Fair Work Commission Grants Permission for Employer to be Represented in Bullying Claim

10 July 2014

Last week, the Full Bench of the Fair Work Commission (“FWC”) handed down a decision which allowed three Respondents to an anti-bullying application to be represented by a lawyer in the proceedings.

There was despite the general rule that lawyers may only represent a party if:

  • it would enable complex matters to be dealt with more efficiently;

  • it would be unfair not to allow the person to be represented because the person is unable to effectively represent themselves; or

  • it would be unfair “taking into account fairness between the person and other persons”.

The Applicant was a medical practitioner providing services to one of the Respondents, which was a health and community services provider in regional Victoria.  Their relationship was governed by a services contract between the Respondent and a company of which the Applicant was the sole director and secretary and the sole provider of services.  There was also a question about whether or not the health and community services provider was a “constitutionally covered business” for the purposes of part 6-4B of the Fair Work Act 2009 (C’th) (“FW Act”). 

In the decision in first instance, which the FWC Full Bench upheld, Deputy President Kovacic granted permission for representation because he found that:

  • the issues in the case were complex;

  • the three Respondents lacked familiarity with employment law and the workings of the FWC; and

  • allowing a lawyer to appear would mean the matter could be dealt with more expeditiously.

We can provide strategic advice about how to handle such proceedings and, as this case suggests, the benefits that representation by lawyers brings in complex matters will be recognised by the FWC in applications for orders to stop bullying.

(Appellant v Respondents [2014]FWCFB 4297, 30/06/2014)