06 Mar 2017

Permission To Appear Before The Fair Work Commission

Ingmar Taylor SC

Please Sir, may I appear?

The Fair Work Commission wields powers that can affect the livelihood of an employee or an employer. And yet, unbelievably, the parties that appear before the Fair Work Commission do not have a right to be legally represented.

The Commission can order a small business to reinstate a dismissed employee. It can make an order that ensures a union can enter work premises. It can decide not to stop industrial action, determine that particular rates of pay must be paid or deny approval of a new enterprise agreement.

Yet, pursuant to section 596 of the Fair Work Act, a party must make an application for permission to be granted before they can be represented by lawyer.

Section 596 is predicated on a fallacy. When it was presented to Parliament the Explanatory Memorandum [at 2291] said about the proposed section: “persons dealing with the FWC would generally represent themselves“. That is nonsense. Matters before the Fair Work Commission are invariably adversarial involving oral evidence and submissions and often complex legal questions. Parties, unsurprisingly, do not generally represent themselves.

When a party asks for permission there is no standard response. Section 596 provides broad criteria and these are applied differently by different members. In fairness, most Members need little convincing that the matter will be dealt with “more efficiently” by granting permission (one of the criteria), however there are some Members who commonly refuse permission, appearing to start from a premise that a party should not be legally represented, especially if the other side is not so represented.

The net effect is that parties routinely engage lawyers without knowing if their lawyer will be able to appear. Quite apart from the uncertainty generated, there is the cost to the clients of having to make an application (which cannot be recovered), as well as the waste of Commission time spent hearing a contested application and handing down a decision.

There is a quirk about section 596. In-house lawyers do not need to seek permission. A legally qualified trained advocate who is employed by a union or employer association can appear as of right, and yet their opponent must seek permission.

Section 596 appears to assume that lawyers will in some way detract from the merits of the dispute being heard and determined quickly. As Sir Anthony Mason AC, KBE, the then Chief Justice of the High Court of Australia, observed in his State of the Judicature address in 1994:

[T]he exclusion of lawyers neither enhances nor accelerates the course of justice. If my long experience of reading transcripts of proceedings in the Industrial Relations Commission and its predecessor…has any lesson to offer, it is the presentation of cases by non-lawyers does not lead to clarity and speedy hearings; on the contrary, it is more likely to lead to confusion and to long, drawn out proceedings due to the failure of non-lawyers to identify the true issues clearly.

The Government is currently proposing some amendments to the Fair Work Act. I would like to add another amendment to those it is considering. The Act needs to be amended to reflect a general principle applicable to all citizens and parties in legal proceedings: they should be entitled to legal representation as of right.

Greenway Chambers is considering holding a training session for in-house lawyers on how to run an unfair dismissal hearing (which will be useful where permission for external lawyers to appear is refused). If you are interested email: clerk@greenway.com.au.

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Ingmar Taylor SC