[2013] FWC 4557

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FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION


Fair Work Act 2009
s.423 - Application to suspend or terminate protected industrial action - significant economic harm etc

United Voice
v
MSS Security Pty Ltd
(B2013/1005)

COMMISSIONER CLOGHAN

PERTH, 17 JULY 2013

Application to suspend or terminate protected industrial action - significant economic harm etc.

[1] On 1 July 2013, United Voice (United Voice or Applicant) made application to the Fair Work Commission (Commission) to terminate protected industrial action.

[2] The protected industrial action is being taken by MSS Security Pty Ltd (Employer).

[3] The application is made pursuant to s.423 of the Fair Work Act 2009 (FW Act).

[4] The application was the subject of a hearing on 8 July 2013.

[5] The Applicant was represented by Mr Ash, Director Legal and Bargaining and evidence given on behalf of United Voice by:

[6] The Employer was represented by Mr R Levin of Counsel and evidence given on behalf of the Employer by Mr M Cachia, General Manager Aviation, Ms R Smart, Aviation Services Manager (WA) and Ms S Pedlow, Manager Human Resources, Western Australia.

[7] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

RELEVANT BACKGROUND

[8] United Voice and the Employer are bargaining representatives for a replacement enterprise agreement to the MSS Security Pty Limited-LHMU-Perth Airport (WA) Enterprise Agreement 2010-2012 (2010 Agreement).

[9] This is the fourth application by the parties since 23 May 2013. The Employer made a s.240 application to deal with a bargaining dispute. United Voice has made applications for an order that industrial action by the Employer stop ([2013] FWC 4087), for a bargaining order ([2013] FWC 4431), and this current application to terminate protected industrial action.

[10] Formal negotiations for a replacement agreement commenced on 13 December 2012. Prior to United Voice seeking a protected action ballot order on 1 May 2013, there had been seven (7) formal meetings.

[11] In support of the application for a protected action ballot order, Mr O’Donnell gave the following evidence:

[12] The Commission granted a protected action ballot order on 1 May 2013 (PR536074). On 20 May 2013, the Australian Electoral Commission declared the results of the protected action ballot in which a majority of voters approved the taking of protected industrial action.

[13] On 22 May 2013, United Voice gave the Employer notice of employee claim action by its member commencing on 28 May 2013.

[14] Protected industrial action for a replacement enterprise agreement to the 2010 Agreement began on 28 May 2013.

[15] On 28 May 2013, the Employer gave notice to United Voice of employer response action commencing at the time each employee was to be given notice on 28/29 May 2013.

[16] While, in proceedings, I was not given a copy of all notices of protected industrial action, Mr O’Donnell lists in his witness statement, 15 separate instances of protected industrial action. There is one (1) instance of employee claim action, five (5) instances of employer response action and nine (9) instances of employee response action.

[17] In view of the nature of this application, it is useful to set out the episodes of employer response action. They are as follows:

[18] The witnesses, Ms Litsoev and Mr Jones, have been locked out since 1 June 2013 and Ms Greer has been locked out since 9 June 2013.

[19] At the date of the application, 25 employees are locked out by the Employer indefinitely.

[20] The longest period of lock out of employees is approximately one (1) month and the shortest period is nine (9) days.

[21] In the words of Mr O’Donnell’s witness statement, the application is to terminate “the Respondent’s lockouts, which are currently affecting 25 employees...due to the ongoing and indefinite period of the lockout, all members locked out are either currently facing financial harm or will be if the industrial action is not terminated as a matter of urgency”. 2

[22] Mr O’Donnell also, and properly, gave evidence that:

[23] I now turn to consider the statutory provisions in which I must consider the facts and evidence of the application.

RELEVANT PROVISIONS OF THE FAIR WORK ACT 2009

[24] While the immediate concern of both parties was with s.423 of the FW Act, this particular statutory provision has to be seen in context.

[25] Section 3 sets out the objectives of the FW Act. One objective at paragraph 3(f) provides “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action” (my emphasis).

