Legal representation in General Protection matters

Posted on 29 October 2013

Recently, there have been cases (Warrell v FWC, Azzopardi v Serco Sodexo Defence Services Pty Limited and G & S Fortunato Group Pty Ltd v Stranieri) that have affected the application of section 596 of the Fair Work Act by the Fair Work Commission.

Section 596 provides a discretionary power to the FWC to 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.

Increasingly, over the past 6 months, legal representatives have been caught out by the FWC refusing leave to appear in their client’s matters. When a lawyer is refused leave to appear they are unable to advocate on behalf of their client which leaves the client in an awkward position of having to present their matter to the FWC on their own with little to no notice or time to prepare as the refusal is only confirmed immediately prior to the hearig of the matter. The shift by the FWC towards refusing leave has left some in the legal profession quite confused as it appears that section 596 is to being applied inconsistently by all Commissioners at the FWC. Unfortunately, until the FWC approaches the issue of leave to appear consistently, those involved in conciliations and hearings before the FWC can only adopt ‘a wait and see’ approach as to whether they will be allowed to have legal representation before the FWC.

Workplace law is complex and stressful. If you have a workplace issue please contact us to help you manage the situation for you.

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