Representation in the Fair Work Commission

Here are some very interesting points about the circumstances in which litigants in proceedings in the Fair Work Commission may be given permission to be represented.

“I do not accept that merely because a person is not a lawyer or a paid agent for the purposes of the FW Act that they have an automatic right to appear on behalf of a party at a Conference or Hearing. Ms Greene did not identify any statutory provision or authority which suggests otherwise.

The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:

“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves…

  1. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

In addition, the Explanatory Memorandum contains the following commentary in its regulatory analysis section:

“r.335. FWA will move away from formal, adversarial processes, with legal representation and intervening parties. There will also be a higher bar set for representation. Permission for representation will only be granted to parties (including the Minister) where it would enable the matter to be dealt with more efficiently or fairly…It is envisaged that in most cases legal representation will not be necessary.”

In Warrell v Walton [2013] FCA 291 Justice Flick stated that:

“[24] 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”.”

Both extracts make it clear that the primary position is that parties must normally appear on their own behalf. This was confirmed by the Full Bench in Fitzgerald v Woolworths [2017] FWCFB 2797:

“It should be noted that even in circumstances where s.596 does not apply, a party does not have a general right to determine who may attend a hearing on its behalf. The Commission under ss.589-593 of the FW Act is conferred with wide power to control the conduct of proceedings before it. This includes the power, in s.593(3)(b), to make orders as to who may be present at a hearing, whether “because of the confidential nature of the evidence, or for any other reason” (underlining added).

If it were the case that anyone could appear for a party without leave as of right, provided that they were not currently a paid agent or lawyer for the purposes of the FW Act, it would create a mockery of the leave provisions.

Ms Greene did not characterise Mr Greene or Mr Carney’s involvement as such as of the nature of a McKenzie friend. However, for completeness I note the following.

The role of a McKenzie friend was described in a decision of the Family Court (Lindenmayer J) in Watson v Watson (2001) 166 FLR 229, as follows:

“… that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a ‘McKenzie friend’ is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings…” cited in Collier v Hicks (1831) 2 B and Ad. 663 at 669, and KT v KJ & TH (2000) 156 FLR 451 at 453 – 454.

Neither Mr Greene or Mr Carney propose to attend in person to assist in the manner contemplated by way of a McKenzie Friend.

I do not consider that there were exceptional circumstances which might have made advocacy appropriate. In fact Ms Greene indicated that she was happy to represent herself if Floreat Hotel were also not granted leave to be represented.

In addition, there are reasons to suggest that to allow such involvement would have interfered with the efficient conduct of the proceedings. I note that the involvement of Mr Greene in the matter prior to the Hearing has not enabled the matter to be dealt with more efficiently. Mr Greene’s approach in the conference conducted prior to the Hearing, not unsurprisingly coloured by his emotional attachment to his daughter, made mediation difficult. The tone of correspondence and submissions, which according to Ms Greene he had overseen has been unduly aggressive and lacking in courtesy. The submissions made to date indicate a lack of familiarity with FWC processes and the relevant legal principles and do not suggest that the participation of Mr Greene or Mr Carney would have assisted the efficient conduct of the Hearing.

The Hearing was to be conducted in person. Mr Greene and Mr Carney did not intend to attend the Hearing in person but instead proposed to participate by video link from Ireland. Notwithstanding improvements in technology establishing and sustaining quality stable audio and visual links to international locations, using the Commission’s current technology is challenging. Given the layout of the court room those on video links have restricted views of the witness, the bar table and the bench. Furthermore, any documents physically exchanged between the parties, witness or bench on the day of the Hearing are not readily accessible to those participating by a video link. While these matters may be less of an obstacle for short appeal hearings they bear greater significance to a longer first instance proceeding, particularly when witness credibility is an issue.

Rule 12 of the FWRules provides that permission to be represented is not required for a representative to prepare and file written submissions and evidentiary material in accordance with directions in advance of a hearing date. As Ms Greene indicated on a number of occasions to Chambers. Ms Greene had the assistance of Mr Greene and Mr Carney to help her prepare an outline of submissions, witness statements and collate evidentiary materials.

Having had the benefit of receiving the evidence in chief of the respondent’s witnesses well in advance of the Hearing, Ms Greene had the opportunity to have assistance preparing cross examination questions in advance. The parties were provided the opportunity to make written closing submissions, with the benefit of transcript. Ms Greene was not therefore required to write her own submissions nor compelled to make any oral submissions during the Determinative Conference.

The Application was heard by way of a Determinative Conference, therefore the parties did not require familiarity with FWC process, practices or the rules of cross-examination. These were explained to the parties during the proceedings and the proceedings were conducted informally. Ms Greene also had access to the resources on the FWC website in both written and video format in relation to the conduct of proceedings. Ms Greene demonstrated, in earlier proceedings, that she is an articulate and well organised young women who was more than capable of articulating her case, engaging in procedural discussions with the Bench and opposing party and vigorously cross-examining witnesses.

In all the circumstances I am not satisfied that Ms Greene is unable to represent herself effectively or that it would be unfair if she were not granted representation.”

Greene v Floreat Hotel – CEH GROUP T/A Floreat Hotel (2021) FWC 2198 delivered 21 April 2021per Binet DP