REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Christopher Budd
v
Australian Federal Police
(C2018/2950)

Section 596 Representation by lawyers and paid agents.

[1] In our decision issued on 5 October 2018 1 we refused Mr Christopher Budd (the Appellant) permission to appeal. The appeal concerned the approval of an Enterprise Agreement and in particular, whether a clause in that instrument was a discriminatory term and/or an objectionable term within the meaning of the Fair Work Act 2009 (the FW Act). At the hearing of the appeal we granted permission for the Australian Federal Police (the Respondent) to be represented pursuant to s.596 of the FW Act and indicated that we would give reasons at a later time. These are our reasons for granting permission to the Respondent to be represented by a lawyer.

[2] Section 596 of the FW Act relevantly provides as follows:

“S.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.

… ” 2

[3] A decision to grant or refuse permission for a person to be represented by a lawyer or paid agent pursuant to s.596 cannot be properly characterised as a mere procedural decision. It is also apparent from the terms of s.596 that a person in a matter before the Commission would normally appear on their own behalf. A departure from that position may occur if an application for permission has been made and resolved in accordance with law; namely “only if” one or other of the matters in s.596(2) have been established and it is appropriate to exercise the discretion to grant permission to the person to be represented. In other words, satisfaction of one or other of the matters in s.596(2)(a)-(c) is but the condition precedent to the subsequence exercise of the discretion conferred by s.596(2) of the FW Act. A person seeking permission also bears the onus of persuading the Commission that the grounds exist and that the discretion should be exercised. 3

[4] The Respondent contended that permission should be granted on the basis that the appeal involved multiple questions of law of some complexity including:

•  the proper principles of procedural fairness in the conduct of a hearing to deal with the approval of an enterprise agreement (including apprehended bias and waiver), as well as the application of the principle of “practical injustice” relied upon by the Appellant;

•  the proper construction of, and the proper interaction between, the FW Act and the Sex Discrimination Act 1984 (Cth);

•  the proper construction of, and the proper interaction between, the terms of an enterprise agreement and the Maternity Leave (Commonwealth Employees) Act 1973 (Cth); and

•  the proper construction and effect of s.253 of the FW Act.

[5] The Respondent submitted that given this complexity, the matter would be dealt with more efficiently if the Respondent was represented at the hearing by Counsel. The Respondent also submitted it was unable to represent itself effectively due to the inexperience of relevant internal resources in appeal-level matters and it would be unfair not to grant the Respondent representation where permission was granted in the first instance. The Respondent further submitted it would be unfair not to allow legal representation when taking into account fairness between the parties, and in consideration of the fact that the Appellant had filed detailed and lengthy submissions, and grounds of appeal, citing authority in the form of judgements of the High Court and Full Court of the Federal Court.

[6] The Appellant filed a lengthy submission objecting to the Respondent being granted permission to be represented by a lawyer which we considered. These matters included:

•  The presumption should be against permission, the appeal was not complex and representation would not result in the matter being dealt with more efficiently;

•  The issue of statutory interpretation is basic and straightforward;

•  The substantive points of law in this matter were being considered by another Full Bench and given that this matter was not being delayed to await that outcome, this appeal would not be considered complex enough to warrant permission being granted;

•  The Appellant was unrepresented and the Respondent had legally qualified staff capable of representing it effectively;

•  Granting permission will increase complexity and result in an unnecessarily adversarial approach being taken;

•  It would be unfair for an unrepresented party to appear at hearing against a specialist representative; and

•  The Respondent has not demonstrated the high level of disadvantage that is expected before permission is granted and it would not be unfair for the Respondent to represent itself given the Appellant’s own circumstances.

[7] We observe that some elements of the Appellant’s submission in relation to permission, including those matters associated with the interaction between the Enterprise Agreement and the statutory law, tended to confirm the complexity of the substantive issues in the appeal.

[8] We considered that the appeal and the grounds on which the Appellant relied raised multiple questions of law of some complexity and taking this complexity in account we considered that in all the circumstances the grant of permission to the Respondent being represented by a lawyer would enable the appeal to be dealt with more efficiently. Accordingly, we were satisfied that the requirement of s.596(2)(a) of the FW Act had been met. Having regard to all of the circumstances of the matter, including the history and nature of the matter and the capacity and circumstances of the Appellant, we also considered that it was appropriate to exercise our discretion to give permission for the Respondent to be represented by a lawyer.

DEPUTY PRESIDENT

Appearances:

Mr C. Budd on his own behalf.

Mr A. B. Gotting of counsel, with permission, for the Respondent.

Hearing details:

2018.

Sydney:

July 24.

Printed by authority of the Commonwealth Government Printer

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 1   Budd v Australian Federal Police [2018] FWCFB 6095.

 2   The circumstances contemplated by s.596(3) and (4) of the Act (not reproduced above) do not apply here.

 3   Warrell v Walton [2013] FCA 291. See also Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2018] FWCFB 4362 at [35] to ]39].