Unregistered employer association and representation in Federal Magistrate’s Court

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Unregistered employer association and representation in Federal Magistrate’s Court

The unregistered employer association’s non-legally-qualified advocate was found to have no right to appear in Federal Magistrate’s Court.

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An unregistered employer association’s non-legally-qualified advocate was found to have no right to appear in the Federal Magistrate’s Court.
 
 
Federal Magistrate Lucev said that the fact s353A of the Fair Work (Registered Organisations) Act 2009 specifically grants representation before the Fair Work Division of the Federal Court and Federal Magistrates Court to employees of registered organisations should be read as precluding an employee of an unregistered organisation from having a right of appearance.
 
Rod Gifford, the IR manager for the Motor Trade Association of WA for the past five years, sought permission to appear to defend an unlawful termination case involving the dismissal by a MTA member company of an employee due to their temporary absence or illness.
 
Registration critical
 
Despite the manager's experience in IR over 35 years, Federal Magistrate Lucev noted the MTA WA was not registered under the Fair Work (Registered Organisations) Act and this was the deciding factor.
 
He ruled that s596(1) of the Fair Work Act 2009 does not authorise a person to appear in proceedings in the Federal Magistrates Court.
 
The court held that s44(c) was the relevant provision:
‘Representation
 
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
 
(b) under the regulations, the other person is taken to be an authorised representative; or
 
(c) another law of the Commonwealth authorises the other person to represent the party.’
 
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