[26] Section 423 falls within Chapter 3 of the FW Act. Chapter 3 is entitled, “Rights and responsibilities of employees, employers, organisations etc.” For the purposes of this application, Chapter 3 deals with the rights of employees, employers and organisations in relation to protected industrial action.

[27] Part 3-3 of Chapter 3 deals with, as its title suggests, “industrial action”. The “Guide” to Part 3-3 states that Division 6, in which s.423 of the FW Act can be found, “provides for FWC to make orders suspending or terminating protected industrial action for a proposed enterprise agreement in certain circumstances”. (my emphasis)

[28] Before setting out, in detail, the “certain circumstances” in s.423 of the FW Act, it is appropriate that I recall the underlying premises of the FW Act, and general approach to protected industrial action by employees and employers in this jurisdiction. They are:

[29] Put very shortly, this application seeks to take away the Employers legal right to take protected industrial action. While this application deals with the employer’s right to take protected industrial action, it is to be treated no differently to an application by an employer to take away the right of employees or organisations to engage in protected industrial action.

[30] I now turn to the “certain circumstances” or the particular requirements of s.423 of the FW Act.

RELEVANT STATUTORY FRAMEWORK

UNITED VOICE’S CASE

[31] United Voice submits that the decision to terminate the protected industrial action involves the Commission in two discretionary decisions adopting the approach in Schweppes Australia Pty Limited v United Voice - Victoria branch [2011] FWA 9329 (Schweppes).

[32] The first discretionary decision is whether the Commission is satisfied that the protected industrial action “is causing, or threatening to cause, significant economic harm to any of the employees who will be covered by the agreement. That question must be determined by reference to the facts and circumstances attending the industrial action taken in support of the claims having regard to, in particular but not exclusively, the matters set out in section 423(4)”. 3.

[33] The second discretionary decision flows from the first. If the Commission is satisfied that the protected industrial action is causing or threatening to cause significant economic harm to affected employees, the Commission has a further discretionary decision as to whether the industrial action should be terminated.

[34] When considering these discretionary decisions, United Voice submits that the Commission should not be concerned with the protected industrial action carried out by employees prior to or subsequent to the Employer locking out employees. The Commission should only be concerned with whether the lock out is causing or threatening to cause significant economic harm to any of the employees who will be covered by the agreement.

[35] United Voice submits that “the nature of the harm is the inability of the affected employees to derive income from their employer during the lock out”.

[36] Secondly, I must have regard to, “the likelihood that the harm will continue to be caused or will be caused”.

[37] Finally, I must consider “the capacity of the person to bear the harm” and in that regard the evidence of Ms Greer, Ms Litsoev and Mr Jones is demonstrative of significant economic harm. 4

[38] United Voice, as bargaining representative, is supportive of terminating the industrial action and believes it will assist in reaching agreement on a replacement enterprise agreement.

[39] United Voice contend that the industrial action has been engaged in for a protracted period of time, and finally, the Applicant has concerns that the Employer is not meeting the good faith bargaining requirements of the FW Act.

EMPLOYER’S CASE

[40] The Employer asserts that there is no evidence, or insufficient evidence, that the protected industrial action engaged in by the Employer is causing, or threatening to cause, “significant economic harm” to any of the employees who will be covered by the agreement.

[41] The Employer opposes the termination of protected industrial action.

[42] In view of the fact that the first vote on the replacement enterprise agreement is currently being conducted and does not conclude until 17 July 2013, there is no basis for the Commission to find that “there is no reasonable prospect of agreement being reached pursuant to paragraph 423(4)(f)(ii) of the FW Act”.

[43] The protected industrial action is not “protracted”.

[44] The Commission cannot be satisfied that “the dispute will not be resolved in the reasonable foreseeable future pursuant to paragraph 423(6)(b) of the FW Act”.

[45] Further, the use by the Employer of a lock out increases, not decreases, the prospect of an agreement being reached.

[46] Even if the Commission is satisfied that the industrial action being engaged in by the Employer is causing, or threatening to cause, significant economic harm, the dispute is protracted and it will not be resolved in the reasonable foreseeable future, the Commission should exercise its discretion to dismiss the application as being premature, inappropriate and inconsistent with the scheme of the FW Act.

