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Representation by lawyers and paid agents

 

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 See Fair Work Act ss.12 and 596, Fair Work Commission Rules 2013 rule 11–12A

Definitions

A lawyer is a person who is admitted to the legal profession by a Supreme Court of a state or territory.[1]

A paid agent is a person who charges or receives a fee to represent a person in the matter before the Commission.[2]

Seeking permission

A lawyer or paid agent must seek the permission of the Commission to represent a person in a matter before the Commission. This includes making an application or submission on another person’s behalf.[3]

Only a Commission member can give permission for a lawyer or paid agent to represent a party.[4] Unless acting under delegation, employees of the Commission, such as conciliators, cannot give or refuse permission for a person to be represented.[5]

Notification of acting for a person

Each lawyer or paid agent acting for a person in relation to a matter before the Commission must lodge a notice with the Commission informing it that the lawyer or paid agent acts for the person in the matter.[6]

There are two ways in which a lawyer or paid agent can give notice that they act for a person in relation to a matter before the Commission:

  • they can give notice by identifying themselves as the person’s representative in an application or other approved Commission form that they lodge in the matter, or
  • they can give notice by lodging a Form F53.[7]

The notice may serve to inform the Commission and other parties that the lawyer or paid agent needs to be copied into correspondence and documents lodged in the matter. It also puts 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 costs order is made by the Commission.[8]

Meaning of ‘act for’ a person

In broad terms, a lawyer or paid agent acts for a person in relation to a matter before the Commission if they provide their professional services to the person in relation to the matter–for example:

  • appearing as an advocate in a conference or hearing conducted by a Member of the Commission or a member of the staff of the Commission
  • preparing to appear as an advocate
  • negotiating a settlement or compromise of the matter
  • giving legal or other advice
  • preparing or advising on documents (including applications, forms, affidavits, statutory declarations, witness statements, written submissions and appeal books) for use at a conference or hearing
  • lodging documents with the Commission
  • sending letters or emails to the Commission, another party or another lawyer or paid agent, or
  • carrying out work incidental to any of the above.[9]

Link to form

All forms are available on the Forms page of the Commission's website.

Ceasing to 'act for' a person

Each lawyer or paid agent who ceases to act for a person in relation to a matter before the Commission must lodge a notice with the Commission informing it that the lawyer or paid agent has ceased acting for the person in relation to the matter.[10]

Link to form

All forms are available on the Forms page of the Commission's website.

In-house counsel, union representatives and employer association representatives

The following representatives are not required to seek permission to appear:

  • a lawyer or paid agent who is an employee (or officer) of the person, or
  • a lawyer or paid agent who is an employee (or officer) of any of the following, which is representing the person:
    • an organisation (including a union or employer association), or
    • an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 (Cth), or
    • a peak council, or
    • a bargaining representative, or
  • a lawyer or paid agent who is a bargaining representative.[11]

In these circumstances a person is not considered to be represented by a lawyer or paid agent.[12]

Others

In circumstances where the person seeking to represent a person or organisation is not a lawyer or paid agent as defined in the Fair Work Act, permission to represent is not required.[13]

Workplace Advice Service

A lawyer who provides legal assistance to a person through the Workplace Advice Service is not required to seek permission to appear.[14]

The Workplace Advice Service is a free legal assistance program facilitated by the Commission.

If you are an individual or a small business owner wanting to consult a lawyer on workplace issues involving dismissal, general protections or workplace bullying, the Commission can assess whether or not you may be eligible for the Service.

The Commission’s role is to connect you with lawyers who may be able to help you. These lawyers work at law firms and other legal organisations that are completely independent of the Commission.

What is representation?

A Full Bench of the Commission found that the term ‘representation’ is concerned with more than just advocacy at a hearing. A lawyer can be said to ‘represent’ their client when they engage in a wide range of activities connected with litigation, not just advocacy.[15]

Rule 15 of the Australian Bar Association’s Barristers’ Conduct Rules[16], describes the work of a barrister in the following way:

'15. Barristers’ work consists of:

  1. appearing as an advocate;
  2. preparing to appear as an advocate;
  3. negotiating for a client with an opponent to compromise a case;
  4. representing a client in a mediation or arbitration or other method of alternative dispute resolution;
  5. giving legal advice;
  6. preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs;
  7. carrying out work properly incidental to the kinds of work referred to in (a)‐(f); and
  8. such other work as is from time to time commonly carried out by barristers.'

