Employers beware: You may be on your own at the Commission

Posted by on Mar 6, 2018


During a Fair Work Commission (the Commission) matter, seeking permission for a representative to appear on the employer’s behalf may merely seem like a box to be ticked.

However recent cases from the Commission serve as a reminder that obtaining permission to have a lawyer or paid agent appear on your organisation’s behalf is not a formality and you should not assume that permission to appear will be granted. Preparing yourself to represent your organisation is critical when your organisation is a party to a proceeding in the Commission.

Representation before the Commission

A lawyer or paid agent can only appear on behalf of a party (whether employee or employer) if they are an  employee of a party, if they work for a trade union or peak industry body, or if the Commission grants permission for them to appear.

Under section 596(2) of the Fair Work Act, leave to represent a party before the Commission may be granted “only if” one or more of the following requirements are satisfied:

•it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

•it would be unfair not to allow the person to be represented because the party is unable to effectively represent itself

•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

This section seeks to encourages parties to appear on their own behalf at the Commission in an attempt to avoid undermining the Commission’s informal nature.

Recent decisions on representation – Startrack and Fitzgerald

Two recent decisions demonstrate that employers may find they need to front the Commission through representation by their own internal staff, whether they be in house lawyers, HR or employee relations personnel, or other staff, without the assistance of their external legal advisors.

•A large employer was denied permission to be represented by its lawyers in Michael Taylor v Startrack Express T/A Startrack [2017] FWC 6083 (Startrack).

•There was a finding that representation under section 596 is not limited to oral advocacy before the Commission and therefore an employer may need to seek leave for assistance from their external lawyers for services other than just advocacy in the actual hearing e.g. legal representation from a much earlier stage of the proceeding in Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Fitzgerald).

Startrack

In Startrack, the employer’s lawyers were unable to convince the Commission that granting them permission to appear would enable the matter to be dealt with more efficiently. Commissioner Cambridge stated that the matter presented as a straightforward misconduct case, and he did not accept that there was any more complexity than a routine unfair dismissal case.

The employer’s lawyers also argued that the employer would be unable to represent itself effectively without the assistance of its lawyers, as the internal staff of the employer had limited experience in advocacy and representing their employer before the Commission. As the employer was part of an Australia-wide group of companies, the Commissioner considered that the employer was likely to have specialist human resources staff who could effectively represent the employer.

Commissioner Cambridge considered whether refusing leave to appear would result in unfairness for Startrack. As the Applicant employee was represented by a law student who had no experience in advocacy, the Commissioner stated that it would not be unfair if the employer was required to utilise its own staff, especially where some of those staff may be legally trained or qualified, even if they lacked experience in appearing before the Commission.

Fitzgerald

The decision of Fitzgerald appears to have further extended the Commission’s involvement in how employers receive assistance from their external lawyers in determining that legal representation (for which permission must be sought)  is not limited to oral advocacy.

In this case, the Full Bench of the Fair Work Commission considered that section 596 was deliberately drafted in a way to include all aspects of representation regarding a matter, and not just oral advocacy at a hearing. The only limitation included in section 596 is that a matter is ‘before the FWC’. The Full Bench held that the point where representation begins is the point where the application to the Commission is made on the applicant’s behalf. After this point, all dealings with the Commission on behalf of either party in connection to the application are considered representation.

The Fair Work Commission Rules require a lawyer or paid agent to lodge a ‘Notice of representative commencing to act’ as soon as this representation commences. However, representational activities undertaken prior to or outside of a conciliation conference, determinative conference, or interlocutory or final hearing, do not require permission to appear under section 596(2). This is because Rule 12 of the Fair Work Commission Rules provides that a party may automatically be represented by a lawyer or paid agent for the purpose of preparing written applications and written submissions, lodging documents and submissions with the Commission and corresponding with the Commission.

In Fitzgerald, the employer, Woolworths, was primarily represented at the hearing by an internal employee, with an external lawyer in attendance assisting that employee in the hearing whilst sitting with them at the Bar table. Woolworths assured the Commission that the external lawyer would not play an active role in the proceedings.

The Full Bench considered that the external lawyer was legally representing Woolworths at the hearing. Although the external lawyer was not speaking on behalf of Woolworths, he was part of a team consisting of himself, his law firm and the internal employee presenting the case to the Commission. As a result, the Full Bench concluded that the external lawyer needed to seek permission to appear, even where the external lawyer’s only role was assisting Woolworths. This view was reinforced by the fact that the lawyer had charged Woolworths for professional legal services for their attendance at the hearing (the costs of which were subsequently  being sought from the unsuccessful applicant).

Where does that leave representation before the Commission?

Even if these cases indicate a tougher approach to representation from the Commission, it does not necessarily mean that permission to appear will now always be refused. Both cases involved large employers with in-house counsel and specialist human resources teams, where the opposing side was either unrepresented or represented by a very junior union representative. In Startrack, Commissioner Cambridge explicitly contrasted the employer’s position with that of a small employer who has no staff engaged in dedicated roles that deal with employment related matters. For these smaller employers, it is more likely that permission to appear will be granted, particularly where the matter is complex, or where the employee is also represented. However, employers, particularly larger ones, should not assume that the permission to appear before the Commission will be granted, and furthermore, Justitia is aware of circumstances where external lawyers are not only refused leave to appear, but asked to leave the room.

So what is the best way of dealing with this uncertainty? Here are some suggestions:

•Where a lawyer or paid agent is representing a party in any conference or hearing before a member of the Commission, they should seek permission to appear, even if they will not be the primary advocate for their client.

•Representatives should always prepare considered submissions demonstrating why representation is necessary.

•If permission is refused, representatives should ensure that their clients can proceed on their own in the conference or hearing.

•While a party may seek an adjournment if permission to appear is refused, there is no guarantee that it will be granted.

•Obtain permission for representation in advance, if possible. In an unfair dismissal matter, a party can, prior to the conference or hearing, apply in writing to have a lawyer or paid agent appear on its behalf. An employer should ensure they make this request 14 calendar days before the date of the conference or hearing.

Should you have any questions about these cases or the impact they may have on your business, please contact Magda Marciniak or Nicola Martin or the team at Justitia.