Representation by lawyers and paid agents

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Representation by lawyers and paid agents

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Introduction

See Fair Work Act 2009 ss.12 and 596, Fair Work Commission Rules 2013 rule 11–12A

Related information

Definitions

A lawyer is a person who is admitted to the legal profession by a Supreme Court of a state or territory.^[1]

A paid agent is a person who charges or receives a fee to represent a person in the matter before the Fair Work Commission.^[2]

Seeking permission

A lawyer or paid agent must seek the permission of the Commission to represent a person in a matter before the Commission. This includes making an application or submission on another person’s behalf.^[3]

Only a Commission member can give permission for a lawyer or paid agent to represent a party.^[4] Unless acting under delegation, employees of the Commission, such as conciliators, cannot give or refuse permission for a person to be represented.^[5]

Notification of acting for a person

Each lawyer or paid agent acting for a person in relation to a matter before the Commission must lodge a notice with the Commission informing it that the lawyer or paid agent acts for the person in the matter.^[6]

There are two ways in which a lawyer or paid agent can give notice that they act for a person in relation to a matter before the Commission:

they can give notice by identifying themselves as the person’s representative in an application or other approved Commission form that they lodge in the matter, or
they can give notice by lodging a Form F53.^[7]

The notice may serve to inform the Commission and other parties that the lawyer or paid agent needs to be copied into correspondence and documents lodged in the matter. It also puts 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 costs order is made by the Commission.^[8]

Meaning of 'act for' a person

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.^[9]

Link to form

Form 53 – Notice that lawyer or paid agent acts for a person

All forms are available on the Forms page of the Commission's website.

Ceasing to 'act for' a person

Each lawyer or paid agent who ceases to act for a person in relation to a matter before the Commission must lodge a notice with the Commission informing it that the lawyer or paid agent has ceased acting for the person in relation to the matter^.[10]

Link to form

Form 54 – Notice that lawyer or paid agent has ceased to act for a person

All forms are available on the Forms page of the Commission's website.

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.^[11]

In these circumstances a person is not considered to be represented by a lawyer or paid agent.^[12]

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 to represent is not required.^[13]

Workplace Advice Service

A lawyer who provides legal assistance to a person through the Workplace Advice Service is not required to seek permission to appear.^[14]

The Workplace Advice Service is a free legal assistance program facilitated by the Commission.

If you are an individual or a small business owner wanting to consult a lawyer on workplace issues involving dismissal, general protections or workplace bullying, the Commission can assess whether or not you may be eligible for the Service.

The Commission’s role is to connect you with lawyers who may be able to help you. These lawyers work at law firms and other legal organisations that are completely independent of the Commission.

What is representation?

A Full Bench of the Commission found that the term ‘representation’ is concerned with more than just advocacy at a hearing. A lawyer can be said to ‘represent’ their client when they engage in a wide range of activities connected with litigation, not just advocacy.^[15]

Rule 15 of the Australian Bar Association’s Barristers’ Conduct Rules^[16], describes the work of a barrister in the following way:

'15. Barristers’ work consists of:

appearing as an advocate;
preparing to appear as an advocate;
negotiating for a client with an opponent to compromise a case;
representing a client in a mediation or arbitration or other method of alternative dispute resolution;
giving legal advice;
preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs;
carrying out work properly incidental to the kinds of work referred to in (a)‐(f); and
such other work as is from time to time commonly carried out by barristers.'

’15. Barristers’ work consists of:

(a) appearing as an advocate;

(b) preparing to appear as an advocate;

(d) representing a client in a mediation or arbitration or other method of alternative dispute resolution;

(e) giving legal advice;

(f) preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs;

(g) carrying out work properly incidental to the kinds of work referred to in (a)‐(f); and

(h) such other work as is from time to time commonly carried out by barristers.’

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This work is no different with respect to a solicitor. Outside of legal representation, a paid agent involved in proceedings before the Commission will typically engage in non-legal equivalents of most of the above categories of work, and would be regarded as ‘representing’ their client in doing so.^[17]

Section 596(1) and (2) refer to a person being represented ‘in a matter’ before the Commission. The word ‘matter’ describes more than just a hearing, in a legal context it usually describes the whole situation that is brought before a court or tribunal.^[18]

Section 596(1) also expressly provides that representation in a matter includes ‘making an application or submission to the FWC on behalf of the person’.^[19]

Meaning of ‘representing’ a person and ‘participating’ in a conference or hearing

The meaning of represent as used in s.596 of the Fair Work 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 to also constitute representing the person, the activity will need to involve some interaction with the Commission itself – 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, or
sending letters or emails to both the Commission and another party or lawyer or paid agent.^[20]

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).^[21]

Notification of representing a person

Representation – In a conference or hearing

In any matter before the Commission, a person must not be represented by a lawyer or paid agent in a conference or hearing relating to the matter without the permission of the Commission.^[22]

Link to form

Form 53 – Notice that lawyer or paid agent acts for a person

All forms are available on the Forms page of the Commission's website.

