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Fair Work Act 2009
Section 596 - Representation by lawyers and paid agents
Ms Jane Massey & Ors
v
Brighter Access Ltd & Ors
(U2023/12620)
Various industries
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
COMMISIONER CRAWFORD
SYDNEY, 15 MARCH 2024
STATEMENT
[1] Arising from the Statement of the President issued on 21 February 2024 in Samuel
Howells v Elite Elevators1 (President’s Statement) forty-six matters2 brought under s365 and
394 of the Fair Work Act 2009 (FW Act) have been referred to this Full Bench to determine
whether the applicant in each matter should be granted permission to be represented by
Employee Dismissals as a paid agent.
[2] The February Statement said at [12]:
[12] In addition, in light of Employee Dismissals’ conduct described in the Full Bench
decision of 22 December 2023 and my recommendation of 24 January 2024, and the
further conduct identified in this Statement, I have directed that all applications made
pursuant to s 365 (general protections involving dismissal) and s 394 (unfair
dismissal) of the FW Act that identify Employee Dismissals as the applicant’s
representative as paid agent be referred to the same Full Bench in the first instance (that
is, prior to the conduct of any conciliation process) to determine whether permission
should be granted for Employee Dismissals to appear as a paid agent on behalf of
the applicant pursuant to s 596 of the FW Act.
[3] Representation by lawyers and paid agents in matters before the Commission is
regulated by s 596 of the FW Act. A person in a matter before the Commission must normally
appear on his or her own behalf unless the Commission grants permission for the person to be
represented either by a lawyer or paid agent.3 There are exceptions to this rule.4
[2024] FWCFB 154
STATEMENT AND DIRECTIONS
AUSTRALIA FairWork Commission
[2024] FWCFB 154
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[4] The assessment of whether permission to be represented by a lawyer or paid agent
should be granted under s 596 ordinarily involves a two-step process.5 The first step is to
consider whether one or more of the criteria in s596(2)(a) to (c) applies. Satisfaction of one or
more of the requirements in s596(2) does not dictate that the discretion is automatically to be
exercised in favour of granting permission.6 The second step involves the exercise of a broad
discretion to determine whether in all of the circumstances the permission sought should be
granted.
[5] The Full Bench in NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office7 observed that in exercising the general discretion
under s596 the Commission may have regard to the fact that a particular paid agent in relation
to whom permission is sought has been the subject of adverse integrity findings in earlier
Commission decisions.8 The President’s Statement brings that observation into sharp focus in
the matters we are called upon to determine.
[6] In these matters, one of the questions the Full Bench is required to consider is whether
the adverse findings made about Employee Dismissals’ conduct described in the Full Bench
decision of 22 December 20239, the recommendation of 24 January 2024,10 and the President’s
Statement warrant a refusal to grant permission for any of the applicants to be represented by
Employee Dismissals.
[7] The applications for permission to be represented by Employee Dismissals will be heard
together. Directions follow for the filing of written material.
[8] An Order for Production of Documents will issue separately requiring Employee
Dismissals to provide all documents concerning Employee Dismissals’ representation of each
of the applicants. The matters will be dealt with on the papers unless any party seeks a hearing
to supplement the written material.
DIRECTIONS
1. The Applicant in each matter in Schedule A is required to file the following material in
the Fair Work Commission, and serve a copy on the Respondent, by no later than
4:00pm on Friday 5 April 2024:
i. Submissions in support of permission being granted to be represented;
ii. Witness Statements for each of the witnesses they rely upon.
2. If the Respondent to a matter in Schedule A objects to the Applicant seeking permission
to be represented, the Respondent is required to file the following material in the Fair
Work Commission, and serve a copy on the Applicant, by no later than 4:00pm on
Friday 12 April 2024:
i. Submissions in relation to the objections to permission being granted;
ii. Witness Statements for each of the witnesses they rely upon.
https://jade.io/citation/2607470/section/14043
[2024] FWCFB 154
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3. The Applicant may file any submissions and witness statements in reply by 4:00pm on
Friday 19 April 2024.
4. If any party requires a hearing to supplement the written material, they are required to
advise Deputy President Wright’s Chambers by 4:00pm on Friday 19 April 2024.
