[2014] FWCFB 3869 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
MELBOURNE, 11 JUNE 2014 |
Appeal against decision [[2014] FWC 2838] of Commissioner Bissett at Melbourne on 30 April 2014 in matter number U2013/14884.
[1] The appellant in this matter, Ms Emily Oratis, seeks permission to appeal and appeals from a decision of Commissioner Bissett issued on 30 April 2014 (Decision) 1 Ms Oratis has made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her former employment with the Melbourne Business School (MBS). The MBS sought permission to be represented by a lawyer in that matter pursuant to s.596 of the Act. By the time that the MBS sought such permission, Ms Oratis was representing herself in the matter (she had earlier been represented by a union, the NTEU2). In the Decision, the Commissioner granted such permission.
[2] Section 596 provides as follows:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
[3] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in Warrell v Walton 3 (followed by a Full Bench of this Commission in New South Wales Bar Association v Brett McAuliffe4):
“[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”.”
[4] In the Decision, the Commissioner’s reasons for granting permission under s.596 to the MBS were as follows:
“[13] It is well established that in order to exercise the discretion available to the Commission to grant permission to be represented one of the conditions in s.596(2) must first be met. Such condition having been met does not them make representation automatic but still requires the exercise of discretion on the part of the Commission.
[14] In Warrell v Walton the Court said:
(not reproduced)
Complexity
[15] Whilst this is a jurisdictional matter I am not convinced that that matter, on its own creates a level of complexity such that permission should be granted. Ultimately the determination of the jurisdictional issue will rest on contested factual matters.
[16] However, what cannot be divorced from this is the complexity that does arise in dealing with the admissibility of the extensive material filed by Ms Oratis. Having granted the Order, I am also aware of the material sought to be subpoenaed and of the associated matters raised by Ms Oratis.
Fairness to the Respondent
[17] Whilst I accept the that GM HR for MBS will be a witness in these proceedings that cannot, on its own, be a satisfactory reason for the grant of permission to appear. I agree with the submission of Ms Oratis that, if that were the case it would create an almost automatic right for an employer in any matter where its HR area is involved in a dismissal to be represented. This is not the intention of the Act.
[18] MBS is a large employer. It has over 200 employees. It is suggested that is has a number of HR staff and extensive expertise amongst its employees. Whilst Ms Oratis says MBS has a substantial number of faculty experts, I do not accept that I should take into account the skills of those employees of MBS who are engaged for their academic expertise in determining if MBS is capable of representing itself.
[19] I note that MBS is a school in the Faculty of Business and Economics in the University of Melbourne. To that extent it would suggest that there is wider expertise within the University available to MBS beyond the GM HR. However, no submissions have been received on this matter. I have therefore not taken it into account in making my decision.
Conclusion
[20] I am satisfied that, given the complexity of the matter - caused in part by the extensive material sought to be relied on the by the Applicant - that the matter could be dealt with more efficiently if permission to be represented was granted to MBS. It should be noted that I do not consider that it would be unfair to MBS not to allow it to be represented.
[21] In this case I am satisfied that I should exercise my discretion and grant permission to MBS to be represented in the matter.
[22] Permission is therefore granted to MBS in accordance with s.596 of the Act to be represented in the hearing of the above matter.”
[5] It is apparent from the above reasoning that the Commissioner understood and applied the correct approach to s.596 as stated in Warrell v Walton, namely that in order for permission for representation to be granted under the section, it was necessary first to be satisfied that at least one of the three alternative jurisdictional prerequisites in s.596(2) applied, and second to exercise the statutory discretion in favour of the grant of permission. It is further apparent that the Commissioner was satisfied that the jurisdictional prerequisite in s.596(2)(a) applied. The primary consideration which the Commissioner considered relevant in this context was the admissibility of the extensive material filed by Ms Oratis, and further material required to be produced pursuant to an order for production issued by the Commissioner upon the application of Ms Oratis.
