Representation by lawyers and paid agents

Print this page

Permission

A lawyer or paid agent must seek the permission of the Commission to represent a person in a matter before the Fair Work Commission.^[1]

Only a Commission Member can give permission to a lawyer or paid agent to represent a party.^[2] Unless acting under delegation, employees of the Commission, such as conciliators, cannot give or refuse permission for a person to be represented.^[3]

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.^[4] For other exceptions to the requirement to seek permission, please see Exceptions – representation.

Notification

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.^[5]

Link to notice forms

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

Lawyer

A lawyer is a person who is admitted to the legal profession by a Supreme Court of a state or territory.^[6]

Paid agent

A paid agent is a person who charges or receives a fee to represent a person in the matter before the Commission.^[7]

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.^[8]

In these circumstances a person is not considered to be represented by a lawyer or paid agent.^[9]

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.^[10]

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.^[11]

Rule 15 of the Australian Bar Association’s Barristers’ Conduct Rules^[12], describes the work of a barrister in the following way:

'15. Barristers’ work consists of:

appearing as an advocate;
preparing to appear as an advocate;
negotiating for a client with an opponent to compromise a case;
representing a client in a mediation or arbitration or other method of alternative dispute resolution;
giving legal advice;
preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs;
carrying out work properly incidental to the kinds of work referred to in (a)‐(f); and
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.^[13]

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.^[14]

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’.^[15]

Exceptions – representation

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):

preparing a written application or written submission for the person in relation to the matter
lodging a written application, written submission or other document with the Commission, on behalf of the person in relation to the matter
corresponding with the Commission on behalf of the person in relation to the matter, or
participating 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.^[16]

However, this permission to be represented for the above purposes is subject to any contrary order made by the Commission.^[17]

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).^[18]

In granting permission, the Commission will have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.^[19]

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.^[20]

The Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’.^[21] 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.^[22]

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 …’^[23]

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.^[24]

If a party has not made submissions objecting to representation, it is still the case that representation requires permission of the Commission.^[25]

Partial representation may be permitted during examination-in-chief and cross-examination of the party seeking representation^[26] or during argument about jurisdictional issues.^[27]

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.^[28]

Complexity

A significant number of documents and wide ranging issues does not necessarily equate to a matter being complex.^[29]

Where a party raises a jurisdictional issue, permission for representation will usually be granted.^[30]

Jurisdictional issues by their nature are often complex and may require expertise in case law.^[31] 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.^[32] 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.^[33]

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.^[34]

Effectiveness

Where a person would be unable to effectively represent themselves, permission for representation may be granted.^[35]

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’.^[36]

However, what might be of ‘striking impression’ or ‘impressive’ or ‘powerful in effect’ is a matter of assessment by the Commission.^[37]

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.^[38]

Fairness

Permission may be granted if it would be unfair to refuse permission taking into account the fairness between the parties to the matter.^[39]

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.^[40]

Case examples

Permission granted for representation

Complexity

Aly v Commonwealth Bank of Australia; Michelle Gentile; Russell Hayman

[2015] FWC 3604 (Bissett C, 27 May 2015).

Facts

The employer submitted that they should be granted permission to be represented in part on the basis that they had a jurisdictional objection to the application. Specifically, they objected to the application on the basis that they had engaged in reasonable management action carried out in a reasonable manner.

Outcome

The Commission was satisfied that there was a level of complexity in the matter, given that the range of issues raised by the applicant would ‘require a level of unpacking of a number of incidents and assimilation of asserted facts and supporting evidence’. The Commission granted the employer permission to be represented, however noted that this was not a jurisdictional objection in the strictest sense.

Relevance

The Commission was satisfied that the matter had a level of complexity, and that the matter would be dealt with more efficiently given this complexity if the employer had representation.

O’Grady v Royal Flying Doctor Service of Australia (South Eastern Section)

[2010] FWA 1143 (Leary DP, 17 February 2010).

Facts

The employer objected to the employee’s application for an unfair dismissal remedy on the basis that the dismissal was a case of genuine redundancy. The employer sought permission to be legally represented. The employee opposed legal representation.

Outcome

It was held that the determination of jurisdiction was a legal issue. Legal representation would allow the matter to be dealt with more efficiently. Permission for legal representation was granted to both parties while dealing with the issue of jurisdiction.

