Representation in the Fair Work Commission

Obtaining permission for professional representation in the Fair Work Commission is like tossing a coin. Although the law about the issue is clear enough (it is a matter for the discretion of the person hearing the case) the legal principles which are applied to the issue are easily enough stated, but are hopelessly subjective and unpredictable in practice. Some members of the Commission welcome such representation, others do not. I will keep my opinion about how this is managed by the Commission to myself. Read into that what you will.

Here is a take on those principles from a recent case.

“The respondent’s written submissions note the observations of Gregory C in Tobias Little v Qantas Airways Limited T/A Qantas 7 at [17] which I endorse:

“I am also of the view that the involvement of competent legal representatives does not necessarily disadvantage the other party.”

[21] I also note the comments of Mason CJ in Giannarelli v Wraith 8 concerning the appearance and assistance of legal counsel in proceedings:

“[A] barrister’s duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.”

[22] A Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd 9 commented in relation to legal representation:

“[48] A lawyer’s duty to the Commission is paramount and supersedes a lawyer’s duties to their client. A grant of permission to appear pursuant to section 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 [footnotes omitted].”

[23] The Full Bench in Priestley v Department of Parliamentary Services 10 expressed a similar view with regard to the role of legal representatives:

“[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard. We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.”

Dinov v ANZ Banking Group Ltd trading as ANZ (2021) FWC 360 delivered- 27 January 2021 per Bull DP