Representation by lawyers and paid agents

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Introduction

See Fair Work Act ss.12 and 596

A lawyer or paid agent must seek the permission of the Fair Work Commission to represent a person in a matter before the Commission. This includes making an application or submission on another person’s behalf.^[1]

Only a Commission Member can give permission for a lawyer or paid agent to represent a party.^[2]

Lawyer

A ‘lawyer’ is a person who is admitted to the legal profession by a Supreme Court of a state or territory.^[3]

Paid agent

A ‘paid agent’ is a person who charges or receives a fee to represent a person in the matter before the Commission.^[4]

In house counsel, union representatives and employer association representatives

The following representatives are not required to seek permission to appear:

a lawyer or paid agent who is an employee (or officer) of the person, or
a lawyer or paid agent who is an employee (or officer) of any of the following, which is representing the person:
- an organisation (including a union or employer association), or
- an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 (Cth), or
- a peak council, or
- a bargaining representative, or
a lawyer or paid agent who is a bargaining representative.^[5]

In these circumstances a person is not considered to be represented by a lawyer or paid agent.^[6]

Others

In circumstances where the person seeking to represent a person or organisation is not a lawyer or paid agent as defined in the Fair Work Act, permission from the Commission to represent is not required.^[7]

When will permission be granted?

The Commission can only give permission for a person to be represented by a lawyer or paid agent in a matter before the Commission if:

it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (complexity), or
it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively (effectiveness), or
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 (fairness).^[8]

In granting permission, the Commission will have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.^[9]

In practice the Commission is likely to grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case.^[10]

The Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’.^[11] In some cases it may not be fair and just for one party to be represented by a lawyer or paid agent when the other is not.^[12]

The ‘normal position’ of the Act is 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 …’^[13]

A party might be required to represent themselves if the Commission is not satisfied permission should be granted for a lawyer or paid agent to appear for a client on the grounds of complexity, effectiveness or fairness.^[14]

If a party has not made submissions objecting to representation, it is still the case that representation requires permission of the Commission.^[15]

Partial representation may be permitted during examination-in-chief and cross-examination of the party seeking representation^[16] or during argument about jurisdictional issues.^[17]

Complexity

Where a party raises a jurisdictional issue, permission for representation will usually be granted.^[18]

Jurisdictional issues by their nature are often complex and may require expertise in case law.^[19]

However, even if there is a jurisdictional issue which needs to be resolved, permission may still be refused or limited to specific parts of a hearing.^[20]

Effectiveness

Where a person would be unable to effectively represent themselves, permission for representation may be granted.^[21]

The Commission will generally grant permission for representation where the person is unable to represent themselves in a manner that creates a ‘striking impression’, or which has an ‘impressive’ effect or which is ‘powerful in effect’.^[22]

However, what might be of ‘striking impression’ or ‘impressive’ or ‘powerful in effect’ is a matter of assessment by the Commission.^[23]

Example

A circumstance where a person may be given permission to be represented is where the person is from a non-English speaking background or has difficulty reading or writing.^[24]

Fairness

Permission may be granted if it would be unfair to refuse permission taking into account the fairness between the parties to the matter.^[25]

Example

A circumstance where a person may be given permission to be represented is where one party to the matter is a small business with no human resources staff and the other is represented by a union.^[26]

Case examples

Permission granted for representation

Complexity – jurisdictional issues – genuine redundancy

O’Grady v Royal Flying Doctor Service of Australia (South Eastern Section) [2010] FWA 1143 (Leary DP, 17 February 2010).

The employer objected to the employee’s application for an unfair dismissal remedy on the basis that the dismissal was a case of genuine redundancy. The employer sought permission to be legally represented. The employee opposed legal representation.

The Commission held that the determination of jurisdiction was a legal issue. Legal representation would allow the matter to be dealt with more efficiently. Permission for legal representation was granted to both parties while dealing with the issue of jurisdiction.

There were complex issues to be considered and the employer was a not for profit organisation without a person experienced in workplace relations advocacy. This was not a ‘simple factual contest’ but a contest about jurisdiction which might raise issues not previously considered.

Permission for legal representation was granted to both parties while dealing with the issue of jurisdiction.

Complexity – serious misconduct – allegation dismissal related to general protections dispute

Rollason v Austar Coal Mine Pty Limited [2010] FWA 4863 (Stanton C, 1 July 2010).