[47] Finally, the Employer submits that termination of protected industrial action should be used as a last resort, “perhaps after many months of protracted industrial action and a number of votes have been held on the proposed agreement” 5.

CONSIDERATION

[48] I indicated earlier in these reasons for decision that many enterprise agreements are made without resorting to industrial action. The freedom to choose whether to take protected industrial action is a matter for bargaining representatives of employees to be covered by a replacement enterprise agreement and, subsequently, employees themselves.

[49] The FW Act is not judgemental about the right to take protected industrial action except where the requirements are not met. The party taking protected industrial action is free to act in accordance with their choice.

[50] In this particular dispute, there is no argument from the Employer that United Voice has exercised its right to take protected industrial action incorrectly.

[51] Following on members of United Voice having exercised their right to take employee claim action, the Employer has exercised its right to take employer response action. Finally, the employees have responded to the Employer’s response action, with employee response action.

[52] The Commission is not concerned, in this application, whether the parties have made the right choice regarding protected industrial action but whether the Employer’s freedom to exercise employer response action should be terminated in accordance with the FW Act.

[53] I agree with Mr Ash for United Voice that that decision can only be determined by reference to the facts and circumstances attending the industrial action.

[54] Subsection 423(1) of the FW Act is the “entry” into the provision of s.423 and provide that the Commission may make an order “terminating protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are being met” (my emphasis). In my view, that means all of the requirements or conditions in s.423 have to be met, for an order to be made.

[55] The first requirement is that of “significant economic harm” as set out in the subheading to sections 423(2), (3) and (4) of the FW Act.

[56] Subsection 423(2) is not relevant as the application is not referring to the termination of employee claim action.

[57] Subsection 423(3) provides that if the application is for an order relating to termination of employer response action, the Commission:

[58] I consider the legislative term in subsection 423(3) of the FW Act consists of two conditions, one of which must be satisfied for the requirement to be met. The conditions are:

[59] In arriving at a determination of whether the Commission can be satisfied that one of the above conditions exists, it is necessary to consider the factors in paragraphs 423(4)(a)-(g) of the FW Act.

FACTORS RELEVANT TO WHETHER PROTECTED INDUSTRIAL ACTION IS CAUSING OR THREATENING TO CAUSE SIGNIFICANT ECONOMIC HARM

s.423(a), (b) and (c) Source, nature, degree and capacity of person to bear economic harm

[60] The factors in paragraphs 423(4)(a), (b) and (c) of the FW Act can be described as economic in nature. They deal with the source, nature, degree and capacity of the person to bear the harm or economic consequences of the lock out.

[61] The source and nature of the economic harm is, without dispute, the loss of wages as a result of employees being locked out.

[62] The degree of the economic harm will vary from employee to employee.

[63] For the purposes of privacy, I intend to consider the witness evidence relating to economic harm collectively.

[64] Firstly, all witnesses agreed that they were aware of and had read the Employer’s “flyer” which reads:

[65] Secondly, all witnesses agreed that taking industrial action would most likely lead to being locked out by their employer.

[66] Third, all the witnesses agreed that the purpose of taking the industrial action was to put pressure on the Employer to improve its offer for the replacement enterprise agreement.

[67] Fourth, all the witnesses had access to a credit card. One witness paid off the card as and when it became due. Another witness had an amount of approximately $600 owing and another gave evidence that they were living off their credit card.

[68] Fifth, all witnesses had mortgages in which the amounts owing varied Equity in their homes ranged from almost 100% to 50%.

[69] Sixth, as expected, the witnesses’ financial circumstances varied from individual to individual.

[70] All the witnesses preferred not to be in debt whether to family or friends, as a result of being locked out and receiving no income. In particular, the witnesses had not, and did not want, to go to their financial institution or access a redraw facility on their mortgage.

[71] In summary, the witnesses considered that they had made the right decision to take industrial action knowing that the consequences would most likely lead to being locked out, loss of wages and harm to their current financial situation.

