1
Fair Work Act 2009
s.604 – Appeal against decision
Wellparks Holdings Pty Ltd t/as ERGT Australia
V
Mr Kevin Govender
(C2020/9059)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER WILSON
MELBOURNE, 20 JANUARY 2021
Appeal against decision of Deputy President Binet at Perth on 26 November 2020 and 22
December 2020 ([2020] FWC 6947) in matter number U2020/11820 – Appeal upheld –
rehearing – permission refused.
Background
[1] Wellparks Holdings Pty Ltd t/as ERGT Australia (ERGT) has filed a notice of appeal
in which it seeks permission to appeal and appeals a decision of Deputy President Binet. In
the decision subject to appeal the Deputy President refused an application by the Appellant
pursuant to s 596 of the Fair Work Act 2009 (the FW Act) to be represented by a lawyer in
unfair dismissal proceedings (the Decision). The circumstances in which the Deputy
President made the Decision require some explanation.
[2] On 1 September 2020, Mr Govender filed an application alleging he was unfairly
dismissed by ERGT (the Substantive Application).
[3] On 23 September 2020, Mr Heathcote of APX Law contacted the Commission by
email advising that he was acting on behalf of ERGT and foreshadowing filing a Form F3 –
Employer’s Response to unfair dismissal application on behalf of his client, alleging that Mr
Govender’s dismissal was a case of genuine redundancy.1
[4] The Substantive Application was listed for a Hearing at 10:00am on Friday 22 January
2020.
1 On 30 September 2020 ERGT filed a Form F3 – Employer Response.
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DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 268
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[5] On 6 November 2020, the Deputy President issued directions for the filing of materials
in advance of the Substantive Hearing requiring the parties to file and serve outlines of
submissions, signed and dated witness statements, copies of authorities and any documentary
evidence on which they wished to rely.2 The Directions also invited parties seeking to be
represented by a lawyer or paid agent at the Hearing to make brief submissions in writing to
Chambers, ensuring that they copy in the other party, by no later than 4pm on Friday 13
November 2020. The Directions specified that any submissions, with respect to
representation, should address the provisions of s 596(2) of the FW Act. The Directions
further provided that if a party sought to object to a request for representation, a further brief
submission setting out their objections should be made in writing to Chambers by no later
than 4pm on Friday 20 November 2020.
[6] On Friday 13 November 2020, in accordance with the Directions, Mr Govender filed
his materials with respect to the merits of the Substantive Application.
[7] ERGT’s materials, due on 13 November 2020, were filed late. The witness statement
which was filed was unsigned and stated to be subject to revision. Mr Heathcote indicated that
a finalised and signed statement would be filed by the middle of the following week. An
application by Mr Heathcote for leave to represent ERGT at the Substantive Hearing was filed
on the same day. The statement was only provided in a signed form as a part of the Digital
Court Book, which was filed on Tuesday 1 December 2020.
[8] The Appellant’s submissions in support of its application for permission to be
represented by a lawyer are set out at pp 45 – 46 of the Digital Appeal Book. The gravamen
of those submissions are at [2.1] – [2.3] and [4.2] – [4.6], as follows:
‘2.1 The Respondent’s management team has no relevant training or experience in matters
before the Commission.
2.2 The Respondent’s officers and senior staff, of which there are few, have only a
rudimentary appreciation of the statutory framework underpinning the substantive
application, and they know very little about the Commission’s practices or procedures.
2.3 The Respondent is incapable of efficiently and effectively presenting its own case, or
engaging with the evidence or relevant legal questions.
…
4.2 In the context described above, permitting a lawyer to represent the Respondent would
enable the Commission and the parties to deal with the matter more efficiently than it
otherwise would.
4.3 That efficiency is achieved because a suitably experienced lawyer is:
a) familiar with relevant statutory provisions;
2 See Digital Appeal Book at pp 17 – 19.
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b) able to properly interpret and apply those provisions;
c) familiar with the Commission practices and procedures;
d) able to identify relevant evidence;
e) able to discard or void irrelevant materials;
f) able to more effectively and succinctly examine and cross-examine witnesses; and
g) able to draw the Commission’s attention to relevant law and applicable principles.
4.4 This matter is factually complex and engaging with it requires a party to be familiar
with Part 3-2 of the Fair Work Act (Act) including, in particular, sections 385 and
386.
4.5 The Respondent is incapable of engaging with those matters without representation.
Subsection (2)(b)
4.6 The Respondent does not have in its employ any staff member who could properly
represent it and engage with the relevant legal issues.
[9] On 18 November 2020, Mr Govender wrote to the Commission opposing the granting
of permission to ERGT for leave to be represented for two reasons:
‘1. The issues are very clear and this is not a matter of a complex nature.
2. The respondent has not met the deadline to submit s 596 for the DPs consideration by
4pm Friday 13 November 2020.’
[10] On 23 November 2020, the parties were informed that the Substantive Application
would be heard and determined by way of Determinative Conference.
