Taylor v Startrack Express [2017] FWC 6083

Factual Background. Mr Taylor applied to the Fair Work Commission for an unfair dismissal remedy against his former employer, Startrack Express. Startrack's lawyers filed a notice seeking the Commission's permission to represent Startrack in the proceedings. Mr Taylor, represented by the Transport Workers' Union of Australia ("TWU"), opposed the application. 

Legal Background. Under section 596 of the FW Act, a person may be represented in a matter before the Commission by a lawyer or paid agent with the Commission's permission only if: 

  • in view of the complexity of the matter, representation will enable the matter to be dealt with more efficiently;
  • the person is unable to represent himself, herself or itself effectively, and it would be unfair not to allow the person to be represented; or
  • taking into account fairness between the persons in the matter, it would be unfair not to allow the person to be represented.

The Commission may grant permission for a person to be represented by a lawyer or paid agent where a small business is a party to a matter and has no specialist HR staff while the other party is represented by an officer or employee of a trade union with experience in workplace relations advocacy.

Decision. Commissioner Cambridge stated that the proceedings were "fairly straightforward" and were not sufficiently complex so as to require lawyers to appear on Startrack's behalf. The Commission noted that Startrack was a large employer with a dedicated HR department, which comprised people with training in employment law and industrial relations. 

The Commission concluded that the "default position" is that lawyers and paid agents are excluded from representing parties in Commission proceedings. As Startrack's lawyers had not satisfied the requirements in section 596 of the FW Act, the Commission refused to grant permission to Startrack's lawyers to represent Startrack in any capacity in the unfair dismissal proceedings (including as a "McKenzie friend", meaning a person who has no direct role in the proceedings but who assists an unrepresented litigant and who makes suggestions in relation to the calling and questioning of witnesses). 

Lessons for Employers. This case is a reminder to employers that legal representation or representation by a paid agent in Commission proceedings is the exception, not the rule. Large employers may be required to rely upon their HR departments and employees in relation to representation in Commission proceedings.