A recent decision by a Full Bench of the Commission has now clarified that permission for lawyers and paid agents to represent a client in a matter before it extends to out of court activities as well (including preparing applications and making submissions where the other party object to those activities).

In Issue

  • Whether lawyers and paid agents require permission to represent clients in the Fair Work Commission for out of court activities.

The Background

In November 2016, Mr Stephen Fitzgerald, who was employed by Woolworths Ltd as a Team Support Member sent a letter to his manager stating that he was forced to resign because of persistent bullying, harassment and intimidation by another employee.

Mr Fitzgerald then brought an unfair dismissal application out of the Fair Work Commission (Commission). Woolworths raised a technical objection to this application and argued that he had voluntarily resigned.

During the proceedings, Mr Fitzgerald represented himself, while Woolworths was represented by Ms Nicole Barclay, an internal Employee Relations Specialist. However, Woolworths also engaged the services of a law firm (Sparke Helmore), which assisted with a number of background matters. This included sending a ‘without prejudice’ offer of settlement to Mr Fitzgerald on behalf of Woolworths and having Mr Ian Bennett, a senior associate, sit next to Ms Barclay at the bar table and provide assistance to her while the matter was heard.

Subject to some very limited exceptions, s.596 of the Fair Work Act 2009 (the Act) requires lawyers and paid agents to obtain permission from the Commission to represent clients in disputes before the Commission.

Woolworths did not at any time before the hearing apply for permission to be represented by Spark Helmore lawyers.

Mr Fitzgerald protested about Mr Bennett’s presence at the hearing given that it appeared that Woolworths was being legally represented.

In accordance with the commonly understood operation of s.596 of the the Act at the time, the Commissioner who heard the matter considered that permission for lawyers and paid agents to represent a client was limited to oral advocacy. Given that Mr Bennett merely sat next to Ms Barclay at the bar table while the matter was heard and provided assistance to her but was not engaging in oral advocacy, the Commissioner did not consider that Mr Bennett was in fact representing Woolworths. Therefore, the Commissioner determined that Mr Bennett was not required to seek permission to provide assistance to Ms Barclay at the hearing.

The Decision at Trial

Woolworths was successful with its technical objection and Mr Fitzgerald appealed.

The Issues on Appeal

One of the issues that Mr Fitzgerald raised in his appeal was that the Commission had misled him about the issue of legal representation by Woolworths.

The Decision on Appeal

After considering the provisions of s.596 of the Act, the Full Bench of the Commission (Full Bench) found that the Commissioner’s views about requiring lawyers and paid agents to seek permission to represent a client only where that involved oral advocacy were incorrect. It held that references in this section to representation in a ‘matter’ were not limited to the hearing of the matter but included ‘…the whole of a justiciable controversy that is brought before a court or tribunal for adjudication’.

Although this finding would, on its face, require lawyers to seek permission to represent clients for all out of court activities, the Full Bench clarified that this did not include the following:

  1. legal representation before an application had been made to the Commission; and
  2. legal representation after an application had been made to the Commission:
    • if a party obtained legal advice from a lawyer or paid agent which did not involve interaction with the Commission itself; or
    • any representational activities undertaken prior to, or outside of a conciliation conference, determinative conference, or interlocutory or final hearing, or any written applications and written submissions, lodgement of documents with the Commission and correspondence with the Commission – unless the other party objected to these activities.

Despite finding that the Commissioner had made an error in not requiring Mr Bennett to request permission to represent Woolworths, this did not mean that the Commissioner’s decision should be quashed. The Full Bench found that Woolworth’s technical objection had overwhelming merit and that a ruling on representation would not have led to a different outcome. It therefore dismissed Mr Fitzgerald’s appeal.

Implications for you

Parties who are represented by lawyers or paid agents in disputes before the Commission should no longer assume that these representatives will be granted permission to represent them – not only at the hearing of the dispute but also during the course of a matter (where the other party to the dispute objects to such representation).

Larger employers in particular, who employ HR personnel or in-house lawyers (who may have limited experience with employment disputes in the Commission) should prepare themselves for the real possibility that permission may not be granted for them to be legally represented – particularly where the nature of the dispute is not particularly complicated. In that event, they will need to ensure that they are able to prepare for, and appear at hearings of these disputes themselves, without external representation by a lawyer or paid agent.

Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (17 October 2017)