An AHRI blogger recently lamented the FWC’s approach to allowing lawyers and paid agents to represent their client. For those of you who are more technically minded, this issue is covered in section 596 of the FWA 2009.
No problem if you are an employee of the party, a union or peak employer body – insofar that the employer/employee body’s constitution allows such representation (see Eland v Childrenfirst Inc t/a Childrenfirst  FWC 3051 (8 May 2014).
There have been some 77 cases (including appeals) dealing with this jurisdictional matter. Statically, if you are a lawyer or paid agent you have a 75% chance of succeeding.
The key citations to rely upon appear to be:
- Dr Cameron Christophers v Deanne Carr Dental Pty ltd T/A Envisage Dental studio  FWC 791 (U2013/14548) COMMISSIONER SIMPSON. BRISBANE, 7 FEBRUARY 2014; and
- Mr Anthony Delloso v North Queensland X-Ray Services Pty Ltd T/A North Queensland X-Ray Services  FWC 3064 (U2013/17530). COMMISSIONER SPENCER. BRISBANE, 2 JUNE 2014.
Put in simple terms, it would appear that if the matter is complex (jurisdictional matters fall into this category) or it can be demonstrated that it would be more efficient (for the FWC) to have a lawyer or paid agent, then it is likely that permission shall be granted to appear.
By way of footnote, I can understand the reasoning for these restrictions given my witnessing of some appalling behaviours by some employee advocates and lawyers – either out of their jurisdictional comfort zone – or the No-win No-fee fraternity exploiting the system. However using a peak employer body can be expensive (about three times what I charge!) and lawyers tend to look for “legal” rather than “practical” outcomes. Remember, the current FWC has its foundations firmly set on an informal place in which to resolve employment issues.
In saying this, it has come to my attention that the FWC is providing a “pro-bono” program for jurisdictional matters. This provides one hour’s free legal advice prior to a jurisdictional hearting. Further information: https://www.fwc.gov.au/resolving-issues-disputes-and-dismissals/dismissal-termination-redundancy/eligibility-remedies-1
So what to do:
- Use a peak body and pay the premium (membership plus consulting costs).
- Use a lawyer- but ensure that they specialise in employment law.
- Use a consultant, ensuring that they are specialists in employment law. This is the cheapest option (and often more effective, self-interest admitted).
- Overall, ensure that if using a lawyer or paid agent, that they have a written submission that they have familiarised you with and can be easily transferred into your hands.
Another option is to employ the paid agent as a casual employee. Problem solved (maybe).
Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:
- General HR and IR advisory service.
- Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
- Workplace investigations and mediations.
- Policies and procedures.
- Discipline & Termination.
- People Audits (are you at risk of prosecution?).
- Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
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Contact Greg on 0438 906 050 or mailto: email@example.com.