[11] On 26 November 2020, the parties were informed by email that ERGT’s application
for leave to be represented had been refused. The email is set out at Attachment 1 to the
Notice of Appeal, as follows:
‘Dear Parties
The Deputy President has considered the submissions of the parties in relation to section 596
of the Fair Work Act, 2009 (FW Act).
She notes the Federal Court decision of Warrell v Walton [2013] FCA 291, as approved by the
Full bench in Asciano Services Pty Ltd v Hadfield [2015] FWWFB 2618, which stated:
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“[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 (Cth)…”
Having taken into account all of the submissions, the application by Wellparks Holdings Pty
Ltd to be legally represented at the hearing is refused. The Deputy President is not satisfied
that the requirements in section 596(2) of the FW Act are satisfied nor that it is appropriate in
the circumstances to exercise her discretion to grant permission to Wellparks Holdings Pty Ltd
to be represented.’
[12] On 16 December 2020 Mr Heathcote wrote to the Deputy President advising that he
had been instructed to appeal the Deputy President’s decision of 26 November 2020 to refuse
permission for ERGT to be represented by a lawyer at the Substantive Hearing. The
correspondence continues as follows:
‘The purpose of this letter is to respectfully request you to change your mind and to grant
permission for the Respondent to be represented. This request arises from our review of your
decision in Tracey v BP Refinery (Kwinana) Pty Ltd (Tracey), and the Full Bench’s reasons
for upholding that decision on appeal.
…
In relation to the complex nature of the Matter, we make the following further observations:
if the issues are legally or factually complex, permitting legal representation promotes
efficiency;
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the parties are required to address a jurisdictional objection that is inherently complex.
That point is made in Tracey; and
dealing with the merits of the substantive application will also involve dealing with
some other complex matters. The decided cases place the issues almost exclusively in
the ambit of s387(h). Therefore, our capacity to extract and interpret statutory
provisions and relevant decisions is essential to an effective and efficient hearing.
In relation to the position in which the Decision places the Respondent, we note the following:
the Respondent does not have a person who can adequately represent it at the hearing
or in a determinative conference;
James Miller is the best suited of the Respondent’s employees to conduct its case by
reason of his HR training, but he is not an experienced advocate;
the mere existence of in-house options, legal or otherwise, does not contra-indicate or
dictate that permission to be represented should be denied.
Mr Miller is the Respondent’s only witness;
refusing permission to allow representation deprives the Respondent of the ability to
effectively examine and cross-examine the witnesses, and that in turn hampers
efficiency in a hearing.
effectiveness and efficiency are increased by experienced counsel who can succinctly
examine and cross-examine witnesses.
If you’re not persuaded to change your mind, and assuming that a Full Bench upholds the
Decision, the hearing will be conducted by two individuals with no experience or knowledge
with the inevitable negative impact on efficiency.
We await your reply.’
[13] On 22 December 2020 the Deputy President issued an ‘interim decision’. It is not
clear to us what the Deputy President meant in characterising her decision as an ‘interim
decision’.
[14] An interim decision is a decision of a temporary or provisional character pending the
making of a final decision. A decision in respect of an application under s 596 is plainly an
interlocutory decision; but it is not an interim decision in the sense that it is made pending the
making of a final decision in respect of the s 596 application.
[15] Further, it is not immediately apparent whether the decision published on 22
December 2020 merely constitutes the reasons given for the earlier decision communicated by
email on 26 November 2020 or whether it is a decision in which the Deputy President rejects
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the Appellant’s invitation to reconsider her earlier decision. We consider that it is the latter;
because the 22 December 2020 decision plainly canvasses matters which occurred after the
decision of 26 November 2020 and it is expressed in the present tense, rather than as reasons
for a decision which had been made previously. For example, [45] of the 22 December 2020
decision states:
‘I am not satisfied that the Application is complex. The Digital Court Book which includes
the Form F2 Application and Form F3 – Employer Response, application and submissions on
representation, statement of agreed and disputed facts, outlines of submissions on both merit
and the jurisdictional objection plus all the witness and documentary evidence, in total
consists of only 40 pages.’
[16] The Digital Court Book was only filed on Tuesday 1 December 2020, some time after
the email of 26 November 2020 in which the Deputy President rejected ERGT’s initial s 596
application.
[17] Further, at [26] the Deputy President states:
‘This Interim Decision sets out my reasons for refusing to grant leave to ERGT to be
represented at the Hearing based on the submissions and reply submissions filed by both
parties.’
[18] It is plain from the context that the reference to the ‘submissions and reply
submissions filed by both parties’ refers to the submissions filed by Mr Heathcote on 16
December 2020 and Mr Govender’s reply submissions of 18 December 2020.
[19] The issue regarding proper characterisation of the Deputy President’s decision of 22
December was put to the parties during the course of the Appeal Hearing. Neither party
cavilled with the proposition that the decision was responsive to ERGT’s invitation for the
Deputy President to reconsider her earlier decision, rather than merely constituting the reasons
given for the earlier decision of 22 November.
