By Bryan Mueller, Director of Workplace Litigation

 

In Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (Fitzgerald decision) a Full Bench of the Commission examined the meaning and effect of s.596(1) of the Fair Work Act 2009(FW Act).

Speaking broadly, that provision deals with the representation of persons who or which are involved in Commission matters and, in that regard, imposes a restriction (consisting of a requirement to obtain Commission permission) on ‘external lawyers’ representing such persons in Commission matters.

The commonly received understanding of the operation of s.596 was that it was concerned only with external lawyer representation by way of the performance by the external lawyer of the role of advocate in a Commission hearing or conciliation setting.

It was thought that the provision was not otherwise concerned with the performance of activities or functions by an external lawyer for a client in connection with a Commission matter, and no consideration needed to be given to obtaining permission under s.596(2) for an external lawyer to perform those activities or functions in connection with a matter on foot in the Commission.

The conclusions arrived at by the Full Bench about the meaning and effect of s.596(1) are perceived to have disturbed what was the commonly received position as to when Commission permission needed to be obtained for external lawyer assistance to be given in a Commission matter.

 

Whether or not that perception is correct is difficult to say, mainly because of two things.

First, as this note endeavours to explain, the Full Bench reached and expressed a fundamental view about the construction of s.596(1) in the broad (that is, as regards its operation with respect to Commission matters generally) at paragraph [44] of its decision; but when it then came to describe the operation of s.596(1) in relation to an unfair dismissal matter such as that presented in the appeal, it did not methodically apply that view. Instead it took a short-cut which seemingly involved the application of a different and much abbreviated approach or ‘test’ as to when Commission permission for external legal representation is required. [1]

Second, leaving that aside, the view that the Full Bench does express up to paragraph [44] about the construction of s.596(1) and its operation with respect to Commission matters generally, again as this note endeavours to show, is not a complete or comprehensive view – it leaves matters vital to an understanding of the view expressed and the operation of the provision undecided and uncertain.    

 

In that context, this note endeavours:

  • In Part 1, to describe the particular representation question that arose for decision in the Fitzgerald appeal in the context of the facts of the case.
  • In Part 2, to formulate what the Full Bench decided regarding the meaning and effect of s.596(1), and then to make some observations both about some significant issues and uncertainties associated with it, and also about its practical implications.
  • In Part 3, to describe the course of reasoning employed by the Full Bench to reach its conclusion on the meaning and effect of s.596(1), going on to suggest that the course of reasoning was unorthodox and involved serious error.
  • In Part 4, to identify some lines of argument that would be available on a more orthodox approach to the construction of s.596(1), supplemented by a suggestion that it may be that the conclusion reached by following an orthodox approach to the construction of s.596(1) would substantially correspond with the actual conclusion which, on one available view of it, was reached in the Fitzgerald decision.

 

It is added that if, as this note argues, the Full Bench reasoning is affected by serious error, then given the central and daily importance of external legal representation in relation to Commission matters and its place in the operation of the industrial relations system established by the FW Act, it is desirable that the question of the meaning and effect of s.596(1) be re-examined by another Full Bench in an appropriate appeal case sooner rather than later.[2]

 

Part 1: Representation question raised on appeal

Section 596(1) provides:

Representation by lawyers and paid agents

(1)  Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or 

submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(The exceptions to its operation carried by the opening words of the provision are detailed below. Section 596(2) spells the several circumstances in which the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC.)  

The Fitzgerald decision was given in an appeal brought by an applicant in an unfair dismissal matter against a decision of a Commissioner which dismissed the application on the jurisdictional ground that the applicant’s employment by Woolworths had terminated because of resignation and therefore the applicant was not dismissed within the meaning of s.386(1) of the FW Act, and hence the Commission did not have jurisdiction to deal with it.

The Full Bench rejected the appeal grounds which argued that the Commissioner’s decision that the applicant had resigned and therefore had not been dismissed, was wrong.

On the appeal, the applicant also complained in substance that Woolworths had been represented in the matter, including in the jurisdiction hearing by an external lawyer, without permission being sought and obtained by Woolworths under s.596(2), in circumstances where that permission was required.

 

The essential facts in that regard were that:

  • Woolworths received a range of legal advice and assistance from external lawyers in connection with the matter from a time soon after the unfair dismissal application was lodged and up to the point of hearing of the jurisdictional hearing. (The function and activities that were performed by the external lawyers up to that point are described in paragraph [46] of the decision. As explained below, the Full Bench regarded the performance of those activities and functions as not attracting the requirement to obtain Commission permission because the Commission said they came within the category of activities and functions exempted from that requirement by Rule 12(1).)
  • When it came to the jurisdictional hearing, the role of advocate for Woolworths was performed by a person employed by Woolworths as an employee relations specialist. She announced her appearance in terms indicating that she was the advocate appearing for Woolworths going on to say that she was assisted by an external lawyer who was at that time, and throughout the hearing, sitting next to her at the ‘Bar table’. The Woolworths employee performed the conventional role of an advocate in the Commission hearing.
  • It was conceded in the appeal that the external lawyer provided professional legal services to the Woolworth advocate during the hearing, although no specific finding is made by the Full Bench as to what comprised those legal services save that they did not involve making oral submissions to the Commission or otherwise having exchanges with the Commission. [3]