Proposed representation – In a conference or hearing

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 relating to the matter; and the participation requires permission, 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.

Link to form

Form 53A – Notice that a person will seek permission for lawyer or paid agent to participate in a conference or hearing

All forms are available on the Forms page of the Commission's website.

Representation – Not in a conference or hearing

If a person is not participating in a conference or hearing, a person may be represented by a lawyer or paid agent in the matter without the permission of the Commission.^[23]

Ceasing to represent a person

Each lawyer or paid agent who ceases to represent a person in relation to a matter before the Commission must lodge a notice with the Commission informing it that the lawyer or paid agent has ceased representing the person in relation to the matter.^[24]

Link to form

Form 54 – Notice that lawyer or paid agent has ceased to act for a person

All forms are available on the Forms page of the Commission's website.

Exceptions – Representation in certain types of matter

A person may, without the permission of the Commission, be represented in a matter by a lawyer or paid agent participating in a conference or hearing in relation to the following:

a matter arising under Part 2‑3 of the Fair Work Act (modern awards)
a matter arising under Part 2‑5 of the Fair Work Act (workplace determinations)
a matter arising under Part 2‑6 of the Fair Work Act (minimum wages), and
a matter arising under ss.510 or 512 of the Fair Work Act (entry permits).^[25]

A person may also, without the permission of the Commission, be represented in a matter by a lawyer or paid agent participating in a conference conducted by a member of the staff of the Commission, whether or not under delegation, in relation to the following:

an application under s.394 of the Fair Work Act for an unfair dismissal remedy, or
an application under s.789FC of the Fair Work Act for an order under s.789FF to stop bullying.^[26]

However, to avoid doubt, a person participating in a conference before a Commission Member in relation to an application under ss.394 or 789FC of the Fair Work Act cannot represented by a lawyer or paid agent without the permission of the Commission.^[27]

The Commission may direct that a person is not to be represented in a matter by a lawyer or paid agent except with the permission of the Commission.^[28]

Under rule 12(1)(b) and s.596 of the Fair Work 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.^[29]

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)
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).^[30]

In granting permission, the Commission will have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.^[31]

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.^[32]

The Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’.^[33] 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.^[34]

The ‘normal position’ of the Fair Work 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 …’^[35]

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.^[36]

If a party has not made submissions objecting to representation, it is still the case that representation requires permission of the Commission.^[37]

Partial representation may be permitted during examination-in-chief and cross-examination of the party seeking representation^[38] or during argument about jurisdictional issues.^[39]

Permission to be represented has been granted where the employer’s Human Resources Manager was a witness for the employer. The Commission was satisfied it is reasonable for the employer not to want the Human Resources Manager to conduct the case as well as be a witness.^[40]

Complexity

A significant number of documents and wide ranging issues does not necessarily equate to a matter being complex.^[41]

Where a party raises a jurisdictional issue, permission for representation will usually be granted.^[42]

Jurisdictional issues by their nature are often complex and may require expertise in case law.^[43] Whilst an employer may raise an objection to an application on the basis that a worker was not bullied at work as the alleged behaviour was reasonable management action carried out in a reasonable matter, this is not a jurisdictional objection in the strict sense.^[44] However, it may be the case that this does add a level of complexity that means representation would enable the matter to be dealt with more efficiently.^[45]

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.^[46]

Effectiveness

Where a person would be unable to effectively represent themselves, permission for representation may be granted.^[47]

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’.^[48]

However, what might be of ‘striking impression’ or ‘impressive’ or ‘powerful in effect’ is a matter of assessment by the Commission.^[49]

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.^[50]

Fairness

Permission may be granted if it would be unfair to refuse permission taking into account the fairness between the parties to the matter.^[51]

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.^[52]

Case examples

Permission for representation granted

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 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.

It was held that the determination of jurisdiction was a legal issue. Legal representation would allow the matter to be dealt with more efficiently. 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 – fairness

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.

The employer submitted that it did not have specialist human resources or other staff equipped with legal, industrial relations or advocacy skills to effectively represent itself in the proceedings, and its Human Resources Coordinator was on maternity leave and in any event she had no advocacy training or experience before courts or tribunals.

