https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5577.htm

In relation to (mainly) unfair dismissals and adverse action claims, the Fair Work Act provides that there is no automatic right for a lawyer or so-called “paid agent” to represent your business. The exception being if you use a peak employer body.

As a “paid agent” myself, I always ensure that my submissions are in written form and that my client is fully appraised of the matter at hand. I see this as thorough and “best practice”. Further, there is no restriction on lawyers and paid agents preparing documentation, providing advice, etc. prior to the appearance before the Fair Work Commission.

In short, be prepared. You won’t know until you front the Fair Work Commission if your lawyer or (preferably) “paid agent” will be able to represent you.

A recent case by the excellent Commissioner Gregory whose recent decisions have been very detailed (and I also worked with in a previous life), sets out what is to be considered in whether the Fair Work Commission grants permission for a lawyer or paid agent to appear before it.

The applicant in this case (opposing his employer’s use of a lawyer) cited the Explanatory Memorandum that accompanied the Fair Work Bill 2009, and points to the emphasis on proceedings being conducted in an efficient and informal way, with parties generally being expected to represent themselves.

Commissioner Gregory made the following findings (which involved a workplace bullying matter)

“…as the matter does involve a degree of complexity, both in terms of its subject matter, potential jurisdictional issues, and the likely conduct of the proceedings. The granting of permission will accordingly enable it to be dealt with more efficiently. I am also satisfied that … it can be said to be unfair not to allow representation on the basis that…the named individuals would otherwise not be able to represent themselves effectively. In coming to this conclusion I have not had regard to what might be most convenient for the parties involved, but what instead might assist in them being represented effectively in the conduct of the proceedings before the Commission”.

Noting:

  • The factual circumstances set out in the application describe long-standing and unresolved issues. They concern circumstances that first arose in 2017 and have since escalated to encompass claims of workplace bullying behaviour by other senior employees…It appears that the claims about bullying at work by [the applicant] have accumulated as the matter has been escalated within the organisation.
  • In determining the application the Commission will be required to make findings about a series of contested facts…submissions go in considerable detail to the relevant legislative framework, and to what is required for the Commission to be satisfied that the relevant preconditions have been met to enable anti-bullying orders to be made.
  • They also deal in some detail with various authorities the Commission will be required to have regard to in dealing with the legislative requirements.
  • The application involves claims of workplace bullying that derive from actions and interactions between [the applicant] and a number of senior employees within [the respondent], who each continue to be employed by the organisation on an ongoing basis.
  • Those claims obviously involve allegations of workplace bullying, and are to be determined in an adversarial setting.
  • It would, at the very least, be an extremely difficult exercise to have the named individuals represent themselves and engage in cross-examination without causing further damage to their respective relationships.
  • The Employee Relations Manager, though legally qualified and experienced in the Fair Work Commission, does not necessarily equip a person to undertake advocacy or, more particularly, to be able to relevantly cross-examine witnesses in regard to the nature of their evidence. In my experience these are abilities that are generally confined to skilled and experienced advocates, and the Commission is therefore best assisted in this regard when experienced and competent advocates are involved.

The authorities cited in this case were:

Full Bench of the Commission in the matter of Grabovsky v United Protestant Association of NSW Ltd:

“Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’ it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

“Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

“While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:

‘It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.’

“For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.”

And:

“I am also of the view that the involvement of competent legal representatives does not necessarily disadvantage the other party. In this context I note the Full Bench decision in E. Allen and Ors v Fluor Construction Services Pty Ltd when it considered, amongst other things, the role of legal representatives in proceedings before the Commission. It concluded:

“In this context it is important to appreciate that legal representatives have a duty to bring all relevant authorities to the attention of the Commission, whether or not they assist the party they represent. A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission. As a Full Bench noted in AFMEPKIU v Energy Developments Ltd:

“It is a long standing principle of this Commission and its predecessors that there is a duty on persons appearing before the Commission to ensure that there is full and frank disclosure of all matters which are relevant to the proper determination of the matter before the Commission (see Municipal Officers Association of Australia v City of Greater Brisbane (1927) 25 CAR 932 at 935 per Lukis J.)””