See Fair Work Act ss.12 and 596, Fair Work Commission Rules 2013 rule 11–12
A lawyer or paid agent must seek the permission of the Commission to represent a person in a matter before the Fair Work Commission.
Only a Commission Member can give permission to a lawyer or paid agent to represent a party. Unless acting under delegation, employees of the Commission, such as conciliators, cannot give or refuse permission for a person to be represented.
However, unless the Commission otherwise orders, the Fair Work Commission Rules grant a person permission to be represented 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 Fair Work Act. For other exceptions to the requirement to seek permission, please see Exceptions – representation.
A person who commences (or ceases) to act as a lawyer or paid agent of a party to a matter that is before the Commission must lodge a notice with the Commission.
All forms are available on the Forms page of the Commission's website.
A lawyer is a person who is admitted to the legal profession by a Supreme Court of a state or territory.
A paid agent is a person who charges or receives a fee to represent a person in the matter before the Commission.
The following representatives are not required to seek permission to appear:
In these circumstances a person is not considered to be represented by a lawyer or paid agent.
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.
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.
Rule 15 of the Australian Bar Association’s Barristers’ Conduct Rules, describes the work of a barrister in the following way:
'15. Barristers’ work consists of:
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.
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.
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’.
Rule 12(1) provides that a person may be represented in a matter before the Commission by a lawyer or paid agent for the following purposes (without seeking the permission of the Commission):
However, this permission to be represented for the above purposes is subject to any contrary order made by the Commission.
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:
In granting permission, the Commission will have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.
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.
The Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’. 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.
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 …’
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.
If a party has not made submissions objecting to representation, it is still the case that representation requires permission of the Commission.
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.
A significant number of documents and wide ranging issues does not necessarily equate to a matter being complex.
Where a party raises a jurisdictional issue, permission for representation will usually be granted.
Jurisdictional issues by their nature are often complex and may require expertise in case law. 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. 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.
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.
Where a person would be unable to effectively represent themselves, permission for representation may be granted.
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’.
However, what might be of ‘striking impression’ or ‘impressive’ or ‘powerful in effect’ is a matter of assessment by the Commission.
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.
Permission may be granted if it would be unfair to refuse permission taking into account the fairness between the parties to the matter.
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.
 Fair Work Act s.596(1).
 Department of Education and Early Childhood Development v A Whole New Approach Pty Ltd  FWA 8040 (Gooley C, 29 November 2011) at para. 67.
 See Fair Work Commission Rules 2013 r 12(1)(d).
 Fair Work Commission Rules 2013 r 11.
 Fair Work Act s.12.
 Fair Work Act s.12.
 Fair Work Act s.596(4).
 Fair Work Act s.596(4).
 Cooper v Brisbane Bus Lines Pty Ltd  FWA 1400 (Simpson C, 3 March 2011) at para. 13.
 ibid., at para. 36.
 ibid., at para. 37.
 Fair Work Commission Rules 2013 r 12(1).
 Fair Work Commission Rules 2013 r 12(2).
 Fair Work Act s.596(2).
 Explanatory Memorandum to Fair Work Bill 2008 at para. 2296. Also see Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria  FWA 1520 (Lewin C, 18 March 2011) at para. 41.
 Rodgers v Hunter Valley Earthmoving Company Pty Ltd  FWA 572 (Harrison C, 9 October 2009) at para. 12.
 Fair Work Act s.577(a).
 ibid., at para. 24.
 Azzopardi v Serco Sodexo Defence Services Pty Limited  FWC 3405 (Cambridge C, 29 May 2013).
 Viavattene v Health Care Australia  FWA 7407 (Booth C, 9 October 2012) at para. 4.
 Blair v Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green  FWA 2720 (Gooley C, 10 May 2011) at para. 6.
 O'Grady v Royal Flying Doctor Service of Australia (South Eastern Section)  FWA 1143 (Leary DP, 17 February 2010) at para. 31.
 Wilcox v Holcim (Australia) Pty Ltd T/A Humes  FWC 2359 (Simpson C, 20 April 2016) at para. 12.
 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora)  FWA 2966 (Richards SDP, 10 April 2012) at para. 23.
Aly v Commonwealth Back of Australia; Michelle Gentile; Russel Hayman  FWC 3604 (Bissett C, 27 May 2015) at para. 12.
 ibid., at para. 16.
 See for e.g. Blair v Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green  FWA 2720 (Gooley C, 10 May 2011) at paras 5–6.
 Fair Work Act s.596(2)(b)
 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora)  FWA 2966 (Richards SDP, 10 April 2012) at para. 16.
 Australian Rail, Tram and Bus Industry Union v Rail Corporation New South Wales T/A RailCorp  FWA 9906 (Cambridge C, 22 November 2012) at para. 15.
 Fair Work Act, Note (a) to s.596(2).
 Fair Work Act s.596(2)(c).
 Fair Work Act, Note (b) to s.596(2).