The Appeal
[20] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.3 There is no right to appeal and an appeal may only be made with the
permission of the Commission. Subsection 604(2) requires the Commission to grant
permission to appeal if satisfied that it is “in the public interest to do so”. Permission to
appeal may otherwise be granted on discretionary grounds.
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
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[21] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgement.4 The public interest is not satisfied simply by the
identification of error, or a preference for a different result.5 In GlaxoSmithKline Australia
Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations
that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general
application, or where there is a diversity of decisions at first instance so that guidance from an
appellate court is required, or where the decision at first instance manifests an injustice, or the
result is counter intuitive, or that the legal principles applied appear disharmonious when
compared with other recent decisions dealing with similar matters...”6
[22] Other than the special case in s 604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been treated as justifying the grant
of permission to appeal include that the decision is attended with sufficient doubt to warrant
its reconsideration and that substantial injustice may result if leave is refused.7
[23] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.8 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.9
[24] The appeal here is brought against an interlocutory decision. Courts and tribunals
have generally discouraged appeals against interlocutory decisions, and it will not usually be
the case that permission would be granted to appeal against an interlocutory decision under s
604 of the FW Act, whether or not s 400(1) applies.10
[25] It is convenient to first summarise the decision subject to appeal before turning to the
submissions advanced on the appeal.
[26] In her decision of 22 December 2020 the Deputy President sets out the procedural
history (at [1] to [26]) and then canvasses the relevant statutory provisions and authorities (at
[27] to [37]). The parties’ submissions are summarised at [38] to [44].
4O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44]-[46].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR
388, affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v
Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of
Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
6 [2010] FWAFB 5343 at [27], (2010) 197 IR 266.
7 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388,
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; (2011) 192 FCR 78; NSW Bar Association
v Brett McAuliffe [2014] FWCFB 1663 at [28].
10 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there.
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[27] In the appeal proceedings no party took issue with the Deputy President’s analysis of
the relevant statutory provisions or with her summary of the submissions.
[28] At [48] of the decision the Deputy President states that she is ‘not satisfied that
granting leave would enable the matter to be dealt with more efficiently, nor that ERGT is
unable to represent itself effectively’ and at [57] the Deputy President dismisses the
Appellant’s s 596 application, in the following terms:
‘Mr Govender is a self-represented litigant who was employed by ERGT as an accountant.
There is no evidence before me that he has any relevant skills, experience or qualifications
relevant to the proceedings. In all the circumstances of this Application, I am of the view that
refusal to grant leave to ERGT to be represented at the Hearing is fair and just and in
accordance with the FW Act and will allow the proceedings to occur in a manner which is
quick, informal and avoids unnecessary technicalities.’
[29] The reasons advanced in support of the finding that the criteria in ss 596(2)(a) and (b)
were not satisfied are set out at [45] to [47] and [49] to [54], as follows:
‘[45] I am not satisfied that the Application is complex. The Digital Court Book which
includes the Form F2 Application and Form F3 – Employer Response, application and
submissions on representation, statement of agreed and disputed facts, outlines of submissions
on both merit and the jurisdictional objection plus all the witness and documentary evidence,
in total consists of only 40 pages.
[46] Each party is calling only one witness. The witness statements are one and two pages
respectively.
[47] The Jurisdictional Objection is not of a complex nature. Its elements are codified in
section 389 of the FW Act. There is a large volume of decided case law in relation to
jurisdictional objections of this nature. There is nothing novel about the facts or law in
dispute.
…
[49] ERGT’s failure to file materials in accordance with Directions and the failure to file
materials on time whilst represented gives no indication that granting leave to be represented
would enable the matter to be deal with more efficiently.
[49] ERGT’s only witness is Mr James Miller (Mr Miller) and, on Mr Heathcote’s
submission, the ERGT officer who is most likely to represent ERGT in the event that leave to
be represented is not granted. According to Mr Miller’s witness statement he has a Bachelor of
Business majoring in Human Resource Management and Industrial Relations. Mr Miller has
responsibility for the human resource function in ERGT, which on the evidence before me,
consists of at least three other human resource practitioners.
[51] Presumably Mr Miller’s education, role and experience equips him with some familiarity
with the legal principles in relation to genuine redundancies and, one would have thought, at
least a rudimentary understanding of FWC processes.
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[52] The Application is to be heard by way of a Determinative Conference therefore the
parties will not require familiarity with FWC process, practices or the rules of cross-
examination as these will be explained to the parties during the proceedings and the
proceedings will be conducted informally. The FWC also provides extensive resources on its
website in both written and video format in relation to the conduct of proceedings.
[53] The evidence in chief has already been given by way of witness statements filed in
advance of the proceedings. Each party has only one witness. Cross-examination questions
can be prepared in advance of the proceedings. Mr Govender will conduct the cross
examination of ERGT’s only witness. ERGT’s representative will only have one witness to
cross-examine.
