National Tertiary Education Industry Union v Navitas Bundoora Pty Ltd [2016] FWC 2072 (4 April 2016) [2016] FWC 2072 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.739 —Dispute resolution National Tertiary Education Industry Union v Navitas Bundoora Pty Ltd T/A La Trobe Melbourne (C2015/6556) COMMISSIONER BISSETT MELBOURNE, 4 APRIL 2016 Alleged dispute about any matters arising under an enterprise agreement - permission to be represented - permission granted. [1] An application has been made by the National Tertiary Education Industry Union (NTEU) for the Commission to deal with a dispute in accordance with dispute settling procedures of the La Trobe Melbourne Enterprise Agreement 2015. That matter has been subject to conciliation and is due to be heard on 19 April 2016. [2] Navitas Bundoora T/A La Trobe Melbourne (Navitas) has sought permission to be represented in the hearing of the matter by a lawyer pursuant to s.596(2) of the Fair Work Act 2009 (the Act) . The NTEU oppose the grant of permission. Legislation [3] Section 596 of the Act states: 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. Submissions [4] Navitas makes its application pursuant to s.596(2)(a), (b) and (c) of the Act. [5] In respect to s.596(2)(a), Navitas submits that allowing it to be represented by a lawyer at the hearing will enable the mater to be dealt with more efficiently taking into account the complexity of the matter as: ● The matter is complex as to its facts, given the long history of bargaining in relation to the Agreement; ● The matter involves a contest as to factual matters which will require cross examination of witnesses; ● The matter raises legal questions, a jurisdictional issue which, by its nature, is complex and consideration of principles in relation to interpretation of agreements; ● The NTEU has referred to over 30 cases, including High Court authority, in its written submissions; ● Alternative advocates – either the College Manager or Head of HR may both be required as witnesses and neither has the experience of the NTEU National Industrial Officer in matters before the Commission; ● The grant of permission will enable the issues in dispute to be refined and effectively addressed enabling the matter to be dealt with more efficiently. [6] Navitas says that it is unable to represent itself effectively and it would be unfair not to allow it to be represented (s.596(2)(b)). It does not employ an in-house lawyer, has no dedicated and experienced industrial relations staff in Melbourne and the College Manager is not an advocate and has limited experience in the Commission and no experience in conducting hearings. [7] Navitas also submits that it would be unfair not to allow it to be represented taking into account fairness between the parties (s.596(2)(c)) as the NTEU will be represented by a Senior Industrial Officer who has skills and experience as an advocate in the Commission whilst it has no one with such skills and experience on its side. [8] The NTEU opposes the application. It submits that a contest of facts does not make a matter inherently complex, that it has not raised any jurisdictional issue with respect to the matter but rather seeks to satisfy the Commission that it does have jurisdiction, that the location of potential in-house advocates is not a reason to grant permission and the Commission does not need assistance to refine and address the issues in dispute. [9] With respect to the application pursuant to s596(2)(b) the NTEU says that Navitas is more than capable of representing itself. It says that there is no unfairness in circumstances where Navitas has access to experienced human resources staff. Further, it says that Navitas has recently advertised a position of legal counsel which reports to Senior Legal Counsel – suggesting that Navitas does employ in-house lawyers. [10] In relation to s.596(2)(c) the NTEU submits that Mr Cullinan of the NTEU who will represent the NTEU has limited experience in arbitrated advocacy and is not legally qualified. It submits that the test is not whether Navitas employs a lawyer as experienced as FCB Workplace Law or Mr Forbes of Counsel but whether there would be unfairness between the parties in not allowing representation. Consideration [11] 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 precedent in s.596(2) of the Act must first be met. Such a condition having been met does not make representation automatic but still requires the exercise of discretion on the part of the Commission. [12] A Full Bench of the Commission confirmed this approach in Emily Oratis v Melbourne Business School 1 where it said: [3] The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in Warrell v Walton (followed by a Full Bench of this Commission in New South Wales Bar Association v Brett McAuliffe ): [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”. [13] Further, each of the limbs of s.596 of the Act stands alone and must be assessed alone. [14] I will therefore first determine if any of the prerequisites in s.596(2) of the Act are met. If they are I will then consider whether I should exercise my discretion to grant permission. Section 596(2)(a) – complexity and efficiency [15] Section 596(2)(a) requires a consideration of two matters –if the matter is complex and, if it is, if the matter could be dealt with more efficiently given the complexity. [16] In making this decision I have had the benefit of having received the filed submissions and evidence of both the NTEU and Navitas. [17] I am satisfied that the key matters for determination through the arbitration relate to the interpretation of the Agreement – at least in relation to clause 14 and perhaps clause 15 and the remedy that may be granted by the Commission. [18] The question of the approach to interpretation – whilst generally well settled – does not mean that the application of those principles to any particular agreement is easy. Appeals to the Full Bench of the Commission in relation to disputes over the application of agreement provisions attest to this difficulty. [19] The subtle difference between the exercise of arbitral and judicial power in terms of the crafting of remedy should the application succeed is also evident in the materials filed by the parties. [20] With respect to witness examination and cross examination I note that Navitas has taken issue with parts of the witness statement of Mr Ramesh Presser, filed by the NTEU. These are matters that will need to be addressed and determined at the hearing of the matter. Whilst these objections are clearly outlined such objections do add complexity to dealing with the matter. [21] In this respect I am satisfied that there is a level of complexity in the matter before me and that this does relate to questions of interpretation, remedy and witness evidence. I am satisfied that the application would be able to be dealt with more efficiently, taking into account this complexity of the matter if permission was granted. [22] Having found that the jurisdictional prerequisite for the exercise of my discretion has been met under s.596(2)(a), I do not need to consider if the prerequisites under s.596(2)(b) and (c) have been met. Conclusion [23] I have carefully considered the submissions of Navitas and the NTEU and the materials filed to date. [24] On the basis of my findings above and on my consideration of the materials filed I have decided to exercise my discretion and grant permission to Navitas to be represented by a lawyer of paid agent pursuant to s.596(2) of the Act. COMMISSIONER Final written submissions: Applicant, 24 March 2016 Respondent, 29 March 2016 1 [2014] FWCFB 3869 . Printed by authority of the Commonwealth Government Printer <Price code A, PR578691> Printed by authority of the Commonwealth Government Printer <Price code C, PR578624>