This work is no different with respect to a solicitor. Outside of legal representation, a paid agent involved in proceedings before the Commission will typically engage in non-legal equivalents of most of the above categories of work, and would be regarded as ‘representing’ their client in doing so.[17]

Section 596(1) and (2) refer to a person being represented ‘in a matter’ before the Commission. The word ‘matter’ describes more than just a hearing, in a legal context it usually describes the whole situation that is brought before a court or tribunal.[18]

Section 596(1) also expressly provides that representation in a matter includes ‘making an application or submission to the FWC on behalf of the person’.[19]

Meaning of ‘representing’ a person and ‘participating’ in a conference or hearing

The meaning of represent as used in s.596 of the Fair Work Act and the Rules, is narrower than act for a person. Generally, for an activity that constitutes acting for a person in a matter before the Commission to also constitute representing the person, the activity will need to involve some interaction with the Commission itself – for example:

  • appearing as an advocate in a conference or hearing conducted by a Member of the Commission or a member of the staff of the Commission
  • participating in a conference or hearing other than as an advocate
  • negotiating a settlement or compromise of the matter in a conciliation conference
  • lodging written applications, responses, submissions and other documents with the Commission, or
  • sending letters or emails to both the Commission and another party or lawyer or paid agent.[20]

Participating in a conference or hearing includes:

  • appearing as an advocate of a person in the conference or hearing (or otherwise speaking on behalf of a person in the conference or hearing), and
  • attending the conference or hearing and assisting a person to present their case without speaking on behalf of the person (such as by taking notes, providing documents or cataloguing exhibits for an advocate, or making suggestions to an advocate as how best to conduct the case).[21]

Notification of ‘representing’ a person

Representation – In a conference or hearing

In any matter before the Commission, a person must not be represented by a lawyer or paid agent in a conference or hearing relating to the matter without the permission of the Commission.[22]

Link to form

All forms are available on the Forms page of the Commission's website.

Proposed representation – In a conference or hearing

If a person proposes to be represented in a matter before the Commission by a lawyer or paid agent participating in a conference or hearing relating to the matter; and the participation requires permission, the person must lodge a notice with the Commission informing the Commission that the person will seek the Commission’s permission for a lawyer or paid agent to participate in the conference or hearing.

Link to form

All forms are available on the Forms page of the Commission's website.

Representation – Not in a conference or hearing

If a person is not participating in a conference or hearing, a person may be represented by a lawyer or paid agent in the matter without the permission of the Commission.[23]

Ceasing to ‘represent’ a person

Each lawyer or paid agent who ceases to represent a person in relation to a matter before the Commission must lodge a notice with the Commission informing it that the lawyer or paid agent has ceased representing the person in relation to the matter.[24]

Link to form

All forms are available on the Forms page of the Commission's website.

Exceptions – Representation in certain types of matter

A person may, without the permission of the Commission, be represented in a matter by a lawyer or paid agent participating in a conference or hearing in relation to the following:

  • a matter arising under Part 2‑3 of the Fair Work Act (modern awards)
  • a matter arising under Part 2‑5 of the Fair Work Act (workplace determinations)
  • a matter arising under Part 2‑6 of the Fair Work Act (minimum wages), and
  • a matter arising under ss.510 or 512 of the Fair Work Act (entry permits).[25]

A person may also, without the permission of the Commission, be represented in a matter by a lawyer or paid agent participating in a conference conducted by a member of the staff of the Commission, whether or not under delegation, in relation to the following:

  • an application under s.394 of the Fair Work Act for an unfair dismissal remedy, or
  • an application under s.789FC of the Fair Work Act for an order under s.789FF to stop bullying.[26]

However, to avoid doubt, a person participating in a conference before a Commission Member in relation to an application under ss.394 or 789FC of the Fair Work Act cannot represented by a lawyer or paid agent without the permission of the Commission.[27]

The Commission may direct that a person is not to be represented in a matter by a lawyer or paid agent except with the permission of the Commission.[28]

Under rule 12(1)(b) and s.596 of the Fair Work Act, apart from participating in a conference or hearing, a person’s lawyer or paid agent can act for and represent the person without permission, unless the Commission directs otherwise.

For example, unless the Commission directs otherwise, the lawyer or paid agent can:

  • prepare and lodge written applications, responses, submissions and other documents with the Commission, and
  • correspond with the Commission and other parties.[29]

When will permission be granted?

