1
Fair Work Act
2009
s.739 - Application to deal with a dispute
Mrs Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(C2017/7037)
COMMISSIONER JOHNS MELBOURNE, 24 MAY 2018
Section 596 representation – request by employer opposed by applicant – efficiency of
proceedings – fairness between the parties
[1] This decision is about whether United Protestant Association of NSW Ltd T/A UPA
(UPA) should be granted permission to be represented by a lawyer or paid agent in relation to
an application made by Mrs Inna Grabovsky.
[2] In making the application Mrs Grabovsky was assisted by her husband, Mr Igor
Grabovsky. The application was made on 20 December 2017 under s.739 of the Fair Work
Act 2009 (FW Act) for the Fair Work Commission to deal with an alleged dispute under the
The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017 (Current Agreement).
I refer to the dispute under the Current Agreement as the Dispute Matter.
[3] In a related matter, on 2 November 2017 UPA made an application under s.185 of the
FW Act to replace the Current Agreement by seeking approval of The UPA NSWNMA and
HSU NSW Enterprise Agreement 2017-2020 (2017-2020 Agreement Matter).
[4] On 22 December 2017 the Dispute Matter was programmed and listed for consent
arbitration on 19 February 2018.
[5] On 10 January 2018, UPA (through its lawyers) objected to the Commission
exercising any powers in relation to the Dispute Matter on jurisdictional grounds.
Consequently, on the same day the 22 December 2017 Directions were amended to also
program the jurisdictional objection.
[6] On 12 January, Mr Grabovsky challenged the validity of UPA’s objection on the basis
that the Commission had not given permission for UPA to be represented by a lawyer. In
short, he contended that without permission having been given to UPA’s lawyers, the
objection lodged by them on UPA’s behalf was invalid. He also objected to UPA being
granted permission to be represented by a lawyer.
[2018] FWC 2751 [Note: An appeal pursuant to s.604 (C2017/3178 was
lodged against this decision and the order arising from this decision - refer
to Full Bench decision dated 31 July 2018 [[2018] FWCFB 4362] for result
of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4362.htm
[2018] FWC 2751
2
[7] Consequently, also on 12 January 2018, new directions were issued to address issue of
representation. At that time UPA’s permission to be represented in the 2017-2020 Agreement
Matter was also a live issue1. Therefore, the Dispute Matter and 2017-2020 Agreement Matter
were listed together for hearing on 19 February 2018.
[8] On 18 January 2018, Mr Grabovsky filed submissions in relation to the overall
substantive matter. It was premature for him to have done so.
[9] On application by Mr Grabovsky, on 5 February 2018 I issued Orders requiring the
following persons to attend the hearing on 19 February 2018:
a) Stephen Walkerden, General Manager, UPA; and
b) Helga Buckley,2 HR Advisor, performHR.
[10] Also on further application by Mr Grabovsky, on 12 February 2018 I issued Orders
Requiring Production of Documents as follows:
a) Copy of the instrument (e.g. Letter of Appointment, contract, etc.), which
establishes the character of relationship between Ms. Helga Buckley and the
UPA.
b) Copy of the instrument (e.g. Letter of Appointment, contract, etc.), which
establishes the character of relationship between Mr. David Reid and the UPA.
The Legal Principles
[11] The law in relation to representation under Section 596 of the FW Act has been
recently summarised in Skaka v Apple Pty Ltd3 (Apple):
“[7] 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
1 That issue was subsequently resolved and on 11 April 2018 I granted UPA permission to be represented in the 2017-2020
Agreement matter. See [2018] FWC 2920.
2 On 13 February 2018, Ms Buckley was excused from attendance for confidential reasons.
3 [2018] FWC 2696
[2018] FWC 2751
3
(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
(d) is a bargaining representative.”
[8] The granting of permission under section 596 involves a two-step process. The
first is that there must be satisfaction that at least one of the criteria in section 596(2) is
satisfied. The consideration required by this first step “involves the making of an
evaluative judgment akin to the exercise of discretion”. The second is that the
discretion conferred by section 596(2) must be exercised in favour of the applicant for
permission.