[72] This damage to the witnesses’ financial situation has been mitigated by support from others including United Voice. However, as to be expected, circumstances varied from individual to individual. Unexpected expenses add a further burden in managing any financial circumstances.

[73] The witnesses’ evidence would not come as a surprise to persons involved in industrial relations. The ability to bear the economic reality of having no wages, due to being locked out by the employer, has a multiplicity of individual variables, and no uniformity, except the loss of income.

[74] In these circumstances of employees being locked out, and dissimilarity of the capacity to bear the harm, the critical question for the Commission is whether there is significant economic harm.

[75] In National Tertiary Education Union v University of South Australia [2010] FWAFB 1014 (NTEU) a Full Bench of the then Fair Work Australia found that:

“[8] Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

[15] Whether in a particular case the exceptional circumstances for the making of an order suspending or terminating protected industrial action under s.424 of the Act have arisen will be a matter to be determined on a consideration of all the circumstances and having regard to the evidence and submissions before FWA.”

[76] While that decision involved an appeal against a Decision of SDP O’Callaghan in relation to an application pursuant to s.424 of the FW Act for suspension of protected industrial action, I consider the views of the Full Bench pertinent regarding the operation of terminating industrial action pursuant to s.423 of the FW Act.

[77] The approach in NTEU was followed by the Full Bench in Tyco Australia Pty Limited T/A Wormald v CEPU (Tyco) [2011] FWAFB 1598.

[78] The Full Bench in Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (First respondent) and Kentz E & C Pty Ltd (Second respondent) (Woodside) [2010] FWAFB 6021 referred to NTEU and added:

“[43] Just as that Full Bench considered that the power in s.424 was intended to be used only in “exceptional circumstances”, we consider that the power in s.426 is likewise intended only to be used in exceptional circumstances. That outcome is determined by a proper construction of the expression “significant harm’ and also by a proper appreciation of when it will be “appropriate” to make an order within the meaning of s.424(5). It is also consonant with the approach taken by the majority of the Full Court of the Federal Court in relation to s.170MW of the Workplace Relations Act 1996 in Re Polites; Ex parte Construction, Forestry, Mining and Energy Union 7 and paragraphs 1709 and 1728 of the Explanatory Memorandum in particular.

[44] When regard is had to context of the FW Act as a whole and to the explanatory memorandum, the expression “significant harm” in s.426(3) should be construed as having a meaning that refers to harm that has an importance or is of such consequence that it is harm above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action. In this context, the word “significant” indicates harm that is exceptional in its character or magnitude when viewed against the sort of harm that might ordinarily be expected to flow from industrial action in a similar context. In this way, an order will only be available under s.426 in very rare cases, as contemplated by the Explanatory Memorandum. It follows that it will not, of itself, be sufficient that the harm, viewed in isolation, can be characterised as “substantial”. Substantial harm to third parties is a common consequence of effective industrial action. Unless the harm is out of the ordinary then suspension would [be] contrary to the legislative intention that suspension should not be able to [be] used generally to prevent legitimate protected industrial action in the course of bargaining. In assessing whether there is “significant harm” context is also important. A particular quantum of financial loss may constitute “significant harm” in one context but not in another.”

[79] These decisions have been followed by individual members of the Commission in Prysmian Power Cables and Systems Australia Pty Ltd v AMWU [2010] FWA 9402, G4S Custodian Services Pty Ltd v Health Services Union of Australia (Vic No 2 Branch) [2011] FWA 5902, Toyota Motor Corporation Australia Ltd v AMWU and CEPU [2011] FWA 6268.

[80] While all the above decisions of the Commission (with the exception of Schweppes which was described as novel) involved applications by employers relating to protected industrial action by employees, I am unable in this application to determine any good reasons to depart from the statutory interpretation set out in the above decisions generally, although they involve a variety of applications under different sections of Division 6 of Part 3-3 of the FW Act.

[81] Notwithstanding the scheme of the FW Act in relation to the protected industrial action, the Commission needs to be satisfied that the lock out has led to significant economic harm.

