Fair Work Commission gives government a helping hand while shackling its staff

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness.” So wrote Charles Dickens in 1859 in his novel A Tale of Two Cities.These words might equally have been uttered by a perplexed employment lawyer today, with the Fair Work Commission perpetuating an inconsistent approach to legal representation in disputes. The upshot for public servants is that the government gains an unfair advantage, while other participants before the commission are forced to make do without legal help.

I first wrote about this issue earlier this year, in a column titled “Government hypocrisy on display again in the Fair Work Commission“. In response, Public Service Commissioner John Lloyd emailed me to say my article was “potentially misleading” and that the commission’s decision I had discussed was “correct”. Lloyd invited me to approach his commission “before publishing future articles about matters within the remit of this agency”. Respectfully, I have no intention of doing so – although I [and the Informant‘s editor] invite him to publish a response if he wishes.

To recap: the Fair Work Act, which governs almost all employment arrangements in this country, prevents lawyers from appearing for parties in disputes unless they receive permission from the Fair Work Commission. The policy intent was, according to the act’s explanatory memorandum, because the commission is “intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner”.

This rationale has strength and, while experienced lawyers are more often than not invaluable in resolving workplace disputes efficiently, I can nonetheless accept that, in certain cases, there can be merit to keeping lawyers at a distance.

This year, the commission issued several decisions concerning when permission will be granted and the scope of exceptions to the act’s limitation. The jurisprudence has diverged considerably, to the benefit of the federal government and to the disadvantage of everyone else.

The first strand narrowed the circumstances in which permission will be granted, and the conduct to which that requirement for permission extends. In October, a full bench of the commission criticised Woolworths for using “shadow lawyers”. Despite the company having been denied approval for legal representation, a lawyer from firm Sparke Helmore actively helped Woolworths prepare for the case and then sat beside its human resources specialist during the hearing.

The commission held (after the fact) that such involvement was of a nature requiring permission, even though the lawyer had not acted as an advocate. “The maxim of statutory interpretation that what is prohibited directly cannot be done indirectly,” the full bench observed, “would tell against an overly narrow interpretation [of the relevant section] … which permits its statutory purpose to be defeated or circumvented.”

The Woolworths case encouraged commissioner Ian Cambridge, who, in late November, denied Australia Post subsidiary Startrack permission to be legally represented. Startrack’s external lawyers had submitted that the complex circumstances of the case made representation reasonable and, if the application was denied, the lawyers would in any event provide help via a McKenzie friend (a common-law rule that lets unrepresented litigants receive in-court aid from a “friend”, whether legally qualified or not). Cambridge rejected both submissions, holding that representation would give rise to unnecessary formality contrary to the statutory scheme’s objectives, and that the Woolworths decision prevented any other form of legal help being given without permission.

Lawyers at the big end of town roundly criticised these developments, perhaps concerned about what they might mean for their employment practices. Partners variously told the Financial Review that the Woolworths decision was “outrageous”, “unfair” and “ridiculous”. Law Council president Fiona McLeod, SC, even suggested the judgment “raises serious access-to-justice concerns”.

The other strand of jurisprudence, which at a policy level seems entirely inconsistent with the first, enabled the Australian Government Solicitor to appear for the federal government as of right – i.e. without requiring permission – before the Fair Work Commission. The AGS describes itself as “one of Australia’s largest national legal services providers, with offices in every capital city and approximately 320 lawyers”.

Until recently, it was common practice for AGS lawyers to seek permission to appear. However, earlier this year, lawyers at the Attorney-General’s Department offshoot took the contrary view that, because they are government employees, they satisfy the in-house exception in the Fair Work Act. This interpretation of the AGS’s position was upheld in Gibbens v Commonwealth of Australia.

Whatever one’s legal view of the decision, there can be little denying that it has considerably tilted the playing field in the government’s favour. Despite:

  1. the AGS acting in effect as a private law firm within government,
  2. the AGS competing with private firms to provide legal services to government, and
  3. almost all government departments having their own in-house lawyers already,

the Fair Work Commission has permitted the AGS to bypass the considered policy judgment of the act. Given the manifold benefits that the public service already enjoys in disputes against its employees, the desirability of this development is dubious.

While Gibbens and Woolworths involve distinct legal points, they are logically inconsistent. The former allowed more government lawyers to appear before the commission, while the latter and its progeny make it far harder for employers to be represented or otherwise receive legal aid. Much has been written about the potentially negative effects of Woolworths, while far less has been said about Gibbens. But the adverse consequences for public servants of allowing the government unfettered access to experienced legal representation in employment disputes are considerable, and deserve attention – possibility in the form of legislative clarification.

Gibbens also presents, at least in theory, a considerable challenge for private law firms in obtaining permission to represent government clients before the commission. Why would the commission ever grant a private firm permission to represent a government agency when there are plenty of individuals experienced in workplace-relations advocacy among the hundreds of AGS lawyers who can appear as of right? This is especially the case one criterion for granting permission is that “it would be unfair not to allow the person [here, the government] to be represented because the person is unable to represent … itself effectively”.

The issues raised above may seem trivial to some. But the level of representation involved in employment disputes, when emotions are high and jobs are on the line, requires a delicate policy decision. Until change eventuates, public servants can only hope they don’t find themselves legally outgunned before the commission. Surely that is the real access-to-justice concern here.