Representation in the Fair Work Commission

The issue of representation in the Fair Work Commission is vexed. Some members of the Commission grant permission for parties to be professionally represented almost as a matter of course, if that is what a party wants. Since costs are almost never ordered in Far Work Commission cases, one would have thought that representation should be a matter of choice.

Furthermore I have never had a conversation with a member of the Commission who does not concede that professional representation renders the conduct of cases so much more efficient.

However the Fair Work Act discourages professional representation for political reasons. The trade unions and federations of industry constitute the IR club, which has powerful influence in the major political parties through donations. In return, both of the major parties are inclined to grant their benefactors what they want. And what would trade unions and federations of industry have to sell their members without an automatic right of representation in the Fair Work Commission?

Nevertheless, here is an extract from a case, in which a highly regarded Commissioner does explain some statutory and discretionary principles which are in the Fair Work Act, and how they impact on the issue of professional representation by lawyers and paid agents who are not employed by trade unions and federations of industry.

“The approach to the application of s.596 was recently considered by a Full Bench of the Commission in the matter of Grabovsky v United Protestant Association of NSW Ltd. 4 It concluded (footnotes omitted):

“[35] Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’ it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

[36] Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

[37] While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Watson:

‘It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.’

[38] For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.”

I am accordingly satisfied that in determining the present application the Commission is first required to determine whether one or more of the criteria in s.596(2) has been satisfied. If this requirement is met I must then determine whether it is appropriate to exercise the discretion available to grant permission.

I am satisfied that the following matters are relevant to the determination of this matter.

The factual circumstances set out in the application describe long-standing and unresolved issues. They concern circumstances that first arose in 2017, and have since escalated to encompass claims of workplace bullying behaviour by other senior employees within Qantas. It appears that the claims about bullying at work by Mr Little have accumulated as the matter has been escalated within the organisation.

A review of the materials filed by the parties in accordance with the directions issued indicates that in determining the application the Commission will be required to make findings about a series of contested facts. However, given the nature of the Respondents’ submissions the Commission will also be required to give consideration to whether the jurisdictional preconditions in s.789FD(1) have been satisfied before any consideration is given to the making of orders. It will also be required to consider whether s.79FD(2) applies instead. It is noted in this context that the Respondents’ submissions go in considerable detail to the relevant legislative framework, and to what is required for the Commission to be satisfied that the relevant preconditions have been met to enable anti-bullying orders to be made. They also deal in some detail with various authorities the Commission will be required to have regard to in dealing with the legislative requirements contained in s.789FD(1) and (2).

The application involves claims of workplace bullying that derive from actions and interactions between Mr Little and a number of senior employees within Qantas, who each continue to be employed by the organisation on an ongoing basis. Those claims obviously involve allegations of workplace bullying, and are to be determined in an adversarial setting. It would, at the very least, be an extremely difficult exercise to have the named individuals represent themselves and engage in cross-examination without causing further damage to their respective relationships.

It is acknowledged that Ms Jessica Farah, Manager of Employee Relations at Qantas, is both legally qualified and has experience of being involved in Commission proceedings. However, this does not necessarily equip a person to undertake advocacy or, more particularly, to be able to relevantly cross-examine witnesses in regard to the nature of their evidence. In my experience these are abilities that are generally confined to skilled and experienced advocates, and the Commission is therefore best assisted in this regard when experienced and competent advocates are involved.

I am also of the view that the involvement of competent legal representatives does not necessarily disadvantage the other party. In this context I note the Full Bench decision in E. Allen and Ors v Fluor Construction Services Pty Ltd 5 when it considered, amongst other things, the role of legal representatives in proceedings before the Commission. It concluded at [48] (footnotes omitted):

“In this context it is important to appreciate that legal representatives have a duty to bring all relevant authorities to the attention of the Commission, whether or not they assist the party they represent. A lawyer’s duty to the Commission is paramount and supercedes a lawyer’s duties to their client. A grant of permission to appear pursuant to s.596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission. As a Full Bench noted in AFMEPKIU v Energy Developments Ltd:

“It is a long standing principle of this Commission and its predecessors that there is a duty on persons appearing before the Commission to ensure that there is full and frank disclosure of all matters which are relevant to the proper determination of the matter before the Commission (see Municipal Officers Association of Australia v City of Greater Brisbane (1927) 25 CAR 932 at 935 per Lukis J.)””

Mr Little has also indicated that he is going to be represented, or will at least be supported in the proceedings by his partner, Ms Angela Cowan. Ms Cowan is legally qualified and has demonstrated in the conduct of the matter to date that she is a skilled and articulate person, who has an extensive grasp of the relevant subject matter and the associated legal principles. This is demonstrated by a review of the original application and the accompanying submissions and materials attached to that application, and by the materials that have since been filed in accordance with the directions provided in anticipation of the matter being arbitrated. Both of the above circumstances respond to any concerns that might exist about the Respondents being advantaged if the Commission exercises its discretion to allow permission to appear. Mr Little has also acknowledged in the recent past that the matter involves a degree of complexity and this has been demonstrated by his cautious and considered approach to the pursuit of the matter.

Conclusion

I am satisfied, in conclusion, that permission should be granted to Qantas and the other named individuals to be legally represented in the proceedings. I have arrived at this conclusion on the basis of s.596(2)(a), in particular, as the matter does involve a degree of complexity, both in terms of its subject matter, potential jurisdictional issues, and the likely conduct of the proceedings. The granting of permission will accordingly enable it to be dealt with more efficiently. I am also satisfied that s.596(2)(b) is of some relevance in that it can be said to be unfair not to allow representation on the basis that Qantas and the named individuals would otherwise not be able to represent themselves effectively. In coming to this conclusion I have not had regard to what might be most convenient for the parties involved, but what instead might assist in them being represented effectively in the conduct of the proceedings before the Commission.”

Little v Qantas Airways Limited T/A Qantas and others (2019) FWC 5577 delivered 13 August 2019 per Gregory C