Legal representation put under spotlight


Legal representation put under spotlight

The definition of ‘legal representation’ by lawyers and paid agents in matters before the Fair Work Commission (FWC) has been put under the spotlight following a significant Full Bench decision last week.


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The definition of ‘legal representation’ by lawyers and paid agents in matters before the Fair Work Commission (FWC) has been put under the spotlight following a significant Full Bench decision last week.

The question of what constitutes legal representation in FWC matters was analysed in detail after a Sydney grocery store team leader lodged an appeal against a rejection of his unfair dismissal application in March.

It was found that substantial work undertaken by a legal firm engaged by the employer in the preliminary stages of the matter constituted legal representation before FWC and therefore required permission under section 596 of the Fair Work Act 2009.

This work included preparation of submissions, witness statements, examination and cross examination questions, strategy for the hearing etc. but fell short of representation at the hearing itself.

The employee resigned from his role in November last year and soon after lodged an unfair dismissal application, claiming he was forced to leave because of bullying and harassment.

Commissioner Cambridge rejected his application because there were no indications he was forced out of his role.

Prior to the hearing, the employee received an email from a law firm stating they were engaged by the employer and were assisting them in the matter.

During the hearing, the employer’s representative – an employee relations specialist – was accompanied by a senior associate from the same law firm.

Section 596 of the Fair Work Act 2009 and rules 11 and 12 of the Fair Work Rules state parties must seek approval from the Commission if they wish to have legal representation in a matter.

The employer had not sought permission for legal representation.

When questioned by the employee and Commissioner of the nature of the associate’s presence, the employer said he was only there to provide assistance and would not be advocating on the employer’s behalf.

The Commissioner accepted this, saying he was unable to stop anyone assisting a party in a matter before the Commission, only when they sought permission for legal representation.

 "All I can do is under s596 of the Act refuse permission for the person that's standing there and speaking on behalf of the employer and conducting the case on behalf of the employer to not be a lawyer or paid agent.

"Very often that does occur, to put it bluntly, that the lawyer just instead of standing there and doing the case moves to one side and acts, assisting, and there is nothing that can be done about that.

"That's just the way it is."

Application for costs

In April, the employer made an application for an order of costs, which totalled $6500 for internal costs and $25,885 to cover legal expenses, for which two tax invoices were submitted.

Central to the former employee’s grounds of appeal were that he was misled in regard to legal representation of his employer in the matter.

After analysis of scant case law, the Full Bench found s596 of the Act “was not confined to permission for courtroom advocacy”.

The Full Bench said it appeared to have been drafted in a way that “was intended to put beyond doubt that all aspects of representation in connection with a matter were to be encompassed”.

“Where an applicant engages the services of a lawyer or paid agent, representation begins at the point that the application to the Commission is made on the applicant’s behalf,” they said.

“All dealings with Commission undertaken on behalf of either party from that point onwards in connection with the application constitute representation.”

With the benefit of the knowledge of the law firm’s tax invoices, the Full Bench determined the employer was legally represented in the matter from at least February 2017.

They said the law firm should have filed a “notice of representative commencing to act” in accordance with rule 11(1) of the Fair Work Rules.

They found the senior associate’s role in the hearing was similar to that of an instructing solicitor or junior counsel assisting senior counsel.

“In that situation, it could not seriously be suggested that only the senior counsel is representing the client before the Commission but the other members of the legal team are not,” the Full Bench said.

They said the Commissioner erred in proceeding with the hearing on the basis that the employer did not need permission for legal representation because the senior associate was not advocating for the employer orally.

Permission to appeal was granted but the appeal was then subsequently dismissed because the Full Bench did not believe a different ruling on legal representation would have led to a different outcome.

Appeal of decisions – Fitzgerald v Woolworths Limited [2017] FWCFB 2797 17 October 2017 –Hatcher VP, Dean DP and Wilson C

This article was written by the Chamber of Commerce and Industry WA.
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