[6] Ms Oratis remained self-represented in the appeal. Her notice of appeal did not clearly identify how it was said that the Decision was attended by appellable error; indeed her notice of appeal stated that there were “no errors”, and concentrated upon her omission in not submitting that, as the MBS was part of the University of Melbourne, it had the resources of the entire University to draw upon in respect of representation. However, in her written submissions on the appeal, Ms Oratis contended that the Commissioner erred in a number of respects. We will consider Ms Oratis’s appeal as founded upon those contentions.
[7] Ms Oratis firstly contended that the Decision was “guided by irrelevant factors”. However it is difficult to discern from her submissions what are said to be the irrelevant factors which guided the Commissioner. As earlier stated, the primary factor which the Commissioner took into account was the admissibility of the extensive material filed by Ms Oratis, and the further material required to be produced by the MBS. We have perused the materials in the case file, and they are indeed very extensive and will, if sought to be placed into evidence, undoubtedly lead to real questions as to whether they are sufficiently relevant to be admissible. We consider that this was relevant in the Commissioner’s evaluative assessment as to whether s.596(2)(a) was applicable, and that it was also relevant to the exercise of her discretion.
[8] We note that Ms Oratis has submitted to us that “The information/material was provided in addition to the case materials and the Applicant will not be relying upon them in the court proceedings to prove the Unfair Dismissal case”. That submission, however it is to be understood, was not made before the Commissioner, and cannot therefore be a proper basis to find appellable error. We reject the first ground of appeal. However, we observe that if, at the hearing of her unfair dismissal application, Ms Oratis makes it clear that she does not intend to rely on the material filed (or a substantial portion of it), it would be open to her to make an application under s.603 of the Act that the Commissioner’s order granting permission for the MBS to be represented by a lawyer be revoked. The Commissioner could then consider that application based upon the facts applying at that time.
[9] Secondly, Ms Oratis submitted that the Commissioner had failed to take “some material consideration” into account. Ms Oratis’s submissions relied in this respect on s.596(2)(c), and also on the statutory note thereunder which refers to the situation where a person “is from a non-English speaking background or has difficulty reading or writing” as being a circumstance in which the Commission might grant permission for representation by a lawyer or paid agent. Ms Oratis submitted that one of the issues which led to her dismissal concerned her English ability, and that the grant of permission for representation to the MBS in that circumstance would create unfairness taking into account fairness between her and the MBS.
[10] We do not accept that submission. Section 596(2)(c) is one of the jurisdictional bases upon which permission for representation might be granted; it is not a ground requiring refusal of permission. We accept that the capacity of a party to speak, write or understand English might be a relevant consideration in the exercise of the discretion under s.596(2) (once one of the three jurisdictional prerequisites has been satisfied). However, we cannot identify that it was clearly put to the Commissioner by Ms Oratis that the grant of permission to the MBS would cause unfairness to her because of any incapacity on her part to speak, write or understand English. Having read Ms Oratis’s written submissions and heard her oral submissions, we do not consider that she suffers from any incapacity in this respect.
[11] Thirdly, Ms Oratis submitted that the Decision was unreasonable or plainly unjust. It would only be in rare circumstances that appellate intervention on this basis would be justified. 5 Although reasonable minds might differ about whether the MBS should have been granted permission for representation under s.596, we are not satisfied that there is anything about the Decision which is so unreasonable or unjust that it would cause us to intervene on that basis alone.
[12] Finally, Ms Oratis’s submission that she was not aware that she could have submitted that permission should not have been granted on the basis that the MBS had access to the entire resources of the University cannot mean that there was any error on the part of the Commissioner. We note that the Commissioner took no account of this matter because there was nothing before her which could allow her to reach any conclusion about it. We are in no better position in this respect. This submission is also rejected.
[13] Accordingly we refuse permission to appeal.
VICE PRESIDENT
Appearances:
E. Oratis on her own behalf
N. Ruskin with K. Sweatman solicitors for Melbourne Business School
Hearing details:
2014.
Melbourne:
11 June.
2 National Tertiary Education Industry Union
3 [2013] FCA 291
5 Michael King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194 at [39]-[41]
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