Solicitor or barrister: your choice for the FWC

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Solicitor or barrister: your choice for the FWC

Should you have to appear before the Fair Work Commission (FWC), you may want to apply for the assistance of a lawyer. A Full Bench of the FWC has found it is not in the tribunal’s power to determine what sort of legal representation a party has.

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Should you have to appear before the Fair Work Commission (FWC), you may want to apply for the assistance of a lawyer. A Full Bench of the FWC has found it is not in the tribunal’s power to determine what sort of legal representation a party has.
 
The Full Bench of the FWC ruled against the New South Wales Bar Association which was seeking leave to appeal a case where the Australian Tax Office was not allowed to be represented by a barrister, but only by a solicitor. Although it found Commissioner Riordan had erred in several instances in his original decision, it refused to grant leave to appeal because the ATO had conceded the initial ruling did not adversely affect its case.
 
Permission must be granted
 
There is no automatic right for parties seeking redress in the FWC to be legally represented: parties have to apply and the Commission will decide on the facts of the particular case whether legal representation would assist the hearing of the matter. The FWC can also grant permission for a ‘paid agent’, i.e. someone paid to represent the party but who is not a lawyer.
 
If the FWC grants the application, the particular party has a right to decide which lawyer will appear on its behalf.
 
Not a mere procedural decision
 
The Full Bench noted that the grant or refusal of legal representation was not a mere procedural decision. It referred to the decision of Justice Flick in the Federal Court in the 2013 decision of Warrell v Walton in which the judge noted the decision to be represented by a lawyer ‘may fundamentally change the dynamics and manner in which a hearing is conducted’.
 
‘Represented by a lawyer’
 
The Full Bench considered the Commissioner’s duty was "either to grant or refuse permission for the ATO to be represented by a lawyer". It did not have the right to choose who that lawyer should be, based on individual identity or by whether the lawyer was a barrister or a solicitor.
 
It went on to say that if such a procedure was allowed, there would be difficulties for any party which had instructed a lawyer, or paid agent, and then had permission refused by the FWC for that representative to appear.
 
No procedural unfairness
 
However, while making clear its position on legal representation, the Full Bench ultimately refused to give the NSW Bar Association permission to appeal the original decision because it did not accept the ATO had been denied procedural fairness.
 
See: New South Wales Bar Association v A; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 (13 March 2014)
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