If your business has a matter before the Fair Work Commission (“FWC”) you may automatically think that the legal representation in which you engage has the right to appear on your behalf. However, this is not the case. The issue of legal representation before the FWC has become a much more discussed topic as a result of a number of recent decisions. In this week’s article we consider how the FWC is choosing to deal with legal representation within the FWC.
The Legal Principle
Section 596 of the Fair Work Act 2009 (Cth) (“FW Act”) requires a party who is seeking to be represented by a lawyer or a paid agent in proceedings to seek the permission of the FWC. In particular, s596(2) provides that the FWC may only grant permission for a party to be represented, if:
- It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
- It would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
- It would be unfair not to allow the person to be represented taking into account fairness between the person and other person in the same matter.
S596 also provides an additional note which sets out circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent. These circumstances include: if the person is from a non-English speaking background or has difficulty reading or writing, or whether a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee or other person with experience in workplace relations advocacy.
The additional point in relation to s596 is that in-house lawyers or advocates employed by a union or employer association do not need to seek permission.
The method of confirmation of the prescribed conditions set out in s596 is an objective exercise and each member of the FWC may have a different opinion on the issue. It has been stated that “reasonable minds will differ as to whether legal representation will result in added efficiency, whether a certain circumstance is unfair or not, or whether a person is unable to be represented effectively”[1].
It was the legislative’s desire (as set out in the Explanatory Memorandum) for the FW Act to operate efficiently and informally, in a non-adversarial manner. Nevertheless, traditionally, the process in which to seek permission to appear before the FWC was a reasonably frictionless process and was thought of as more “ticking the box”. However, more recently there has been a number of decisions which have examined the concept of representation under s596.
Recent case law
A recent decision of Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797 has redefined representation before the FWC. In this matter, a full bench decision which was handed down at the end of last year, held that permission for lawyers and paid agents to represent a client in a matter extends to out of court activities (including preparing applications and making submissions).
In summary, Mr Fitzgerald who was employed by Woolworths sent a letter to his manager stating that he was forced to resign because of continued bullying, harassment and intimidation by another employee. Subsequently, Mr Fitzgerald brought an unfair dismissal application with the FWC. As can be expected, Woolworths raised a technical objection and argued that he had voluntarily resigned.
During the proceedings, Mr Fitzgerald represented himself, while Woolworths was represented by an internal Employee Relations Specialist. However, Woolworths also engaged the services of a law firm which assisted with a number of background matters including sending a without prejudice offer of settlement on behalf of Woolworths and having a legal representative from the law firm sit next to the Woolworths representative at the bar table and provide assistance to her while the matter was heard.
Woolworths did not at any time before the hearing apply for permission to be represented by the law firm pursuant to s596. In particular, the commonly understood operation of s596 was that permission to represent a party was limited to oral advocacy. Given that the legal representative only sat next to the Woolworths representative at the bar table and provided assistance to her but was not engaging in oral advocacy the Commissioner did not consider that the legal representative was in fact representing Woolworths. Ultimately, Woolworths was successful with its technical objection and Mr Fitzgerald appealed.
One of the issues Mr Fitzgerald raised in his appeal was that the FWC had misled him about the issue of legal representation by Woolworths.
After considering the provisions of s596, the Full Bench of the Commission found that the Commissioner’s view in relation to requiring lawyers and paid agents to seek permission to represent a party was only required when it came to oral advocacy was incorrect. The Full Bench held that references in s596 to the “representation of a matter” were not limited to the hearing of the matter. They considered the only relevant limitation on the scope of representation in accordance with s596 is that is must be in a matter before the FWC.
Although this decision would, on its face, require lawyers to seek permission to represent clients for all out of court activities, the Full Bench clarified that it did not include the following:
- Legal representation before an application had been made to the FWC; and
- Legal representation after an application had been made to the FWC:
- If a party obtained legal advice from a lawyer or paid agent which did not involve interaction with the FWC itself; or
- Any representational activities undertaken prior to, or outside of a conciliation conference, determinative conference, or interlocutory or final hearing, or any written applications and written submissions, lodgement of document with the FWC and correspondence with the FWC – unless the other party objected to these activities.