The Commission can only give permission for a person to be represented by a lawyer or paid agent in a matter before the Commission if:

  • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (complexity)
  • it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively (effectiveness), or
  • it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter (fairness).[30]

In granting permission, the Commission will have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.[31]

In practice the Commission is likely to grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case.[32]

The Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’.[33] In some cases it may not be fair and just for one party to be represented by a lawyer or paid agent when the other is not.[34]

The ‘normal position’ of the Fair Work Act is that ‘a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law …’[35]

A party might be required to represent themselves if the Commission is not satisfied permission should be granted for a lawyer or paid agent to appear for a client on the grounds of complexity, effectiveness or fairness.[36]

If a party has not made submissions objecting to representation, it is still the case that representation requires permission of the Commission.[37]

Partial representation may be permitted during examination-in-chief and cross-examination of the party seeking representation[38] or during argument about jurisdictional issues.[39]

Permission to be represented has been granted where the employer’s Human Resources Manager was a witness for the employer. The Commission was satisfied it is reasonable for the employer not to want the Human Resources Manager to conduct the case as well as be a witness.[40]

Complexity

A significant number of documents and wide ranging issues does not necessarily equate to a matter being complex.[41]

Where a party raises a jurisdictional issue, permission for representation will usually be granted.[42]

Jurisdictional issues by their nature are often complex and may require expertise in case law.[43] Whilst an employer may raise an objection to an application on the basis that a worker was not bullied at work as the alleged behaviour was reasonable management action carried out in a reasonable matter, this is not a jurisdictional objection in the strict sense.[44] However, it may be the case that this does add a level of complexity that means representation would enable the matter to be dealt with more efficiently.[45]

However, even if there is a jurisdictional issue which needs to be resolved, permission may still be refused or limited to specific parts of a hearing.[46]

Effectiveness

Where a person would be unable to effectively represent themselves, permission for representation may be granted.[47]

The Commission will generally grant permission for representation where the person is unable to represent themselves in a manner that creates a ‘striking impression’, or which has an ‘impressive’ effect or which is ‘powerful in effect’.[48]

However, what might be of ‘striking impression’ or ‘impressive’ or ‘powerful in effect’ is a matter of assessment by the Commission.[49]

Example

A circumstance where a person may be given permission to be represented is where the person is from a non-English speaking background or has difficulty reading or writing.[50]

Fairness

Permission may be granted if it would be unfair to refuse permission taking into account the fairness between the parties to the matter.[51]

Example

A circumstance where a person may be given permission to be represented is where one party to the matter is a small business with no human resources staff and the other is represented by a union.[52]

Rescheduling or adjourning matters

Parties to matters before the Commission may apply to have the matter adjourned.

There should be no presumption that an adjournment will be granted.[53] The principles in relation to adjourning (or staying) proceedings are as follows:

  • a party to a matter before the Commission has a right to have the matter determined as quickly as possible
  • serious consideration needs to be given before any action interferes with this right
  • the party who applies for the adjournment must prove that it is necessary
  • a party is not automatically entitled to an adjournment because they are involved in a criminal hearing, and
  • an application for an adjournment must be determined on its own merits.[54]

The Commission’s task is a ‘balancing of justice between the parties’ taking all relevant factors into account.[55]

The consideration of an application for adjournment of a matter requires the exercise of a discretion. The overarching objective must always be the just resolution of the real issues in dispute with minimum delay and expense. In that respect regard must be given to ensuring that the applicant for the adjournment is afforded a fair and reasonable opportunity to advance their case, and that any adjournment does not cause undue prejudice to the other party.[56]

However, the interests of the parties are not the only considerations. The Commission is an institution which is required to deal with a very large number of matters, and s.577 of the Fair Work Act provides that the Commission must perform its functions and exercise its powers not only fairly and justly but also quickly.[57]

Additionally, specific provisions of the Fair Work Act require the Commission to deal with particular types of matters in very narrow timeframes (for example, s.420(1) and, in relation to anti-bullying applications, s.789FE(1)). Therefore the grant of adjournments and the associated loss of valuable hearing days may prejudice the Commission’s capacity to promptly deal with other parties’ applications down the track. For this reason, when a matter has been programmed for hearing in a way which affords parties a proper opportunity to advance their cases within reasonable timeframes, an adjournment would not readily be granted.[58]

An adjournment of an application for an order to stop bullying will only occur if there are substantial grounds for the adjournment application.

