In a recent decision, a full bench of the Fair Work Commission clarified the criteria for allowing employers to be legally represented in matters before the workplace tribunal.

ERGT Australia appealed Deputy President Binet’s refusal to grant legal representation in an unfair dismissal matter.

The full bench initially upheld ERGT’s appeal on procedural fairness grounds before coming to the same conclusion as DP Binet by refusing to grant legal representation.

The decision closely examines the provisions of the Fair Work Act relating to legal representation and the circumstances where employers may be refused representation.

Background

Unlike courts, there is no automatic right for parties to matters in the Fair Work Commission (effectively an administrative tribunal) to be represented by a lawyer or paid agent.

Section 596 of the FW Act lists the conditions in which the FWC may grant permission for a party to be represented by a lawyer or paid agent, namely if:

  1. it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
  2. 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
  3. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

In this case, the former ERGT employee filed an unfair dismissal application on 1 September 2020. ERGT engaged APX Law to act on its behalf which then filed its employer response alleging the former employee’s dismissal was a case of genuine redundancy.

DP Binet issued directions on the parties to file materials they would rely on in the substantive hearing and invited parties seeking to be represented by a lawyer or paid agent to make submissions by 13 November.

ERGT’s materials and application for representation were both filed late.

In pursuing its application for legal representation, ERGT submitted that its management team had no relevant training or experience before the FWC and very little knowledge of the FWC’s practices and procedures, making it incapable of effectively presenting its case.

ERGT’s submission also described the matter as factually complex and would require legal representation to be dealt with more efficiently.

The former employee opposed ERGT’s application to be legally represented.

DP Binet was not satisfied that the requirements in s 596(2) of the FW Act had been met and refused ERGT’s application to be represented.

The lawyer acting on behalf of ERGT requested the DP reconsider ERGT’s application, raising the issue that jurisdictional objections are inherently complex, that legal representation would be more efficient, and that ERGT did not have someone who could adequately represent them.

ERGT also relied on the full bench’s reason for upholding the appeal in Tracey v BP Refinery (Kwinana) Pty Ltd that due to the complexity of the matter, legal representation would allow it to be more efficiently dealt with.

DP Binet refused ERGT permission to be represented.

Employer unable to represent itself

ERGT appealed the decision on the basis that the DP failed to provide procedural fairness by accepting and relying upon assertions made by the former employee in his submissions.

ERGT also argued it was not given an opportunity to respond to these assertions nor address the DP’s reliance on its failure to comply with directions.

The full bench granted permission to appeal on procedural fairness grounds accepting that ERGT was not given an opportunity to address its non-compliance with FWC directions.

The full bench upheld the appeal and redetermined ERGT’s application for representation.

In support of its s 596 application, ERGT contended that granting permission would enable the matter to be dealt with more efficiently given the complexity and that it would be unfair to refuse ERGT permission to be represented because it could not represent itself effectively.

It submitted that legal representation was required because the jurisdictional objection in this case was complex. It relied on the expression in CEPU v UGL Resources Pty Ltd that “jurisdictional issues by their nature are prospectively complex… and may require a degree of familiarity with court and tribunal jurisprudence”.

ERGT also argued that granting permission to be represented would be consistent with both the original and appeal decisions in Tracey.

ERGT then submitted it would be unfair to deny legal representation as it cannot represent itself effectively, claiming that although it has highly capable HR officers, they do not have the knowledge, skills or training that is required to engage with the legal questions. It further argued the officers also lack knowledge of the FWC’s procedures and practices.

Bench denies employer legal representation

In determining whether permission should be granted under s 596, the full bench said the assessment involves a two-step process.

The first step considers whether or not one or more requirements in s 596(2) are satisfied and only then can the second step be applied. The second step requires consideration of all circumstances to determine whether it is appropriate to exercise discretion in favour of the party seeking permission.

When considering the complexity of ERGT’s jurisdictional objection, the full bench rejected its reliance on CEPU that jurisdictional issues by their nature are prospectively complex in their own right. The full bench found a case-by-case assessment is required rather than some general assumption which applies to all matters with jurisdictional issues.

The full bench distinguished the case from Tracey, emphasising that ‘efficiency’ in s 596(2)(a), refers to dealing with a case more efficiently, not representing a case more efficiently, as ERGT argued.

In addressing ERGT’s contention that it is unable to represent itself effectively, the full bench agreed that while ERGT’s management have no relevant training or experience before the FWC, it “does not carry ERGT the requisite distance”.

The full bench noted the matter would be dealt with in a determinative hearing, and therefore no procedural knowledge would be required as these would be explained to parties during proceedings.

The full bench refused ERGT’s application for permission to be legally represented.

Implications for employers

This decision highlights to employers the conditions which must be satisfied in order to seek permission to be represented by a lawyer or paid agent.

It also clarifies the intention of the representation provisions of the FW Act to allow parties to represent themselves in matters before the FWC and maintain an informal procedure without the burden of unnecessary formality.

The decision emphasises the discretion the FWC has to make a case-by-case assessment as to whether legal representation should be granted.

The decision comes as a reminder for resources and energy employers about AMMA’s role in assisting members in matters before the FWC.

AMMA as an employer association is not considered a legal representative under s 596 of the FW Act. This means AMMA can assist and represent members with matters before the tribunal with no requirement to make an application for permission to be represented.

AMMA’s expert workplace consultants are available to assist with matters before the FWC. Resources and energy employers requiring assist with FWC matters are encouraged to contact AMMA via [email protected].