Stringfellow v Commonwealth Scientific and Industrial Research Organisation [2018] FWC 1136 

Factual background. Dr Stringfellow applied to the Fair Work Commission ("Commission") for an unfair dismissal remedy against his former employer, the Commonwealth Scientific and Industrial Research Organisation ("CSIRO"). The CSIRO's lawyers filed a 'Notice of Representative Commencing to Act', which advised that they were commencing to act for the CSIRO. Dr Stringfellow sought directions from the Commission prohibiting the CSIRO from being represented by a lawyer during preliminary hearings, and prohibiting the CSIRO from obtaining legal advice in the lead-up to the final hearing.

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

Rule 12(1) of the Fair Work Commission Rules 2013 allows a party to be represented by a lawyer when preparing and lodging written applications or written submissions, when corresponding with the Commission, and when participating in a conciliation or mediation process. However, r 12(1) is subject to a direction made by the Commission under r 12(2). 

Decision. Deputy President Clancy did not make the proposed direction prohibiting the CSIRO from being represented by a lawyer. He agreed with a previous decision (Fitzgerald v Woolworths [2017] FWCFB 2797), which found that the discretion available to the Commission under r 12(2) cannot be used to limit a party obtaining legal advice, as legal advice is not "representative activity" under r 12(1). Accordingly, the CSIRO was permitted to obtain legal advice. 

In relation to the proposed direction prohibiting the CSIRO from being legally represented during the 'submission stage' in the build-up to the hearing, Deputy President Clancy considered that the circumstances in this case did not warrant a direction by the Commission preventing legal representation under r 12(1). As such, a direction was not made limiting the CSIRO's ability to seek legal representation during the lead-up to the hearing. 

Lesson for employers. This case indicates to employers that engaging with lawyers for the purpose of writing submissions, lodging applications and corresponding with the Commission are exempt from the general prohibition on legal representation in the Commission. Unless an alternative direction is made by the Commission (which is unlikely), lawyers are able to be involved in proceedings during the lead-up to a hearing. 

We thank associate Katharine Booth for her assistance in the preparation of this Update.