2025 WAIRC 00030
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00030



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
TUESDAY, 10 DECEMBER 2024



DELIVERED
:
ON THE PAPERS



FILE NO.
:
M 139 OF 2024



BETWEEN
:
ROBERT ARNOLD


CLAIMANT





AND





FLETCHER INTERNATIONAL WA (ABN 50878814356)


RESPONDENT

CatchWords : PRACTICE AND PROCEDURE – Small Claims matter – leave to be represented – factors for consideration – leave granted.
Legislation : Fair Work Act 2009 (Cth).
Instrument : Meat Industry Award 2020
Case(s) referred
to in reasons: : Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598
Cangemi v Specialist Diagnostic Pathology Services Pty Ltd T/As Western Diagnostic Pathology [2014] FCCA 187
Annese v General Crane Services Pty Ltd [2019] FCCA 266
Result : Application granted



REASONS FOR DECISION

1 The respondent, Fletcher International WA (Fletcher) has applied for leave to be represented by a lawyer in this small claim proceeding, under s 548(5) of the Fair Work Act 2009 (Cth) (the FWA).
2 The claimant, Mr Robert Arnold (Mr Arnold), has not opposed the application.
3 Judge Kendall set out the principles that apply in applications of this type in Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598 at [9]-[12]:
9. There are no mandatory considerations when determining whether leave to be represented should be granted pursuant to s.548(5). … the following factors for consideration are relevant (though not definitive):
a) the objects and purposes of the Small Claims Division and also of this Court to provide quick, informal and just resolutions of disputes without undue technicality;
b) the complexity of the matters that arise on the face of the application, be it factual or legal, and whether a lawyer by reason of their training and expertise, might be of assistance to the Court;
c) whether the other party (here the applicant) is represented by a lawyer and any prejudice or unfairness the other party may suffer if leave is granted;
d) the familiarity, and competence, of the proposed legal representatives to provide assistance to the Court on the complexities or technicalities that arise; and
e) whether the party seeking leave to be represented has an in-house lawyer or employee capable of conducting the matter satisfactorily.
(Cangemi v Specialist Diagnostic Pathology Services Pty Ltd t/a Western Diagnostic Pathology [2014] FCCA 187 (“Cangemi”); Renouf v RAC Finance Limited [2017] FCCA 142; Corcoran v Bansley Pty Ltd [2011] FMCA 440)
10. Section 548(5) of the FW Act is an “exception” to the norm. Leave for a lawyer to appear in the Small Claims division in most cases will not be necessary and will be assumed not to be required.
11. These provisions are designed to enable self-represented litigants greater access to the legal system and to provide more accessible procedures that operates informally and without regard to legal forms and technicalities: FW Act, s.548(3).
12. Overall, the respondent must satisfy the Court that it is necessary for the Court to exercise the discretion to grant leave in circumstances where the intention of the small claims procedure appears to be that legal representation is normally not necessary.
4 The starting point and default position is that legal representation is assumed to be unnecessary. Fletcher must satisfy me that there is a reason for me to exercise my discretion to grant it leave to be legally represented.
5 Fletcher’s grounds for seeking leave are set out in an affidavit in support made by Fletcher’s Human Resources Manager, Matthew Nelson. Mr Nelson deposes that:
a. The paid agent who Fletcher proposes to engage to represent it in these proceedings is Mr David Bates (Mr Bates). Mr Bates is a lawyer as defined by s 12 of the FWA as he is admitted to the legal profession in New South Wales, but he does not have a current practicing certificate.
b. Mr Bates has over ten years’ experience in the provision of workplace relations consulting services and has been providing workplace relations consulting to Fletcher for about five years.
c. Mr Bates is familiar with Mr Arnold’s employment and his current claim.
d. While Mr Bates’ usual place of business is in New South Wales, he is prepared to attend in person in Perth in any hearings, as directed by the Industrial Magistrates Court.
e. Mr Arnold has made a number of formal complaints or claims against the respondent in the past which has resulted in Fletcher having committed significant time and resources in attempts to resolve those matters.
f. For this reason, Fletcher no longer wishes to conduct these proceedings directly, but seek to do so with Mr Bates’ assistance.
6 The facts in this matter appear to be largely uncontentious. Fletcher employs Mr Arnold in a meat processing plant. It is common ground that he is covered by the Meat Industry Award 2020 (the Award). It is also common ground that Mr Arnold works Saturday and Sunday night shifts.
7 Mr Arnold’s claim is that Fletcher is in breach of the Award, and therefore has contravened s 45 of the FWA by:
a. Failing to pay permanent night shift loading for work he performed under cl 23.3 of the Award; and
b. Failing to pay penalty rates for work he performed under cl 24.1 of the Award. Transcript 10/12/24


8 Mr Arnold’s claim also refers to Fletcher agreeing to an increase in his pay, and this being achieved by his night shift loading being increased, but his normal pay decreasing. He says “the minimum wage applies to the rate of pay for the loading and not my rate of pay which should have remained the same.”
9 Fletcher has denied Mr Arnold’s claim. Its defence is that it has at all times paid Mr Arnold at least the Award minimum rates of pay, including night shift loading under cl 23.3, and, that where an employee is paid the night shift loading under cl 23.3, cl 24.1 penalty rates do not apply.
10 One key issue for determination is, therefore, whether cl 24.1 of the Award applies to Mr Arnold’s work. This raises a question of the correct construction of the Award. Another issue involves the interaction between Mr Arnold’s employment contract conditions, and how they interact with the claimed award entitlements.
11 The correct construction of the Award is a question of law. In both Cangemi v Specialist Diagnostic Pathology Services Pty Ltd T/As Western Diagnostic Pathology [2014] FCCA 187 and Annese v General Crane Services Pty Ltd [2019] FCCA 266 the Federal Circuit Court of Australia characterised issues about the construction of collective agreements and the interaction between them and the contract of employment, amongst other issues, as having sufficient complexity to warrant representation. Similarly, the nature of the issues in this case is such that the Court would benefit from thorough and considered arguments by a representative who is legally trained. This weighs in favour of leave being granted.
12 Fletcher has, in my view, shown that the representative it proposes to engage is familiar with proceedings of this nature, and skilled and competent in them.
13 Mr Arnold has not submitted that he will be prejudiced by the granting of leave. I do not consider Mr Arnold would be prejudiced as, if Mr Arnold remains unrepresented, the Court is able to assist him to participate in the proceedings meaningfully and fairly.
14 For these reasons, I am satisfied that leave to be represented should be granted to the respondent. I will make orders accordingly that:
(1) Pursuant to s 548(5) of the Fair Work Act 2009 (Cth), the respondent has leave to be represented by a lawyer until further order.


R. COSENTINO
INDUSTRIAL MAGISTRATE