Despite finding that the Commissioner had made an error by not requiring the legal representative to request permission to represent Woolworths, it did not mean that the Commissioner’s decision should be quashed. The Full Bench found that Woolworth’s technical objections had overwhelming merit and that ruling on representation would have not led to a different outcome. As such, the appeal was dismissed.
Since its handing down late last year, the Full Bench decision has had a continuing impact and a number of recent decisions have been required to further examine how far s596 really goes. We have considered some of these decisions and the impact of Fitzgerald v Woolworths below.
In Tyrone v Taiepa v Shinsen Taijutsu Pty Ltd t/a MMA247, the FWC was required to examine the meaning of “representation” and “paid agent” in light of the Fitzgerald v Woolworths decision.
In summary, Mr Taiepa made an unfair dismissal application to which Shinsen raised a jurisdictional objection in response. The matter was initially listed for conciliation however, it did not take place because Mr Taiepa could not be contacted at the time. Mr Taiepa later stated that he had technical issues with his mobile. The FWC then attempted to contact him a few times in relation to setting a new time for Conciliation, yet again no answer from Mr Taiepa and a voicemail message was left but the FWC never received a response.
Subsequently, a notice of listing was sent to both parties requiring parties to file and serve material. Shinsen did so in accordance with the Notice of Listing. However, even after numerous attempts by the FWC to remind him that material was due to be filed, Mr Taiepa did not file anything. The FWC then listed the matter for a non-compliance hearing in which Mr Taiepa did not attend.
As a result of Mr Taiepa unreasonably failing to both comply with directions and attend the non-compliance hearing, Shinsen filed an application for costs. The application was filed by a company named Innovative Bookkeeping Studio (“Innovative”) on behalf of Shinsen and it sought to claim the costs of Innovative for preparing and assisting Shinsen throughout the matter before the FWC.
The preliminary issue was that at the time of filing the Employer’s Response Form, Shinsen did not provide details of any person or business that was representing them during the unfair dismissal proceedings. As such, DP Clancy wrote to Shinsen and outlined the fact no notice was given in relation to engaging a representative either within the Employer’s Response Form or by way of the Notice of Representative Commencing to Act Form. As such, Mr Taiepa was never put on notice that a representative had been engaged by Shinsen to prepare material or that it might incur costs of the nature now sought in relation to the application. The Deputy President further highlighted that they had failed to outline either the basis upon which Shinsen submits that Mr Taiepa made the application vexatiously or without reasonable cause, or how it should have been reasonably apparent that his application had no reasonable prospect of success. DP Clancy requested Shinsen respond by email in this regard.
Innovative responded to the Deputy President on behalf of Shinsen and stated that the Employer’s Response Form states “Does the Respondent have a representative?” with the guideline “A representative is a person or business who is representing the Respondent. This might be a lawyer; an employer association or a family member or friend who will speak on behalf of the Respondent. There is not requirement to have a representative”. Innovative submitted that the correct answer was provided by the Respondent as they spoke on their own behalf. Whereas, Innovative was contracted to assist with the application process, they were not contracted to speak on behalf of Shinsen. Innovation also stated “if the question [on the Employer’s Response Form] required the Respondent to outline any assistance provided by external persons/companies, then maybe a rewording to this question is required. At this stage, the question is clear and was answered accordingly”.
In light of this issue, DP Clancy referred to the Full Bench decision of Fitzgerald v Woolworths and confirmed that the Full Bench stated that “representation”, in the legal context included the preparation of documents and as such, was satisfied that the definition of “paid agent” in the FW Act was broad enough to encompass Innovative and that the work undertook for Shinsen was capable of falling within the scope of representation by a paid agent.
