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Questions raised over representation rights before the FWC

Two recent decisions of the Fair Work Commission have re-opened issues of whether a party to proceedings before the Commission may be represented by a lawyer or paid agent.

SECTION 596 of the Fair Work Act sets out that, for a party to be represented by a lawyer or paid agent in most matters before the Commission, they need to be granted permission to do so by the Commission. The main exceptions are written submissions made in award or minimum wage matters.

The Fair Work Act goes on to set out that the Commission can only grant permission for a party to be represented in a matter if:

• It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, or
• It would be unfair not to allow the person to be represented because the person is unable to represent themselves effectively, or
• It would be unfair not to allow the person to be represented taking into account the fairness between the person and other persons in the same matter.

It was always the intent of the Rudd Labor Government, when they enacted the Fair Work Act, to limit the use of lawyers and paid agents in matters before the Commission. In the Explanatory Memorandum to the Fair Work Bill 2008, the then-Minister for Employment and Workplace Relations noted that people dealing with Fair Work matters would generally represent themselves.

It should be noted that section 596 of the Fair Work Act gives the right of a party before an FWC matter to be represented without the need to obtain permission from the Commission if they are being represented by a union or, if they are an employer, by one of their employees or an employee or officer of an employer organisation.

Given the increasingly legislative and anti-lawyer framework of the Fair Work Act, a practice had developed over time for parties to matters before the Commission to utilise lawyers in non-advocacy roles. In such cases an employer may have been formally represented by a member of their human resources staff, who would formally conduct the case for the employer but that person would be assisted by a lawyer. The lawyer may prepare the submissions for the company employee to read and provide advice regarding the conduct of the matter and the cross examination of witnesses. In such cases the employer typically did not seek permission for the external lawyer to assist them given the lawyer was the coach, not the employer advocate, in the matter.

This practice came under the spotlight in a recent FWC Full Bench decision in the matter of Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797. This matter was an appeal against a decision in an unsuccessful unfair dismissal application by Mr Fitzgerald.

In the initial hearing, Mr Fitzgerald had represented himself whilst Woolworths had been represented by an in-house employee relations specialist. Woolworths had also engaged external lawyers to assist them in the matter including attending at the hearing before the FWC, but not to conduct the actual advocacy for Woolworths. Commissioner Cambridge who was hearing the matter at first instance, held that it was beyond his power to rule that the external lawyer could not sit next to the Woolworths employee and that he had no power to say that any particular person could not be present in the courtroom.

When Woolworths were successful in having Mr Fitzgerald’s unfair dismissal application dismissed, they sought to pursue a costs application against him. The costs they sought to recover included $6,500 for their employee’s time in dealing with the matter and nearly $26,000 for the costs of their external lawyers.

Mr Fitzgerald lodged an appeal against the dismissal of his application. One of his grounds of appeal was that he was misled by the FWC in relation to the role of Woolworths’ external lawyers in that he understood that the external lawyers were not going to represent Woolworths yet they did just that when they assisted the Woolworths employee at the hearing.

In their reasons for decision, the Full Bench of the FWC took a much more expansive view of the concept of “representation” in proceedings. The Full Bench took the view that representation as set out in section 596 extended beyond just advocacy at a FWC hearing but rather included all aspects of representation in connection with the matter.

The impact of the Full Bench decision, which is effectively binding on single members of the FWC when they are sitting alone, was shown in a decision of Commissioner Cambridge’s decision in the matter of Michael Taylor v Startrack Express [2017] FWC 6083. This decision deals only with the issue of the representation of the parties in Mr Taylor’s unfair dismissal application. The substantive application alleging unfair dismissal has yet to be heard.

In this matter Mr Taylor was represented by a legal officer of the Transport Workers’ Union (TWU). Startrack Express was seeking to be represented by a barrister who would be instructed by an external law firm. The TWU opposed Startrack being granted leave to have legal representation in the proceedings.

The submissions put forward for Startrack in support of being permitted external legal representation raised all three supporting grounds noted above. They argued that the hearing of the matter would be more efficient if assisted by legal representation due to the complexity of the application. The Commissioner noted in his decision that the matter was in his view a “fairly straight forward misconduct case”.

Startrack also argued that they would not be able to represent itself without the assistance of external lawyers. The TWU noted that Startrack was a part of Australia Post, which had a human resources department with staff trained in employment law and industrial relations. Given this the Commissioner decided that he was not convinced that Startrack could not effectively represent itself.

Startrack also submitted that as a matter of fairness, they should be permitted legal representation given the Applicant was represented by the TWU. The TWU noted that the person representing the applicant was not a qualified lawyer and that it was the intent of the Fair Work Act that as a general rule, parties to a matter would represent themselves. The TWU also noted that should Startrack not be given leave to have external legal representation then this would extend to the lawyers for Startrack not being able to sit in the courtroom and assist a Startrack employee to conduct their case. The Commission determined that there would be little unfairness if Startrack were not permitted to have external lawyers. He noted the situation may be different in the circumstance of a small employer that did not have human resources staff.

Given their size and sophistication, most operating resources companies will struggle to demonstrate they cannot adequately represent themselves in FWC proceedings. Similarly unless the other party is represented by an external lawyer, the fairness test will also tend to operate against larger employers obtaining permission to be represented by external lawyers.

For more information on these matters or to discuss your representational needs, contact your local AREEA office

This article features in our Summer Edition of Resource People.

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