WRITTEN BY John Wilson & Kieran Pender
The first thing we do, let’s kill all the lawyers – William Shakespeare’s Henry VI[1]
The exclusion of lawyers neither enhances nor accelerates the course of justice … the presentation of cases by non-lawyers does not lead to clarity and speedy hearings; on the contrary, it is more likely to lead to confusion and to long, drawn-out proceedings due to the failure of non-lawyers to identify the true issues clearly – Sir Anthony Mason[2]
It has long been recognised that legal representation is necessary to facilitate access to justice. Although it would be putting it too highly to say that there is an absolute “right” to a lawyer, certainly in the criminal context it is recognised that the right to a fair trial may necessitate legal representation.
Thus the International Covenant on Civil and Political Rights, to which Australia is a signatory, provides that a defendant must be permitted to “defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”[3]
While the “right” to access a lawyer is less robust in the civil context, there are still significant policy grounds for facilitating legal representation in any given context. Without legal assistance, many Australians would be – and, indeed, are – unable to access justice and vindicate their rights. “Access to justice is a key tenet of the rule of law,” a statement from the Law Council, the peak body, reads. “The Law Council therefore believes that all Australians have a fundamental right to access to legal advice and services, regardless of their means, and considers that the justice system becomes meaningless if there are barriers that prevent people from enforcing their rights.”[4]
Strangely, then, the Fair Work Act 2009 (Cth) contains a major obstacle to legal assistance and representation. Despite its centrality to Australian employment law, as one of the primary ways in which everyday Australians engage with the legal system, the Fair Work Act was designed with a deliberate policy intent to minimise legal representation in the Fair Work Commission.
This unusual barrier to legal assistance in the employment context is the focus of this article. It is timely, given the concerted push by the Law Council and others to remove the relevant provision, s 596, and thereby ensure lawyers can appear by right in the Commission (as they can in similar jurisdictions, such as the NSW Industrial Relations Commission). With a range of Fair Work Act reforms on the table under the new Albanese government, it may be that lawyers will finally get a reprieve from s 596 applications. Until then, we will provide a primer for those unfamiliar with the jurisdiction and consider some recent cases.
The approach adopted by the Fair Work Act follows a cognate history under the predecessor regime, the Australian Industrial Relations Commission (which was granted unfair dismissal jurisdiction in the mid-1990s). Section 42(3) of the Industrial Relations Act 1988 (Cth) provided that parties could be represented where: (a) all parties consented; (b) the Commission was satisfied that “special circumstances” made representation desirable; or (c) the Commission was satisfied that a party could “only be adequately represented by a solicitor, counsel or agent.” This regime was retained in the Workplace Relations Act 1996 (Cth).[5]
The Fair Work Act revised this regime. The rationale was set out in the explanatory memorandum, which provided that the law “is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA [Fair Work Australia as the Commission was then called] would generally represent themselves. Individuals and companies can be represented by an officer or employee … in many cases, legal or other professional representation should not be necessary for matters before FWA.”[6]
Accordingly, s 596 provides:
Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
A note to the provision provides indicative examples, including a person from a non-English speaking background, someone who has difficulty reading or writing, or a small business with no dedicated human resources staff. Section 596 also excludes various categories from the definition of a lawyer or paid agent, including employees or officers of an organisation, employees or employer associations, peak councils and bargaining representatives.
Parties are required to use Form 53 to advise the Commission that they have a lawyer or paid agent acting for them (whether or not they wish to be involved in the hearing – for example even if they are only acting in relation to submissions, evidence etc) and/orto seek permission for legal representation before the Commission.
In our practical experience, the majority of applications for permission to represent a person in a matter are granted. We are not aware of any empirical data on the rates of refusal (although we understand, anecdotally, that it varies significantly by tribunal member – some are more likely than others to refuse permission). We will now consider a number of recent cases where permission has been denied, which are instructive in relation to the factors that might lead the Commission to the conclusion that the s 596 criteria are not satisfied.
Wellparks Holdings Pty Ltd t/as ERGT Australia v Govender[7]
In Govender, an unfair dismissal case, the respondent company sought legal representation. They argued that a jurisdictional objection it intended to raise gave rise to sufficient complexity, as such an objection is “by its nature complex”. They also argued that the company’s management team had no training or experience in advocacy or legal analysis. Permission was denied, and the company appealed to the full bench of the Commission.
The three-member bench, including the President, Ross J, articulated the relevant test.
[48] The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.
