In a recent decision the Fair Work Commission (FWC) granted permission for a large-scale national employer to be legally represented in proceedings even though the applicant was unable to afford legal representation.
Restrictions on Legal Representation
Under the Fair Work Act a person may not be represented by a lawyer in a matter before the FWC except with the permission of the FWC and which can only be granted if:
- it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
- it would be unfair not to allow the person to be represented because the person is unable to represent themselves effectively; or
- it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The Facts
In Slemint v ALH Group Pty Ltd:
- the applicant commenced unfair dismissal proceedings in the FWC
- the employer was a large-scale operator of over 300 licenced venues and hotels across Australia employing over 5,300 workers
- the employer alleged the applicant was engaged as an independent contractor (and therefore unable to bring an unfair dismissal claim)
- the matter was set down for a jurisdictional hearing on the issue and the employer sought permission to be represented at the hearing by a lawyer
- the employer submitted that:
- despite its size it had a ‘lean’ HR team consisting of 6 individuals including a HR Business Partner but that it did not have any in-house specialists who had the skills or experience to conduct proceedings before the FWC
- in previous proceedings before the FWC it had been granted permission to be represented meaning the HR Business Partner had no prior experience conducting such proceedings himself
- if permission was not granted the HR Business Partner would be unable to dedicate the time and resources to conduct the proceedings to the necessary standard (given his primary responsibility for the company’s 5,300 other workers)
- the applicant submitted it would be unfair to allow the employer to be represented by a lawyer when he could not afford paid legal representation
The Decision
The FWC:
- had to decide whether a lawyer would be able to deal with the matter more efficiently given the additional complexity associated with the jurisdictional objection
- had to consider whether the circumstances and those of its HR Business Partner would prevent it from representing itself ‘effectively’ and not merely ‘satisfactorily’ or ‘adequately’ during the proceeding
- stated it was irrelevant that the employer had always previously been legally represented in FWC proceedings
- held the issues raised by the jurisdictional objection made the matter more complex, and the HR Business Partner would not be able to represent the employer as efficiently as a lawyer
- held that where one of the conditions in the Fair Work Act had been met, it was not necessary to consider the other conditions
- held the applicant’s concerns about fairness could be managed by the FWC providing him with all necessary administrative assistance during the proceeding
Lessons
The decision illustrates:
- primacy consideration will be given to issues of ‘efficiency’ and ‘complexity’
- employers can succeed in requests for legal representation in the FWC, however, this is not automatic and persuasive arguments are required in support of any request
More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635 7966 to speak with one of our employment lawyers if you require any assistance or advice.