[9] The meaning of section 596 was recently considered by a Full Bench of this
Commission in Fitzgerald v Woolworths Limited. While that decision concerned
whether a lawyer not acting as an advocate could be said to be “representing” a party,
the Commission made the following general observations about the application of
section 596 and its legislative history:
[2018] FWC 2751
4
“[30] There is little authority on the scope or operation of s.596. Only two
decisions are of significance. In Warrell v Fair Work Australia the Federal
Court (Flick J) dealt with a situation where, in an unfair dismissal proceeding
before Fair Work Australia (as the Commission was then known), a lawyer was
permitted to appear on behalf of the employer in a proceeding without the
Senior Deputy President hearing the matter having given consideration to the
requirements of s.596. The Court 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
“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”.
[25] The appearance of lawyers to represent the interests of parties to a
hearing runs the very real risk that what was intended by the legislature
to be an informal procedure will be burdened by unnecessary formality.
The legislative desire for informality and a predisposition to parties not
being represented by lawyers emerges, if not from the terms of s 596,
from the terms of the Explanatory Memorandum to the Fair Work Bill
2008 which provided in relevant part as follows:
1. 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 or 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.
2. However, in many cases, legal or other professional
representation should not be necessary for matters before FWA.
[2018] FWC 2751
5
Accordingly, cl 596 provides that a person may be represented
by a lawyer or paid agent only where FWA grants
permission…In granting permission, FWA would have regard
to considerations of efficiency and fairness rather than merely
the convenience and preference of the parties.
[32] The other authority is the Full Bench decision in NSW Bar
Association v McAuliffe. That decision is, for relevant purposes,
authority for two propositions. The first is that the power to grant or
refuse permission for legal representation in s.596(2) does not carry with
it the power to select who that legal representative would be either by
reference to the individual identity of the lawyer or whether the lawyer is
a barrister or solicitor, nor did it empower the Commission to choose
which member of a party’s legal team might represent the party in
proceedings. Section 596(2) was not intended to interfere with a party’s
right to choose who its legal representative would be. The second
proposition is that an error in the application of s.596 at a hearing does
not necessarily require the decision that results from the hearing to be
quashed if it does not result in any prejudice to a party.”
[10] The following extract of the decision of the Commission in CEPU v UGL
Resources Pty Ltd is also relevant:
“…Before permission to be represented can be granted, a person must be unable
to represent himself, herself or itself effectively, and following the plain
language definitions of the Macquarie Dictionary (Revised Third Edition) and
the Australian Concise Oxford Dictionary (Third Edition), this means the
person must be unable to represent himself, herself or itself in a manner that
creates a “striking impression”, or which has an “impressive” effect or which is
“powerful in effect”.
Submissions
[12] In addition to the oral evidence I heard on 19 February 2018, in coming to this
decision, I have had regard to all of the evidence, documents and submissions filed in the
proceedings as follows:
a) Exhibit UPA 1 – UPA’s Outline of Submissions dated 19 January 2018 –
Dispute Matter
b) Exhibit UPA 2 – Submissions by Cantle Carmichael Legal dated 10 January
2018
c) Exhibit UPA 3 – UPA’s Outline of Submissions dated 19 January 2018 –
2017-2020 Agreement Matter
d) Exhibit UPA 4 – Proposal for HR Support
e) Exhibit UPA 5 – Form F16
[2018] FWC 2751
6
f) Exhibit G 1 – Mrs Grabovsky’s Outline of Submissions dated 5 February 2018
[13] UPA, in their initial evidence submitted,
a) in relation to section 596(2)(a): the present matter contains complex issues of
law, including jurisdictional issues and UPA’s ability to articulate its
arguments will be assisted with representation. Further, the Commission has
previously afforded the UPA representation in previous matters and
representation will ensure the proceedings are conducted more efficiently.4
b) in relation to section 596(2)(b): UPA employs no one with legal qualifications
or any experience in industrial relations advocacy. Subsequently, it will not be
able to represent itself effectively without representation being granted. 5
c) in relation to Section 596(2)(c): Mrs Grabovsky is represented by a person who
has overseas legal qualifications (namely her husband, Mr Grabovsky).
Consequently, it would be unfair for UPA to not be represented.