Relevance

There were complex issues to be considered and the employer was a not for profit organisation without a person experienced in workplace relations advocacy. This was not a ‘simple factual contest’ but a contest about jurisdiction which might raise issues not previously considered.

Pedler v The Commonwealth of Australia, represented by Centrelink

[2011] FWAFB 4909 (Watson VP, Ives DP, Bissett C, 1 August 2011).

Facts

The employee appealed against the decision in her unfair dismissal application. The employer had been refused permission to be represented in the unfair dismissal proceedings. On the second day of hearings the applicant sought representation, which was not opposed by the employer, and permission to appear was granted. The employer sought permission to be represented by a legal representative in the appeal proceedings. The employee objected to the employer having legal representation.

Outcome

The Full Bench concluded that the appeal proceedings were likely to involve a greater degree of complexity than proceedings at first instance. Permitting representation would enable the matter to be dealt with more efficiently. Permission for the employer to have legal representation was granted.

Relevance

In light of the issues involved in the appeal it was considered that it would be unfair not to allow the parties to be represented if they so wish on the ground that they are unable to represent themselves effectively.

Complexity – fairness

Rollason v Austar Coal Mine Pty Limited

[2010] FWA 4863 (Stanton C, 1 July 2010).

Facts

The employee was dismissed for alleged sexual harassment. The employee contended his dismissal was, in part, related to an application made to the Commission concerning a workplace right. The employee, who was represented by a union, objected to the employer being legally represented. The employer submitted that it did not have specialist human resources or other staff equipped with legal, industrial relations or advocacy skills to effectively represent itself in the proceedings, and its Human Resources Coordinator was on maternity leave and in any event she had no advocacy training or experience before courts or tribunals.

Outcome

The Commission held that the relevant factual matrix was sufficiently complex that legal representation would assist in its effective and efficient resolution. The Union’s advocate, although not legally qualified, was highly experienced. Permission for legal representation was granted.

Relevance

The union advocate had over 20 years’ experience across a wide range of industrial issues, including unfair dismissal proceedings within the coal industry. The Commission found it would not have been fair for the employer to be unrepresented given the complexity of the matter.

Wesslink v Walker Australia Pty Ltd T/as Tenneco

[[2011] FWA 2267 (Hampton C, 21 April 2011).

Facts

The employee was dismissed on the grounds of serious misconduct while under a modified work regime pursuant to workers’ compensation legislation. The employee was represented by the union who ‘vigorously’ opposed permission for the employer to be legally represented.

Outcome

The Commission held that, among other factors, the matter had some complexity given the interaction with the workers’ compensation legislation, and that the applicant was represented by an experienced and legally qualified union advocate. Permission for legal representation was granted.

Relevance

Having regard to the complexity of the case, and fairness in terms of effective representation and the comparative level of representation, it was appropriate for the employer to be represented in this matter.

Efficiency

Venn v The Salvation Army T/A Barrington Lodge

[2010] FWA 912 (Leary DP, 9 February 2010).

Facts

The employee opposed permission for the employer to be legally represented because the employee was unrepresented and the employer could be represented by its Human Resources Officer. However, the employee had obtained a restraining order against the human resources officer, and the human resources officer was going to be a witness in the matter. The employer had no-one else capable of presenting its case. The employee was represented by a very experienced human resources professional experienced in advocacy who had represented the applicant in other matters.

Outcome

Permission for legal representation was granted to both parties. The Commission was satisfied that the respondent did not have a person able to present its case, and even if the Human Resources Officer was capable, it would be difficult for her to be both advocate and witness.

Relevance

In this matter the employee did not wish to participate in a conciliation conference and wished to proceed directly to hearing, accordingly the hearing would be the first time any issues related to the substantive claim would be addressed. Legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Fairness

Rahman v Storm International Pty Ltd T/A Storm International Property Maintenance

[2011] FWA 7583 (Cambridge C, 4 November 2011).

Facts

The employer was a medium-size business with some specialist human resources staff, but with no-one of experience as an industrial advocate. The applicant was represented by a legally qualified, skilled and experienced advocate from a union.

Outcome

The Commission was not convinced that the matter was genuinely of sufficient complexity to require assistance by legal representatives, however permission was granted for the employer to be represented by a lawyer or paid agent on the basis of fairness. The Commission considered that unfairness would result from what, at least in perception, would be the more advantageous representation of the applicant as opposed to that to which the employer had been restricted, being an unqualified and presumably inexperienced human resources or other manager.

