by David Bates
In a recent – and rather revealing admission by a serving Fair Work Commission (FWC) Member, Deputy President Sams recently confirmed what many have suspected for a long time: that the representation of parties by lawyers at the Commission is “…more often than not, a welcome relief.”
I suspect DP Sams has reached this conclusion because, as many of us who appear before the Commission have found, self-represented parties (whether they be employees or employers) often arrive unprepared and are somewhat overwhelmed. Often this means relatively straight-forward matters take much longer than necessary to be resolved.
Ironically though, it is the Fair Work Act 2009 itself that makes it virtually impossible for parties to be represented by a ‘lawyer’ or ‘paid agent’ without the Commission’s permission being granted. And despite their involvement apparently being ‘a welcome relief’, permission is frequently refused for a wide range of reasons.
But there is, in fact, a much bigger issue here that should be a considerable cause of concern for employers: employees have an automatic right to be represented by their (legally-qualified) highly-experienced trade union official, while employers have no automatic right to be represented by a legally-qualified – or even just mildy-experienced - advocate.
Think about how you’d go defending yourself against an unfair dismissal claim in the Commission against a union official with 20 or 30 years’ experience. Suddenly the ‘Fair’ Work Commission doesn’t sound so fair after all.
This anomaly arises because section 596 of the Fair Work Act 2009 limits the appearance rights of ‘lawyers’ (defined as people admitted to practice) and ‘paid agents’ (defined as people who charge or who are otherwise paid to represent a person). Effectively, s596 means that, usually, lawyers and paid agents need the Commission’s permission to appear.
However – and it’s a very important however – the section also provides that a person does not count as a ‘lawyer’ or ‘paid agent’ (and therefore has a right to appear) if they happen to be:
This means the highly-trained, in-house lawyers or industrial officers found in most unions have an automatic right to appear on behalf of their member, while the local solicitor found by the desperate small business employer needs to ask permission before they’re even allowed to speak.
Yes folks, the Fair Work Act strikes again.
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