[14] In her initial submissions Mrs Grabovsky submitted that,
a) no Form 53 Notice of Representative Commencing to Act has been filed for
the paid agent of performHR. Further, that in the 2017-2020 Agreement Matter
UPA is already represented by an employee of performHR, Ms Helga
Buckley.6 That by listing Ms Buckley as a contact of UPA in their original
application for approval of the 2017-2020 Agreement UPA had misled the
Commission into believing that Ms Buckley is an employee of the UPA.7
UPA’s statement that it normally outsources HR functions should not be
applicable for these reasons, that it has no legal or moral merits and that the
Commission should disregarded the UPA’s contentions as grounds for granting
UPA’s applications for permission to be represented.8
b) UPA’s submission that they have been granted permission to be represented
before holds no weight in the current matter.9
c) UPA’s submission that the matter involves complex legal issues is based on a
false premise and that to the extent that there are complex issues, those issues
have been introduced by the UPA’s paid agents. It was contended that this was
done on the assumption that Mrs Grabovsky would not be able to cope with
and consequently, withdraw from the litigation.10
d) UPA’s submission that Mrs Grabovsky is being represented by her husband,
Mr Grabovsky, who has foreign legal qualifications is misleading and should
4 Exhibit UPA 1 – UPA’s Outline of Submissions dated 19 January 2018 – Dispute Matter, para 7.
5 Exhibit UPA 1 – UPA’s Outline of Submissions dated 19 January 2018 – Dispute Matter, para 7.
6 Exhibit G 1 – Mrs Grabovsky’s Outline of Submissions dated 5 February 2018, page 2.
7 Exhibit G 1 – Mrs Grabovsky’s Outline of Submissions dated 5 February 2018, page 3.
8 Exhibit G 1 – Mrs Grabovsky’s Outline of Submissions dated 5 February 2018, page 3.
9 Exhibit G 1 – Mrs Grabovsky’s Outline of Submissions dated 5 February 2018, page 3.
10 Exhibit G 1 – Mrs Grabovsky’s Outline of Submissions dated 5 February 2018, page 4.
[2018] FWC 2751
7
be disregarded.11 This is because in the decision referred to by UPA, [2014]
FWC 5634, Mr Grabovsky submits that Deputy President Booth in her
decision made a “false statement” about his legal qualification. Further, that
Mr Grabovsky’s knowledge of the law does not warrant being “legally
qualified”.
Hearing about the question of representation
[15] At the hearing on 19 February 2018,
a) Mrs Grabovsky (who was absent) was represented Mr Grabovsky.
b) UPA was represented by Ms Sally Cox, State Care Manager for UPA.
c) Additionally, the following people were present:
i. Mr Scott Puxty, solicitor of Cantle Carmichael Legal seeking
permission under Section 596 of the FW Act to represent UPA.
ii. Mr Stepehn Walkerden, UPA;
iii. Ms Karen Ansen, performHR; and
iv. Ms Anne-Maria Wade, Aged & Community Services Australia
(ASCA).
[16] Mr Grabovsky called Mr Walkerden to give evidence. Mr Walkerden confirmed that,
a) UPA is a company limited by guarantee, that he is UPA’s General Manager
and a member of the board of directors since 1995;12
b) he is effectively the CEO of UPA;13
c) UPA engages performHR in relation to HR and industrial relations matters,
including the Dispute Matter and the 2017-2020 Agreement Matter;14
d) UPA has no internal HR function;15 and
e) there is an agreement between UPA and performHR for the provision of its
services.
[17] The remainder of Mr Walkerden’s evidence was not relevant to the Dispute Matter. It
largely dealt with the content of UPA’s application in the 2017-2020 Agreement Matter. Mr
Walkerden was then excused as a witness.