The Deputy President did have regard to the comments submitted by Innovative and acknowledged the way in which they interpreted the question on the Employer’s Response Form. Importantly, DP Clancy stated at [29] and [30]:
“ I have had regard to what Shinsen has submitted in reply. It appears to have read the question ‘Does the Respondent have a representative?’ strictly in accordance with the text directly below it (‘A representative is a person or business who is representing the Respondent. This might be a lawyer, an employer association or a family member or friend who will speak on behalf of the Respondent. There is no requirement to have a representative.’) rather than in accordance with the broader definition of representation subsequently articulated by the Full Bench in Fitzgerald.
I accept that pre-Fitzgerald, a layperson unfamiliar with the processes of the Commission might have interpreted that particular question and its accompanying text in the way Shinsen and Ms Wallace [Innovtive] did. In light of Fitzgerald, the accompanying text outlining a description of the scope of ‘representation’ will require review and perhaps some clarification.”
In the circumstances, DP Clancy considered that the way in which Shinsen answered the question should not necessarily count against it.
This decision assists in demonstrating that there has been a significant effect regarding how representation should be interpreted as a result of the Fitgerald v Woolworths decision and this may require further clarity going forward.
Furthermore, the other recent decision of Robert Caruana v Shace Tooop Trust T/A Toop & Toop Real Estate [2018] FWC 22 31 also examined the full bench ruling of Fitzgerald v Woolworths. In particular, this matter examines s596 and demonstrates how the FWC can impose stringent conditions on an employer’s legal representation.
In summary, Mr Caruana had submitted an application for unfair dismissal and his employer raised a number of jurisdictional arguments in response. The matter did not settle at conciliation and was subsequently listed for hearing. Prior to the hearing, the employer foreshadowed that they would be seeking to be legally represented at the hearing. In response, Mr Caruana foreshadowed that he would oppose such a request. As a result, DP Anderson directed the parties to make written submissions in relation to the issue of representation.
In this regard, the employer argued that the jurisdictional issues raised complex matters which concerned the interpretation and application of the Real Estate Industry Award 2010 and as such, legal representation would enable the matter to be dealt with more efficiently and cost effectively having regard to the complexity. The employer also asserted that the legal representation would not be unfair to Mr Caruana as they claimed the materials filed by the Applicant demonstrated a reasonable understanding of the jurisdiction.
On the other hand, Mr Caruana made a number of arguments opposing the request including but not limited to the fact the employer’s Chief Executive Officer (“CEO”) is a legally qualified lawyer and also operated as the company’s in-house legal representative as well as the employer having their own Human Resources Manager.
As part of his considerations, DP Anderson stated that the relevant starting point is that the exercise of the discretion in granting permission should be seen as a departure from the default position and a party in a matter before the FWC must normally appear on its own behalf. DP Anderson then went on to consider the jurisdictional objection and agreed that it involved some complexity.
DP Anderson then proceeded to consider each factor outlined in s596(2) including the complexity of the question before the FWC and the potential need to examine and cross-examine witnesses, consider and debate past authorities and the interpretation and coverage of Modern Awards. He noted that not all human resources practitioners are equipped to effectively discharge this obligation.
Furthermore, he noted that although the CEO was a legally qualified lawyer, she did not hold a practising certificate and had only appeared in a civil court or tribunal for the employer in fairly simple matters in her capacity as an executive, not as a legal practitioner. In addition, he noted that a party is entitled to expect its representative to make a “striking impression” or be “powerful in effect”. In this instance, the CEO was also a witness in the proceedings. As such, if permission was not granted and she was required to represent her employer, she would be required to lead her own evidence in chief whilst presenting her employer’s case which may dilute the impact of the evidence and its efficient delivery. In contrast, DP Anderson affirmed that Mr Caruana would be in the same position as he had elected to be self-represented due to costs. However, the Commissioner felt that the employer was required to argue that Mr Caruana was not covered by the Award and this required some specialist expertise.
