Fair Work Commission

Commencement date

1. This Practice Note commences on 1 May 2020.

Application

2. This Practice Note applies to all matters before the Commission.
3. The purpose of this Practice Note is to provide procedural guidance on when and how:
   
   1. a person must notify the Commission that a lawyer or paid agent acts for them or has ceased to act for them; and
   2. a person must notify the Commission that they propose to be represented by a lawyer or paid agent and must seek the Commission’s permission for that representation.
4. This Practice Note is intended to provide guidance for participants in matters before the Commission. It does not bind the Commission.

Definitions

5. In this Practice Note:

   Act means the Fair Work Act 2009

   applicant means a person or organisation who has made an application to the Commission

   Commission or FWC means the Fair Work Commission

   conference means a proceeding in relation to a matter before the Commission that is generally held in private (unless otherwise directed by the Commission) and is less formal than a hearing. Conferences are sometimes referred to as ‘conciliation’ or ‘mediation’

   hearing means a proceeding before the Commission to allow the parties to present their evidence and submissions in relation to a matter

   lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory. This includes barristers and solicitors, but does not include people who are legally trained but not admitted to the legal profession

   matter means a proceeding before the Commission

   Member means a Member of the Commission, such as the President, a Vice President, a Deputy President or a Commissioner

   paid agent in relation to a matter before the Commission means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter. This includes industrial relations advocates and consultants

   party means an applicant, respondent or another person or organisation involved in a matter before the Commission

   respondent means a person or organisation responding to an application

   Rules means the Fair Work Commission Rules 2013

   Serving a document means giving a copy of a document to a person or organisation. A document can be served in a number of ways, including by email, fax, express or registered post, or in person. Parts 7 and 8 of the Rules deal with service.

6. A word or term used in this Practice Note has the same meaning as it has in the Act or in the Acts Interpretation Act 1901 as at 25 June 2009.

Legislation

7. Section 596 of the Act provides:

   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:
      
      1. it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
      2. 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
      3. 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:

      1. where a person is from a non-English speaking background or has difficulty reading or writing;
      2. 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:
      
      1. is an employee or officer of the person; or
      2. is an employee or officer of:
         
         1. an organisation; or
         2. an association of employers that is not registered under the Registered Organisations Act; or
         3. a peak council; or
         4. a bargaining representative;

         that is representing the person; or

      3. is a bargaining representative.

Lawyers and paid agents covered by s.596(4) of the Act

8. Section 596 of the Act and some of the Rules treat lawyers and paid agents who are covered by s.596(4) of the Act differently to other lawyers and paid agents.
9. For the purposes of this Practice Note, a person's lawyer or paid agent is covered by s.596(4) of the Act if the lawyer or paid agent:
   
   1. is an employee or officer of the person; or
   2. is an employee or officer of:
      
      • a registered organisation,
      • an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009,
      • a peak council, or
      • a bargaining representative,

      that is representing the person; or

   3. is a bargaining representative.
10. Examples falling under paragraph a) above, include where a company is represented by a lawyer employed by the company, and where a union is represented by a lawyer employed by the union.
11. Examples falling under paragraph b) above, include where an employer is represented by a lawyer employed by an employer organisation that is representing the employer, and where a union member is represented by a lawyer employed by the union.
12. An example falling under paragraph c) above, is where a person is represented in a matter relating to approval of an enterprise agreement by a lawyer or paid agent who was the person’s bargaining representative in negotiations for the agreement.

When a person must give notice that a lawyer or paid agent acts or has ceased to act for the person and how notice is given

Meaning of 'act for' a person

13. In broad terms, a lawyer or paid agent acts for a person in relation to a matter before the Commission if they provide their professional services to the person in relation to the matter–for example:
    
    • appearing as an advocate in a conference or hearing conducted by a Member of the Commission or a member of the staff of the Commission;
    • preparing to appear as an advocate;
    • negotiating a settlement or compromise of the matter;
    • giving legal or other advice;
    • preparing or advising on documents (including applications, forms, affidavits, statutory declarations, witness statements, written submissions and appeal books) for use at a conference or hearing;
    • lodging documents with the Commission;
    • sending letters or emails to the Commission, another party or another lawyer or paid agent; or
    • carrying out work incidental to any of the above.