Examples where a request for an adjournment may be granted include:

  • where illness of the applicant or a significant person in the respondent’s business or a witness would prevent them from attending a proceeding – a medical certificate must be provided by the requesting party to substantiate the request
  • unavailability of a representative that started acting for a party before the application was listed for hearing
  • death or serious injury of a family member of an applicant, a significant person in the respondent’s business or a witness, or
  • where the applicant, a significant person in the respondent’s business, a witness or a representative will be interstate or overseas and the travel was booked before the application was listed for hearing – the Commission may ask for proof that the booking was made prior to the matter being listed for hearing.

The other party (or parties) will be asked to comment on the adjournment request prior to a decision being made by the Commission.

Uncontested applications

The Commission makes all attempts to contact the parties to an application for an order to stop bullying. If a party does not respond to the Commission’s notices or directions the application will still be dealt with as an uncontested application. Any orders made by the Commission in an uncontested application are legally binding and enforceable.[59]

Bias

A Commission member should not hear a case if there is a reasonable apprehension that they are biased.[60]

Reasonable apprehension of bias means that a party to a matter before the Commission has a genuine concern that the Commission member might not be impartial and as a result may not deal with the matter in a fair and balanced way.

The question of a reasonable apprehension of bias is a difficult one involving matters ‘of degree and particular circumstances [which] may strike different minds in different ways’.[61]

A reasonable apprehension of bias involves deciding whether a ‘fair-minded lay observer’ would reasonably apprehend that the decision maker would not decide a case impartially and without prejudice.[62] It is not bias where a decision maker decides a case adversely to one party.[63]

Reasonable apprehension of bias may arise in the following four (sometimes overlapping) ways:

  • if a Commission member has some direct or indirect interest in the case, financial or otherwise
  • if a Commission member has published statements or acted in a way that gives rise to a reasonable apprehension of prejudice
  • if the Commission member has some direct or indirect relationship, experience or contact with anyone involved in the case, and
  • if the Commission member has some knowledge of extraneous information, which cannot be used in the case, however would be seen as detrimental.[64]

While it is important that justice must be seen to be done, it is of equal importance that Commission members discharge their duty to hear the evidence and decide the matter.[65] This means that they should not accept the suggestion of apprehended bias too readily.[66]

Expression of a view or prejudgment

In deciding whether a Commission member should be disqualified for the appearance of bias, the Commission will consider whether a reasonable and fair minded person might anticipate that the Commission member might approach the matter with a partial or prejudiced mind.[67]

The question is not whether the decision maker’s mind was blank, but whether their mind was open to persuasion.[68]

The expression of a provisional view on a particular issue, or warning parties of the outcome of a provisional view, is usually entirely consistent with procedural fairness.[69]

Prior relationship

Generally, a Commission member will not be disqualified in circumstances where it is found that the member, before being appointed as a member, gave legal advice or represented a person who now appears before them as a party in their capacity as a member.[70] However the member should not hear a matter if the member:

  • is determining the correctness of advice they gave to a party in their role as a legal representative
  • recommended a course of conduct to a party in their role as a legal representative and the legality, reasonableness or wisdom of that conduct is to be determined, or
  • is determining the quality of the advice they gave while they were the legal representative of one of the parties.[71]

Extraneous information

The general rule is that a Commission member should disclose any independent knowledge of factual matters that affect or may affect the decision to be made.[72]

A central element of the justice system is that a judge (or Commission member) should try the case based on the evidence and arguments presented.[73] A judge (or Commission member) should not take into account, or indeed receive, secret or private representations from a party or from a stranger about the case they are to decide.[74]

Case examples

Permission granted for representation

Complexity

Complexity – fairness

Efficiency

Fairness

Permission NOT granted for representation

Complexity

Employer of a considerable size with adequate HR support

Employer a member of employer association

Apprehension of bias

Expression of a view or prejudgment

References

[1]Fair Work Act s.12.

[2] Fair Work Act s.12.

[3] Fair Work Act s.596(1).

[5] ibid.

[6] Fair Work Commission Rules 2013 r 11(1).

[10] Fair Work Commission Rules 2013 r 11(2).

[11] Fair Work Act s.596(4).

[12] Fair Work Act s.596(4).

[13]Cooper v Brisbane Bus Lines Pty Ltd [2011] FWA 1400 (Simpson C, 3 March 2011) at para. 13.

[14] Fair Work Commission Rules 2013 r 11(3).

[15]Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

[16] Australian Bar Association’s Barristers’ Conduct Rules cited in Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

[17]Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

[18] ibid., at para. 36.

[19] ibid., at para. 37.

