Commission denies request objecting to legal representation

Commission denies request objecting to legal representation

Commission denies request objecting to legal representation

The Fair Work Commission has rejected an application seeking to oppose the ability of parties to be legally represented during negotiations for an enterprise bargaining agreement.

The negotiations for the proposed Woolworths Supermarkets Agreement 2023 (Agreement) involve the following parties:

  • Mr Anthony Hicks, an independent bargaining agent;
  • The Retail and Fast Food Workers Union Incorporated (RAFFWU);
  • Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (Woolworths);
  • The Shop, Distributive and Allied Employees’ Association (SDA);
  • The Australian Workers Union (AWU);
  • The Australasian Meat Industry Employees’ Union (AMIEU).

Both the SDA and Woolworths sought to be legally represented in directions hearings, which Mr AH opposed.

Pursuant to section 596 of the Fair Work Act 2009, a person may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

Section 596 (2) outlines various principles the Commission will consider if legal representation is sought.

In submissions before Commissioner Pearl Lim, Woolworths claimed the matter involved contested facts and evidence concerning the bargaining process between the parties, necessitating cross-examination of witnesses. Despite having in-house lawyers, the employer claimed that they did not have significant experience in dealing with jurisdictional objections of this nature or classification disputes.

For their part, the SDA claimed the matter involved complex issues concerning the conduct of disputes, including the question of whether bargaining must always be conducted in joint meetings of all bargaining representatives. The union also submitted that the Commission would be assisted in efficiently considering the matter if it received presentations from a legally trained advocate.

In contrast, Mr AH claimed that granting the two opposite parties legal representation would diminish the Commission’s obligation to conduct matters in a fair and just manner.

He also submitted that the other parties had overstated the complexity of the matters.

In rejecting Mr AH’s application, Commissioner Lim disagreed with his submission that the matter did not involve complexity. As she noted, “The parties are in contention over several factors, including Woolworth’s’ conduct; what significance should be attributed to various actions (or non-actions); and the relevance of any industrial action. There is also complexity arising from the fact that there are two applications seeking different orders and from the number of parties involved”.

Commissioner Lim also agreed that granting permission to the SDA and Woolworths to be represented by counsel would assist in conducting the matter more efficiently.

Application by AGH (B2023/1343) 7 March 2024

For queries about legal representation, appearing in the FWC, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 422.0324

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