Ashurst Australia, I have noted that Iplex is a
substantial employer. The Employer’s Response (Form F3) advises that Iplex employed 665
employees at the time of the termination of Mr Bienias’ employment. The Ashurst Australia
submission is predicated on the position that one or more of the requirements in s.596(2) are
satisfied in this instance.
[7] Ashurst Australia asserts that a grant of permission would enable the matter to be dealt
with more efficiently. In this regard it asserts that the application raises issues of complexity
in as much as the application will involve consideration of whether, pursuant to the provisions
of the Manufacturing and Associated Industries and Occupations Award 2010, Mr Bienias
should be considered to have abandoned his employment rather be regarded as dismissed. In
the alternative, Ashurst’s argue that there is some complexity in the consideration of the Iplex
position that any termination of Mr Bienias’ employment should be considered to be fair.
Additionally Ashurst's assert that contested issues of fact create complexity which means that
the involvement of a lawyer will contribute to the more efficient conduct of the proceedings.
Ashurst’s assert that its involvement in the extension of time considerations and in the
preparation of the materials for this matter mean that its on-going involvement will expedite
consideration of the matter.
[8] In terms of s.596(2)(b), Ashurst's asserted that the Iplex People and Performance
Business Partner, Ms Holt, who would need to represent Iplex if permission was refused, was
a key witness in the matter and did not have the requisite experience in the Commission.
[2016] FWC 6166
3
[9] Mr Bienias’ position was that a grant of permission would constitute unfairness in that
he would be representing himself with the assistance of his wife. Mr Bienias advised that he
had been ill and that he remained under medical care.
[10] In terms of the extension of time proceedings, Mr Bienias asserted that the
involvement of Ashurst's had not contributed to the efficient conduct of those proceedings. Mr
Bienias also contended that Ashurst's could not contribute to the efficient assessment of his
state of mind.
[11] In terms of s.596(2)(b), Mr Bienias asserts that Ms Holt of Iplex is in a better position
than himself in that he has no experience in matters such as this. Mr Bienias asserts that Iplex
management made the decision to terminate his employment and hence should be able to
represent the employer position to appropriate effect. Mr Bienias asserts that the material
provided by Ashurst's to date in this matter had not contributed to the efficient conduct of the
matter.
[12] Mr Bienias relied on the provisions of the Explanatory Memorandum to the FW Act
and on various decisions in support of his position. He referred to the substantial size of the
Iplex business globally.
[13] Finally, Mr Bienias asserted that a grant of permission would constitute an inherent
unfairness to him which would prejudice his capacity to access a fair hearing.
[14] I have concluded that permission should be granted pursuant to s.596(2)(a). I am
satisfied that Mr Bienias’ application raises issues of some complexity in terms of whether he
was dismissed or whether he abandoned his employment. Furthermore, if Mr Bienias was
dismissed, the basis for that dismissal will most likely depend on somewhat complex issues
and evidence such that the involvement of a lawyer will facilitate the more efficient conduct
of the matter. In this respect, the assessment required here goes to matters of degree in terms
of the more efficient conduct of the proceedings. I am not satisfied that difficulties or issues
associated with the conduct of the application to date have been fairly attributed to Ashurst. In
this regard, I am satisfied, on the limited material before me, that the application has the very
real potential to raise some quite complex issues relating to the fair treatment of Mr Bienias.
[15] Mr Bienias’ concerns about the equity of consideration of his application need to be
seen in the context of the provisions of s.596(2). There is no express capacity to refuse
permission for representation of one party on the basis that the other party is not represented.
In contrast, s.596(2)(c) provides a basis for a grant of permission on the basis of consideration
of the other party’s position. Notwithstanding this, I think Mr Bienias’ concerns are
misplaced. An important part of the role of the Commission is to ensure both parties have
access to fair consideration of their respective positions. It is quite conceivable that the
involvement of a lawyer will enable advice to be given to Iplex in the course of the hearing,
which may then impact on the proceedings.
[16] I am not satisfied that this permission should be granted on the basis of s.596(2)(b) in
that it seems to me that Iplex would be able to represent itself efficiently.
[17] This grant of permission needs to be seen in context. I will endeavour to provide
procedural guidance to Mr Bienias relative to the conduct of the proceedings. Additionally,
[2016] FWC 6166
4
Mr Bienias will be able to request brief breaks in the proceedings in the event that he needs to
review his position and/or seek advice. Finally, it goes almost without saying that I anticipate
the normal highest standards of professionalism on the part of Ashurst's.
[18] Permission is granted on this basis.
Printed by authority of the Commonwealth Government Printer
Price code A, PR584822
1 [2016] FWC 5357
HIE PAIN WORK CO FAIR SIDENT ALLA FOISSHA EAL O Ht SENIOR DEPUTY
