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)[171]
• 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),[172] 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).[173]

Each of these are separate reasons why the Commission might be satisfied that permission should be granted for a person to be represented. If the Commission is satisfied that permission should be granted for one of these reasons, it is not necessary to also consider the other reasons given for seeking permission. Granting permission is discretionary and even if one of the reasons applies, permission may not be granted.[174]

Assessing whether permission should be granted under s.596 involves a 2-step process:

1. Assess whether one or more of the criteria in s.596(2) is satisfied. This involves making of an evaluative judgment akin to the exercise of a discretion.
2. If the first step is satisfied, consider whether in all of the circumstances, the discretion should be exercised in favour of the party seeking permission.[175]

In granting permission, the Commission will have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.[176]

The discretion afforded to the Commission will be exercised on the facts and circumstances of the particular case.[177]

The Commission is obliged to perform its functions and exercise its powers in a manner that is ‘fair and just’.[178] 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.[179]

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 them.[180]

Where permission is required, the Commission must decide whether to grant permission before a party can be represented by a lawyer or paid agent, even if the other party has not objected to representation.[181]

Partial representation may be permitted during examination-in-chief and cross-examination of the party seeking representation[182] or during argument about jurisdictional issues.[183] 

The complexity of a matter is relevant to whether a matter could be dealt with more efficiently if permission is granted for a person to be represented, but it is not determinative. While s.596(2)(a) of the Fair Work Act requires the complexity of the matter to be taken into account in deciding whether or not to grant permission to be represented, the issue to decide is whether the grant of permission would enable the matter to be dealt with more efficiently.[184]

A significant number of documents and wide ranging issues does not necessarily mean a matter is complex.[185]

Jurisdictional issues are often complex and may require expertise in case law. However, even if there is a jurisdictional issue which needs to be determined, permission may be refused or limited to specific parts of a hearing.[186]

Where a person would be unable to effectively represent themselves, permission for representation may be granted.[187] The test is not whether a person would be more effectively represented if permission was granted. The criterion to be satisfied is that ‘it would be unfair not to allow the person to be represented because the person is unable to represent … itself effectively.’ In considering whether the criterion is satisfied context is important, and the Commission will adhere to the language of s.596 rather than placing any unnecessary and unhelpful gloss on the words used.[188]

Fairness

Permission may be granted if it would be unfair to refuse permission taking into account the fairness between the parties to the matter.[189]

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

Outcome

The Commission was satisfied that there was a level of complexity given 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 (but noted that this was not a jurisdictional objection in the strict 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.

Permission granted for representation – 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 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 the employer to be legally represented 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 and the experience of the employee’s representative.

Permission granted for representation – Complexity - Fairness

Singh v Metro Trains Melbourne [2015] FWCFB 3502 (Hatcher VP, Kovacic DP, Johns C, 5 June 2015)

Facts

Ms Singh’s unfair dismissal application was listed for determinative conference and the respondent was granted permission to be legally represented at the conference. Ms Singh appealed this decision.

Outcome

The Full Bench refused permission to appeal. The Full Bench held that the appellant's argument that the case was not complex did not address whether the granting of permission would enable matter to be dealt with more efficiently.

The Bench also held that no manifest injustice or unfairness arose from the decision to grant the respondent permission to be legally represented. Having seen and heard Ms Singh during the appeal hearing, the Full Bench was satisfied that she was a person capable of articulating her case, and the greater procedural informality of a determinative conference (compared to a Commission hearing) would significantly reduce any disadvantage perceived by Ms Singh. If Ms Singh had any difficulty in understanding any legal question which arose, the Commission could intervene as appropriate.

Relevance

While s.596(2)(a) of the Fair Work Act requires the complexity of the matter to be taken into account in deciding whether or not to grant permission to be represented, the real issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently.

There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal.

Permission granted for representation – Complexity - Efficiency

Vassallo v Easitag P/L [2021] FWCFB 3974 (Dean DP, Colman DP, Platt C, 26 July 2021)

Facts

Mr Vassallo initially filed a claim with the Commission that he had been misclassified under the applicable modern award, which was rejected in November 2017. Mr Vassallo was refused permission to appeal that decision (First Appeal) and then filed an underpayment claim in the Federal Court which was dismissed. Subsequent applications to the Commission were dismissed, including an application under s.603 of the Fair Work Act to have the Commission's 2017 decision varied or revoked.

In March 2021, a Full Bench refused Mr Vassallo permission to appeal the dismissal of his s.603 application (Second Appeal). Easitag P/L (Easitag) made an application for an order that Mr Vassallo pay its costs in relation to the unsuccessful Second Appeal.

Outcome

In deciding to grant Easitag’s application for indemnity costs in relation to the Second Appeal, the Full Bench noted that Easitag had successfully applied under s.596(2)(a) for permission to be represented in the Second Appeal, despite the fact that it was not legally complex.

The Full Bench held that there is no contradiction in this – s.596(2)(a) is engaged if granting permission for representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Relevance

The presence of complexity is not required in order for s.596(2)(a) of the Fair Work Act to be engaged. In a case with a long history involving serial applications, granting representation to a respondent to be represented by a lawyer or paid agent may offer the Commission various benefits tending to promote the efficient conduct of the proceeding, irrespective of the absence of complexity. These benefits, including perspective, brevity, and concision in the presentation of facts and argument, may be such as to warrant the grant of permission under s.596(2)(a). In some cases, it may also be patently unfair to deny representation to a party that is a respondent to serial unmeritorious claims (see s.596(2)(c)).

Permission granted for representation – 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, who 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 HR professional experienced in advocacy who had represented the employee in other matters.

Outcome

Permission for legal representation was granted to both parties. The Commission was satisfied that the employer 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.

Permission NOT granted for representation – 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 application to stop bullying against 2 persons named who were alleged to have bullied the applicant at work. Both the applicant and the 2 persons named were employed by the same employer. The employer advised that it was representing itself and the 2 persons named in the matter.

After the Commission dismissed an application by the employer to dismiss the stop bullying application, 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 2 persons named.

Outcome

The employer appeared in the matter and relied on its internal human resources staff, using their expertise to support the 2 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 2 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.