Wolves Dressed in Sheep's Clothing

In a recent ruling, the Fair Work Commission (FWC) has granted a construction company the right to legal representation, despite opposition from the CFMEU. The CFMEU argued that the Fair Work Act does not permit switching permission from representation by a paid agent to a lawyer, highlighting significant differences between the two, particularly the regulation of lawyers and the lack thereof for paid agents.

Wolves Dressed in Sheep's Clothing

The CFMEU underscored these differences by referencing the Commission's options paper on managing paid agent misconduct and their exclusion from appearing in the Federal and Federal Circuit and Family courts.

Ahead of an upcoming hearing regarding the approval of the BMD Urban Pty Ltd Enterprise Agreement 2023, BMD Urban sought permission for barrister Troy Spence to represent them. Initially, they had been represented by Drayton's Workplace Consulting, a paid agent. The CFMEU opposed this request, noting BMD Urban's substantial in-house legal and HR resources and their ongoing relationship with Drayton's.

The union contended that the case was straightforward, involving no significant factual disputes or technicalities, and that granting legal representation would be unfair. They noted that BMD’s paid agent had effectively managed the case thus far, and that the matter did not necessitate expertise in case law or complex cross-examination.

The CFMEU acknowledged that its industrial officer is a qualified barrister but maintained that the distinction between paid agents and lawyers is crucial. They argued that the Commission should not automatically approve BMD's request for legal representation based on their previous use of a paid agent.

BMD Urban countered, stating that their in-house counsel, while experienced in civil construction law, lacked expertise in enterprise agreement approvals, unlike the CFMEU, which specialises in industrial matters.

Commissioner Chris Simpson considered the CFMEU's request for an in-person hearing to cross-examine witnesses, which will address whether the agreement has been genuinely agreed upon and the union's concerns about the ballot process. He concluded that the issues at hand involve complex legal questions and that legal representation would help the Commission resolve the matter more efficiently.

Simpson also noted that given the CFMEU’s industrial officer’s background as an employment law barrister and the inexperience of BMD's in-house counsel in enterprise agreement approvals, it was fair to grant BMD’s request for legal representation.

The decision reflects the ongoing debate over the roles and regulations of lawyers versus paid agents in industrial relations and highlights the need for clear guidelines to ensure fairness and efficiency in such proceedings.