Representation by lawyers and paid agents

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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

Form 53 - Notice that lawyer or paid agent acts for a person

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

Form 54 - Notice that lawyer or paid agent has ceased to act for a person

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:

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.^[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

Form 53 - Notice that lawyer or paid agent acts for a person

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

Form 53A - Notice that a person will seek permission for lawyer or paid agent to participate in a conference or hearing

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

Form 54 - Notice that lawyer or paid agent has ceased to act for a person

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

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.

Apprehension of bias

Expression of a view or prejudgment

Gaynor King

[2018] FWC 3300 (Bissett C, 8 June 2018)

Facts

Three applicants made applications to the Commission for an order to stop bullying naming Ms King as the person who had engaged in the conduct. Following two conciliation conferences before the Commission, the applicants in those matters discontinued their applications. Ms King made an application for costs against the applicants. Commissioner Bissett made a decision in relation to that application, dismissing the application for costs.

At the same time as the costs application Ms King also made an application to the Commission for orders to stop bullying. She named the three initial applicants as those who had engaged in bullying conduct directed towards her, which included making the initial applications for orders to stop bullying.

Ms King’s application for orders to stop bullying was subject to conciliation before Commissioner Bissett where it did not settle. Directions were therefore issued for the filing of submissions and evidence in relation to the application. United Voice, representing the initial applicants requested that Commissioner Bissett recuse herself from further dealing with the application of Ms King because of comments made by the Commissioner in the costs decision.

Outcome

Commissioner Bissett carefully considered the passages from the costs decision issued by her in relation to the applications of the initial applicants. In that decision the Commissioner made findings in respect to the motivations of the three in making their applications for orders to stop bullying. The Commissioner found that the applications harassed and embarrassed Ms King, were made vexatiously, sought to intimidate and had far-reaching consequences.

The Commissioner was satisfied that there were views expressed in that decision that may lead a lay observer to apprehend that the Commissioner may not bring an impartial mind to the determination of the application of Ms King. Commissioner Bissett recused herself from hearing Ms King’s application for orders to stop bullying.

Relevance

Any person making application to the Commission is entitled to a fair hearing and to have their case determined on its merits. The application by Ms King was inextricably tied up in the earlier applications for orders to stop bullying and the costs application. In order to ensure that everyone, including Ms King, was fairly heard, the Commissioner was satisfied that she should recuse herself.

References

^[1]Fair Work Act s.12.

^[2] Fair Work Act s.12.

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

^[4]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.

^[5] ibid.

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

^[7]Fair Work Commission Practice Note 2/2019 Lawyers and paid agents, 1 August 2019 at para. 17.

^[8]Fair Work Commission Practice Note 2/2019 Lawyers and paid agents, 1 August 2019 at para. 16.

^[9]Fair Work Commission Practice Note 2/2019 Lawyers and paid agents, 1 August 2019 at para. 13.

^[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.

^[20]Fair Work Commission Practice Note 2/2019 Lawyers and paid agents, 1 August 2019 at para. 22.

^[21]Fair Work Commission Practice Note 2/2019 Lawyers and paid agents, 1 August 2019 at para. 23.

^[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).

^[29]Fair Work Commission Practice Note 2/2019 Lawyers and paid agents, 1 August 2019 at para. 26.

^[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.

^[36] Azzopardi v Serco Sodexo Defence Services Pty Limited [2013] FWC 3405 (Cambridge C, 29 May 2013).

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

^[38] Blair v Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green [2011] FWA 2720 (Gooley C, 10 May 2011) at para. 6.

^[39] O'Grady v Royal Flying Doctor Service of Australia (South Eastern Section) [2010] FWA 1143 (Leary DP, 17 February 2010) at para. 31.

^[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.

^[42] 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.

^[43] ibid.

^[44]Aly v Commonwealth Back of Australia; Michelle Gentile; Russel Hayman [2015] FWC 3604 (Bissett C, 27 May 2015) at para. 12.

^[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)

^[48] 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.

^[49] 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.

^[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).

^[53]Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287 (AIRC, Watson SDP, 19 July 2000) at para. 26.

^[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.

^[58] ibid.; see generally Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).

^[59] See for eg Antonarakis v Logan City Electrical Service Division Pty Ltd [2017] FWC 3801 (Simpson C, 21 July 2017).

^[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.

^[72] Re Media, Entertainment and Arts Alliance and Theatre Managers’ Association; Ex parte Hoyts Corporation Pty Ltd (No 2) [1994] HCA 66 (9 February 1994) at para. 12, [(1994) 119 ALR 206].

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

^[74] ibid.

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02 October 2019

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