11 Exhibit G 1 – Mrs Grabovsky’s Outline of Submissions dated 5 February 2018, page 5.
12 PN103
13 PN105
14 PN115
15 PN124
[2018] FWC 2751
8
[18] In relation to UPA’s submissions about complexity Mr Grabovsky re-stated his view
that he did not think the matters are invested with complexity.16
[19] Further, in relation to section 596(2)(b) of the FW Act, I put it to Mr Grabovsky that it
appeared the UPA did not employ any internal lawyers or HR specialists. Mr Grabovsky did
not concede this point.17
[20] In relation to UPA’s submission about Section 596(2)(c) of the FW Act, Mr
Grabovsky stated that he did not possess overseas legal qualifications.18 I then asked him
about his experience as a litigant. Mr Grabovsky stated that he had been litigating in the
Commission since 2014 in multiple proceedings before single Members and Full Benches.19
However, Mr Grabovsky would not concede that he was an “experienced advocate”.20
[21] Mr Grabovsky then made some final oral submissions. He opposes every ground on
which UPA advances their application.21 He stated that UPA, as a large public company, is
opposed by one worker (Mrs Grabovsky), represented by himself, a lay representative. He
submitted that English is both his and Mrs Grabovsky’s third language, the same language
that UPA uses to communicate. He submitted that this matter goes to the issue of section
596(2)(c).22 In addition, Mr Grabovsky refuted the idea that the UPA having no dedicated HR
staff should influence the decision, In essence he submitted that because UPA hires a
specialist company to provide it expert advice and Mr Walkerden has been in his position
since 1995, UPA should be able to represent itself.23
[22] Mr Grabovsky contested UPA’s evidence (relevant to section 596(2)(b)) that UPA
would be able to represent itself more effectively with representation. In particular he took
issue with the word “effectively”, arguing that a party can always improve on the way it
conducts a matter, which in turn does not mean it cannot represent itself “effectively”.24 I
accepted the submission that I ought not equate:
a) the inability of a party to represent itself effectively, with
b) a party’s desire to be better represent itself.25
Final Submissions
[23] Following the hearing I issued directions requiring any party wanting to make final
submissions about the issue of representation to do so by 6 March 2018. Both Mr Grabovsky
and UPA complied with that direction.
16 PN330
17 PN334
18 PN344
19 PN346 – PN361
20 PN367
21 PN372
22 PN382
23 PN385 – PN387
24 PN388 – 401
25 PN402
[2018] FWC 2751
9
[24] UPA submitted that:
a) (citing Walton v Walton [2013] FCA 291) once at least one of the requirements in
section 596(2) is satisfied the Commission must then determine whether to
exercise discretion in favour of a grant of permission. Additionally, that the
explanatory memorandum’s focus in regards to section 596 is on an intention to
allow for the conduct of proceedings with informality and “where appropriate” in a
non adversarial fashion with regard to “efficiency and fairness”.
b) in relation to section 596(2)(a): the proceedings are complex for several reasons
including that,
i. Mr Grabovsky challenges the legality of the Current Agreement on ground
that it infringes laws and orders from industry regulators;
ii. the number of interested parties in the Agreement matter;
iii. the lack of internal HR or industrial relations specialists employed by UPA;
and
iv. representation will allow UPA to conduct its case more effectively by
reducing court time required to address matters raised, and to respond to
the extensive competing arguments and evidence submitted by Mr
Grabovsky.
c) in relation to section 596(2)(b): that UPA has completely outsourced its HR and
industrial relations functions to performHR. UPA has no internal legal resources
and relies on external advice for these matters. Further, that UPA would not be
able to effectively represent itself. Consequently, that it would be unfair to deny
representation.
d) in relation to section 596(2)(c): that the fact that an applicant is self-represented is
not an impediment to the Commission favourably considering UPA’s application
for permission to be represented. Additionally, that because Mr Grabovsky has a
long history of litigation experience in the Supreme Court of NSW,26 the Federal
Court of Australia,27 the Administrative Appeals Tribunal,28 and the NSW
Workers Compensation Commission29 it would be unfair not to allow UPA to
represented. More specifically, that he has represented his wife in the Commission
26 Keith Soames Real Estate (Thornleigh) v Grabovsky [2009] NSWSC 866; Mission Providence Pty Limited [2016] NSWSC
1112.
27 Grabovsky v Secretary, Department of Social Services [2015] FCA 1121; Grabovsky v Secretary, Department of Social
Services [2015] FCA 1130; Grabovsky v Secretary, Department of Social Services [2015] FCA 244; Grabovsky v
Secretary, Department of Social Services (No2) [2015] FCA 1225; Grabovsky v Secretary, Department of Social Services
(No3) [2015] FCA 1431.
