[2011] FWAFB 4909 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT WATSON |
|
Appeal against decision [2011] FWA 3532 of Senior Deputy President O'Callaghan at Adelaide on 06 June 2011 in matter number U2010/14050 - permission to be represented - Fair Work Act 2009 s 596.
Introduction
[1] This decision concerns the procedural issue of representation in an Appeal by Ms Pedler against the decision of Senior Deputy President O’Callaghan on 6 June 2011 in matter number U2010/14050.
[2] The Respondent, The Commonwealth of Australia, represented by Centrelink (Centrelink) seeks permission from Fair Work Australia pursuant to s 596 of the Fair Work Act 2009 (the Act) to be represented by a legal representative in the Appeal. Ms Pedler has objected to Centrelink being represented.
Background
[3] In the unfair dismissal proceedings before Senior Deputy President O’Callaghan a request for permission for Centrelink to be represented was refused. His Honour set out his reasons for the refusal at [4] of his decision: 1
“...I refused the request on the basis that, given Centrelink’s size and its in-house legal resources, I was not satisfied that the circumstances set out in s.596 were met so as to warrant a grant of permission. Specifically, I was not satisfied that the matter was of such complexity that it required other than the Centrelink in house legal representative and I took account of Ms A’s self represented status.”
[4] The Senior Deputy President noted: 2
“However, given the involvement of Blake Dawson personnel in the preparation of the material for the arbitration, I specifically confirmed the capacity for that Blake Dawson lawyer to continue to assist the Centrelink legal representative in these proceedings.”
[5] On the second day of hearings before his Honour, counsel sought permission to appear for Ms Pedler. Centrelink did not oppose the application and permission to appear was granted.
Relevant legislation
[6] Section 596 of the Act relevantly 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 FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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) FWA’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 Fair Work (Registered Organisations) Act 2009; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative”
Submissions
[7] Blake Dawson, on behalf of Centrelink, submitted that granting permission would enhance the efficiency of the proceedings, the complexity of appeal proceedings would make it unfair to deny representation where requested and there is no unfairness to Ms Pedler because the Full Bench has permitted her to make full written submissions and a written submission in reply to Centrelink’s oral submissions recorded on transcript.
[8] Ms Pedler takes issue with each of these propositions and the various arguments advanced on behalf of Centrelink in lengthy written submissions. She contends that the Appeal is not complex, the application is based on preference rather than efficiency and fairness and requiring Centrelink to represent itself would be more cost efficient than permitting representation.
Conclusions
[9] We have had regard to all of the submissions advanced by the parties. It is clear in our view that Full Bench appeal proceedings are likely to involve a degree of complexity beyond a matter at first instance, such as the requirements to establish error of the requisite kind and the application of alternative tests dependent on the nature of the decision challenged as established by the Act and case law. In our view permitting representation will enable the matter to be dealt with more efficiently before the Tribunal.
[10] Further, in the light of the issues involved in the Appeal we consider that it would be unfair not to allow the parties to be represented if they so wish on the ground that they are unable to represent themselves effectively. We place reliance on the assessment of the parties themselves in this regard.
[11] We note that we have agreed to allow Ms Pedler to rely on full written submissions and written submissions in reply and she will not be required to attend the hearings if she so chooses. It follows from our conclusions above that we would also grant permission to appear to a representative of Ms Pedler if such representation is sought.
[12] For these reasons we grant permission to Centrelink to be represented in the Appeal.
VICE PRESIDENT WATSON
Written submissions:
Submissions on behalf of The Commonwealth of Australia, represented by Centrelink, 22 July 2011
Submissions of Ms Pedler, 25 July 2011
2 Ibid
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