Lawyers cannot help parties to prepare evidence and oral submissions in hearings without permission from the Fair Work Commission. Do you know how to successfully represent yourself in the Fair Work Commission?

Help From Lawyers in the Fair Work Commission

In Fitzgerald v Woolworths Ltd [2017] FWCFB 2797, a Full Bench of the Fair Work Commission restricted the amount of work that a lawyer is allowed to do on your behalf in proceedings before the Fair Work Commission.

From now on, employees, small businesspeople and human resources professionals will be left on their own to defend themselves at hearings unless they succeed in persuading the Fair Work Commission to give permission for a lawyer to assist them.

What can a lawyer do without permission from the Fair Work Commission?

The Fair Work Commission Rules 2013 (Cth) provide that, more often than not, a lawyer can do each of the things described below without getting permission from the Fair Work Commission.

  • Preparing a written application or written submission on behalf of a party.
  • Lodging documents at the Fair Work Commission on behalf of a party.
  • Corresponding with the Fair Work Commission on behalf of a party.
  • Participating in a conciliation or mediation process at the Fair Work Commission.

What can’t a lawyer do without permission from the Fair Work Commission?

Before Fitzgerald, it was assumed that a lawyer only needed permission from the Fair Work Commission to make oral submissions and examine witnesses on behalf of a party at a hearing. After Fitzgerald, it is clear that a lawyer will need permission to undertake a broader range of preparatory tasks. Some of these tasks have been set out below.

  • Preparing or presenting oral submissions on behalf of a party at a conference or hearing.
  • Examining or cross-examining witnesses on behalf of a party at a hearing.
  • Preparing a cross-examination or forensic strategy that is to be used by a party at a hearing.
  • Preparing witness statements and other evidence that is to be led in at a hearing.

When will the Fair Work Commission grant permission?

The Fair Work Commission may, but will not necessarily, grant permission in the circumstances set out below.

  • Where representation would allow the matter to be dealt with more efficiently, such as where complex legal issues are involved in it.
  • Where it would be unfair if the party were not represented by a lawyer because that party is unable to represent himself, herself or itself effectively.
  • Where it would be unfair if the party were not represented by a lawyer because of some relevant power imbalance between the parties.

What resources are out there to help employees, small businesses and human resources managers to represent themselves at hearings?

JFMLAW has published a booklet that helps human resources professionals to represent their employers confidently and successfully in the Fair Work Commission. Among other things, it lets you know how to draft responses, what evidence is useful, how to examine witnesses, and how to settle disputes.  We will also be running a number of training webinars and face to face seminars.

Get in touch with JFMLAW on (02) 9331 0266 or at front.desk@jfmlaw.com.au if you’re interested.