Item 1 replaces the present rules 11 and 12 of the Rules with new rules. These rules relate to representation of a person in a matter before the Commission by a lawyer or paid agent.
Section 596 of the Act prohibits a person being represented by a lawyer or paid agent in a matter before the Commission without the permission of the Commission, subject to certain exceptions. The exceptions include the exceptions provided for in the Rules.
For the purposes of section 596, a person is not taken to be represented by a lawyer or paid agent if, for example, the lawyer or paid agent is an employee or officer of the person or of a registered organisation that is representing the person (see section 596(4) of the Act).
The circumstances in which permission is and is not required for a person to be represented by a lawyer or paid agent in a matter before the Commission, have been the subject of a number of recent Commission decisions (see, for example, Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Fitzgerald) and Stringfellow v CSIRO [2018] FWC 1136).
New rule 11 requires a lawyer or paid agent acting for a party to a matter before the Commission to lodge certain notices with the Commission. The Rules require notices under rule 11 to be in the approved form and to be served on the other parties to the matter.
New subrule 11(1) requires each lawyer or paid agent acting for a party in relation to a matter before the Commission to lodge a notice with the Commission. This requirement applies even if the lawyer or paid agent has been identified as a representative in another Commission form. Subrule 11(2) in turn requires each lawyer or paid agent who ceases to act for a party in relation to a matter before the Commission to lodge a notice with the Commission.
A lawyer or paid agent who is acting for a party in relation to a matter before the Commission, may or may not also be representing the party in that matter within the meaning of section 596 of the Act. For example, the lawyer or paid agent will not be representing the party in this sense if the lawyer or paid agent is an employee or officer of the party. Further, the lawyer or paid agent will not be representing the party in this sense if the lawyer or paid agent is not relevantly involved in any interaction with the Commission in relation to the matter (see Fitzgerald).
The notice that a lawyer or paid agent is acting for a party can serve to inform the Commission and the other parties that the lawyer or paid agent is to be copied into correspondence and documents lodged in the matter. It will also put the other parties on notice that costs are being incurred for which the other parties (or their lawyers or paid agents) could become liable if a cost order was to be made by the Commission.
New subrule 11(3) requires a lawyer or paid agent who proposes to represent a party, where that representation requires the Commission’s permission under new rule 12, to lodge a notice with the Commission informing the Commission that they will be seeking the Commission’s permission for that representation. This will put the Commission and the other parties on notice that permission will be sought.
New rule 12 deals with the circumstances in which, for the purposes of section 596 of the Act, a person may be represented in a matter by a lawyer or paid agent without the permission of the Commission.
The present subrule 12(1) lists various representation activities for which the Commission’s permission is not generally required. New subrules 12(1) and 12(2) extend the activities for which permission will not generally be required.
The effect of new subrule 12(1) is that a person does not require the permission of the Commission for any representation by a lawyer or paid agent in a matter before the Commission, other than the lawyer or paid agent participating in a conference or hearing.
The continuing requirement for permission for a lawyer or paid agent to participate in a conference or hearing is subject to the exceptions listed in subrule 12(2). Permission will not generally be required:
- for participation in a conference or hearing relating to:
- a matter arising under Part 2-3 of the Fair Work Act (modern awards);
- a matter arising under Part 2-5 of the Act (workplace determinations);
- a matter arising under Part 2-6 of the Act (minimum wages);
- a matter arising under sections 510 or 512 of the Act (entry permits);
- an appeal under section 604 of the Act from a decision (the original decision) of the Commission, but only if the lawyer or paid agent had been granted permission by the Commission to represent the person in a conference or hearing in the original decision; and
- for participation in a conference conducted by a Commission staff member in relation to an application under section 394 of the Act (for an unfair dismissal remedy) or an application under section 789FC of the Act (for an order to stop bullying).
New subrule 12(4) clarifies that permission will still be required for participation in a conference conducted by a Member of the Commission in relation to an application under section 394 or section 789FC of the Act.
The present subrule 12(2) provides that subrule 12(1) is subject to a direction by the Commission to the contrary in relation to the matter. New subrule 12(3) has similar effect. It provides that despite anything in rule 12, the Commission may direct that a lawyer or paid agent is not to represent a person in a matter except with the permission of the Commission.
The new rule 12 will provide greater clarity as to when the Commission’s permission for representation by a lawyer or paid agent is or is not required.