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Six things of note when representing a client at the Fair Work Commission

Six things of note when representing a client at the Fair Work Commission

By Steven Amendola

Dismissal Dispute Resolution Tribunals Workplace 

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Six things of note when representing a client at the Fair Work Commission

1. Traditionally a lawyer had to seek leave (i.e. permission) to appear for a client before the federal industrial tribunal (i.e. there was no right of appearance).

2. As a result of a decision last year of a Full Bench of the Fair Work Commission (the Commission) in Fitzgerald v Woolworths [2017] FWCFB 2797, the requirement of permission has been extended to "representing" a client in a matter before the Commission.  Thus:

  • if a lawyer sits in the back of a hearing room and passes a note to their client at the bar table, do they need the permission of the Commission to represent the client?  Probably yes;
  • if a lawyer meets with their client at a lunch adjournment of a hearing and wants to give advice to the client do they need the permission of the Commission to represent the client?  Again, probably yes.

3. The Rules of the Commission permit a client to be represented in a matter before FWC by a lawyer for the following purposes:

12 Representation by a lawyer or paid agent

(1)         For subsection 596(1) of the Act, a person may be represented in a matter before the Commission by a lawyer or paid agent for the following purposes:

(a) preparing a written application or written submission for the person in relation to the matter;

(b) lodging with the Commission a written application, written submission or other documents, on behalf of the person in relation to the matter;

(c) corresponding with the Commission on behalf of the person in relation to the matter;

(d) participating in a conciliation or mediation process conducted by a member of the staff of the Commission, whether or not under delegation, in relation to an application for an order to stop bullying made under section 789FC of the Act;

but that is subject to a direction by the Commission to the contrary.

4. The Commission seems to give little weight to the duty a lawyer owes to a Court or Tribunal, in deciding the question of permission to represent.

5. In respect of section 596(2)(a) of the Fair Work Act 2009:

(2)         The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matte to be dealt with more efficiently, taking into account the complexity of the matter; …

Members of the Commission seem to have required a matter to be complex before giving much weight to the issue of efficiency.

This has led certain members of the Commission to refuse permission because a case is a "run of the mill" unfair dismissal, whatever that means.

6. The underlying policy rationale for all of the above is that the Fair Work Act is a simple jurisdiction and matters will run more smoothly and efficiently if lawyers are not involved in them, thus proving that Fantasy Land is not just part of the Disney Kingdom.

Steven Amendola

Want to find out more? Register for the LIV's Workplace Relations Conference, 26 October, where Steven Amendola will join Justice Ross AO and Ingmar Taylor to discuss obtaining permission to appear before the Fair Work Commission. This conference will also include sessions on the gig economy, ethics at work, sexual harassment in the workplace and more. For further information, see here.


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