Recognising the Distinct Roles of Lawyers and Paid Agents in Fair Work Commission Cases

In a recent decision by the Fair Work Commission (FWC), a construction company's request for legal representation was granted despite the Construction, Forestry, Maritime, Mining and Energy Union’s (CFMEU) opposition. The CFMEU argued that the Fair Work Act does not allow for interchangeable permission between lawyers and paid agents, emphasising the significant differences between the two.

CFMEU's Argument on Representation Distinctions

The CFMEU highlighted the clear distinction between lawyers and paid agents, pointing out that lawyers are regulated by a formal scheme, whereas paid agents are not. They referred to the Commission's options paper on managing paid agent misconduct and noted that paid agents are excluded from appearing in higher courts like the Federal and Family Courts.

The union further argued that the Fair Work Act’s s596 permission provision should be interpreted to treat the granting of permission to be represented by a lawyer as distinct from the permission granted to a paid agent. This interpretation rests on the difference between the terms "or" and "and" in the legislation.

Recognising the Distinct Roles of Lawyers and Paid Agents in Fair Work Commission Cases

Commission's Response and Decision

Commissioner Chris Simpson acknowledged the CFMEU's arguments but found that the case at hand involved complexities that warranted legal representation. Ahead of a hearing regarding the approval of the proposed BMD Urban Pty Ltd Enterprise Agreement 2023, BMD Urban Pty Ltd sought permission for barrister Troy Spence to represent them, following initial representation by Drayton's Workplace Consulting.

The CFMEU opposed this request, arguing that BMD Urban, being a large employer with in-house legal and HR staff, did not need additional legal representation for what they described as a straightforward matter. They claimed that allowing this would infringe on fairness, given the simplicity of the case and the absence of significant factual or jurisdictional issues.

Importance of Expertise in Representation

BMD Urban countered by stating that their in-house counsel lacked experience with enterprise agreement approvals, unlike the CFMEU, which specialises in industrial matters. Commissioner Simpson noted that the issues in dispute involved legal questions of some complexity, and having a lawyer would help the Commission handle the matter more efficiently.

Additionally, the Commissioner considered the CFMEU's request for an in-person hearing to cross-examine witnesses. This would address whether the agreement was genuinely agreed upon and touch on the union's concerns regarding the ballot process.

Highlighting Our Expertise

At 1800ADVOCATES, our own Brian AJ Newman, LLB also represents clients in his capacity as a paid agent. Brian holds an impressive array of credentials, including a Bachelor of Laws (Griffith), Diploma in Justice Administration, Diploma in Government (Investigations), Diploma in Work Health and Safety, Diploma in Security & Risk Assessment, Diploma in Human Resource Management, Certificate IV in Training & Assessment, and is a Justice of the Peace (Qualified). Despite these qualifications, Brian chooses to operate as a Professional Employment and Human Rights Advocate (Paid Agent) to offer specialised, accessible representation in employment and human rights matters.

Conclusion

In granting BMD Urban's request for legal representation, Commissioner Simpson highlighted the fairness of the decision, given the expertise disparity between the parties' representatives. This case underscores the importance of recognising the distinct roles and expertise of lawyers and paid agents in the context of Fair Work Commission proceedings.

For further information or representation in employment and human rights matters, contact 1800ADVOCATES. We specialise in navigating the complexities of industrial relations and ensuring fair treatment for all parties involved.