DP Anderson also considered the question of fairness as per s596(c) and found that this was not made out as Mr Caruana was not legally qualified and had no specific background or experience in industrial or legal matters. However, DP Anderson acknowledged that not every factor within s596(c) had to be made out, only each factor must be considered.
In summary and having regard to the overall circumstances, the Commissioner was satisfied that permission should be granted to the employer to have legal representation having regard to the fact that the hearing is a jurisdictional hearing considering complex issues of fact and law. However, he did impose a number of conditions including:
- The proceedings would be conducted by a determinative conference, not in open court which will allow more informal procedures;
- If the Commissioner felt that it was necessary and consistent with his independent role, he may intervene during the hearing and provide an appropriate level of guidance to Mr Caruana on the conduct of proceedings and the testing of evidence; and
- Should circumstances alter or if the Commissioner forms the view that the employer’s legal representation is not contributing to the efficient conduct of proceedings, he will consider whether the grant of permission should be revoked. Furthermore, the granting of permission related only to the jurisdictional issue and if the matter proceeded, a party seeking to be represented by a lawyer or paid agent will need to make a fresh request.
Lessons for employers
The decision of Fitzgerald v Woolworths clarifies the FWC’s views on the use of “shadow lawyers”. Specifically, permission for shadow lawyers must still be sought under s596 of the FW Act. Notwithstanding Fitzgerald v Woolworths, the FWC evidently has still shown a willingness to grant permission where the circumstances warrant it. In this regard, it is evident that Commissioners will consider the position of both parties and the decisions will be based on the facts and circumstances before them. It will more likely be the case that smaller employers with no dedicated Human Resources or in-house legal function will be granted permission for legal representation, particularly if the matter is complex and/or the employee is also legally represented.
However, larger employers who are represented by lawyers or paid agents in disputes before the FWC should no longer assume that their representatives will be granted permission to represent them not only at the hearing of the dispute but also during the course of the matter, specifically where the other party objects to the representation. For instance, very recently Qantas has had (for the second time within an 8-day period) an application for legal representation before the FWC turned down. The Commissioner in this instance stated “I fail to comprehend how the granting of leave for [Qantas] to be represented will have any effect on focusing the [former employee’s] submission onto the relevant issues… I am not satisfied that the use of legal representatives by [Qantas] necessarily translates into the efficient conduct of the hearing”. It is important to note that the Applicant referred to in this matter was self-represented, he had no legal background or experience and English was his second language.
Our suggestion in dealing with the current uncertainty includes:
- Where a lawyer or paid agent is representing a party in any conference or hearing before the FWC, the representative should seek permission to appear, even if they will not be the primary advocate;
- Legal representatives should always prepare robust submissions as to why representation is necessary;
- Legal representatives acting as shadow lawyers must still seeking permission pursuant to s596;
- If permission is denied, representatives should ensure that the party can proceed on their own in the conference or hearing;
- Obtain permission for representation in advance if possible.
In addition, and on a more personal note, it is our experience that self-represented litigants who appear before the FWC usually lack a clear sense of the issues to be determined and are usually underprepared and/or overwhelmed. The failure in identifying the relevant issues coupled with the uncertainty in relation to the FWC process can create great difficulty in resolving the dispute. This is where we believe legal representation within the FWC is actually an advantage for parties and usually ensures the matter is dealt with more efficiently for all involved.
Furthermore, it also been the case where a party has been refused permission to be legal represented yet the other party has been represented, for instance, by an officer of a union (who is not required to seek permission pursuant to s596). Often such officers are legally trained or, at the very least, experienced in advocacy and have appeared previously before the FWC. In contrast, the party not legally represented must rely upon their internal employees who are not necessarily experienced in advocacy or in appearing before the FWC. We believe this can create an unfairness and injustice between the parties.
For these reasons, many specialists and/or experts within the legal employment area would be pleased to see the FW Act amended to allow all parties to be legally represented.
If further information in relation to any aspect of this alert is required, please do not hesitate to contact our office.
This alert is not intended to constitute, and should not be treated as, legal advice.
[1] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966 at [9]