When notice that a lawyer or paid agent acts for a person or has ceased to act is required

14. Rule 11 provides:

    11 Notice – lawyer or paid agent acting, or ceasing to act, for person in relation to matters before Commission

    1. If a person wants to advise the Commission that a lawyer or paid agent acts for the person in relation to a matter before the Commission, the person must lodge a notice with the Commission.

       Note 1: A person may want to lodge a notice under this subrule (and serve the notice in accordance with rule 41) so that:

       1. a lawyer or paid agent acting for the person is copied into information relating to the matter, or
       2. all other parties to the matter are given notice that costs are being incurred by the person for which a party (or their lawyer or paid agent) could be liable if an order for costs is made against them by the Commission.

       Note 2: A notice must be in the approved form–see subrule 8(2).

    2. If:
       
       1. a person has lodged a notice under subrule (1) about a lawyer or paid agent in relation to a matter before the Commission; and
       2. the lawyer or paid agent of the person ceases to act for the person in relation to the matter;

       the person must lodge a notice with the Commission advising that the lawyer or paid agent has ceased to act for the person in relation to the matter.

       Note: A notice must be in the approved form–see subrule 8(2).

15. Rule 11(1) requires a person to give notice to the Commission if they want to inform the Commission that a lawyer or paid agent acts for them in relation to a matter before the Commission. 
16. A person may want to give notice under rule 11(1) so that the Commission and other parties will copy the lawyer or paid agent into correspondence and other documents in the matter. A person may also want to give notice under rule 11(1) to put the other parties on notice that costs are being incurred for which the other parties (or their lawyers or paid agents) could become liable if a cost order is made by the Commission.
17. Rule 11(2) requires a person to give notice to the Commission if they have previously given notice under rule 11(1) in relation to a matter that remains before the Commission and the lawyer or paid agent has ceased to act for the person in relation to the matter.
18. Giving notice under rule 11(2) informs the Commission and other parties that the lawyer or paid agent concerned should no longer be copied into correspondence and other documents and that costs are no longer being incurred in respect of that lawyer or paid agent.

How a person gives notice that a lawyer or paid agent acts for them

19. There are two ways in which a person (or a lawyer or paid agent acting for the person) can give notice that a lawyer or paid agent acts for them in relation to a matter before the Commission. First, they can give notice by identifying the lawyer or paid agent as their representative in an application or other approved Commission form that they lodge in the matter.^[1] Second, they can give notice by lodging a Form F53. The notice must also be served on all of the other parties in the matter.^[2]
20. A person who wants to give notice under rule 11(1) should do so as soon as practicable after the lawyer or paid agent begins acting for them.

How a person gives notice that a lawyer or paid agent has ceased to act for them

21. A person (or a lawyer or paid agent acting for the person) can give notice that a lawyer or paid agent has ceased to act for them by lodging a Form F54. The notice must also be served on all of the other parties to the matter.^[3]
22. The Form F54 should be lodged as soon as practicable after the lawyer or paid agent has ceased to act for the person.

When a person must have permission to be represented by a lawyer or paid agent

Meaning of 'representing' a person and 'participating' in a conference or hearing

23. The meaning of represent as used in s.596 of the Act and the Rules, is narrower than act for a person. Generally, for an activity that constitutes acting for a person in a matter before the Commission also to constitute representing the person, the activity will need to involve some interaction with the Commission itself^[4] – for example:
    
    • appearing as an advocate in a conference or hearing conducted by a Member of the Commission or a member of the staff of the Commission;
    • participating in a conference or hearing other than as an advocate;
    • negotiating a settlement or compromise of the matter in a conciliation conference;
    • lodging written applications, responses, submissions and other documents with the Commission;
    • sending letters or emails to both the Commission and another party or lawyer or paid agent.
24. Participating in a conference or hearing includes:
    
    • appearing as an advocate of a person in the conference or hearing (or otherwise speaking on behalf of a person in the conference or hearing); and
    • attending the conference or hearing and assisting a person to present their case without speaking on behalf of the person (such as by taking notes, providing documents or cataloguing exhibits for an advocate, or making suggestions to an advocate as how best to conduct the case).^[5]

When permission for representation is required

25. Rule 12 provides:

    12 Representation by lawyers and paid agents

    1. For the purposes of subsection 596(1) of the Act, in any matter before the Commission, a person:
       
       1. must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but
       2. may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter.