The employee was dismissed for alleged sexual harassment. The employee contended his dismissal was, in part, related to an application made to the Commission concerning a workplace right. The employee, who was represented by a union, objected to the employer being legally represented.

It was held that the relevant factual matrix was sufficiently complex that legal representation would assist in its effective and efficient resolution. The Union’s advocate, although not legally qualified, was highly experienced.

Permission for legal representation was granted.

Complexity – serious misconduct – workers’ compensation legislation

Wesslink v Walker Australia Pty Ltd T/as Tenneco [2011] FWA 2267 (Hampton C, 21 April 2011).

The employee was dismissed while under a modified work regime pursuant to workers’ compensation legislation. The employee was dismissed on the grounds of serious misconduct. The employee opposed permission for the employer to be legally represented.

It was held that, among other factors, the matter had some complexity given the interaction with the workers’ compensation legislation, and that the applicant was represented by an experienced and legally qualified union advocate.

Permission for legal representation was granted to the employer.

Complexity – appeals to Full Bench

Pedler v The Commonwealth of Australia, represented by Centrelink [2011] FWAFB 4909 (Watson VP, Ives DP, Bissett C, 1 August 2011).

The employee appealed against a decision. The employee objected to her employer having legal representation during the appeal proceedings.

On appeal the Full Bench concluded that appeal proceedings were likely to involve a greater degree of complexity than proceedings at first instance. Permitting representation would enable the matter to be dealt with more efficiently. Permission for legal representation was granted.

Efficiency – complexity – human resources manager was a witness and had restraining order against employee

Venn v The Salvation Army T/A Barrington Lodge [2010] FWA 912 (Leary DP, 9 February 2010).

The employee opposed permission for the employer to be legally represented because the employee was unrepresented and the employer could be represented by its human resources officer. However, the employee had obtained a restraining order against the human resources officers, and the human resources officer was going to be a witness in the matter. The employer had no-one else capable of presenting its case.

Permission for legal representation was granted.

Fairness – human resources had little or no industrial experience – employee represented by union

Rahman v Storm International Pty Ltd T/A Storm International Property Maintenance [2011] FWA 7583 (Cambridge C, 4 November 2011).

The employer was a medium-size business with some specialist human resources staff, but no-one with experience as an advocate. The applicant was represented by a legally qualified, skilled and experienced advocate from a union.

Although the matter was not a complex one, unfairness would arise from an imbalance of representation should permission for legal representation not be granted.

Permission NOT granted for representation

Employer a member of employer association

Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria [2011] FWA 1520 (Lewin C, 18 March 2011).

The employer in this matter was a large employer who was a member of an employer association. They sought to be represented by a private lawyer (not the employer association). The employee was self-represented.

It was found that there were no particularly complex jurisdictional or substantive issues. Effective representation from experienced, legally qualified persons was available from within the employer’s employer association.

Permission was refused.

Complexity – simple factual contest

Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572 (Harrison C, 9 October 2009).

The employee was represented by his union. The employee opposed the employer being represented by a lawyer. The employer argued that the complexity of the issues meant that the matter would be more efficiently dealt with by a lawyer.

However it was determined that because the employee admitted to engaging in the behaviour which led to his dismissal, the matter was a relatively simple factual contest, and so permission for the employer to be legally represented was refused.

Complexity – availability of in-house counsel

Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd [2012] FWA 5219 (Bartel DP, 19 June 2012).

Permission to appeal refused [2012] FWAFB 6832 (Drake SDP, Kaufman SDP, Lee C, 15 August 2012).

The employee in this matter was represented by his union. The employer sought to be represented by a lawyer. The employer was a large employer with in-house counsel. The employer argued that their in-house counsel was inexperienced in arbitrations of unfair dismissal matters compared to the applicant’s union advocate.

It was held the matter, while not straightforward, did not involve complex jurisdictional issues or technicalities, and that no unfairness would arise if permission was refused.

Permission for legal representation was refused.

Complexity – availability of human resources staff

Bowley v Trimatic Management Services Pty Ltd T/A TSA Telco Group [2013] FWC 1320 (Steel C, 1 March 2013).

The employee in this matter was self-represented. The employer sought to be represented by a lawyer. The employee opposed permission for the employer to be legally represented.

It was found that the matter appeared to be a performance-based termination and did not involve any complex facts, and that the employer company, with 1180 employees and a dedicated human resources department, did have the ability to represent itself.

Permission for legal representation was refused.