Relevance

Although the matter was not a complex one, unfairness would arise from an imbalance of representation if permission for legal representation was not granted.

Permission NOT granted for representation

Complexity

Rodgers v Hunter Valley Earthmoving Company Pty Ltd

[2009] FWA 572 (Harrison C, 9 October 2009).

Facts

The employee was represented by his union. The employee opposed the employer being represented by a lawyer. The employer argued that the complexity of the issues meant that the matter would be more efficiently dealt with by a lawyer.

Outcome

The Commission was of the opinion that this was not a matter which required forensic cross-examination or was of a complex nature, so permission for the employer to be legally represented was refused.

Relevance

The Commission determined that, because the employee admitted to engaging in the behaviour which led to his dismissal, the matter was a relatively simple factual contest.

Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd

[2012] FWA 5219 (Bartel DP, 19 June 2012).

Permission to appeal refused [2012] FWAFB 6832 (Drake SDP, Kaufman SDP, Lee C, 15 August 2012).

Facts

The employee in this matter was represented by his union. The employer sought to be represented by a lawyer. The employer was a large employer with in-house counsel. The employer argued that their in-house counsel was inexperienced in arbitrations of unfair dismissal matter compared to the applicant’s union advocate.

Outcome

The Commission held the matter, while not straightforward, did not involve complex jurisdictional issues or technicalities, and that no unfairness would arise if permission was refused. The Commission was not persuaded that the matter was sufficiently complex to warrant outside legal representation. Permission for legal representation was refused.

Relevance

The Commission found that representation by in-house lawyers, experienced or otherwise would enable the matter to be dealt with efficiently, especially given the size and resources available to the respondent. The Commission was satisfied that the respondent would be able to represent itself effectively.

Bowley v Trimatic Management Services Pty Ltd T/A TSA Telco Group

[2013] FWC 1320 (Steel C, 1 March 2013).

Facts

The employee in this matter was self-represented. The employer sought to be represented by a lawyer. The employee opposed permission for the employer to be legally represented.

Outcome

The Commission found that the matter appeared to be a performance-based termination and did not involve any complex facts, and that the employer company, with 1180 employees and a dedicated human resources department, did have the ability to represent itself. Permission for legal representation was refused.

Relevance

The Commission could not identify an unfairness to the employer in not being represented, though it may have been inconvenient to them and not their preference. In determining permission the Commission must have regard to considerations of efficiency and fairness.

King v Patrick Projects Pty Ltd

[2015] FWCFB 2679 (Catanzariti VP, Drake SDP, Riordan C, 4 May 2015).

Decision at first instance [2015] FWC 1221 (Williams C, 20 February 2015).

Facts

The employee appealed the decision granting permission for the employer to be represented by a lawyer or paid agent.

The employer had sought permission to be represented on the basis that the employee had made the matter more complex by his own actions in supplying volumes of documents and multiple legal issues that did not go to the central question in an unfair dismissal hearing. The employee objected to permission being granted on the basis that the issues raised were not unduly complex.

Outcome

Permission to appeal was granted and the appeal was upheld in full. The Full Bench found that the matter could not be characterised as complex as Commission Members routinely deal with applications that are ‘voluminous in size and riddled with materials extraneous to the application. This commonplace occurrence does not constitute legal or factual complexity’.

Relevance

In this matter the onus was on the employer to show that it was unable to represent itself. There was no evidence before the Commission that the well-resourced employer enterprise was unable to represent itself in the substantive proceedings.

Employer of a considerable size with adequate HR support

Application by EK

[2017] FWC 3448 (Simpson C, 4 July 2017).

Facts

This matter involved an anti-bullying application against two persons named who were alleged to have bullied the applicant at work. Both the applicant and the two persons named are employed by the same employer. The employer advised that it was representing itself and the two persons named in the matter.

After the Commission dismissed an application by the employer to dismiss anti-bullying matter, the employer advised it was intending to seek leave to be legally represented.

The applicant submitted that she was relying on the support of her daughter, who, like herself, did not have any legal, human resources, industrial relations or university qualifications. She submitted she would be at a significant disadvantage if legal representation was granted for the employer and the two persons named.

