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FWC Redefines Right of Representation in Proceedings

A recent Full Bench decision of the Fair Work Commission has highlighted a potential redefinition of the rights of parties to proceedings to have lawyers or paid agents represent or assist them at the FWC without seeking leave to appear.

In the matter, Stephen Fitzgerald v Woolworths Limited [2017]  FWCFB 2797, the Full Bench decision  examined the level of involvement of external legal counsel  in “representing someone”, even it if they were not appearing as an advocate in the proceedings.

In Fitzgerald, the matter had proceeded at first instance, as a claim alleging unfair dismissal by a former employee against Woolworths.

The former employee represented himself and Woolworths was represented by an in house employee relations practitioner, who was assisted by an external lawyer.

Under Section 596 of the FW Act, a party who is seeking to be represented by a lawyer or a paid agent in proceedings must seek the permission of the FWC.

Woolworths did not seek such permission as their lawyer was not the advocate for Woolworths but was assisting them with the paperwork.

The Commissioner hearing the matter ruled that because the external lawyer was acting as the advocate for Woolworths, Woolworths was not required to obtain permission for him to assist them. The former employee did not succeed in his application, which was dismissed.

After the initial decision, Woolworths served an application for costs against the former employee. The costs they sought were $6,500 for the time of the Woolworths’ employee relations practitioner and $25,885 for their external legal assistance.

The former employee then lodged an appeal against the decision.  One of the appeal grounds was that he had been misled as to the role of Woolworths’ external lawyer in the hearing at first instant.

In a decision that could redefine representation before the FWC, a full bench has found that a law firm’s “substantial” preparation of Woolworths’ defence in an unfair dismissal case required permission even though it didn’t appear as the company’s advocate.

Substantial defence preparation required FWC permission

In its decision the Full Bench found that the external law firm’s “substantial” preparation of Woolworths’ defence required permission, even though it didn’t appear as the company’s advocate.

The Full Bench noted from the invoices Woolworths submitted as part of its costs application that the external law firm had been advising Woolworths in relation to the unfair dismissal application since February 2017 notwithstanding the hearing of the application did not occur until March 2017.

The Full Bench held that s596 of the FW Act should be interpreted in a broad sense. Legal representation was not limited to just courtroom advocacy.

In the context of an unfair dismissal application this would be from the time an application was made to the FWC.

The Full Bench ruled that the Commission erred in the conduct of the initial hearing, in not requiring Woolworths to seek permission for their external legal adviser to remain in the courtroom and assist the Woolworths’ advocate in the conduct of her case.

The Full Bench further noted: “The practice of parties using ‘shadow lawyers’ which has apparently developed to the extent that it involves lawyers engaged by a party in a matter attending and being involved in the conduct of a hearing without actually engaging in oral advocacy, should not we consider be regarded as falling outside the scope of operation of s596.”

Implications for members 

This case highlights that for a lawyer or paid agent to advocate on behalf of a party or even assist a party in most matters before the FWC they will need to seek and obtain the permission of the FWC.

There is in most FWC matters no automatic right of a party to be represented by a paid agent or lawyer. There is an exception for certain written submissions where permission is not required (about modern awards and minimum wages).

Permission for a party to be represented may only be granted where the Commission member is satisfied of certain grounds under s596(2).

The FW Act also sets out that where someone is an employee of an association of employers (s596(4)(b)(ii)), they are not taken to be a lawyer or paid agent.

This allows peak employer groups  like AREEA to represent its members in Commission matters without the requirement to seek permission of the FWC.

AREEA is entitled to represent its members under the Act and employs both employee relations lawyers and qualified advocates who are very experienced in representing members before the Commission.

One of the key benefits of being an AREEA member is accessing this support from our consultants.

If your company has a matter before the Commission and you are concerned that your company legal representative may not be granted permission to appear in the case, speak with an AREEA Consultant as to how we can provide a representative who has automatic rights of appearance.

AREEA is the resource and energy industry’s specialist for all workplace relations matters. For information about this case or similar matters speak with an AREEA consultant today.

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