A fair hearing for all – including yourself

by External20 Jul 2016
Richard Williams outlines why it’s critical to give early consideration to the question of representation before the Fair Work Commission

The trend of the Fair Work Commission (FWD) refusing permission for lawyers and paid agents to represent parties at proceedings continues, which means it is increasingly likely that HR practitioners may have to run a matter themselves.  Accordingly, employers faced with claims such as unfair dismissal are well advised to consider the question of representation well in advance of any hearing and follow some fundamental tips if the decision is made to self-represent.

The legislation
Section 596 of the Fair Work Act 2009 (FW Act) provides that a person may be represented in a matter before the FWC by a lawyer or paid agent “only with the permission of the FWC”. The FWC may grant permission for a person to be represented by a lawyer or paid agent if it is satisfied that the matter could be dealt with more efficiently or it would be unfair not to allow the person to be represented. On the other hand, permission to be represented is not required if the lawyer or paid agent is an employee of the person or is an employee of a union or employer association. This means in-house lawyers and representatives from employer associations  and  unions  are automatically entitled to appear in a matter before the FWC, regardless of whether they are legally qualified or not.

FWC’s recent approach to representation
In a recent unfair dismissal case the FWC denied all parties to the matter permission to be represented by a lawyer in the proceedings. The applicants and respondent jointly argued that permission should be granted because the matter was subject to a jurisdictional question and was therefore complex in nature and would require cross-examination of witnesses and the application of relevant case law. The FWC relied on a Federal Court decision which reinforced the legislative intent that the granting of permission is “far from a mere ‘formal’ act to be acceded to upon the mere making of a request” and “permission may be granted ‘only if ’ one or other of the requirements in Section 596 of the FW Act is satisfied’.

The FWC took into account the resources available to the respondent employer and noted that there was at least one in-house HR or IR specialist. The FWC also noted that each applicant employee was a ‘professional’, even though not qualified in HR, IR or law. Additionally, all parties had access to legal representation, which they used to prepare their submissions and witness statements.

Tellingly, the FWC added  that  there was a “very real prospect that the presence of legal representatives of the  parties will lead to less efficient conduct of the proceedings”. The FWC determined the issues were relatively straightforward and did not involve novel issues of law. Despite the fact that the three parties all sought permission to be represented by a lawyer, the FWC concluded that the requirements of the Act had not been met. Ultimately, the FWC was not satisfied that any of the three parties were unable to represent themselves effectively at the hearing.

A second recent example, also involving an unfair dismissal application, found the respondent employer in a situation where it had to represent itself after permission to be represented by a lawyer was refused. Again, the employer argued that permission should have been granted because the matter was subject to a jurisdictional question and was therefore complex in nature. The employer also argued that permission should be granted because it was a small business with minimal knowledge and dealings with any matters outside its industry. The employer relied on the fact that it was the first time it had been faced with an employment law claim.

The FWC focused on the wording “unable” and “effectively” in Section 596 of the FW Act and concluded that the plain meaning was “whether the party seeking permission to be represented is lacking ability or power to represent itself so as to produce the intended or expected result”. The FWC’s view was that the plain words did not require representation that created a “striking impression”, or had an “impressive” effect or was “powerful in effect”. The Commission noted the respondent had access to a “paid agent” that they used to prepare their submissions and witness statements in this matter, and therefore the effective case had already been made clear to the Commission through the material filed. Again, the FWC was not satisfied that the respondent employer was unable to represent itself effectively at the hearing.

Lessons for employers
The lesson for employers is that even in circumstances where all the parties to a proceedings are jointly seeking permission to be represented by a lawyer, or the employer is seeking permission on the grounds of being a small business, it cannot be presumed permission will be granted. In those circumstances HR practitioners may be required to run the case without notice.

HR practitioners should address the question of representation when first faced with an application that could progress to a hearing. If a practitioner is not confident they could step into the breach if unexpectedly required to, consideration should be given to engaging a representative with an automatic right to appear in the FWC in order to be sure from the outset the best possible case can be presented.

Advocacy and representation skills in the FWC: Upgrade your skills
The Victorian Chamber of Commerce and Industry is holding two one-day programs to boost the understanding of FWC processes among lawyers, business managers, in-house representatives and HR professionals. During this practical program, the Chamber’s consultants will share their secrets and experience to help you put your best foot forward in defending against claims. The cost is $450 for members and $540 for non- members. The sessions will run on 2 August 2016 and 1 December 2016.

For further information, email info@ victorianchamber.com.au, phone (03) 8662 5333, or visit victorianchamber.com.au

Richard Williams is the acting general manager – workplace relations at the Victorian Chamber of Commerce and Industry. The Victorian Chamber is Victoria’s most influential employer group, servicing over 15,000 Victorian businesses per annum. An independent, non- government body, the Victorian Chamber was founded in 1851 by the business community to represent business.