Outcome

The employer appeared in the matter and relied on its internal human resources staff, utilising their expertise to support the two persons named in refuting the applicant’s allegations. The Commission concluded that it would not be unfair to refuse the application by the employer and the two persons named to be represented, taking into account fairness between the parties. The application for legal representation was refused.

Relevance

The persons named in this matter received the support of the employer’s human resources staff and as a result were at somewhat of an advantage over the applicant. To grant the employer and the persons named legal representation would lead to a further imbalance between the parties.

Employer a member of employer association

Lekos v Zoological Parks and Gardens Board T/A Zoos Victoria

[2011] FWA 1520 (Lewin C, 18 March 2011).

Facts

The employer in this matter was a large employer who was a member of an employer association. They sought to be represented by a private lawyer (not the employer association). The employee was self-represented.

Outcome

The Commission found that there were no particularly complex jurisdictional or substantive issues. Effective representation from experience legally qualified persons was available from within the employer’s employer association. Permission was refused.

Relevance

Having regard to the relative capacity of the employee, who was employed as a zookeeper, and the employer, which was more significantly resourced and who was a member of an employer association, the Commission concluded that there would be no unfairness if the employer was not granted permission to be represented by a lawyer.

References

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

^[2] Department of Education and Early Childhood Development v A Whole New Approach Pty Ltd [2011] FWA 8040 (Gooley C, 29 November 2011) at para. 67.

^[3] ibid.

^[4] See Fair Work Commission Rules 2013 r 12(1)(d).

^[5] Fair Work Commission Rules 2013 r 11.

^[6] Fair Work Act s.12.

^[7] Fair Work Act s.12.

^[8] Fair Work Act s.596(4).

^[9] Fair Work Act s.596(4).

^[10] Cooper v Brisbane Bus Lines Pty Ltd [2011] FWA 1400 (Simpson C, 3 March 2011) at para. 13.

^[11]Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

^[12] 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.

^[13]Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Hatcher VP, Dean DP, Wilson C, 17 October 2017) at para. 34.

^[14] ibid., at para. 36.

^[15] ibid., at para. 37.

^[16] Fair Work Commission Rules 2013 r 12(1).

^[17] Fair Work Commission Rules 2013 r 12(2).

^[18] Fair Work Act s.596(2).

^[19] 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.

^[20] Rodgers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572 (Harrison C, 9 October 2009) at para. 12.

^[21] Fair Work Act s.577(a).

^[22] 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).

^[23] ibid., at para. 24.

^[24] Azzopardi v Serco Sodexo Defence Services Pty Limited [2013] FWC 3405 (Cambridge C, 29 May 2013).

^[25] Viavattene v Health Care Australia [2012] FWA 7407 (Booth C, 9 October 2012) at para. 4.

^[26] Blair v Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green [2011] FWA 2720 (Gooley C, 10 May 2011) at para. 6.

^[27] O'Grady v Royal Flying Doctor Service of Australia (South Eastern Section) [2010] FWA 1143 (Leary DP, 17 February 2010) at para. 31.

^[28] Wilcox v Holcim (Australia) Pty Ltd T/A Humes [2016] FWC 2359 (Simpson C, 20 April 2016) at para. 12.

^[29] King v Patrick Projects Pty Ltd [2015] FWCFB 2679 (Catanzariti VP, Drake SDP, Riordan C, 4 May 2015) at para 17.

^[30] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966 (Richards SDP, 10 April 2012) at para. 23.

^[31] ibid.

^[32]Aly v Commonwealth Back of Australia; Michelle Gentile; Russel Hayman [2015] FWC 3604 (Bissett C, 27 May 2015) at para. 12.

^[33] ibid., at para. 16.

^[34] 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.

^[35] Fair Work Act s.596(2)(b)

^[36] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966 (Richards SDP, 10 April 2012) at para. 16.

^[37] Australian Rail, Tram and Bus Industry Union v Rail Corporation New South Wales T/A RailCorp [2012] FWA 9906 (Cambridge C, 22 November 2012) at para. 15.

^[38] Fair Work Act, Note (a) to s.596(2).

^[39] Fair Work Act s.596(2)(c).

^[40] Fair Work Act, Note (b) to s.596(2).

Updated time

Last updated

06 April 2018

Ribbon

Fair Work Commission

Main menu