[54] Outlines of submissions have already been filed setting out the relevant legal
principles.
The parties will have the opportunity to provide written closing submissions.’
[30] Finally, at [55] to [56] the Deputy President distinguishes the matter before her from
the circumstances in a decision relied upon by the Appellant, Tracey v BP Refinery11
(Tracey).
[31] The Appellant advances a number of arguments in support of its contention that the
Deputy President erred in refusing permission for it to be represented by a lawyer. For
reasons which will become apparent we need only deal with one of the arguments advanced,
namely the proposition that the Deputy President ‘failed to provide the Appellant with
procedural fairness by not providing it with an opportunity to respond to information treated
as evidence’.12
[32] The essence of the Appellant’s procedural fairness point is that the Deputy President
accepted, and relied upon, certain assertions made by Mr Govender in his submissions of 18
December 2020 and took into account ERGT’s failure to file materials in accordance with the
Commission’s directions, whilst represented. It is submitted that ERGT was not given an
opportunity to make submissions in respect of these matters.
[33] The Deputy President summarises Mr Govender’s submissions at [41] to [44] of her
decision of 22 December 2020:
‘[41] Mr Govender opposes the granting of leave to ERGT. He asserts the Application is
not complex and points to Mr Heathcote’s email to Chambers on 23 October 2020 in relation
to ERGT’s availability for a conference in which Mr Heathcote states that:
“The Respondent’s preference was always to take the matter to a hearing. The issues
are very clear …”.
11 [2020] FWC 5787 and [2020] FWCFB 6388.
12 Appellant’s Outline of Submissions at [39.1].
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[42] He also suggests that the late filing of materials by Mr Heathcote is inconsistent with the
assertion that granting leave will enable the matter to be dealt with more efficiently.
[43] Mr Govender disputes that ERGT is incapable of representing itself effectively.
According to Mr Govender, ERGT is a medium/large size company with an average annual
turnover of around 20 million, employing 200-250 employees across Australia. Mr Govender
says that ERGT has a dedicated human resource team which comprises:
a. Mr Jude McKernan – Human Resource Manager
b. Ms Sarah Garven – Human Resource Co Ordinator
c. Ms Monica Colman – Human Resource Co-ordinator
d. Mr James Miller – General Manager Corporate Services
[44] Mr Govender says that unfairness would result if ERGT were permitted to be
represented, when he was not represented.’
[34] Further, at [49] the Deputy President refers to ERGT’s non-compliance with
Commission directions, as follows:
‘[49] ERGT’s failure to file materials in accordance with Directions and the failure to file
materials on time whilst represented gives no indication that granting leave to be represented
would enable the matter to be deal with more efficiently.’
[35] The Appellant submits, in essence, that:
1. The Deputy President’s decision is based, in part, on the assertions made in the
Respondent’s submissions of 18 December 2020 and on ERGT’s failure to file
materials in accordance with the Commission’s directions, at a time when they
were represented.
2. The Appellant was not afforded an opportunity to respond to the assertions made
in the Respondent’s submission; nor was the Appellant given the opportunity to
address the Deputy President’s reliance upon the Appellant’s non-compliance with
directions.
3. The Appellant says that had it been afforded such an opportunity it would have
‘refuted those assertions’.13
[36] We accept that the Appellant was denied procedural fairness insofar as it was not
given an opportunity to address the Deputy President’s reliance on ERGT’s non-compliance
with the Commission directions. On that basis we grant permission to appeal, uphold the
appeal and quash the Deputy President’s decision.
Reconsideration of application for permission to be represented
13 Appellant’s Outline of Submissions at [23] and [23.1].
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[37] Some time prior to the hearing of the appeal we informed the parties that if we were
minded to grant permission to appeal and to uphold the appeal then we would determine
ERGT’s application for permission to be represented by a lawyer. The parties were told to
ensure that they were in a position to make submissions during the course of the Appeal
Hearing on the question of whether ERGT should be granted permission to be represented by
a lawyer during the Hearing before Deputy President Binet scheduled for Friday 22 January
2021.
[38] On the morning of the Appeal Hearing the Appellant filed a submission in support of
its application that it be granted permission to be represented by a lawyer in the Hearing on 22
January 2021.
[39] In support of its s 596 application ERGT contends that:
1. granting permission would enable the matter to be dealt with more efficiently,
taking into account the complexity of the matter (the s 596(2)(a) contention); and
2. it would be unfair not to allow ERGT to be represented because ERGT is unable to
represent itself effectively (the s 596(2)(b) contention).
[40] In support of the s 596(2)(a) contention ERGT advances two broad lines of argument:
1. The substantive matter involves a jurisdictional objection to Mr Govender’s unfair
dismissal application. Jurisdictional objections are complex by their nature and
legal representation would enable the matter to be dealt with more efficiently.
