FWC grants legal eagle permission to land


FWC grants legal eagle permission to land

An employer will bring legal might to its fight over an enterprise agreement after winning approval to be legally represented.

An employer can be represented by a lawyer in conciliation proceedings relating to an enterprise agreement dispute, a tribunal has ruled.

The decision reviewed the factors the Fair Work Commission takes into account when deciding whether parties can be legally represented.

Facts of case

Both the employer and the Australian Manufacturing Workers’ Union (AMWU) applied to the FWC in relation to disputes over provisions of the employer’s enterprise agreement. Both applications involved conciliation proceedings. The employer sought permission to be represented by a solicitor in both proceedings, which the AMWU opposed. 

Section 596 of the Fair Work Act 2009 requires the FWC to take into account efficiency (in relation to the complexity of the matter), fairness (in relation to capacity to effectively represent oneself) and fairness between the parties when deciding whether to grant permission. 


In relation to the above matters, the FWC decided as follows:

Efficiency: Although proceedings were only at conciliation stage, there were competing legal issues that needed to be clearly explained. The employer had already used a legal representative in earlier conciliation proceedings (who had been involved with the dispute since before it was notified), and the FWC believed it facilitated those proceedings. The legal and employment issues involved in this case were relatively complex.

Fairness: The employer had HR staff, but no in-house expertise in agreement interpretation or industrial advocacy. Legal representation would be helpful in this case.

Fairness between the parties: The union had been represented by an experienced organiser who had done his job effectively. Allowing the employer legal representation would not disadvantage the union in this case, based on the evidence in proceedings so far.
The FWC granted the employer’s application.

The bottom line: A party to a dispute can only obtain legal representation with the prior permission of the FWC. When considering applications for legal representation, the FWC takes into account a combination of efficiency of proceedings, capacity of each party to represent itself, and fairness between the parties, with no single factor predominating. Where there is past evidence of whether legal representation was beneficial, that is likely to influence the decision. 

Read the judgment

Australian Manufacturing Workers’ Union v Genesee & Wyoming Australia Pty Ltd
Genesee & Wyoming Australia Pty Ltd t/a Genesee & Wyoming Australia v Australian Manufacturing Workers’ Union
[2018] FWC 7204, 27 November 2018 

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