Fair Work Commission

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.

Item 2 inserts a new rule 17A providing for the manner in which a partnership may discharge the obligations of an employer under the Rules to lodge with the Commission certain statutory declarations relating to applications for the approval, variation and termination of enterprise agreements and to notify employees of applications for approval of enterprise agreements.

New rule 17A permits these obligations of employers to be discharged by any one of the partners in a partnership or by an officer or authorised employee of the partnership.  Absent such a rule, each of the partners in the partnership may be required to lodge a declaration and to notify employees.

Items 3, 5, 13, 24, 26, 28, 31 and 32 make a technical correction to certain rules and instructions as to service of Commission forms (in Schedule 1 to the Rules), relating to applications to the Commission for approval of enterprise agreements and notice to employees of such applications.

At present these rules and instructions as to service refer variously to employers, employees and employee organisations that are ‘to be’, or ‘will be’, covered by an enterprise agreement for which an application for approval has been made.  However, pursuant to the Act, such persons are covered by the relevant type of enterprise agreement when the agreement is made and before the application for approval is made.  The amendments correct the relevant wording accordingly.

Items 4, 6, 7, 8, 10 and 11 make technical corrections to certain rules requiring statutory declarations made by or on behalf of employers, employee organisations and applicants to be lodged with the Commission, in support of applications to the Commission for approval, variation and termination of enterprise agreements and applications for protected action ballot orders.

At present these requirements are not expressed appropriately so as to apply to employers and applicants that may be individuals or bodies corporate and to employee organisations as bodies corporate.  The amendments correct the relevant wording so that the requirements are expressed appropriately for individuals and bodies corporate as applicable.

Items 7A, 9 and 9A make corrections to rule 25, which requires statutory declarations made by or on behalf of employers and employee organisations to be lodged with the Commission, in support of an application to the Commission for approval of a variation of an enterprise agreement.

At present rule 25(1) requires a statutory declaration to be lodged by an officer or authorised employee of each employee organisation that is a ‘bargaining representative for the variation agreement’.  However, the Act does not define bargaining representatives for the purposes of variation of an enterprise agreement.  The rule as amended requires a statutory declaration to be lodged by an officer or authorised employee of each employee organisation that is covered by the enterprise agreement which is proposed to be varied.

In consequence of this amendment, rule 25(2) is unnecessary and is omitted, and rule 25(1) is renumbered as rule 25.

Item 12 introduces a new rule 34A relating to an application under section 483AA of the Act for an order of the Commission allowing the holder of an entry permit to have access to non-member records or documents held by an occupier of certain premises or an affected employer.  A ‘non-member’ record or document is a record or document that relates to the employment of a person who is not a member of the permit holder’s organisation and does not also substantially relate to the employment of a person who is a member.

The new rule requires the application that is served on the occupier or affected employer, to be accompanied by a notice informing the occupier or affected employer that they must, within 24 hours of being served, display the application at their premises at a location where notices to employees are usually displayed.

The new rule facilitates employees whose records are being sought making submissions to the Commission in relation to the application, if they wish to do so.

New rule 34A operates with an amendment to Schedule 1 to the Rules (see Item 57 below).

Item 14 introduces a new rule 40A dealing with non-party and public access to certain applications made to the Commission and the statutory declarations lodged in support of those applications.

The applications concerned are applications to the Commission for approval of an enterprise agreement (a non-greenfields or greenfields agreement), approval of a variation of an enterprise agreement and approval of the termination of an enterprise agreement.  The statutory declarations concerned are those required by the Rules to be lodged by employers, employee organisations and other applicants in support of such applications.

The new rule draws attention to the existing discretion of a Member of the Commission in the course of dealing with such an application, to provide any person with access to the application and the accompanying statutory declarations.

Providing such access may assist the Member properly to inform himself or herself in relation to the application and promotes open justice.

Access to documents pursuant to the new rule is subject to an order of the Commission under sections 593(3) or 594(1) of the Act.  These are orders that can be made by the Commission prohibiting or restricting the publication of certain information.

Item 17 introduces new subrules 51(1A) and 51(1B) relating to an application to the Commission for an entry permit to be issued to an official of an organisation under section 512 of the Act.  The new subrules concern the requirement in section 512 of the Act that the Commission be satisfied that the official is a fit and proper person to hold an entry permit.

A Member of the Commission has powers under the Act to inform himself or herself in relation to such an application as they consider appropriate.

Reflecting that existing discretion, new subrule 51(1A) provides that the Commission may require the official concerned to provide, or authorise the Commission to apply for, a current national police certificate in respect of the official.