2. The grant of permission to be represented by a lawyer would be in conformity with
other Commission decisions, including the first instance and appeal decisions in
Tracey v BP Refinery.14
[41] In support of the s 596(2)(b) contention ERGT submits that it is ‘incapable of
efficiently and effectively presenting its own case or engaging with the evidence or legal
principles.’15
[42] ERGT did not rely on s 596(2)(c) in support of its application for permission to be
represented by a lawyer, but did make submissions in the event that Mr Govender relied on
this provision in support of his position that permission should be refused. We return to s
596(2)(c) later.
[43] We turn first to the relevant statutory provisions before turning to ERGT’s submission.
14 [2020] FWC 5787 and [2020] FWCFB 6388.
15 Digital Appeal Book, [2.3] on p. 45.
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[44] Section 596 of the FW Act provides:
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.
…
[45] Sections 577 and 578 are also relevant, they provide:
577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
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Note: The President also is responsible for ensuring that the FWC performs its functions and
exercises its powers efficiently etc. (see section 581).
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act
(including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and
eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or
mental disability, marital status, family or carer’s responsibilities, pregnancy, religion,
political opinion, national extraction or social origin.
[46] In terms of the objects of the Act, the Appellant submits that the object in s 3(g) is
relevant to the matter before us, it provides:
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
Australians by:
…
(g) acknowledging the special circumstances of small and medium-sized businesses.
[47] The principles concerning the proper interpretation and application of s 596(2) are
well established.
[48] The assessment of whether permission should be granted under s 596 involves a two-
step process. The first step is to consider whether one or more of the criteria in s 596(2) is
satisfied. The consideration required by this first step ‘involves the making of an evaluative
judgment akin to the exercise of a discretion’.16 It is only where the first step is satisfied that
the second step arises, which involves a consideration as to whether in all of the
circumstances the discretion should be exercised in favour of the party seeking permission.
The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself
dictate that the discretion is automatically to be exercised in favour of granting permission.17
16 Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19(3)].
17 See generally Warrell v Fair Work Australia [2013] FCA 291, 233 IR 335; Asciano Services Pty Ltd v Hadfield [2015]
FWCFB 2618 at [19]; Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]; Kaur v Hartley
Lifecare Incorporation [2020 FWCFB 43.
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[49] We turn first to ERGT’s contention that granting permission would enable the
substantive matter to be dealt with more efficiently, taking into account the complexity of the
matter. At the outset we record we are in agreement with the following observation of the
Full Bench in Tracey:
‘the criterion in s 596(2)(a) is whether the grant of permission for legal representation would
enable the matter to be dealt with more efficiently, not whether it would enable the party
seeking to be legally represented to be presented more efficiently.’18
[50] As to the complexity of the substantive matter ERGT contends that it is a jurisdictional
objection ‘which is by its nature complex’.19 In support of that proposition ERGT relies on
CEPU v UGL Resources Pty Ltd in which Senior Deputy President Richards said:
‘It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue
then it would follow that representation by a lawyer would be a reasonable course.
Jurisdictional issues by their nature are prospectively complex in their own right, and/or else
may require a degree of familiarity with court and tribunal jurisprudence or authorities.’20
[51] We reject the proposition that jurisdictional issues are ‘by their nature’ complex.
Some jurisdictional issues may properly be characterised as complex and others not. A case
by case assessment is required, rather than the adoption of some general decision rule which
assumes that all matters in which a jurisdictional issue arises are ‘complex in their own right’
and that ‘representation by a lawyer would be a reasonable course’. To the extent that Senior
Deputy President Richards is to be understood as expressing a contrary view, we respectfully
disagree.
[52] ERGT also relied on the first instance and appeal decisions in Tracey in support of its
s 596 application, submitting that:
‘The two cases may be different, but they are comparable on a relative basis. For example, the
issues were more complex in Tracey, but BP had in-house counsel to deal with them. Mr
Tracy and BP’s representatives were involved to a greater and longer degree, but the
complexity of the issues required greater involvement.’21
[53] It seems to us that the submission put conflates those matters which are relevant to the
assessment of whether one or more of the criteria in s 596(2)(a) to (c) is satisfied and the
matters which are relevant to the second step in determining whether permission should be
granted under s 596, that is, whether in all the circumstances the discretion should be
exercised in favour of the party seeking permission. As we have mentioned, it is only where
the first step is satisfied that the second step arises.
18 [2020] FWCFB 6388 at [27].
19 Appellant’s Outline of Submissions at [12.1(a)] and ERGT’s submissions of 18 January 2021 at [4.3].
20 [2012] FWA 2966 at [23].
21 Appellant’s Outline of Submissions at [12.3].
[2021] FWCFB 268
15
[54] Whether one or more of the criteria in s 596(2) is satisfied is an evaluative exercise.
The range of considerations that may bear on whether the criterion in s 596(2)(a) is satisfied
renders reliance on other s 596 decisions a somewhat arid exercise. It is inherently unlikely
that all of the circumstances in any two matters are identical.