28 Grabovsky v Secretary, Department of Social Services [2014] AATA 522.
29 Grabovsky v Employers Mutual NSW Limited and United Protestant Association of NSW Limited [2015] 1313/15 &
2683/15.
[2018] FWC 2751
10
before a single Member30 and the Full Bench.31 UPA submits that this contrasts
with UPA’s ability to conduct a case alone, and that it would be unfair within the
meaning of section 596(2) of the FW Act to deny permission for it to be legally
represented.
e) the manner in which Mr Grabovsky has conducted the matter should be considered
in the exercise of discretion. That is that Mr Grabovsky’s repeated “articulation of
serious and uncorroborated allegation[s]” against the UPA and its management
team, including serious criminal and other acts such as fraud, contribution towards
the deaths of residents and breaches of workplace law should be taken into
account.
[25] On behalf of Mrs Grabovsky, Mr Grabovsky submitted that:
a) during the hearing on 19 February 2018, UPA made no additional submissions, in
contradiction of previous correspondence stating that it would, and that this
amounts to an attempt by the UPA to complicate the issue of representation. That
during all previous hearings and conferences the issue of legal representation was
always allowed regardless of the position of Mrs Grabovksy, even when alleged
falsification of Commission documentation was shown.
b) in relation to Mr Grabovsky’s litigation of his own matters in the Federal Court
and tribunals and the matter he was litigating on behalf of his daughter in the NSW
Supreme Court, he had lost all cases in the first instance. Mr Grabovsky submits
that this is because the opposite parties were represented by law firms and counsel
and that the judicial officers in these cases were “deaf and blind” to his
submissions.
c) UPA is a public company employing over 1300 people, which hires another
company to deal with matters concerning HR and industrial relations. In relation to
subsection 596(2) of the FW Act, that UPA is not within the ambit of the given
example:
“596 Representation by lawyers and paid agents
Note: Circumstances in which the FWC might grant permission for a person
to be represented by a lawyer or paid agent include the following:
[…]
(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.”
30 Inna Grabovsky v United Protestant Association [2014 FWC 5634; Inna Grabovsky v United Protestant Association
[2015] FWC 2504; Inna Grabovsky v United Protestant Association [2015] FWCFB 3313; Inna Grabovsky v United
Protestant Association [2015] FWC 5161; Inna Grabovsky v United Protestant Association [2015] ADM2015/5.
31 Inna Grabovsky v United Protestant Association [2014] FWCFB 7533.
[2018] FWC 2751
11
d) UPA has had and currently has members of its corporate management with legal
qualifications.
e) during the hearing Mr Walkerden and Ms Sally Cox were not forthcoming with
their true positions within the UPA.
f) UPA engaged in fraudulent conduct in relation to the 2017-2020 Agreement
Matter in relation to UPA’s Form F16 – Application for approval of enterprise
agreement.
Consideration – Step 1, is at least one of the criteria in section 596(2) is satisfied?
Section 596(2)(a) – Complexity and efficiency
[26] In the Form F10 filed by Mrs Grabvosky raises a number of matters to be considered
by the Commission including (without limitation) matters relating to:
a) the application of the Current Agreement,
b) Workload Management Issues,
c) the interplay with the National Employment Standards,
d) compliance with workplace conditions,
e) alleged violations of the Work Health and Safety Act 2011,
f) the concept of Modern Slavery,
g) what is said to be “new prima facie evidence” (noting that Mrs Grabovsky
pursued a dispute resolved in C2014/3313 and C2014/6273),
h) alleged serious criminal conduct by UPA,
i) an alleged unconstitutional limitation on the power to arbitrate workload
management issues, and
j) alleged unlawful terms in the Current Agreement.
[27] In response UPA have foreshadowed a jurisdictional objection on the basis that:
a) it is contended, the Commission may only arbitrate disputes under clause 26 of
the Current Agreement (i.e. the clause relating to Workload Management
Issues) if both parties consent (and UPA does not consent), and
b) the Commission has already examined the scope and application of the dispute
resolution clause (clause 43) in the Current Agreement (a decision affirmed on
appeal). That is to say, that the Commission has already heard and determined
the subject matter of the dispute.