[82] The word “significant” means “of considerable amount or effect or importance, not insignificant or negligible” according to the Australian Concise Oxford Dictionary. The sense of importance of the word “significant” can be gauged by the fact that it was first recorded in the English language in Daniel Defoe’s A New Voyage Around the World (1725) (Chambers Dictionary of Etymology). In his book, Defoe uses the word “significant” to describe the newly found straights of Magellan providing a natural passage between the Atlantic and Pacific oceans.

[83] While many words have acquired a meaning well beyond what they originally possessed, the word “significant” has generally retained its understood definition of exceptional, momentous or telling.

[84] I now turn to the remaining factors in s.423(4) of the FW Act and begin with s.423(d).

s.423(d) Views of the person and the bargaining representatives for the agreement

[85] Mr O’Donnell gave evidence that:

[86] While much of Mr O’Donnell’s cross examination focused on United Voice’s contribution to locked out members in the future, and the profile of the various groups of employees, the substance of his evidence relating to the application was that employees who have been locked out are experiencing “financial hardship” 9 or “either currently facing financial harm, or will be, if the industrial action is not terminated as a matter of urgency”10. Notably, Mr O’Donnell does not use the term “significant economic harm”.

[87] Mr Ash, for United Voice, relies upon the witness evidence to support the proposition that the requirement of “significant economic harm” is being met pursuant to s.423 of the FW Act 11.

[88] Alternatively, Mr Ash relies upon witness evidence, to support the position, “that they have limited capacity to bear the harm, particularly if it continues for a longer period of time” 12. However, witness evidence focussed upon the present circumstances of the employees and not on the future. I consider it reasonable to conclude that the longer a person is without income the greater the harm but the witness evidence clearly indicated that the same employees have capacity to offset their loss of income with access to cash, but are unwilling to do so. That is a decision the employees have made themselves but I would be remiss in not considering that decision as part of the capacity to bear that harm.

[89] The Employer, as a bargaining representative, opposes an order terminating the Employer’s protected industrial action for the reasons I have outlined in paragraphs [40] to [47].

s.423(f) Inability to reach agreement and there is no reasonable prospect of agreement being reached

[90] The parties are in agreement that they have reached an impasse or stalemate. For that reason, the Employer has put out to ballot its preferred enterprise agreement. Whether the employees approve the proposed enterprise agreement is a matter of speculation. However, an impasse is not unusual in negotiations.

[91] Conflict is inherent in negotiations and there is no fixed set of rules for resolving that conflict when it reaches an impasse. However, the Commission is well populated with enterprise agreements that have experienced an impasse or stalemate. For this reason, the “bar” for the Commission to be satisfied that the parties are genuinely unable to reach agreement or there is no reasonable prospect of agreement, should be relatively high. If not, such an assertion would be self serving and at odds with past practical experience.

s.423(g) Promoting and facilitating bargaining for the agreement

[92] It would be unusual for an applicant to seek an order for the termination of a lock out and not contend that it would achieve the objective of promoting and facilitating bargaining for an agreement. United Voice is no exception.

[93] United Voice applied for, successfully, the right to take protected industrial action under the FW Act. The purpose of taking that industrial action is to encourage the Employer to improve its offer on the proposed enterprise agreement by inflicting harm. The Employer has reciprocated and has taken its own protected industrial action for the purposes of getting employees to accept its arguments for the proposed enterprise agreement which incurs economic harm to the employee.

[94] The Fair Work Bill 2008 Explanatory Memorandum does not provide any assistance to the Commission in the statutory interpretation of this factor in s.423(4) of the FW Act.

[95] In my view, what is necessary to take into account in this factor is that notwithstanding the lock out may cause economic harm, is it promoting and facilitating bargaining for the replacement agreement.

[96] The evidence I have in these proceedings is that since the commencement of the lock out on 28 May 2013, United Voice and the Employer have: maintained a verbal and email dialogue; conducted bargaining meetings; provided draft clauses and the Union has reduced its claims. I should note that some of these actions have occurred after the Employer made the decision to put its offer on a replacement agreement to ballot.

