Barrister Paul Moorhouse, of Frederick Jordan Chambers, discusses the issue of legal representation at the Fair Work Commission. The provisions regarding permission for legal representation at the Commission give rise to anomalies which, in turn, also give rise to inefficiency, Paul writes. One example includes an individual employee being refused permission for legal representation against a large corporate employer, he adds. Paul discussed this issue, among others, as part of his presentation on the topic, Unfair Dismissal: An Essential Update at the Workplace Law Conference in NSW.
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The Fair Work Commission (“the Commission”) was intended to operate ‘efficiently and informally and, where appropriate, in a non-adversarial manner’, and it was envisaged that parties ‘would generally represent themselves’.[1] As a result, the Fair Work Act 2009 (Cth) provides that a party may only be represented by a lawyer or paid agent in a hearing before the Commission with the Commission’s permission.
The legislation and its quirks
Permission may be granted only if one of three conditions is met.[2] Even if one or more of these factors is present, the Commission still has the discretion to refuse permission.[3] The Courts have emphasised that a grant of permission should not be a mere formality.[4]
However, where a lawyer is an employee of the party, then that party does not require permission to be represented by that lawyer.[5] This means that permission is not required for:
a) in-house lawyers to represent their corporate employer;
b) lawyers employed by a union to represent a worker who is a member of the union;
c) lawyers employed by an employer association to represent a business that is a member of that association; and
d) solicitors from the AGS to represent an employer that is a Commonwealth department.[6]
If the Commission grants permission for legal representation, it cannot grant permission for only a particular lawyer, or for only a solicitor but not a barrister.[7]
What ‘representation’ is permission required for?
The Fair Work Commission Rules 2013 provide that permission is not required for a lawyer to prepare and/or lodge a written application or written submissions, or to correspond with the Commission on behalf of a party.[8] In other words, the requirement for permission is focussed on hearings and conferences before the Commission. The entitlement of a party to be legally represented for the purpose of lodging written documents and corresponding with the Commission is subject to any order of the Commission to the contrary.[9]
Proposed amendments to the Rules may clarify that permission is not required for representation other than where a lawyer is participating in a hearing or conference before the Commission, and may also provide that permission is not required to participate in certain types of hearings or conferences before the Commission, including those dealing with modern awards, and those dealing with issuing or revoking right of entry permits.[10] Permission will still be required for a lawyer to appear at unfair dismissal hearings, hearings dealing with enterprise agreements, and conferences dealing with adverse action claims, amongst others.
Up until the Fitzgerald[11] Full Bench decision, the prevailing understanding was that permission for representation was only required in relation to oral advocacy. As a result, a practice developed of some parties using ‘shadow lawyers’, who would attend proceedings before the Commission to assist the party’s non-legally trained advocate, but who would refrain from oral advocacy to avoid the need to obtain permission.
The Fitzgerald decision clarified and arguably broadened the scope of representation for which permission is required. Permission is required for aspects of legal services associated with proceedings before the Commission, not merely oral advocacy, subject only to the exceptions set out in the Rules.[12] The Full Bench did point out that, because permission is required to be legally represented in a matter ‘before the Commission’, permission is not required for a party to obtain legal advice or inter partes dealings that do not involve interaction with the Commission.
Anomalies and inefficiencies
The provisions regarding permission for legal representation at the Commission give rise to anomalies. Examples include: an individual employee being refused permission for legal representation against a large corporate employer;[13] employers being refused permission against an employee represented by experienced union practitioners;[14] and an employer being represented by a lawyer as of right if they are a member of an employer association (regardless of whether the employee is represented).[15]
Those provisions also give rise to inefficiency. Where a party seeks to be represented at a hearing, which is an entitlement in all courts and many tribunals in Australia, that party’s lawyers are generally required to prepare a short written submission in support of permission for legal representation. Additional costs are occurred. If the issue of legal representation is not determined until the day of the hearing, then a party must prepare for hearing without knowing whether or not it will be able to be represented by its lawyer, usually in circumstances where the party has relied upon its lawyer to prepare the application and evidence in the period leading up to hearing.
