A Full Bench of the Fair Work Commission (“Commission”) held the “substantial” involvement of a lawyer in the preparation of a party’s case triggered an obligation under the Fair Work Act 2009 (Cth) (“Act”) to obtain the Commission’s permission to act as a lawyer or paid agent. This was despite the fact the lawyer did not act as the party’s advocate during the hearing itself.
Section 596 of the Act requires parties who wish to be represented before the Commission by a lawyer or “paid agent” (such as a workplace relations consultant) to firstly obtain the Commission’s permission. The Commission assesses all such requests for representation against the criteria laid out in that same section of the Act.
Until the current Full Bench decision, it had generally been accepted that a party was only required to seek permission to be represented by a lawyer or paid agent where that person intended to act as the party’s advocate during proceedings. Indeed, it had become common practice for lawyers and paid agents to sit at the bar table and advise a party during proceedings without permission to represent that party either being requested or required, provided the lawyer or paid agent did not attempt to address the Commission on the party’s behalf.
In the current case, the Full Bench determined that a lawyer’s “substantial” involvement in the preparation of their client’s case – as evidenced by the invoice subsequently issued by that lawyer to their client – amounted to “representation”, thereby triggering the obligation under section 596 of the Act to obtain the Commission’s permission for representation. This was despite the fact the lawyer did not act as the party’s advocate during the hearing itself.
This decision fundamentally alters the obligation on parties to obtain the Commission’s permission to be represented where a lawyer or paid agent is – or will be – engaged to assist with the preparation of a case and/or accompany the party at the Commission.