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 – fairness

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 the decision in her unfair dismissal application. The employer had been refused permission to be represented in the unfair dismissal proceedings. On the second day of hearings the applicant sought representation, this was not opposed by the employer and permission for a legal representative to appear for the applicant was granted.

The employer sought permission to be represented by a legal representative in the appeal proceedings. 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.

Complexity – legally complex case

Emery v City of Stirling [2019] FWCFB 4015 (Sams DP, Gostencnik DP, McKinnon C, 20 June 2019).

At first instance the Commission refused permission for both parties to be represented. The appellant identified 7 grounds of appeal but the primary focus was the denial of procedural fairness due to the refusal to grant permission for the appellant to be represented by a paid agent.

The Full Bench found this appeal ground, a procedural matter going to the conduct of the proceedings, directly impacted the outcome in the case. The Full Bench was satisfied that this appeal ground was established and it was sufficient to dispose of this appeal. The matter was a legally complex case and it was open to the Commission exercising discretion in favour of representation.

The Full Bench found there may have been a different outcome in the case if permission had been granted for the parties to be represented. The Full Bench also found that by the Commission focussing on efficiency without reference to the matter's complexity it also fell into error. The Full Bench upheld the appeal and the decision at first instance was quashed.

Efficiency – complexity – human resources manager was a witness

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.

The employee was represented by a very experienced HR professional experienced in advocacy who had represented the applicant in other matters.

Permission for legal representation was granted to both parties. The Commission was satisfied that the respondent did not have a person able to present its case, and even if the human resources officer was capable, it would be difficult for her to be both advocate and witness.

Permission for legal representation was granted.

Fairness – imbalance of representation

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 with no-one of experience as a union advocate. The applicant was represented by a legally qualified, skilled and experienced advocate from a union.

The Commission was not convinced that the matter was genuinely of sufficient complexity to require assistance by legal representatives, however permission was granted for the employer to be represented by a lawyer or paid agent on the basis of fairness. The Commission considered that unfairness would result from what, at least in perception, would be the more advantageous representation of the applicant as opposed to that to which the employer had been restricted, being an unqualified and presumably inexperienced human resources or other manager.

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 for representation NOT granted

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.

The Commission found that there were no particularly complex jurisdictional or substantive issues. Effective representation from experience 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.

The Commission determined that because the employee admitted to engaging in the behaviour which led to his dismissal, the matter was a relatively simple factual contest.

The Commission was of the opinion that this was not a matter which required forensic cross-examination or was of a complex nature, 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 matter 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.

References

^[1] Fair Work Act s.12.

^[2] Fair Work Act s.12.

^[3] Fair Work Act s.596(1).

^[4] Department of Education and Early Childhood Development v A Whole New Approach Pty Ltd [2011] FWA 8040 (Gooley C, 29 November 2011) at para. 67.

^[5] ibid.

^[6]Fair Work Commission Rules 2013 r 11(1).

^[7]Fair Work Commission Practice Note 2/2019: Lawyers and paid agents, 1 August 2019 at para. 17.

^[8]Fair Work Commission Practice Note 2/2019: Lawyers and paid agents, 1 August 2019 at para. 16.

^[9]Fair Work Commission Practice Note 2/2019: Lawyers and paid agents, 1 August 2019 at para. 13.

^[10] Fair Work Commission Rules 2013 r 11(2).

^[11] Fair Work Act s.596(4).

^[12] Fair Work Act s.596(4).

^[13] Cooper v Brisbane Bus Lines Pty Ltd [2011] FWA 1400 (Simpson C, 3 March 2011) at para. 13.

^[14] Fair Work Commission Rules 2013 r 11(3).

^[15] Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

^[16] Australian Bar Association’s Barristers’ Conduct Rules cited in Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

^[17] Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

^[18] ibid., at para. 36.

^[19] ibid., at para. 37.

^[20] Fair Work Commission Practice Note 2/2019: Lawyers and paid agents, 1 August 2019 at para. 22.

^[21] Fair Work Commission Practice Note 2/2019: Lawyers and paid agents, 1 August 2019 at para. 23.

^[22] Fair Work Commission Rules 2013 r 12(1).

^[23] Fair Work Commission Rules 2013 r 12(1).

^[24] Fair Work Commission Rules 2013 r 11(2).

^[25] Fair Work Commission Rules 2013 r 12(2).

^[26] Fair Work Commission Rules 2013 r 12(2).

^[27] Fair Work Commission Rules 2013 r 12(4).

^[28] Fair Work Commission Rules 2013 r 12(3).