       Note: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section.

    2. Despite paragraph (1)(a), a person may, without the permission of the Commission, be represented in a matter by a lawyer or paid agent:
       
       1. participating in a conference or hearing in relation to the following:
          
          1. a matter arising under Part 2–3 of the Act (modern awards);
          2. a matter arising under Part 2–5 of the Act (workplace determinations);
          3. a matter arising under Part 2–6 of the Act (minimum wages);
          4. a matter arising under section 510 or 512 of the Act (entry permits); and
       2. participating in a conference conducted by a member of the staff of the Commission, whether or not under delegation, in relation to the following:
          
          1. an application under section 394 of the Act for an unfair dismissal remedy;
          2. an application under section 789FC of the Act for an order under section 789FF of the Act to stop bullying.
    3. Despite anything in this rule, the Commission may, in relation to a matter before the Commission, direct that a person is not to be represented in the matter by a lawyer or paid agent except with the permission of the Commission.
    4. To avoid doubt, nothing in paragraph (2)(b) is to be taken as permitting a person to be represented in a matter by a lawyer or paid agent participating in a conference before a Commission Member in relation to an application under section 394 or 789FC of the Act without the permission of the Commission.
26. Under rule 12(1)(a) and s.596 of the Act, a person requires the Commission’s permission to be represented by a lawyer or paid agent participating in a conference or hearing. This requirement for permission does not apply to lawyers and paid agents who are covered by s.596(4) of the Act^[6] or to matters excluded under rule 12(2) (see paragraphs 29–30), unless the Commission directs otherwise (see paragraph 28).
27. Under rule 12(1)(b) and s.596 of the Act, apart from participating in a conference or hearing, a person’s lawyer or paid agent can act for and represent the person without permission, unless the Commission directs otherwise. For example, unless the Commission directs otherwise, the lawyer or paid agent can:
    
    • prepare and lodge written applications, responses, submissions and other documents with the Commission; and
    • correspond with the Commission and other parties.
28. Under rule 12(3) and s.589 of the Act, the Commission may direct that a person is not to be represented by a lawyer or paid agent in a matter before the Commission, except with the permission of the Commission.

Matters that are excluded from the requirement for permission under rule 12(2)

29. Under rule 12(2)(a), unless the Commission directs otherwise, permission is not required for a lawyer or paid agent to participate in a conference or hearing in relation to the following kinds of matters:
    
    • a matter arising under Part 2–3 of the Act (these matters involve making, varying and revoking modern awards);
    • a matter arising under Part 2–5 of the Act (these matters involve low-paid workplace determinations, industrial action related workplace determinations and bargaining related workplace determinations);
    • a matter arising under Part 2–6 of the Act (these matters involve the setting and variation of minimum wages); and
    • a matter arising under section 510 or 512 of the Act (these matters involve the issue, revocation or suspension of entry permits).
30. Under rule 12(2)(b), unless the Commission directs otherwise, permission is not required for participation by a lawyer or paid agent in a conference conducted by a member of the staff of the Commission (rather than a Member) in relation to:
    
    • an unfair dismissal application (an application under s.394 of the Act); or
    • an anti-bullying application (an application under s.789FC of the Act).

Process for a person to seek permission for a lawyer or paid agent to participate in a conference or hearing

When a person must give notice that they will seek permission and how notice is given

31. Rule 12A provides:

    12A Notice–proposed representation in a conference or hearing

    1. If:
       
       1. a person proposes to be represented in a matter before the Commission by a lawyer or paid agent participating in a conference or hearing relating to the matter; and
       2. the participation requires permission under rule 12;

       the person must lodge a notice with the Commission informing the Commission that the person will seek the Commission’s permission for a lawyer or paid agent to participate in the conference or hearing.

       Note 1: The notice must be in the approved form—see subrule 8(2).

       Note 2: See subsection 596(4) of the Act for when a person is taken not to be represented by a lawyer or paid agent for the purposes of that section.

