Lawyers’ right to FWA appearance ‘tightened’

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Lawyers’ right to FWA appearance ‘tightened’

FWA (Commissioner Harrison) has noted that a comparison of the old and new Acts shows that leave or permission for lawyers to appear in the jurisdiction has been tightened.

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FWA (Commissioner Harrison) has noted that a comparison of the old and new Acts shows that leave or permission for lawyers to appear in the jurisdiction has been tightened. 
 
Commissioner Harrison said that in practice the tribunal would usually grant permission in formal proceedings, but that when a party objects, then FWA would exercise its discretion based on facts and circumstances of the particular case.
 
The relevant provision is s596 of the Fair Work Act 2009.
 
No automatic right
 
Commissioner Harrison reasoned as follows in refusing to allow the law firm’s appearance in this matter:
‘The intent of the Parliament regarding the question of representation is expressed in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill’s introduction in 2008:
“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
 
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
 
...
 
2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”
… In practice the Tribunal would usually grant permission in formal proceedings, however, where a party raises an objection, the discretion afforded to the Tribunal will be exercised on the facts and circumstances of the particular case.
 
… In this matter I am aware that Mr Endacott appearing for the Applicant is not legally qualified, albeit he is an experienced advocate. …
 
… Without prejudging the merits or otherwise of the substantive application, on my reading of the submissions and witness statements I am of the opinion that this is not a matter which requires forensic cross-examination or is of a complex nature. I note the Applicant admits to engaging in the behaviour which gave rise to his termination. In my view this matter is a relatively simple factual contest.
 
… In this matter I have decided to refuse permission to Freehills to represent HVE in proceedings on 14 October 2009.
 
… I am satisfied that no question of fairness or efficiency in the conduct of the application arises in this matter.’
Note: s596 refers to paid agents as well as lawyers, so a similar application for leave to appear would have to be pursued by a paid agent who is not an employee or officer employed by a party to the dispute/matter.
 
 
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