A FAIR Work Commission full bench has ruled that an employer did not have to obtain permission of the Commission to be represented by a lawyer who works for an employer association.
Filing a notice to appeal a previous decision by FWC Deputy President Gooley in April 2015, a former employee of Drake Trailers submitted that Mr David Miller, the Ai Group’s manager of workplace legal services and also director of its subsidiary incorporated law practice Ai Group Legal, required FWC permission to represent the company in an unfair dismissal claim.
The argument was based on s.596(1) of the Fair Work Act which states that a person may be represented by a lawyer or paid agent only with the permission of the FWC.
The full bench did not grant the appeal, concluding that it was Ai Group, not Ai Group Legal that was representing Drake Trailers in the matter. Under s.596(4) of the Act, as an employee of AiG, Mr Miller did not require permission to represent.
“It is plainly the case that if a lawyer appears on behalf of a party in circumstances where the lawyer is an employee of a registered organisation that is representing the party in the matter, then the effect of s.596(4) is that the party is not taken to be represented by a lawyer and therefore that permission is not required under s.596(1),” the full bench said.
The full bench went on to say that it is clear Mr Miller ‘wears two hats’ and if it had been Ai Group’s legal practice that was acting on behalf of the client, Mr Miller would be operating as a solicitor in a private practice and permission to represent ‘would probably be required’.
Consideration for AREEA members
Whether you have limited internal capacity or a well-resourced employment team, appearing before Australia’s employment tribunal, the Fair Work Commission, can be a daunting and potentially risky experience for any resource industry employer.
As outlined in this FWC decision, under the Fair Work Act a person may only be represented by a lawyer (or paid agent) with the permission of the Commission, which considers factors like the complexity of the matter and how it would impact the efficiency and overall fairness of the process.
With access to both our Legal Services and Workplace Consulting divisions, AREEA members have an advantage.
Just as an individual can be legally represented in the Commission by a union lawyer, so too can AREEA member companies be represented by one of our employee relations professionals – without needing express permission.
Acting like a specialist, expert extension of your own internal employment teams, AREEA fills the void between your own resources and law firms. Further, we can even work with your trusted external legal advisors in more complex matters or those that may have wider legal or reputational impacts.
Ensure the next time you are appearing before the Fair Work Commission that you have the most experienced and effective legal representation. Don’t fall into the trap, gain an advantage by calling AREEA today.