Applying this test, the Commission held that a jurisdictional objection does not, of itself, satisfy the complexity requirement, holding instead that “a case by case assessment is required”.[8] In this particular case, the Commission observed that the legal issues “are well established and there is nothing particularly novel about the issues in dispute.”[9] Having concluded that the relevant criteria were not satisfied, the Commission held that “the discretion to grant permission … is not enlivened.”[10]
Helpfully, the Commission also addressed an argument put by the applicant – the employee, respondent on appeal – that the fairness criterion in s 596(2)(c) also involved consideration of fairness to the other party. In the present case, Mr Govender had opted not to be represented, and argued this was relevant to the fairness calculus. The Commission said that it was not relevant to s 596(2)(c), but might be relevant to the second-phase of the analysis. Relevantly:
[76] … granting permission to one party may give rise to unfairness in circumstances where the other party is a litigant-in-person. Such a consideration is relevant to the second step in the s 596 process, that is whether in all the circumstances the discretion should be exercised in favour of the party seeking permission. But, as we have mentioned, you only get to the second step if the first step is satisfied.
Donnola v Silverleaf Constructions Co Pty Ltd[11]
In Donnola, a case last year, the employee applicant filed an unfair dismissal application with the Commission. He sought to be represented, on the basis he lacked the relevant skills to present his case and that his claim raised technical legal points which would be most efficiently handled by a lawyer. Deputy President Bull refused permission, making several pertinent observations.
[17] Other than the general statement that the matter raises a number of technical legal points, the applicant’s submissions do not elaborate on, or provide any guidance as to what the technical legal points in the application actually involve or what matters of complexity arise.
[22] Considering the vast majority of applicants in unfair dismissal matters before the Commission do not have legal training, the absence of such training in itself is not a sufficient reason for the Commission to grant permission for legal representation. It is not comparable to having difficult reading or writing as set out in the note to s 596(2).
The case demonstrates the need to articulate, in detail, the complexity anticipated to arise. Merely asserting inherent complexity is unlikely to persuade the Commission.
G & S Fortunato Group Pty Ltd v Stranieri[12]
Although decided almost a decade ago, the Full Bench of the Fair Work Commission’s decision in Stranieri remains helpful for its consideration of representation on appeal. The employer appealed an order to grant an extension of time to an ex-employee in filing an unfair dismissal application. The employer sought permission to be represented, which was denied. The Full Bench observed that “just because the proceeding is an appeal it ought not be assumed that the Commission will permit a party to be represented.”[13] As the Commission considered that the appeal did not give rise to any “particular complexity”, it was not satisfied the criteria were enlivened. They echoed the sentiment of Flick J, in Warrell v Fair Work Australia, that “the appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.”[14]
Against this backdrop, there have been growing calls for s 596 to be scrapped. The Law Council has been the most vocal and persistent advocate. In a submission to the Productivity Commission’s Workplace Relations Inquiry in 2015, the Law Council set out the case for reform.[15]
The peak body argued that, firstly, given “the broad-ranging powers of the Fair Work Commission, including powers that can affect the livelihood of individuals and businesses, there should be a right to be represented by a lawyer in such proceedings.” Second, the provision operated to cause unfairness to individuals and small businesses, given that corporations can be represented by employees by right, even if legally trained, but individuals and businesses without in-house counsel require permission.
Third, the legacy rationale for similar provisions in prior industrial relations context no longer held, the Law Council submitted. The Fair Work Act provision “is even more restrictive than that which pertained earlier when the industrial tribunal was largely limited to creating industry awards, and parties were invariably represented by employer associations and unions who in both cases employed experienced advocates.” Given the far-reaching powers of the Commission and its jurisdiction of significant and consequential issues, “It is an anachronism that, in our modern society, a person does not have a right to be represented by a lawyer in such cases,” the submission stated.
The Council also proceeded to critique some of the rationales for the provision, as set out in the explanatory memorandum and Commission decisions on s 596. The desire to avoid unnecessary formality and an adversarial approach, and hence exclude lawyers, “relies on outdated notions of legal practice,” the Law Council said. “Over the last 20 years legal practice has fundamentally changed with practitioners not only well versed in tribunal proceedings but trained and practised in alternative dispute resolution.” It also ignored that the lawyer’s paramount duty to the court included an obligation to promote the speedy and efficient administration of justice, and that the Commission was well-placed in any event to properly manage proceedings.
