Unfair dismissal; employment lawyers and paid agents

Under the Fair Work Act a lawyer or paid agent must seek the permission of the Commission to represent a person in a matter before the Commission. This includes making an application or submission on another person’s behalf.

What follows is an extract from the Fair Work Commission’s unfair dismissal benchbook which sets out the applicable requirements.

“Only a Commission member can give permission for a lawyer or paid agent to represent a party.[4] Unless acting under delegation, employees of the Commission, such as conciliators, cannot give or refuse permission for a person to be represented.

Notification of acting for a person

Each lawyer or paid agent acting for a person in relation to a matter before the Commission must lodge a notice with the Commission informing it that the lawyer or paid agent acts for the person in the matter.

There are two ways in which a lawyer or paid agent can give notice that they act for a person in relation to a matter before the Commission:

they can give notice by identifying themselves as the person’s representative in an application or other approved Commission form that they lodge in the matter, or

they can give notice by lodging a Form F53.

The notice may serve to inform the Commission and other parties that the lawyer or paid agent needs to be copied into correspondence and documents lodged in the matter. It also puts the other parties on notice that costs are being incurred for which the other parties (or their lawyers or paid agents) could become liable if a costs order is made by the Commission.

Meaning of ‘act for’ a person

In broad terms, a lawyer or paid agent acts for a person in relation to a matter before the Commission if they provide their professional services to the person in relation to the matter–for example:

appearing as an advocate in a conference or hearing conducted by a Member of the Commission or a member of the staff of the Commission

preparing to appear as an advocate

negotiating a settlement or compromise of the matter

giving legal or other advice

preparing or advising on documents (including applications, forms, affidavits, statutory declarations, witness statements, written submissions and appeal books) for use at a conference or hearing

lodging documents with the Commission

sending letters or emails to the Commission, another party or another lawyer or paid agent, or

carrying out work incidental to any of the above.”