[97] The empirical evidence is that industrial action by the Employer generally has not impeded bargaining. In making this observation, I note that neither party has made concession on some key terms.

[98] I now move to subsection 423(4) and (5) of the FW Act.

s.423(5) Harm is imminent

[99] If I find that the lock out, at this time, is not causing significant economic harm, it is necessary to consider whether the potential of the lock out continuing beyond 17 July 2013 will result in that harm being imminent. The short answer is no. I have no evidence that significant economic harm is imminent for the three employees who were witnesses. It is not the role of the Commission to make assumptions in the absence of evidence. While it is obvious that there will be a financial impact on employees who are not receiving an income, I had no evidence which I could be positively satisfied that would lead me to the view that employees would transfer from a state of financial hardship to one of experiencing significant economic harm.

s.423(6) The industrial action is protracted and the dispute will not be resolved in the reasonably foreseeable future

[100] As a matter of fact the protected industrial action commenced on 28 May 2013 and this application was made on 1 July 2013. It is a matter of fact that the longest employees subject to this application were locked out is since 1 June 2013 and the shortest being 21 June 2013.

[101] Not unexpectedly, the parties’ views differed on whether the lock out was protracted or not.

[102] United Voice relied upon the statement of Cargill C in Prysmian Power Cables and Systems Australia Pty Ltd v NUW, CEPU and AMWU (Prysmian) where she states:

[103] The context in Prysmian was an application by the employer to terminate a complete withdrawal of labour by 206 production employees for a period of six weeks. From commencement of the strike, there had been no production at the employer’s premises. Notwithstanding these circumstances, Commissioner Cargill dismissed the employer’s application because she was not satisfied that the dispute would not be resolved in the reasonably foreseeable future.

[104] The context of this application can be distinguished from Prysmian. The period of industrial action is at most one month at the time of the application and at the time of the ballot approximately six weeks. Further, approximately one-quarter of employees have been locked out, and for some, it only commenced on 21 June 2013.

[105] The word “protracted” has the meaning for the Employer of “lasting for a long time or longer than expected”, “extended and ‘continuing for a long time, especially longer than is normal or necessary”. No dispute can be taken with those definitions.

[106] The difficulty with the word “protracted” is that if approached by reference to absolutes, that is, number of days or weeks, it ignores the mental element. I have no doubt that for those employees who have been locked out since 1 June 2013, the period of time is protracted. However, if the Employer was meeting some of the employees’ demands, the period of time would be described as “productive”.

[107] Notwithstanding the above difficulties with what is meant by protracted, the word “and” in s.423(6) of the FW Act should be used in its ordinary conjunctive sense. Accordingly, it is necessary for the lock out to be both “protracted” and that the dispute will not be “resolved in the reasonably foreseeable future”.

[108] In the “reasonably foreseeable future”, the employees will cast a vote on the Employer’s proposed enterprise agreement. Further, I have evidence that due to the nature of the dispute, the views of employees are being articulated more clearly. Finally, in evidence, that was not contested, a similar agreement in Victoria which was approved by the Commission on 1 July 2013 required three (3) ballots before a majority of employees approved the proposed agreement.

[109] I also note that the Victorian agreement contains a clause which states that:

[110] The Victorian enterprise agreement contains the mutual recognition of United Voice as the “leading voice for security officers” and MSS as the “leading employer and contractor” in the Victorian contract security industry.

[111] Finally, I note that United Voice has been able to reach agreement, over a number of years, in multiple enterprise agreements with employers of security officers, including the Employer, at Perth Airport. I have observed nothing in these proceedings which would indicate that this practice will not continue in the reasonable foreseeable future.

CONCLUSION

[112] Having considered the evidence of the witnesses, the scheme of the FW Act as it relates to protected industrial action, the right of the employer to lock out employees and the plain and ordinary meaning of “significant”, and the principles set out in NTEU and Woodside, I am not satisfied that the employees are experiencing significant economic harm with respect to the factors in s.423(4) of the FW Act.

[113] Further, I am not satisfied that “the dispute will not be resolved in the reasonably foreseeable future” irrespective of whether it is considered “protracted” or not in accordance with s.423(6) of the FW Act.

