Legal representation before the Fair Work Commission

Fri Mar 14 2014

In December 2013, a single member of the Fair Work Commission refused to grant permission for the Australian Taxation Office to be represented by a barrister but permitted it to be represented by a solicitor in unfair dismissal proceedings on the ground that the matter was not complex enough to warrant representation by the barrister.

The New South Wales Bar Association sought leave to intervene and appealed from the decision. A full bench of the Fair Work Commission has found that the commissioner at first instance erred and that s 596 of the Fair Work Act does not permit the commission to discriminate as between solicitors and barristers when determining whether a party should be granted permission to be represented in proceedings before the commission. Although the full bench found it unnecessary to make orders disturbing the orders made below (as the Australian Taxation Office did not contend that it had suffered any prejudice), the full bench nevertheless held that s 596 of the Fair Work Act is not intended to interfere with a party’s right to choose who its legal representative should be.

The case has also been reported as an important decision on legal representation

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