[55] As to ERGT’s reliance on the decisions in Tracey, that matter concerned a s 739
application to deal with a dispute under the dispute settlement procedure in the BP Refinery
(Kwinana) Pty Ltd v AWU Operations & Laboratory Employees Agreement 2014. The matter
proceeded to conciliation however the dispute was not resolved.
[56] The Tracey matter was subsequently listed for a hearing to determine a number of
jurisdictional objections raised by BP, which were formulated by BP as following five
questions:
“1. Do the matters set out in section 2.1 of the Form F10 dated 31 August 2020 give rise
to a dispute under clause 16 of the BP Refinery (Kwinana) Pty Ltd & AWU
Operations and Laboratory Employees Workplace Determination 2020?
2. Do the matters set out in section 2.1 of the Form F10 give rise to a dispute that can be
dealt with by the Commission under s 739 of the FW Act in circumstances where the
BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Agreement 2014 is
no longer in operation?
3. Further or in the alternative, do the matters set out in section 2.1 of the Form F10
dated 31 August 2020 give rise to a dispute under clause 23.1 of the 2014 Agreement?
4. Further or in the alternative, does clause 23.2 of the 2014 Agreement limit the
powers that may be exercised by the FWC in dealing with the matters set out in the
Form F10 having regard to ss 739(3) and 739(4) of the FW Act?
5. Further or in the alternative, does the relief sought in section 3.1 of the Form F10, as
to what conditions represent ‘Company Appointment’, invite a decision that is
inconsistent with a term of a fair work instrument and therefore, in accordance with s
739(5) of the FW Act, a decision that cannot be made by the Commission?”22
[57] At first instance the Deputy President concluded that given the complexity of issues to
be determined at the hearing granting BP permission to be represented by a lawyer would
enable the matter to be dealt with more efficiently. In refusing the appeal the Full Bench said:
‘[25] We are not satisfied in this case that the grant of permission to appeal would be in the
public interest such as to require the grant of permission in accordance with s 604(2), nor are
we satisfied that permission to appeal should be granted on discretionary grounds. The
decision made by the Deputy President was an interlocutory one concerning legal
representation at a hearing specifically concerned with the five jurisdictional questions raised
22 Scott Tracey v BP Refinery (Kwinana Pty Ltd) [2020] FWCFB 6388 at [6].
[2021] FWCFB 268
16
by BP, which we have set out above. Although the last issue is not in truth a preliminary
jurisdictional issue, the other issues raised clearly involve questions of legal complexity. The
first three questions are difficult ones involving the broader issue of how dispute resolution
mechanisms are to operate where a dispute arises under an enterprise agreement which ceases
to apply prior to the Commission being able to determine the dispute. This issue has been the
subject of three recent Commission Full Bench decisions which are arguably not consistent
with each other, namely BlueScope Steel (AIS) Port Kembla Pty Ltd v AWU and Ors, Battye v
John Holland Pty Ltd (JHPL) t/as Territoria Civil and Simplot Australia Pty Ltd v AMWU.
Most recently, one aspect of the issue was the subject of analysis by the Federal Court of
Australia (Colvin J) in Maersk Crewing Australia Pty Ltd v CFMMEU (No 2). The fourth
question is whether clause 23 of the 2014 Agreement, on its proper construction, authorises
the Commission to arbitrate disputes brought to it under that clause once the nominal expiry
date of the agreement has passed. On a very preliminary basis, we can express the view that
clause 23 is not textually straightforward and requires proper analysis in accordance with the
principles of construction of industrial instruments.
[26] In these circumstances, we do not consider it to be reasonably arguable that it was not
reasonably open for the Deputy President to consider that the jurisdictional prerequisite for the
grant of permission for legal representation in s 596(2)(a) - namely that it would enable the
matter to be dealt with more efficiently, taking into account the complexity of the matter –
was made out or to exercise her discretion in favour of granting permission. The complexity of
the issues involved would clearly make available the conclusion that the legal representation
of a party seeking permission would likely assist her in the task of reaching a legally correct
determination of the jurisdictional issues.’23
[58] In terms of whether the criterion in s 596(2)(a) is satisfied, the circumstances in
Tracey bear no relationship to the matter before us.
[59] We have reviewed the digital court book in respect of the substantive matter. Each
party is only calling one witness – Mr Govender, on his own behalf and Mr Miller, for ERGT.
Mr Govender has filed a one-page statement with three attachments, amounting to 8 pages in
total.24 Mr Miller’s statement amounts to 3 pages.25 Indeed in total the digital court book only
comprises some 40 pages, which includes:
the Form F2 Application
the Form F3 Employer Response
a Statement of Agreed Facts
Statements on the Disputed Facts
Submissions on the ERGT application for permission to be represented
Outlines of Submissions on the Jurisdictional Objection and on the Merits
the two witness statements.
