A recent decision provides further insight about the circumstances in which lawyers and paid agents may represent clients in Fair Work Commission proceedings.

In Issue

  • Whether lawyers and paid agents are required to obtain permission in order to provide advice and assistance to clients in the lead up to hearings or conferences in the Fair Work Commission.

The Background

In January 2018, Dr Neil Stringfellow brought an Unfair Dismissal Application (Application) against his employer, the CSIRO.

The CSIRO engaged the services of a law firm to defend the Application and raised a jurisdictional objection to the Application on the basis that Dr Stringfellow had not been dismissed and had instead resigned.

Objection to representation

Dr Stringfellow objected to the CSIRO being legally represented. In essence, he sought directions from the Fair Work Commission (Commission) that the CSIRO:

  1. not be permitted to obtain legal advice in the lead-up to the hearing; and
  2. not be allowed to be represented by its lawyers in the build up to the hearing, including by not making any submissions on its behalf.

The primary arguments that he advanced in support of his objections were that:

  • he was unrepresented and had no legal experience;
  • given the size and resources of the CSIRO (including a large HR division and in-house lawyers) it would be unfair to allow it to be legally represented by external lawyers; and
  • the case was not complex.

The Commission granted permission to the CSIRO’s lawyers to represent it solely for the purposes of responding to the directions sought by Dr Stringfellow.

CSIROs submissions

The CSIRO’s lawyers objected to the directions sought by Dr Stringfellow and raised the following primary arguments in support of their position:

  1. the jurisdictional issues were complex and required a degree of familiarity with tribunal jurisprudence or authorities which they would be able to efficiently deal with because they were familiar with jurisdictional arguments;
  2. the merits of the dispute itself were particularly complicated as Dr Stringfellow was employed as the Executive Director of an unincorporated joint venture which had its own Board of Directors and which was not subject to the control of the CSIRO. Therefore, if the Commission found that he had been unfairly dismissed, a serious question to be determined was whether it would have the power to order his reinstatement (being one of the remedies that he sought); and
  3. while the CSIRO had in-house resources, this did not automatically mean it was able to be effectively represented.

The Decision at Trial

In summary, the Commission held that:

  1. s.596 of the Fair Work Act 2009 (Cth) (FW Act) which dealt with the question of representation in a matter before the Commission did not require a party to seek permission from the Commission before it could obtain legal advice about a proceeding. Therefore, the CSIRO was entitled to obtain legal advice in the lead up to the hearing of the Application;
  2. if a party objects to representation, the only circumstances in which the Commission may direct that representation is not permitted are where the Commission does not consider that representation should be allowed at conferences or hearings, or in relation to the matters in Rule 12(1) of the Fair Work Commission Rules 2013 (Rules) relating to the following:
    1. preparing a written application or written submissions;
    2. lodging a written application, written submission or other document;
    3. corresponding with the Commission on behalf of the represented person; and
    4. participating in a conciliation or mediation process (in relation to an application for an order to stop bullying);
  3. in the present matter, the Commission was not persuaded that the circumstances of the case warranted directions being made preventing the CSIRO from being represented by its lawyers in the build up to the hearing, or preventing its lawyers from making submissions on its behalf.

Implications for you

This decision provides further clarity about the ability of parties to be represented by a lawyer or paid agent in Commission proceedings.

Because the Commission agreed that the circumstances of this matter were sufficiently complicated the CSIRO’s lawyers could represent it in the build up to the hearing and could make submissions on its behalf. However, if the issues were relatively straightforward, the Commission may have decided otherwise.

If an employee objects to external representation employers should therefore ensure that they have adequate in-house resources to enable them to make their own submissions and, if necessary, be prepared to participate in conferences and hearings at the Commission without representation.

Dr Neil Stringfellow v Commonwealth Scientific and Industrial research Organisation T/A CSIRO [2018] FWC 1136 (21 February 2018)