[22] Fair Work Commission Rules 2013 r 12(1).

[23] Fair Work Commission Rules 2013 r 12(1).

[24] Fair Work Commission Rules 2013 r 11(2).

[25] Fair Work Commission Rules 2013 r 12(2).

[26] Fair Work Commission Rules 2013 r 12(2).

[27] Fair Work Commission Rules 2013 r 12(4).

[28] Fair Work Commission Rules 2013 r 12(3).

[30] Fair Work Act s.596(2).

[31] Explanatory Memorandum to Fair Work Bill 2008 at para. 2296. Also see Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria [2011] FWA 1520 (Lewin C, 18 March 2011) at para. 41.

[32] Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572 (Harrison C, 9 October 2009) at para. 12.

[33] Fair Work Act s.577(a).

[34] Warrell v Fair Work Australia [2013] FCA 291 (4 April 2013) at para. 27 (Note:  Title corrected from Warrell v Walton, Flick J, 10 April 2013).

[35] ibid., at para. 24.

[37] Viavattene v Health Care Australia [2012] FWA 7407 (Booth C, 9 October 2012) at para. 4.

[40] Wilcox v Holcim (Australia) Pty Ltd T/A Humes [2016] FWC 2359 (Simpson C, 20 April 2016) at para. 12.

[41] King v Patrick Projects Pty Ltd [2015] FWCFB 2679 (Catanzariti VP, Drake SDP, Riordan C, 4 May 2015) at para 17.

[43] ibid.

[45] ibid., at para. 16.

[46] See for e.g. Blair v Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green [2011] FWA 2720 (Gooley C, 10 May 2011) at paras 5–6.

[47] Fair Work Act s.596(2)(b)

[50] Fair Work Act, Note (a) to s.596(2).

[51] Fair Work Act s.596(2)(c).

[52] Fair Work Act, Note (b) to s.596(2).

[54]Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287 (AIRC, Watson SDP, 19 July 2000) at para. 31; summarising the relevant principles from McMahon v Gould (1982) 7 ACLR 202 (19 February 1982).

[55]Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287 (AIRC, Watson SDP, 19 July 2000) at para. 28; citing McMahon v Gould (1982) 7 ACLR 202 (19 February 1982).

[56]Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica and Others [2019] FWCFB 1093 (Hatcher VP, Sams DP, Hampton C, 19 February 2019) at para. 18.

[57] ibid.

[60]R v Watson; Ex parte Armstrong [1976] HCA 39 (3 August 1976), [(1976) 136 CLR 248; (1976) 9 ALR 551, 561‒565]; cited in Livesey v New South Wales Bar Association [1983] HCA 17 (20 May 1983) at para. 7, [(1983) 151 CLR 288, 293‒294].

[61]Livesey v New South Wales Bar Association [1983] HCA 17 (20 May 1983) at para. 8, [(1983) 151 CLR 288]; citing R v Shaw; Ex parte Shaw (1980) 55 ALJR 12 (14 November 1980) at p. 16 (Aickin J).

[62]Dain v Bradley & Grant [2012] FWA 9029 (Booth DP, 29 October 2012) at para. 14; citing British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011) at para. 104.

[63]Re J.R.L. Ex parte C.J.L. [1986] HCA 39 (30 July 1986), [(1986) 161 CLR 342, 352].

[64]Webb v The Queen [1994] HCA 30 (30 June 1994), [(1994) 181 CLR 41, 74]; see also Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855 (Hamberger SDP, Gostencnik DP, Saunders DP, 4 June 2019).

[65]Re J.R.L. Ex parte C.J.L. [1986] HCA 39 (30 July 1986), [(1986) 161 CLR 342, at p. 352].

[66] ibid.

[67]Johnson v Johnson [2000] HCA 48 (7 September 2000) at para. 11, [(2000) 201 CLR 488].

[68] The Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 (29 March 2001) at para. 71, [(2001) 205 CLR 507].

[69]Oram v Derby Gem Pty Ltd PR946375 (AIRCFB, Lawler VP, Kaufman SDP, Blair C, 22 July 2004) at para. 110, [(2004) 134 IR 379].

[70] Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25 (20 June 1991) at para. 10, [(1991) 173 CLR 78].

[71] ibid.

[73]Re J.R.L. Ex parte C.J.L. [1986] HCA 39 (30 July 1986), [(1986) 161 CLR 342, 350].

[74] ibid.

Updated time

Last updated

02 October 2019

 

 

 

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