The right to a fair hearing is deeply ingrained in Australia's law and legal culture. A fair hearing is one where the parties are afforded procedural fairness and are given an equal opportunity to participate effectively in the hearing of their matter. In the case of the Commission, the need to provide a fair hearing is reinforced by its statutory duty under s.577(a) of the Fair Work Act to exercise its powers in a manner that is 'fair and just'.
For courts and tribunals seeking to ensure a fair hearing, self-represented parties present a particular challenge. Without representation, individuals can face a number of disadvantages in navigating the complexities of a legal system. Self-represented parties may lack knowledge of the laws that will decide their case, and so may not know what the decision-maker will take into account in order for the self-represented party to succeed. Being unfamiliar with rules and procedures, self-represented parties can be disadvantaged by needing to spend more time and energy learning and navigating procedures when compared with represented parties. At a hearing, a self-represented party may also be disadvantaged by a lack of objectivity owing to the party's closeness to his or her own case.
Establishment
In recognition of the need to improve self-represented parties' access to legal advice, the Commission established a pilot Pro Bono Program in 2013, to provide assistance to eligible individuals and small businesses. The pilot program was confined to providing legal advice about jurisdictional hearings in unfair dismissal matters after an employer had raised a jurisdictional objection.
The pilot was established in Victoria in partnership with 14 law firms and operated for approximately 12 months, delivering legal advice to eligible applicants and respondents. The pilot was reviewed by the RMIT University Centre for Innovative Justice (CIJ). After consulting both the law firms and clients who had participated in the pilot, the CIJ recommended that the program continue and made some recommendations for improvement.
Current operation
Today, the Pro Bono Program operates with the assistance of firms who participated in the pilot. A number of other law firms and the Australian Industry Group (Ai Group) also joined the program during 2016–17. The program remains focused on providing legal advice in relation to jurisdictional objections in unfair dismissal proceedings and is available to both unrepresented applicants and respondents who meet a basic means test.
To connect parties to the program, the Commission's Unfair Dismissal Conciliation Management Team provides information to eligible employee applicants and employer respondents. Law firms are rostered to contact parties who request pro bono advice. While the program only requires them to provide an hour's advice by telephone or in person, law firms will often provide further services at their discretion, including occasionally representing parties at hearings.
The Pro Bono Program has a high rate of uptake. In 2016–17, of the total number of eligible parties, 63% requested and received support through the program. Of the parties who received pro bono assistance, 87% were employees and 13% were employers.
The recipients of pro bono assistance, some of whom are highly disadvantaged, have provided very positive feedback about the program. One client wrote:
'I was given succinct and very wise help and advice, well within the limits of the solicitor's remit. She was exceedingly polite and straightforward and steered me in the right direction.'
For respondent small businesses, the program also provides vital support. Presently, most respondent clients are provided advice by Ai Group. Chris Sealie from Ai Group observed:
'Ai Group Workplace Lawyers have been an enthusiastic supporter of the Fair Work Commission Pro Bono Program. Ai Group Workplace Lawyers have participated in the training programs run by the Commission as well as the Pro Bono Program itself. Both the training received and the overall experience of being involved in the Pro Bono Program has been extremely positive for both our team of Workplace Lawyers and in particular small business clients who have participated in the program.'
For the firms, the Pro Bono Program gives junior lawyers the opportunity to gain valuable experience pursuing a matter in the Commission's jurisdiction. Michaela Moloney from K&L Gates commented:
'The Fair Work Commission Pro Bono Program gives K&L Gates the chance to provide assistance to the public and support the Commission. As a firm that works predominantly for employers, our lawyers are given a unique opportunity to consider matters from the applicant's perspective. The type of matters that come to us through the program mean that our junior lawyers can have hands on involvement in providing advice to parties who may be vulnerable and might not otherwise have access to lawyers. We are very pleased to support the program.'
Abigail Cooper of Ashurst said:
'Having participated in the program since its inception, our team has seen the benefits for both clients and lawyers of participating in the program. A number of our lawyers have had their first opportunity to appear in the Commission through the Pro Bono Program and have gained confidence and experience which is readily applicable to matters for commercial clients. We have acted for a number of applicants in resisting jurisdictional objections and in other cases have assisted applicants with obtaining an alternative resolution of their concerns.'
Dru Marsh of Lander & Rogers said:
'The program is an easy sell to our pro bono committee: it meets an important access to justice need, assists the Commission in its work and enriches the skills and experience of the enthusiastic junior lawyers.'
By equipping parties to more effectively represent themselves, the Pro Bono Program also helps the Commission to run matters more efficiently. On this subject, Deputy President Clancy, head of the termination of employment panel, commented:
'Jurisdictional hearings can require the resolution of relatively technical issues, and so it can benefit parties considerably if they are able to obtain legal guidance. The advice given to self-represented parties through the program often has a positive impact on the conduct of hearings, with parties better informed about the relevant issues and the way in which they need to address them.'
Following on from a second positive review of the program by the CIJ in September 2016, the Commission will consider how the program can be expanded to operate beyond Victoria.
Image: A Commission staff member provides information on accessing the Pro Bono Program.