A recent ruling of the Fair Work Commission full bench in Ross Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 4319 has cast some further light on the tough stance taken on legal representation in the “shadow lawyers” decision ruling last October ultimately finding that even larger employers which employ HR or in-house lawyers can still engage external lawyers or paid agents for assistance or advice in preparing their written submissions without the need to seek the FWC’s permission.
Significantly, the full bench in Qantas has reiterated that “a party does not need the permission of the Commission to seek legal advice”. Rather, a party needs permission under s.596 to be “represented” in the FWC by a lawyer or paid agent.
The full bench in Qantas has stated that “a party does not need the permission of the Commission to be represented in a matter before the Commission by a lawyer or paid agent for the purposes of preparing a written submission, unless the Commission has made a direction under rule 12(2) [of the Fair Work Commission Rules 2013]”.
Notwithstanding the full bench decision in Qantas, as it stands the practice of using “shadow lawyers” to the extent that it involves them attending and being involved in the conduct of a hearing (even if not engaging in oral advocacy themselves) still sits outside the scope of operation of s.596 in the wake last October’s “shadow lawyers” ruling.
In the current climate, we still think that all employers need to make decisions early about the extent their external lawyers or paid agents will be involved in the conduct of a matter. If external lawyers or paid agents will ultimately “represent” the employer in the FWC, then this should be made known early by them coming out of the shadows and permission sought from the FWC with clear submissions as to why representation is necessary in that particular matter.
For further assistance or to discuss any other workplace matter, please don’t hesitate to contact me.
