Fair work conciliation conferences

 

This is an extract from a Fair Work Commission decision which sets out the legal issues involved in representation at Commission conciliation conferences.

“Lindsay-Kay Taylor (Applicant) has made an application seeking a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act) with respect to the termination of her employment with Bunbury Baptist College Inc (Respondent). The application is due to be dealt with by a staff conciliator on Tuesday 5 April 2022. The Respondent has indicated that it intends to be represented by a lawyer at the staff conciliation. The Applicant has raised an objection to allowing a lawyer to represent the Respondent. The matter has been referred to me as National Practice Leader for Unfair Dismissals.

[2] The Fair Work Commission Rules 2013, whilst acknowledging the requirements of s.596(2) of the Fair Work Act 2009 (FW Act) that a party may only be represented in proceedings before the Commission with permission allow a party to be represented without permission in a conference in relation to an unfair dismissal matter conducted by a member of staff of the Commission (see Rule 12(2)(b)(i)). However, the Commission retains the power to “direct that a person is not to be represented in the matter” (Rule 12(3)). It is pursuant to this later provision that the Applicant requests that the Respondent not be represented in the upcoming staff conciliation. I have accepted the Applicant’s application as being for a direction under Rule 12 that the Respondent not be able to be represented.

[3] This decision is directed only to the request of the Applicant that the Respondent not be allowed to be represented in the staff conciliation. Nothing in this decision is determinative as to whether permission should be granted should the matter proceed to a hearing before a Member of the Commission. Any question of permission at that stage will be determined by the Presiding Member.……………………………………………

Having reviewed the F2 application of the Applicant and considered all of her submissions (including earlier emails in which she first raised the matter) I am satisfied that there is no satisfactory reason as to why I should issue a direction which has the effect of prohibiting the Respondent from being represented by a lawyer at the conciliation conference before a staff conciliator. The Applicant herself has raised some complex legal arguments that I am not satisfied the Respondent has capacity to deal with. In reaching this conclusion I note that the Commission’s staff conciliators are highly experienced in the work they do and have the skills necessary to ensure that everyone is given a fair chance to put their views and are not overwhelmed by unnecessary complexities. In this respect I note that there is nothing that prevents a staff conciliator asking to hear directly from a party even when they are represented if that is necessary or beneficial to finding a resolution to the dispute.”

Taylor v Bunbury Baptist College INC (2022) FWC 729 delivered 1 April 2022 per Bissett C