In October 2017, a Full Bench of the Fair Work Commission in Fitzgerald v Woolworths[1] challenged the common understanding of “representation” by a lawyer, by finding it involves a wide range of activities connected with litigation and is broader than just oral advocacy before the FWC.  As lawyers (and paid agents) must obtain the FWC’s permission to represent their client in a matter before the FWC,[2] this broader interpretation of representation has certainly made life more difficult for lawyers.

So, when will permission for legal representation be granted and, in light of Fitzgerald, can lawyers still assist their clients if permission is refused?

When will permission be refused?

A spate of recent FWC decisions since Fitzgerald have made it clear that, unless there are specific circumstances to warrant the granting of representation, the FWC’s “default position” will be: external lawyers are excluded from representing parties in proceedings before the FWC.

  1. In Taylor v Startrack Express[3] the FWC held that, because of the employer’s size as a large organisation with personnel dedicated to dealing with employment related matters (included specialist staff in a “human resources team”), it was capable of representing itself.
  2. In National Tertiary Education Industry Union-NSW Division v The University of New England[4] the FWC, noting the onus was on the University to prove it was unable to represent itself, was not satisfied sufficient evidence had been provided to establish the skills, education and experience of the University’s internal lawyers, meant external lawyers  were unable to represent it.
  3. In Kennedy v Qantas Ground Services Pty Ltd[5] the FWC noted the airline’s IR team “has among its ranks a number of lawyers” which, in the FWC’s view, were not any less able than external legal representation to assist the FWC in ensuring the matter was dealt with as efficiently as possible.
  4. In Rodl v Qantas Airways Pty Ltd[6] the FWC also noted the airline was a large employer with a very well-resourced and competent IR/HR department.  For that reason, the FWC concluded it was “more than capable” of representing itself.

All is not lost for lawyers

In Caruana v Shace Toop Trading Trust[7]  Deputy President Anderson allowed the employer to be represented in a matter concerning award coverage, but only on the conditions that future hearings would be conducted in private, the Deputy President would provide “an appropriate level of guidance” to the unrepresented individual, and permission could be revoked should the employer’s legal representative be found not to be contributing to the efficient conduct of the proceeding.

Notwithstanding Fitzgerald, the FWC has still shown a willingness to grant permission where the circumstances warrant it, including in Stringfellow v Commonwealth Scientific and Industrial Research Organisation[8] and Monteiro v Valco Group Australia Pty Ltd[9] which both involved complex issues and, in Monteiro, the fact that the company was largely French-based and the applicant was its only Australian-based manager.

In our experience, in unfair dismissal claims in particular, it will be difficult to persuade the FWC to grant permission for legal representation, even where there is a jurisdictional objection, unless there is some additional degree of complexity or the employer really doesn’t have the resources to “effectively” represent itself.  If a matter is relatively straightforward and the employer has a well-resourced HR/IR team, the FWC is unlikely to grant permission.

So how can lawyers still assist when permission to represent is refused?

Fitzgerald clarifies the FWC’s views on the use of “shadow lawyers” (that is, lawyers who attend the hearing and are involved in the conduct of the hearing but who do not actually make any oral submissions to the FWC).  Permission for shadow lawyers must still be sought under s 596 of the FW Act.  Likewise, lawyers who wish to attend a conference as an adviser rather than an advocate must also obtain permission.

Fortunately for lawyers, the FWC has clarified that its permission is only required for a matter which is before the FWC.[10]  Additionally, even after a matter is before the FWC, permission is not required for:

  1. the provision of legal advice to a party;
  2. inter partes dealings; and
  3. other activities which do not involve interaction with the FWC itself.

Further, pursuant to rule 12(1) of the Fair Work Commission Rules 2013, permission to be represented is not required (unless a contrary direction has been made by the FWC under rule 12(2)) for a lawyer to prepare written applications or lodge documents and correspondence with the FWC.

Accordingly, even where permission for legal representation is refused, a party remains free to seek legal advice and instruct their lawyer to assist it with any activity that does not involve interaction with the FWC, such as preparing witness statements and submissions.

[1] [2017] FWCFB 2797.

[2] Fair Work Act 2009 (Cth) s 596.

[3] [2017] FWC 6083.

[4] [2018] FWC 1913.

[5] [2018] FWC 1818.

[6] [2018] FWC 1935.

[7] [2018] FWC 2231.

[8] [2018] FWC 1136.

[9] [2018] FWC 1402.

[10] Stringfellow v Commonwealth Scientific and Industrial Research Organisation [2018] FWC 1136.

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