[2011] FWAFB 4909

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Fair Work Act 2009
s.604 - Appeal of decisions

Ms Erica Pedler
The Commonwealth of Australia, represented by Centrelink



Appeal against decision [2011] FWA 3532 of Senior Deputy President O'Callaghan at Adelaide on 06 June 2011 in matter number U2010/14050 - permission to be represented - Fair Work Act 2009 s 596.


[1] This decision concerns the procedural issue of representation in an Appeal by Ms Pedler against the decision of Senior Deputy President O’Callaghan on 6 June 2011 in matter number U2010/14050.

[2] The Respondent, The Commonwealth of Australia, represented by Centrelink (Centrelink) seeks permission from Fair Work Australia pursuant to s 596 of the Fair Work Act 2009 (the Act) to be represented by a legal representative in the Appeal. Ms Pedler has objected to Centrelink being represented.


[3] In the unfair dismissal proceedings before Senior Deputy President O’Callaghan a request for permission for Centrelink to be represented was refused. His Honour set out his reasons for the refusal at [4] of his decision: 1

[4] The Senior Deputy President noted: 2

[5] On the second day of hearings before his Honour, counsel sought permission to appear for Ms Pedler. Centrelink did not oppose the application and permission to appear was granted.

Relevant legislation

[6] Section 596 of the Act relevantly provides:

“596 Representation by lawyers and paid agents


[7] Blake Dawson, on behalf of Centrelink, submitted that granting permission would enhance the efficiency of the proceedings, the complexity of appeal proceedings would make it unfair to deny representation where requested and there is no unfairness to Ms Pedler because the Full Bench has permitted her to make full written submissions and a written submission in reply to Centrelink’s oral submissions recorded on transcript.

[8] Ms Pedler takes issue with each of these propositions and the various arguments advanced on behalf of Centrelink in lengthy written submissions. She contends that the Appeal is not complex, the application is based on preference rather than efficiency and fairness and requiring Centrelink to represent itself would be more cost efficient than permitting representation.


[9] We have had regard to all of the submissions advanced by the parties. It is clear in our view that Full Bench appeal proceedings are likely to involve a degree of complexity beyond a matter at first instance, such as the requirements to establish error of the requisite kind and the application of alternative tests dependent on the nature of the decision challenged as established by the Act and case law. In our view permitting representation will enable the matter to be dealt with more efficiently before the Tribunal.

[10] Further, in the light of the issues involved in the Appeal we consider 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. We place reliance on the assessment of the parties themselves in this regard.

[11] We note that we have agreed to allow Ms Pedler to rely on full written submissions and written submissions in reply and she will not be required to attend the hearings if she so chooses. It follows from our conclusions above that we would also grant permission to appear to a representative of Ms Pedler if such representation is sought.

[12] For these reasons we grant permission to Centrelink to be represented in the Appeal.


Written submissions:

Submissions on behalf of The Commonwealth of Australia, represented by Centrelink, 22 July 2011
Submissions of Ms Pedler, 25 July 2011

 1   [2011] FWA 3532

 2   Ibid

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