A PAPER PRESENTED AT THE LAW SOCIETY OF SOUTH AUSTRALIA IN CONJUNCTION WITH THE LAW COUNCIL OF AUSTRALIA
18 MAY 2018
1. Section 596 of the Fair Work Act 2009 requires a person to get permission from the Fair Work Commission to be represented by an external lawyer.
2. Until recently to be ‘represented’ was understood to mean to have a lawyer present your case at hearing. However in Fitzgerald v Woolworths Limited  FWCFB 2797 a Full Bench held that a lawyer was not able to assist a party to present their case without permission. This has created uncertainty as to what can be done without permission and led to a situation where parties can (and are) litigating as to the extent to which the other can obtain legal assistance prior to a hearing.
3. The section needs to be amended. In a modern society the requirement that a person is only allowed to be represented by a lawyer with the permission of the Fair Work Commission is an anachronism born in an earlier era when few matters involved individual litigants or businesses. It is difficult to see any valid rationale to support such a limitation. It runs contrary to a general acceptance in the law (such as that pertaining to criminal proceedings or proceedings involving refugees), and in society more generally, that persons whose rights and obligations are affected or potentially adversely affected by a decision of a tribunal are entitled as of right to obtain legal assistance if they so wish.