Going to Fair Work? You’ll need permission to get a lawyer

Under the Fair Work Act, parties before the Fair Work Commission do not automatically have the right to be represented by a lawyer or paid agent. Rather, the FWC assesses several factors, including whether representation would enable the case to progress more efficiently, and whether it would create a power imbalance, before parties can retain lawyers. The FWC recently considered whether such permission should be granted in the context of a dismissal spurred on by a group of workers’ refusal to be vaccinated.

The workers were employed by a large public health provider in Melbourne’s north. The employer was subject to chief health officer directions, which prevented it from employing workers who were not vaccinated against COVID-19.

Following their dismissal, the unvaccinated workers applied to the FWC, submitting their employer:

• misconstrued the public health order and failed to consult with them under WH&S laws
• unilaterally varied their employment contracts
• unlawfully discriminated against them by terminating their employment due to their vaccination status

Permission to be represented

The workers sought permission to be represented, stating they were unfamiliar with FWC procedures and citing the complexity of the issues involved. The workers also sought for their employer to be refused permission to be represented, stating it would create a “significant power imbalance” given their employer had a well-equipped human resources department and in-house lawyers.

In response, the employer said its in-house lawyers lacked industrial advocacy experience and submitted that, with its resources under “enormous pressure” given the intensity of COVID-19 in Victoria, it would be unfair to be denied permission to be represented.

Consideration

The FWC noted that several intersecting issues were at stake, including the public health order, the enterprise agreement, and relevant WH&S and discrimination legislation. Given the complexity of these matters, it found that representation would enable the case to progress more efficiently.

Further, finding that representation of both the workers and the employer would not change the dynamic of the hearing, the FWC granted permission to both parties.

Key takeaways

• Parties before the FWC must seek permission to be represented by a lawyer or paid agent
• The FWC will consider several factors, including whether representation would improve the efficiency of the hearing and whether it would create a power imbalance between the parties
• Where several intersecting issues are in contention, the FWC is more likely to grant permission to be represented