New subrule 51(1B) provides that the Commission may, before considering an entry permit application, publish on the Commission’s website information including the name of the organisation applying for the entry permit and the name of the proposed permit holder and indicate that submissions may be made to the Commission as to whether the proposed permit holder is a fit and proper person to be issued with the entry permit.

The new subrules will facilitate the Commission in gathering information for the purpose of deciding whether the proposed entry permit holder is a fit and proper person to be issued with the entry permit.

Some technical changes are also made to the Rules. At present, subrule 51(1) refers to a ‘person’ who is to hold the entry permit, whereas the Act refers to an ‘official’.  Item 16 changes the wording in the subrule for consistency with the Act.  In addition, Items 15 and 17 insert new headings ‘entry permits’ and ‘WHS entry permits’ into the Rules.

Item 18 amends subrules 53(2) and 54(2) which deal respectively with applications to the Commission for orders requiring a person to attend before the Commission and applications to the Commission for orders requiring a person to provide copies of documents, records or other information.

At present subrule 53(2) requires that when an order requiring a person to attend before the Commission is made, the requesting party must serve a signed copy of the order on the person required to attend.  Subrule 54(2) imposes a similar requirement in respect of an order to provide copies of documents, records or other information.  The amended subrules 53(2) and 54(2) will require that copies of the order also be served upon the other parties to the matter that is before the Commission.

The new requirement to serve copies of the orders on the other parties will facilitate procedural fairness.

Item 18 is complemented by Item 64 (outlined below).

Item 19 introduces a new rule 63 that specifies when new rules 11, 12, 34A, 40A, subrules 51(1A) and 51(1B) and the amendments to Schedule 1 to the Rules will apply.

Items 20, 21, 22, 23, 29, 34, 37, 39, 40, 42, 44, 45, 47, 48, 50, 51, 52, 53, 54, 55, 56, 59, 60, 61, 62, 65 and 66 correct the titles of various Commission forms in Schedule 1 to the Rules.

Items 25, 27, 30 and 38 correct the descriptions of the persons who are required to serve various statutory declarations in Schedule 1 to the Rules.  These statutory declarations relate to applications for approval of enterprise agreements.

Presently, Schedule 1 to the Rules requires the Commission’s Form F17, F18, F18A and F21C statutory declarations to be served by the declarant.

The amendments will require the statutory declarations to be served by the same person that is required by the Rules to lodge the declarations with the Commission (ie the relevant employer, employee organisation or bargaining representative).

Items 33, 35, 36, 41, 43, 46, 49, 58, 63 amend the descriptions of the time at which various Commission forms must be served.

At present, Schedule 1 to the Rules links the time at which the Commission’s Forms F20, F21, F21B, F23A, F23B, F24A, F24C, F46 and F47E are to be served with service of a related Commission form.  For example, Schedule 1 specifies that a Form F20 is to be served at the same time as the Application for Approval of Greenfield Agreement is served.

The amendments simplify the service requirements by requiring that the relevant forms be served as soon as practicable after lodgment with the Commission.

Item 57 inserts into Schedule 1 to the Rules a new requirement to serve applications to the Commission under section 483AA of the Act for access to non-member records.

At present the Rules do not deal with the service of such applications.  The amendment will require that, subject to an order of the Commission, the applicant for the order must serve a copy of the application on each occupier and affected employer in relation to which orders are sought, as soon as practicable after the application has been lodged with the Commission.

The amendment operates with new rule 34A (see Item 12, outlined above).

The new requirement to serve the application is subject to an order of the Commission.  This recognises that in some cases, it may be appropriate for the application to be dealt with without the occupier or affected employer first being notified.  This might be necessary, for example, if there is concern that notifying the occupier or affected employer of the application would result in records that are sought being destroyed.

Item 64 complements Item 18 (outlined above), which introduces new requirements that orders requiring a person to attend before the Commission and orders for the production of documents, records or information to the Commission, be served on the other parties to the matter that is before the Commission.

Item 64 inserts into Schedule 1 to the Rules new requirements also to serve copies of the applications for such orders (Commission Forms F51 and F52 respectively) on the other parties to the matter that is before the Commission.

These new requirements to serve copies of the applications will also facilitate procedural fairness.

The new requirements to serve an application are subject to an order of the Commission.  This recognises that in some cases, it may be appropriate for the application to be dealt with without the other parties first being notified.  This might be necessary, for example, if there is concern that notifying the other parties of the application would result in documents that are sought being destroyed.