5. Each party is required to file copies, at the time of service, of their material in Fair Work
Commission in the following way:
One (1) electronic copy in Microsoft Word and/or PDF format is to be provided by
email to Chambers.Wright.DP@fwc.gov.au.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR772408
OF THE FAIR WORK L MISSION THE SEA
[2024] FWCFB 154
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SCHEDULE A
U2023/12590 Brent Cameron v BHP
C2024/756 Mr Antony Zebisch v MTM Critical Metals Limited
C2024/454 Mr Stephen Myers v Bodman Employment Services Pty Ltd
U2024/633 Danielle Windsor v Helping Hand Aged Care Inc
U2024/451 Lee Follett v BHP WAIO Pty Ltd
C2023/8063 Ms Karen Westergreen v Southern Cross Care (Tasmania) Inc
C2024/788 Mr Hinwai Roberts v Sevtoy Pty. Limited
C2024/819 Mr Troy Leyshon v Mexican Express Pty. Ltd.
C2024/822 Mr Mathew Vendittelli v Crushing Services International Pty Ltd
C2024/1058 Pucho Paye v Plumb Now Pty Ltd
C2024/825 Lopez v Safe Steps Family Violence Response Centre Inc
C2024/832 Danre v Drummond Street Services Incorporated
C2024/917 Wallace v The Trustee For Kemp Family Trust
C2024/945 Sayed v Goldstar Assets Pty Ltd
U2024/882 Haak v Optimum Performance Training Pty Ltd
U2024/1865 Tollmar v Australian Leisure And Hospitality Group Pty Limited
U2024/1434 Schubert v Crown Worldwide (Australia) Pty Ltd
C2024/1055 Armstrong v Ferrovial Construction (Australia) Pty. Ltd.
U2024/1682 Wittner v Glad Security Pty. Ltd
U2024/1679 Giddings v Alcoa Of Australia Limited
U2024/1616 Tucker v B & T BEANS PTY LTD
U2024/1452 Vargas v The Trustee For Brightlite Unit Trust
U2024/1430 Ernawati v Comensura Pty Limited
U2024/1425 Simpson v South Coast Mariculture Pty Ltd
[2024] FWCFB 154
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U2024/1373 Mabuoc v Marathon Food Industries Proprietary Limited
U2024/1298 Robertson v Australian Leisure And Hospitality Group Pty Limited
U2024/1146 Ferguson v Reid Stockfeeds Pty Ltd
U2024/1039 Culshaw v BHP COAL PTY LTD
U2024/1673 Angelis v Arthur, Shaun Nicholas
U2024/1986 Mealamu v Connectability Care Services Pty Ltd
C2024/1052 Pavlovic v South East Conveyors Pty. Ltd.
C2024/1157 Mcintosh v Mulpha Hotel Pty Ltd T/A Hayman Island
U2024/453 Darrell Kay v Fulton Hogan Construction Pty Ltd
U2024/2149 Ms Natasha Gill-Symons v Bendigo Hotel Fund Op Co Pty Ltd
C2024/416 Mr Giorgio Gava v Laguna Beach Pty Ltd
U2024/2161 Mr Michael Trindall v Maules Creek Coal Pty Ltd
U2024/2226 Mr Shaun Neukother v Aboriginal Family Support Services Limited
C2024/657 Mr Jeremy Johnston v Odell Resources Pty Ltd
U2024/1154 Mr Faiga Su'A v Darley Aluminium Trading Pty Ltd
C2024/1361 Mr Anthony Harpur v Rebian Investments Pty. Ltd
C2024/1352 Mr Michael Brook v Australian Postal Corporation
C2024/1388 Mr Nicholas Costello v Eighty9 Limited
U2024/2339 Mr Shawn Stowe v Karuah Local Aboriginal Land Council
U2024/2692 Sharon Phillis v Ultimate Cleaning & Gardening Solutions Pty Ltd
U2024/2691 Ric Belic v DNA Construction Pty Ltd
1 [2024] FWC 466
2 These matters are listed in Schedule A
3 See Warrell v Walton [2013] FCA 291 at [24]
4 See s596(3),and (4) and Fair Work Commission Rules 2013 r 12
5 Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19(3)]; Wellparks Holdings Pty Ltd t/as ERGT Australia v
Mr Kevin Govender [2021] FWCFB 268 at [48]
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc466.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2618.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb268.htm
[2024] FWCFB 154
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6 See 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; Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin
Govender [2021] FWCFB 268 at [48]
7 [2014] FWCFB 1663; 241 IR 177
8 Id at [25]
9 [2023] FWCFB 265
10 [2024] FWC 206
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2618.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2618.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4187.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb268.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb265.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc206.pdf
