The Fair Work Act (FW Act) sets certain limits on the role lawyers and paid agents can play in matters before the Fair Work Commission. In this article, we examine when the Commission’s permission is required for lawyers and paid agents to represent parties at hearings, the circumstances in which permission may be granted and what happens if permission is denied.

When is the Commission’s permission required?

As a general rule, lawyers and paid agents are not allowed to represent parties in matters before the Commission without the permission of the Commission.1  All people admitted to the legal profession by a Supreme Court of a State or Territory are considered to be ‘lawyers’ for the purposes of the FW Act. A paid agent is an agent who charges or receives a fee to represent a person in a matter before the Commission.

An organisation will not require the Commission’s permission to be represented by a lawyer or paid agent who is:

  • one of their employees or officers;
  • an employee or officer of:
    • an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (Registered Organisations Act);
    • an association of employers that is not registered under the Registered Organisations Act;
    • a peak council; or
    • a bargaining representative;

who is representing them; or

  • a bargaining representative.2

The FW Act also provides an exception for lawyers and paid agents making written submissions in relation to modern awards and minimum wages.3

In what circumstances will permission be granted?

If permission is required for a lawyer to represent a party in a matter before the Commission, this may only to be granted by a Commission member if:

  • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
  • 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 persons in the same matter.4

The FW Act specifically notes examples of the circumstances in which the  Commission might grant permission for a person to be represented by a lawyer or paid agent, including:

  • where a person is from a non-English speaking background or has difficulty reading or writing; or
  • where 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 of an industrial association or another person with experience in workplace relations advocacy.

How can the Commission’s permission be sought?

If a lawyer or paid agent requires the Commission’s permission to appear, the question arises of when and by whom submissions on the issue should be made.

Written submissions ahead of the hearing

The Fair Work Commission Rules provide that lawyers can prepare and lodge written submissions and applications on their client’s behalf without the Commission’s permission.5 As a result, lawyers are able  to make written submissions ahead of a conciliation or hearing on the question of whether permission to appear should be granted.

Oral submissions at the hearing

Permission may also be granted by a Commission member at the conciliation or hearing itself. In these circumstances, there have been differing views on who is required to give the oral submissions - the lawyer or their client?

Some Commission members have employed the practice of requiring clients to speak as to why they require representation in the Commission. However, a recent decision of the Fair Work Commission Full Bench made reference to earlier case law on the issue, which found “there is no bar to the long standing practice of hearing counsel on applications for permission to appear”. 6 However, parties should be aware that  they may be required to make submissions to the Commission member as to why they need representation.

What happens if permission is not granted?

Whether or not permission is granted determines if a party is required to speak in the matter, or their lawyer speaks on their behalf. Even if the Commission member does not permit representation, a lawyer may still attend the matter to provide advice to their client, but cannot represent them in the matter before the Commission. As mentioned above, lawyers will also generally be able to file written applications and submissions on their client’s behalf without needing to obtain the Commission’s permission.

Bottom line for employers

The FW Act and Fair Work Commission Rules restrict the role lawyers may play in proceedings before the Commission. As a result, employers should be aware that in many cases, legal representation in the Commission will not automatically be available to them.However, if the lawyer is the organisation’s employee, for example in-house counsel, the Commission’s permission will not be required. In circumstances where permission is required, it will only be granted if the circumstances of the matter dictate it for reasons of efficiency or fairness.