There are also instances of parties incurring the costs and delay of a hearing to determine whether a party should be prevented from being legally represented for the purpose of preparing submissions and evidence in advance of hearing.[16] In some instances the Commission will deal with the issue of permission for legal representation separately at each hearing within a proceeding; in one instance a Commissioner granted permission for legal representation, and then, being heard as a new matter, a different Commissioner refused permission.[17]
Time for a change?
In addition to the desirability of removing anomalies and inefficiencies, a more principled reason can be put forward for removing the requirement to obtain permission for legal representation, namely the ‘right’ of a person to be represented by a lawyer or other advocate of that person’s choosing.[18]
Further, it seems that the premise on which the requirement for permission was devised (ie, the desirability of having matters dealt with efficiently and informally) may be false. Over 20 years ago, Sir Anthony Mason had the following to say:
‘But, the exclusion of lawyers neither enhances nor accelerates the course of justice. If my long experience of reading the transcripts of proceedings in the Industrial Relations Commission and its predecessor the Conciliation and Arbitration Commission has any lesson to offer, it is that the presentation of cases by non-lawyers does not lead to clarity and speedy hearings; on the contrary, it is more likely to lead to confusion and to long, drawn-out proceedings…’[19]
Many practitioners and Commissioners would, I expect, share that view.[20]
Nevertheless, as things presently stand, parties before the Commission must continue to be mindful of the need to obtain permission for legal representation at hearings before the Commission.
Paul Moorhouse, LLB, BSc, LLM, was Admitted as a Barrister in NSW in 2003. Paul is a specialist in employment, industrial and discrimination law, and also maintains a general civil law practice. He regularly acts for employers, employees, individuals, and small and medium enterprises, in interlocutory matters, hearings and appeals. In the area of workplace law, the disputes upon which he regularly advises and appears include unfair dismissals, general protection claims, award/agreement breaches, breaches of confidentiality, restraints of trade, and claims for sexual harassment and discrimination. He also appears in commercial, contractual, equity and building disputes, as well as in administrative law matters and children’s care and protection proceedings (where he has appeared for both parents and Community Services). Paul has appeared both led and unled in all jurisdictions pertaining to his areas of practice, including specialist and appellate courts. He prides himself on his attention to detail, and his excellent written and oral advocacy skills. Since being called to the Bar, Paul has also conducted or assisted with several inquiries into alleged employee misconduct, including on behalf of a University. Contact Paul at p.moorhouse@fjc.net.au or connect via LinkedIn or Twitter
[1] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [2291], referring to Fair Work Australia (as the Commission was previously called).
[2] S 596(2).
[3] Warrell v Walton (2013) 233 IR 335; [2013] FCA 291, [24].
[4] Above, n 3.
[5] S 596(4).
[6] In relation to this final scenario, see Gibbens v The Commonwealth of Australia (Department of Immigration and Border Protection) [2017] FWCFB 2812.
[7] NSW Bar Association v McAuliffe [2014] 241 IR 177; [2014] FWCFB 1663, [24]-[25].
[8] Rule 12, Fair Work Commission Rules 2013.
[9] Rule 12(2).
[10] Draft Fair Work Commission Amendment (Entry Permits and Other Measures) Rules 2018. The Commission was seeking public comment on these draft Amendment Rules until 20 December 2018.
[11] Fitzgerald v Woolworths Limited [2017] FWCFB 2797.
[12] Fitzgerald, [44], [45].
[13] Guillemain v Woolworths Ltd [2017] FWC 4236. The employer was also refused legal representation, but had in-house legal or human resources staff available.
[14] TCFU v Fastline Logistics Pty Ltd [2015] FWC 7952; Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618.
[15] Munro v Wilmar Australia Pty Ltd [2017] FWC 2493.
[16] Stringfellow v CSIRO [2018] FWC 1136.
[17] Barkho v Dairy Country [2015] FWC 8549.
[18] See, eg, Ingmar Taylor, ‘The Right to Representation Before the Fair Work Commission’ (Paper presented at the Law Society of South Australia in Conjunction with the Law Council of Australia, 18 May 2018).
[19] Sir Anthony Mason, The State of the Judicature (1994) 68 ALJ 125 at [127].
[20] See, for example, the comments of Sams DP in White v Asciano [2015] FWC 7466, [3], [4].
