Principles for granting permission for legal representation in the Fair Work Commission The proper approach to the application of s.596 was discussed as follows by the Federal Court (Flick J) in Warrell v Walton (2013)] FCA 291
“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2) (a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”
 The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to theFair Work Bill 2008 (Cth)…”
In the present matter the Respondent relies on paragraphs 596(2)(a) and (c) for seeking permission to be represented by a lawyer or paid agent.
The matter raised by s.596(2)(a) requires that the Commission consider both the complexity of the matter and any efficiencies which may flow from having a party represented. This issue was considered by a Full Bench in Singh v Metro Trains Melbourne  FWC 4275 which said:
“…….(2) Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied. But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.”
The level of complexity of the jurisdictional matters that must be considered and determined by the Commission are not particularly complex. However, given all of the circumstances of the matter I am of the strong view that having the Respondent represented by a lawyer or paid agent will enable the matter to be dealt with more efficiently than if the Respondent is not so represented.
The Respondent also relies on s.596(2)(c) in seeking permission to be represented. The Applicant opposes a grant of permission under s.596(2)(c) on the basis that it would be unfair to the Applicant to allow the Respondent to be represented. The operation of s.596(2)(c) was considered by a Full Bench in Oratis v Melbourne Business School,  FWC 2838 said:
“Section 596(2)(c) is one of the jurisdictional bases upon which permission for representation might be granted; it is not a ground requiring refusal of permission.”
In the circumstances of the present matter where the Applicant is not a lawyer I am not satisfied that it would be unfair to the Respondent to deny the Respondent permission to be represented.
I need be satisfied as to the satisfaction of only one of the three elements in s.596(2) before I can exercise a discretion to grant permission for a party to be represented. However, being satisfied as to one of the three elements of s.596(2) does not mean that permission must be granted. A discretion lies with the Commission to either grant or not grant permission for a party to be represented.
The Applicant, whilst not a lawyer, has shown that he has a reasonably clear understanding of the issues to be addressed by the Commission and although the Applicant is without any training or experience in industrial advocacy he is clearly highly articulate. The real efficiencies which will flow from having the Respondent represented are sufficient to warrant the Commission exercising its discretion to grant permission to the Respondent to be represented by a lawyer or paid agent.
Permission is granted to the Respondent to be represented by a lawyer or paid agent in the hearing of the jurisdictional challenges to the Applicant’s unfair dismissal application.
Findley v Diamond Protection Pty Ltd T/A Diamond Protection (2015) FWC 8645 delivered 15 December 2015 per Ryan C