23 Ibid at [25] – [26].
24 Digital Court Book in matter U2020/11820 at pp 30 – 37.
25 Ibid at [38] – [39].
[2021] FWCFB 268
17
[60] We agree with the Deputy President’s assessment in the decision subject to appeal;
this is not a complex matter. We have had regard to the submission put by ERGT as to why
the matter is said to be complex,26 but we find them unpersuasive. The relevant legal issues
are well established and there is nothing particularly novel about the issues in dispute. The
evidentiary case is of short compass. We are not persuaded that the substantive matter in this
case is complex.
[61] We are not persuaded that granting ERGT permission to be represented by a lawyer
‘would enable the matter to be dealt with more efficiently, taking into account the complexity
of the matter.’
[62] We now turn to ERGT’s contention that it would be unfair not to allow ERGT to be
represented because it is unable to represent itself effectively.
[63] It is common ground that ERGT employs two Human Resource Co-ordinators (Ms
Garven and Ms Colman), a Human Resource Manager (Mr McKernan) and a General
Manager of Organisational Performance (Mr Miller). Mr Miller has responsibility for the
human resources function on behalf of the Senior Leadership Team. Mr Miller’s
qualifications include a Bachelor of Business, majoring in Human Resource Management and
Industrial Relations at Charles Sturt University. ERGT submits that:
‘The named officers are all highly accomplished and capable HR officers. However they do
not have the requisite knowledge nor skills to effectively represent the Appellant at a
hearing.’27
[64] ERGT further submits that:
‘2.1 The Respondent’s management team has no relevant training or experience in matters
before the Commission.
2.2 The Respondent’s officers and senior staff, of which there are few, have only a
rudimentary appreciation of the statutory framework underpinning the substantive
application, and they know very little about the Commission’s practices or procedures.
2.3 The Respondent is incapable of efficiently and effectively presenting its own case, or
engaging with the evidence or relevant legal questions.’28
[65] In its submission of 18 January 2021 ERGT submits that Mr Miller was awarded his
Bachelor of Business about 30 years ago, prior to the introduction of the federal statutory
26 Appellant Submissions of 18 January 2021 at [4.3].
27 Appellant’s Outline of Submissions at [28].
28 Digital Court Book, p 45.
[2021] FWCFB 268
18
unfair dismissal regime. ERGT asserts that it ‘is incapable of efficiently and effectively
presenting its own case or engaging with the evidence or relevant legal questions.’29
[66] We are prepared to accept ERGT’s assertion that its management team ‘has no
relevant training or experience in matters before the Commission’; ‘have only a rudimentary
appreciation of the statutory framework underpinning the substantive application’ and that
‘none of them have any experience in advocacy or legal analysis’. It may also be accepted
that ERGT would be more effectively represented if it were granted permission to be
represented by a lawyer. But, in the context of this matter, the acceptance of these
propositions does not carry ERGT the requisite distance.
[67] The criterion to be satisfied is that ‘it would be unfair not to allow the person to be
represented because the person is unable to represent… itself effectively.’ In considering
whether the criterion is satisfied context is important. As we have mentioned, we do not
consider that the substantive matter is complex. Further, as noted by the Deputy President in
her decision of 22 December 2020:
‘[52] The Application is to be heard by way of a Determinative Conference therefore the
parties will not require familiarity with FWC process, practices or the rules of cross-
examination as these will be explained to the parties during the proceedings and the
proceedings will be conducted informally. The FWC also provides extensive resources on its
website in both written and video format in relation to the conduct of proceedings.
[53] The evidence in chief has already been given by way of witness statements filed in
advance of the proceedings. Each party has only one witness. Cross-examination questions
can be prepared in advance of the proceedings. Mr Govender will conduct the cross
examination of ERGT’s only witness. ERGT’s representative will only have one witness to
cross-examine.
[54] Outlines of submissions have already been filed setting out the relevant legal
principles. The parties will have the opportunity to provide written closing submissions.’30
[68] As noted by the Deputy President, the matter is to be heard by way of determinative
conference and the parties will be afforded an opportunity to provide written closing
submissions. There is no requirement for ERGT to obtain permission for it to engage a legal
representative to prepare those written submissions.
[69] ERGT employs about 200 employees including four human resource management
practitioners who, on ERGT’s submission, are ‘all highly accomplished and capable HR
officers’. ERGT is plainly not a small business, indeed we doubt that it is properly
characterised as a ‘medium sized business’, within the meaning of s 3(g).31
29 Appellant Submissions of 18 January 2021 at [2.6], also see [4.8] – [4.11].
30 [2020] FWC 6947 at [52] – [54].
31 While s 23 of the FW Act defines a ‘small business employer’, there is no definition in the Act of ‘medium-sized business’.
