Fair Work Commission takes a tough stance on legal representation The Fair Work Commission (FWC), Australia's employment and industrial relations tribunal has, in two recent decisions, rejected Qantas' right to be represented by external legal representatives in proceedings involving the airline. The Fair Work Act 2009 (the "Act") and the FWC's ethos are based on efficiency and fairness and it is those factors which most heavily influenced the Commission's decisions in these cases.

What did the FWC consider? In the two decisions:

  • Ross Kennedy v Qantas Ground Services PTY LTD T/A Qantas Ground Services PTY LTD, Qantas Group [2018] FWC 1818; and
  • Ralf Rodl v Qantas Airways Pty Ltd [2018] FWC 1935,

the respective Qantas entities submitted that the FWC should grant their legal representatives permission to represent Qantas, based on a submission that it would enable the matter to be dealt with more efficiently. This is one of the reasons set out in the Act by which the FWC may grant permission for a lawyer to represent their client. In both cases, the applicants objected to their former employers being legally represented. In assessing whether Qantas could rely on subsection 596 (2)(a) of the Act, which allows for legal representation in certain circumstances, the Commission in both cases placed weight on the explanatory memorandum to the Act, which provides that the FWC "is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with the FWA [sic] would generally represent themselves."

The FWC also took guidance from the Federal Court decision of Warrell v Walton [2013] FCA 291; in which Justice Flick confirmed that a decision to grant or refuse permission for a party to be represented by a lawyer cannot properly be characterised as a mere procedural decision.

Decisions of the FWC

The two decisions are remarkably similar in the rationale and ultimate finding. In the former decision, Deputy President Kovacic considered the fact that Qantas has a number of in house lawyers in its industrial relations team and that it was unclear why if any of those lawyers were to appear for the QGC in this matter, "they would be any less able than external legal representation to assist the Commission in ensuring that the matter was dealt with as efficiently as possible".

In the latter decision, Commissioner Riordan noted that Qantas is a "large employer who has, from [his] long experience dealing with the Respondent, a very wellresourced and competent IR/HR department" and that the "in-house specialists would have undertaken a very detailed examination of the available medical evidence". Both of these considerations supported his decision that the use of external legal representation would not necessarily enable the matter to be dealt with

more efficiently. The Commissioner also assigned some weight to the issue of fairness and referred to section 577 of the Act which provides that the FWC must perform its functions in a manner which is fair and just. While the Commissioner did not delve into this consideration in great detail, it stands to reason that his view was that allowing Qantas to be externally represented would sway the balance of fairness between the parties in Qantas' favour.

What the decision means for employers We have known for some time that it is far from a given that the FWC will allow a lawyer to represent their client in any matters before the Commission, including conciliation conferences and fully arbitrated hearings. There has been an upward trend for a number of years requiring lawyers to make submissions, before the Commission will grant leave for them to appear on a client's behalf. However, these two decisions suggest that companies with large, sophisticated and well-known in-house legal and HR teams may struggle to establish the criteria in subsection 596 (2) of the Act. It would seem that in a matter which does not have any jurisdictional issues or other complexities and in which an applicant is selfrepresented, the FWC is unlikely to grant permission for a lawyer to represent its client.