    2. The Commission may permit a person to be represented by a lawyer or paid agent in a matter before the Commission even if the person fails to comply with subrule (1).
32. Under rule 12A(1), if a person proposes to be represented in a matter before the Commission by a lawyer or paid agent participating in a conference or hearing and that participation requires the permission of the Commission^[7], the person must give the Commission notice that they will seek permission.
33. A person (or a lawyer or paid agent acting for the person) can give the Commission notice that they will seek permission by lodging a Form F53. The notice must also be served on all of the other parties to the matter.^[8]

The usual Commission process

34. The following paragraphs describe the usual process for the Commission to deal with a request for permission to be represented by a lawyer or a paid agent in a conference or hearing conducted by a Member.^[9] This process may not be followed in every case.
35. Once a person has given notice that they will seek permission^[10], where practicable, the Commission will direct the person to lodge and serve on the other parties a written submission of no more than 2 pages that identifies:
    
    • the lawyer or paid agent the person is seeking permission to have participate in the conference or hearing; and
    • the reasons why permission should be granted, having regard to the criteria in s.596(2) of the Act (see paragraph 40).
36. The other parties will then be given an opportunity to respond in writing, indicating whether they oppose the request for permission and, if so, the reasons why they oppose it. Where practicable, the Commission will decide whether to grant permission and advise the parties of its decision prior to the conference or hearing.
37. Where it is not practicable to obtain written submissions before the conference or hearing, the Commission will ask for oral submissions to be made at the start of the conference or hearing. Oral submissions should generally not exceed 5 minutes and must address the criteria in section 596(2) of the Act.
38. A person seeking to be represented in a conference or hearing should not assume that permission will be granted, and must be prepared to proceed with the conference or hearing in the event that their representative is not permitted to participate. If permission is refused the person may seek an adjournment, but whether an adjournment is granted will be a matter for the Member conducting the conference or hearing.
39. Members do not normally provide detailed reasons for decisions on representation.

Granting permission for representation

40. When permission for a person to be represented by a lawyer or paid agent is required under s.596 of the Act, the Commission may grant permission only if:
    
    • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; 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; 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.^[11]
41. The Commission may decline to grant permission even though one or more of the above criteria are satisfied.^[12]
42. Examples of circumstances where a person may be granted permission include:
    • where the person is from a non-English speaking background;
    • where the person has difficulty reading or writing; and
    • 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.^[13]
43. In deciding whether or not to grant permission for a person to be represented by a lawyer or paid agent, the Commission does not select who the person's lawyer or paid agent will be.^[14]

References

^[1] For example, by inserting the lawyer or paid agent’s details into the section on representation in the Form F2–Unfair dismissal application or the Form F3–Employer response to unfair dismissal application.

^[2] See the service requirements for the Form F53 and other matter forms in Schedule 1 to the Rules.

^[3] See the service requirements for the Form F54 in Schedule 1 to the Rules.

^[4] For Commission decisions that consider the nature of representation, see for example Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [34]-[35], [52]-[53]; Kolobius v Uniting Church in Australia Property Trust (Q) [2018] FWCFB 1057 at [36]; Rodl v Qantas Airways Limited [2018] FWCFB 6693 at [65].

^[5] See Fitzgerald v Woolworths Limited [2017] FWCFB 2797; Kolobius v Uniting Church in Australia Property Trust (Q) [2018] FWCFB 1057.

^[6] See paragraph 9 above.

^[7] See paragraphs 26–30 above.

^[8] See the service requirements for the Form F53 in Schedule 1 to the Rules.

^[9] Unless the Commission directs otherwise, permission is not required for a lawyer or paid agent to participate in a conference conducted by a staff conciliator in relation to an unfair dismissal application or an anti-bullying application (see paragraph 30 above). Permission is required for a lawyer or paid agent to participate in a conference conducted by a staff conciliator in relation to a general protections dismissal dispute (an application under s.365 of the Act), and will usually be decided on the basis of oral submissions made at the start of the conference.

^[10] See paragraphs 32–33 above.

^[11] Section 596(2) of the Act.

^[12] See NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [25]; Grabovsky v United Protestant Association of NSW Limited [2018] FWCFB 4362 at [36]; Budd v Australian Federal Police [2018] FWCFB 6948 at [3].

^[13] See the Note to s.596(2) of the Act.

^[14] See NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [24]; Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [32]; Grabovsky v United Protestant Association of NSW Limited [2018] FWCFB 4362 at [38]. However, see further NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [25].