Representation in the Fair Work Commssion

These are the principles which the Fair Work Commission uses when determining whether to grant permission for a party to proceedings (in this case an unfair dismissal application) to have professional representation.

“[4] The following general principles can be drawn from earlier decisions of the Commission and of the Federal Court on permission to appear:

(a) the default position is that each party appears on their own behalf; 1

(b) permission may be granted “only if” at least one of the requirements of s.596(2) are made out;

(c) the assessment of whether permission should be granted under s 596 involves a two-step process: firstly considering whether one or more of the criteria in s 596(2) is satisfied, and secondly considering whether the Commission’s discretion should be exercised in favour of the party seeking permission in all of the circumstances of the case; 2

(d) a decision to grant or refuse permission is not a mere procedural decision, it is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted; 3

(e) the Commission must perform its functions and exercise its powers in a manner that is fair and just, quick and informal, and avoids unnecessary technicalities; 4.

(f) allowing lawyers to appear in Commission proceedings runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality; 5

(g) representation by lawyers or paid agents who are familiar with and/or experienced in the Commission’s jurisdiction will generally be of assistance; 6

(h) the only test the Commission must apply under s.596(2)(a) is whether granting permission “would enable the matter to be dealt with more efficiently”. In applying this test, the Commission must take into account the complexity of the matter, but it does not have to find that the matter is actually complex, nor does it have to find that a matter is more complex than other matters; 7

(i) 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; 8

(j) In respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative, but rather it involves an examination of the resources available to the applicant as a whole; 9

(k) the Commission must give reasons for granting permission; 10 and

(l) a decision to grant permission can be reviewed or revoked under s.603.  11”

Ogden v Prestia Holdings Pty Ltd (2022) FWC 1736 delivered 5 July 2022 per Easton DP