[114] Finally I have no evidence, and cannot be satisfied, that significant economic harm is imminent, or immediate, because of the potential of the lock out to continue, beyond 17 July 2013 pursuant to s.423(5) of the FW Act.

[115] For the above reasons, I am not satisfied that the requirements in s.423 of the FW Act have been met such as to enable me to exercise my discretion to terminate the employer response action. For these reasons, the application will be dismissed.

[116] I now turn to two further issues raised and requiring reasons before concluding this Decision and Reasons for Decision.

ss.596(2) LEGAL REPRESENTATION

[117] At the commencement of proceedings, Mr Ash, on behalf of United Voice, objected to the Commission granting permission for the Employer to be represented by a lawyer. The Commission may grant permission for a person, in this case, MSS Security Pty Ltd, only if one or more of the requirements in paragraphs 596(2)(a), (b) or (c) are met. Notwithstanding that one of the requirements may be met, it is not automatic that permission to appear should be granted; is still a matter for the Commission’s discretion.

[118] Section 596(2) is as follows:

[119] Mr Ash submitted that: the application was not complex; there was no unfairness as the Employer has in-house human resources person whom could efficiently and effectively take carriage of the case.

[120] Mr Ash took me to the decision in G & S Fortunato Group Pty Ltd v J Stranieri (Fortunato) [2013] FWCFB 4098 and the Explanatory Memorandum.

[121] It should be noted that in Fortunato, the decision states, “It was conceded [by the Employer] that there was no particular complexity about the appeal and that the matters in paragraphs 596(2)(b) and (c) did not arise in the circumstances of this matter.” (my emphasis)

[122] As I have already indicated, this is the fourth application dealing with this dispute. Of the previous three (3) applications, the Employer has been represented by the same lawyer on two occasions - no objection to Mr Levin representing the Employer was made on those occasions.

[123] I consider this application more complex than the previous two applications. Further, given the complexity of this application, legal representation enabled the matter to be dealt with more efficiently - for which I was grateful. Finally, while not entirely relevant, I note that in Schweppes and Prysmian to which Mr Ash referred to in his submissions, the unions involved were represented by a lawyer. While this is not, of itself, demonstrative of complexity, it is indicative, in my view, of the manner in which those parties viewed the necessity of having counsel.

[124] With respect to paragraphs 596(2)(b) and (c), it is unnecessary to examine the criterion in detail but at some time in the future, a party to proceedings in the Commission will claim that it would be unfair to not allow them legal representation on grounds of “effectiveness” prior to the application being heard. However, that will be a matter for another day.

[125] Having considered Mr Ash’s submission, the circumstances of the dispute, the nature of the application and the above consideration, I granted permission for Mr Levin to appear on behalf of the Employer.

SUSPENSION OF INDUSTRIAL ACTION BY EMPLOYER

[126] Without notice to the Employer, United Voice in its closing submission, put the proposition that if the Commission was not prepared to terminate the Employer’s protected industrial action, the Commission should consider suspending the lock out until the declaration of the ballot on the Employer’s proposed enterprise agreement.

[127] The Employer objected to such a proposition.

[128] On transcript, I informed Mr Ash that I was not prepared to agree to such a request. The simple facts are that the application, written and oral submissions and evidence were all based on termination of the lock out. In such circumstances, it would have been inappropriate and unfair to consider such a proposition at such a late time in the proceedings.

[129] An Order dismissing the application is issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

Mr W Ash on behalf of the Applicant.

Mr R Levin of counsel for the Respondent.

Hearing details:

2013:

Perth,

8 July.

 1   Witness statement, paragraph 26.

 2   Exhibit A1 paragraph 10

 3   Applicant’s Outline of submission

 4   Applicant’s Outline of submission

 5   Employer’s outline of submission.

 6   Exhibit R1

 7   (2002) 117 FCR 212 per Lee and Madgwick JJ esp. at [54]

 8   Exhibit A1

 9   Transcript PN127

 10   Exhibit A1

 11   Transcript PN763

 12   Transcript PN767

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