In 2018, the Law Council reiterated this call, writing to the then-Immigration Minister, Kelly O’Dwyer, calling on her to abolish the “burdensome and time-consuming” provision. The letter proposed that s 596 be amended such that:
a. Parties do not need permission to obtain legal assistance prior to a hearing; and
b. Parties can have a lawyer appear for them at hearing unless that would be unfair.[16]
The position was again put in submissions to the industrial relations reform process in 2020. Most recently, in the Law Council’s 2022 federal election “call to parties,” the organisation called for a commitment to “repeal or amend [s 596] … so that those who come before the FWC have an automatic right to be represented by a lawyer or paid agent.” It is unclear whether the new government is sympathetic towards this position. However, with a range of Fair Work Act amendments expected in the coming months, if reform is to come to s 596, it will happen sooner rather than later.
We began this article with two epigraphs. In Shakespeare’s Henry VI, Dick the Butcher – a supporter of the rebel Jack Cade – famously calls for the death of lawyers. The line is sometimes misconstrued as a criticism of the corrupt or unethical within our profession; certainly it quickly joined the long list of lawyer jokes. But read in context, Shakespeare was in fact applauding the legal profession. Dick and Cade were plotting for Cade to ascend to the throne; Dick was suggesting that disturbing the justice system might aid this ascension. “Shakespeare meant it as a compliment to attorneys and judges who instil justice in society,” one perceptive reader has noted.[17]
The other quote came from no less a legal luminary than Sir Anthony Mason. In his 1994 State of the Judicature address, republished in the Australian Law Journal, Sir Anthony hit back at the suggestion that “the exclusion of lawyers is the answer to these problems, at least in tribunals outside the orthodox court system” – these problems being defects with the legal system including delay and complexity. The then-High Court chief justice was sceptical. Indeed, saliently for our purposes, he referred to the employment context. “If my long experience of reading the transcripts of proceedings in the Industrial Relations Commission and its predecessor the Conciliation and Arbitration Commission has any lesson to offer, it is that the presentation of cases by non-lawyers does not lead to clarity and speedy hearings,” his Honour said. “No doubt lawyers are a nuisance – they habitually find unexpected defects in legislation and administrative and other decisions by those who exercise power. But that is no reason for excluding lawyers.”[18]
The policy rationale for the inclusion of s 592 is understandable enough. But we would suggest that it has not quite transpired in practice. The Law Council’s push for its abolition is no doubt self-interested – more opportunity for legal representation in the Commission means more work for lawyers. But just because a view is self-interested does not mean it cannot also be right. The Law Council concluded its 2015 submission by summarising: “There are no sound reasons why a person appearing in a hearing before the Fair Work Commission should not have a right to be represented by a lawyer if they so choose.”[19] On balance, we agree. Law reform to remove s 592 from the Fair Work Act is overdue.
John Wilson is the managing legal director at Bradley Allen Love Lawyers. Kieran Pender is an honorary lecturer at the ANU College of Law and a consultant at BAL. The views expressed here are their own. The authors thank Kate O’Shannessy for her research assistance.
The above article was written for and published in Ethos -Law Society of the ACT Journal.
For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.
[1] Part 2, Act IV, Scene 2.
[2] Sir Anthony Mason, ‘The State of the Judicature’ (1994) 68 Australian Law Journal 125, 127.
[3] Article 14.
[4] Law Council of Australia, ‘Access to Justice’, <https://www.lawcouncil.asn.au/tags/access-to-justice>.
[5] For discussion of this history, see Mark Mourell and Craig Cameron, ‘Neither Simple nor Fair — Restricting Legal Representation before Fair Work Australia’ (2009) 22 Australian Journal of Labour Law 51.
[6] Explanatory Memorandum, Fair Work Bill 2008 [2291] – [2292].
[7] [2021] FWCFB 268 (20 January 2021) (‘Govender’).
[8] Ibid [51].
[9] Ibid [60].
[10] Ibid [77].
[11] [2021] FWC 6336 (17 November 2021) (‘Donnola’).
[12] [2013] FWCFB 4098 (26 June 2013) (‘Stranieri’).
[13] Ibid [10].
[14] Warrell v Fair Work Australia [2013] FCA 291 (4 April 2013) [24], cited in ibid.
[15] Law Council of Australia, ‘Workplace Relations Framework’, Submission to the Productivity Commission (27 March 2015).
[16] Law Council of Australia, ‘Right to Representation Before the Fair Work Commission (7 November 2018) <https://www.lawcouncil.asn.au/media/news/right-to-representation-before-the-fair-work-commission>.
[17] Debbie Vogel, ‘“Kill the Lawyers,” A Line Misinterpreted’, New York Times (17 June 1990, online) <https://www.nytimes.com/1990/06/17/nyregion/l-kill-the-lawyers-a-line-misinterpreted-599990.html>.
[18] Sir Anthony Mason, n 2.
[19] Law Council, n 15.