[2018] FWC 2751
12
[28] What is clear from all of the material that has been filed in this matter is that both the
foreshadowed jurisdictional objection and the substantive Dispute Matter are invested with
complexity. That complexity is not the fault of any party. It is just that complexity is inherent
in this matter. That complexity is to be found in the need to consider the application of the
Current Agreement, the scope and power of the disputes settling procedure and whether, in
relation the Dispute Matter the Commission has already heard and determined the issues in
dispute. That issue itself requires a careful consideration of the facts in the matters that have
been determined in earlier decisions and the facts now said to exist in relation to the Dispute
Matter.
[29] For these reasons I am satisfied that the Dispute Matter is invested with complexity.
Further, I am satisfied that I will be assisted in the efficient conduct of the matter if I allow
UPA to be represented by a lawyer.
Sections 596(2)(b) – inability to represent effectively
[30] The evidence before me establishes that UPA has no internal industrial legal function
and no internal human resource function.
[31] In the hearing before me UPA was represented by its State Care Manager, Ms Cox. In
representing UPA Ms Cox did not create a “striking impression”. If she was required to
represent UPA in the Dispute Matter I am not satisfied that she would do so in a manner that
has an “impressive” effect or which is “powerful in effect.” That is not a criticism of Ms Cox.
As a professional working in aged care Ms Cox’s skills and competencies lay elsewhere. But
they are not in industrial advocacy.
[32] The same can be said for Mr Walkerden, UPA’s General Manager. I make no
observation about his ability as the General Manager, UPA Director or Company Secretary.
However, as a witness he did not give me confidence that he would make a striking
impression if he was required to represent UPA in the Dispute Matter. In any case, he is
likely to be a witness in that matter with all the complications that arise with the joint
advocate/witness role.
[33] This is not a situation where UPA is seeking to be represented better by a lawyer than
it could be by able internal resources. I am satisfied that those internal resources do not exist
at all.
[34] For these reasons I am satisfied that it would be unfair not to allow UPA to be
represented because it is unable to represent itself effectively.
Sections 596(2)(c) – Fairness as between the parties
[35] In the Dispute Matter Mrs Grabovsky is represented by her husband, Mr Grabovsky.
Mr Grabovsky is an experienced litigant. That is evident from the list of matters he has been
involved in and which are referred to in this decision. The submissions filed by Mr Grabovsky
are detailed and have a degree of sophistication. Further, I have had the benefit of observing
Mr Grabovsky appear before me at the hearing. He is a more than competent advocate on
behalf of his wife. He has the ability to create a “striking impression” and able to represent
his wife in a manner that has an “impressive” effect or which is “powerful in effect.”
[2018] FWC 2751
13
[36] For the reasons I have explained above I am not satisfied that UPA has the same
ability.
[37] Consequently, I am satisfied that it would be unfair not to allow UPA to be
represented taking into account fairness between UPA and Mr Grabovsky. My finding in
relation to this criterion might be different if Mrs Grabovsky was self-represented. However,
she is not. In fact she has made no appearance before me.
Consideration – Step 2, should I exercise the discretion conferred by section 596(2) in
favour of the applicant (in this case UPA)?
[38] Yes, because I am satisfied that each of sub-sections 596(2)(a), (b) and (c) are
enlivened, in the overall exercise of my discretion, I am satisfied that UPA should be
represented in this matter by a lawyer.
Conclusion
[39] For the reasons set out above I grant UPA permission to be represented in the Dispute
Matter by a lawyer pursuant to section 596(2) of the FW Act. Consistent with the decision in
NSW Bar Association v McAuliffe32 the grant of permission does not carry with it the power
for the Commission to select who that legal representative should be. That is now a matter for
UPA.
[40] Separate directions will now be issued programming for hearing the jurisdictional
objection that UPA has foreshadowed. If the jurisdictional objection fails then further
directions will be issued programming for hearing the substantive application in the Dispute
Matter.
COMMISSIONER
Appearances:
Mr I Grabovsky for the Applicant
Mr S Cox for the Respondent
Hearing details:
19 February 2018
Sydney
32 [2014] FWCFB 1663.
THE FAIR WORK COMMISSION NOIS THE SEAL OF
[2018] FWC 2751
14
12:08pm
Printed by authority of the Commonwealth Government Printer
PR607141