Nor does the Explanatory Memorandum to the Fair Work Bill 2008 include an explanation of a ‘medium-sized business’
[2021] FWCFB 268
19
[70] The submissions advanced by ERGT in support of its s 596(2)(b) contention amount
to little more than a bare assertion that it is incapable of effectively representing itself; a
proposition which is contested by Mr Govender and which is unsupported by any evidence.
[71] We are not persuaded that it would be unfair not to allow ERGT to be represented
because it is unable to represent itself effectively.
[72] We now turn to s 596(2)(c).
[73] As mentioned earlier, ERGT does not rely on s 596(2)(c) in support of its application
for permission to be represented by a lawyer, but does advance the following submission:
‘4.13 Without presuming Mr Govender’s position, the Appellant anticipates that he, as he
has done previously, may submit that permission should be refused under this limb
because it is unfair to allow the Appellant to be represented when Mr Govender
chooses to be unrepresented.
4.14 This is not the situation that s 596(2)(c) was intended to deal with.
4.15 Even if it were, there is no evidence that permitting the Appellant to be represented
would cause unfairness to Mr Govender.
4.16 The Appellant’s representatives have been, and will continue to be, mindful of the
fact that the Respondent is self-represented.
4.17 An accurate, just and efficient outcome will be assisted by granting the Appellant
permission to be represented. An accurate, just and efficient outcome does not create
unfairness for Mr Govender.’32
[74] To the extent that Mr Govender is seeking to rely on s 596(2)(c) in opposing ERGT’s
application for permission to be represented by a lawyer, those submissions are misconceived.
Section 596(2)(c) is directed at the circumstances of the person who is applying for
permission, so much is clear from the words ‘it would be unfair not to allow the person to be
represented.’
means. However, the discussion in the Explanatory Memorandum about the number of businesses impacted by changes
to unfair dismissal laws (r. 244 to r. 247) refers to the August 2005 Sensis Business Index. The footnote to r. 246 says:
‘Historically, the Sensis Business Index has focused specifically on businesses employing 19 people or fewer. In
November 2000 it was expanded to cover the medium business sector, while the regional and industrial sectors were also
enhanced. The August 2005 Sensis Business Index results are based on telephone interviews conducted with 1,800 small
and medium business proprietors. The sample size is divided between 1,400 small businesses and 400 medium
businesses (the latter defined as businesses employing between 20 and 199 people).’ We note that that the Australian
Bureau of Statistics defines a medium-sized business as a business employing between 20 and 199 employees (see for
example https://www.abs.gov.au/statistics/economy/business-indicators/business-indicators-business-impacts-covid-
19/latest-release).
32 Appellant Submissions of 18 January 2021 at [4.13] – [4.17].
https://www.abs.gov.au/statistics/economy/business-indicators/business-indicators-business-impacts-covid-19/latest-release
https://www.abs.gov.au/statistics/economy/business-indicators/business-indicators-business-impacts-covid-19/latest-release
[2021] FWCFB 268
20
[75] Any unfairness to the other party – in this case Mr Govender – is not relevant to
whether the criterion in s 596(2)(c) is established.
[76] That said, granting permission to one party may give rise to unfairness in
circumstances where the other party is a litigant-in-person. Such a consideration is relevant to
the second step in the s 596 process, that is whether in all the circumstances the discretion
should be exercised in favour of the party seeking permission. But, as we have mentioned,
you only get to the second step if the first step is satisfied.
[77] ERGT has failed to establish any of the criteria in s 596(2)(a) to (c). It follows that the
discretion to grant permission for ERGT to be represented by a lawyer is not enlivened.
[78] For the reasons given, we refuse ERGT’s application for permission to be represented
by a lawyer in U2020/11820.
[79] There is one final matter. It seems to us that the approach taken at first instance to the
determination of ERGT’s application for permission to be represented by a lawyer was not
consistent with the Commission’s obligation to exercise its powers in a manner which is ‘fair
and just’ and ‘is quick, informal and avoids unnecessary technicalities’.
[80] Section 596 applications are interlocutory applications and s 601 makes it clear that
there is no obligation to publish written reasons. In the context of an unfair dismissal matter
in which a s 596 application is contested the most expeditious course would be for the
Member to conduct a short telephone hearing to deal with the application. At such a hearing
the parties would have an opportunity to say whatever they wish to submit in respect of the
application for permission to be represented by a lawyer. Such a course would avoid potential
procedural fairness issues, such as arose in the present matter.
[81] The timing of such a hearing is also important. If held after the materials relating to
the substantive hearing have been lodged the Commission will be better placed to assess the
complexity of the substantive matter.
[82] In most cases a s 596 application should be determined ex temporare, with brief
reasons, at the conclusion of a short hearing. As we have mentioned, there is no obligation to
publish written reasons in respect of such applications.
PRESIDENT
Hearing details
[2021] FWCFB 268
21
19 January 2021
Melbourne, by telephone
Appearances
Mr S Heathcote, of counsel, for the Appellant
Mr Govender was self-represented
Printed by authority of the Commonwealth Government Printer
PR726290