 

Amongst other things, Woolworths met the proposition that it had been required to obtain s.596(2) Commission permission for it to use the services of an external lawyer in connection with the matter with the contention that the requirement only applied in relation to the performance of the advocacy function in a Commission hearing setting (or the like), and that the function performed by the external lawyer in the jurisdictional hearing was not that of advocate for Woolworths but rather that equivalent to the role of a ‘McKenzie friend’[4] – a role by way of rendering assistance to the advocate which was accepted could be played without the need to seek and obtain Commission permission.

The Full Bench rejected the Woolworths contentions that there had been no obligation on it to obtain Commission permission for external legal representation.[5]

It held that s.596(1) operated to require Woolworths to obtain Commission permission for an external lawyer to perform a ‘McKenzie friend’ function in the jurisdictional hearing.

 

In that respect, the Full Bench said at [54] – [55]:

[54]….The practice of parties using ‘shadow lawyers’ which has apparently developed to the extent that it involves lawyers engaged by a party in a matter attending and being involved in the conduct of a hearing without actually engaging in oral advocacy, should not we consider be regarded as falling outside the scope of operation of s596.’

[55] Woolworths was therefore required to seek the Commission’s permission for Mr Bennett’s participation in the hearing on 3 March 2017. The Commissioner erred in proceeding on the basis that permission was not required under s596(2) merely because Mr Bennett was not to engage in oral advocacy. Alternatively he erred by formally refusing permission whilst still allowing Mr Bennett to engage in what we have found to be legal representation of Woolworths at the hearing.

 

Part 2: Full Bench conclusion, commentary and practical implications

Formulation of conclusion re s.596(1)

It is suggested that the meaning and effect which the Full Bench attributes to s.596(1) is to be gathered by reading paragraph [44] of the decision read in conjunction with paragraphs [27] to [44] that proceed it.

When that is done, it is suggested that the conclusion reached by the Full Bench can be formulated as follows:[6]

In order for a person is involved in a Commission matter to have an external lawyer to perform any legal activity or function in connection with that matter, section 596(1) requires that permission of the Commission under s.596(2) be obtained unless:

a. The activity or function is that mentioned in s.596(3), namely, the activity of function of making a written submission in modern award/minimum wage proceeding in the Commission;[7]

b. The activity or function is referred to in Rule 12(1) of the FWC Rules, namely:

i. preparing an application in relation to a Commission matter;

ii. preparing a written submission for the person (i.e. client) to make in relation to a Commission matter;

iii. lodging with the Commission a written application in a matter on behalf of a person (i.e. client);

iv. lodging a document with the Commission on behalf of the person (i.e. client) in a matter (which. Amongst other things, would allow the lawyer to lodge, say, the written submission they have prepared).[8]

c. The activity or function is by way of:[9]

i. the provision of legal advice to a party providing it does not involve interaction with the Commission (provision of legal advice exception);

ii. an ‘inter partes dealing’ (which it may be presumed means activities or functions that entail exchanges with another party to the Commission matter or their lawyers);

iii. other legal representation function or activity not involving interaction with the Commission.

(collectively ‘Category (c) exceptions’)  

Scope of Category (c) exceptions uncertain and clouded

 

As can be seen, under this formulation of the meaning and effect of s.596(1), the scope of the exceptions is all important.

In that regard, the scope of the exceptions to the Commission permission requirement referred to in (a) and (b) of this formulation are relatively clear.

However, that is not the case in relation to the Category (c) exceptions, especially those in paragraphs (c)(i) and (iii). In the case of those exceptions, the question of their application in a particular case turns substantially on whether the performance of the activity or function involves interaction with the Commission.

The concept of interaction with the Commission is less than precise. Accordingly, it raises substantial questions as to the scope of those important exceptions, most obviously and significantly, as regards the scope of the provision of legal advice exception.

Indeed, it may be said that if this formulation of the conclusion reached by the Full Bench is accepted as substantially accurate, the question of whether that conclusion effects a radical change from the received position, or represents a ‘paradigm shift’ in relation to external legal representation in Commission matters, may only be answered by resolving the uncertainty as to what constitutes interaction with the Commission for the purposes of those exceptions. Only then can the implications of the decision be properly appreciated.

Unfortunately, the Fitzgerald decision is unhelpful on that matter.

In the first place, it is to be noticed that in paragraph [44] the Full Bench prefaces the Category (c) exceptions with the qualification that they are ‘probable’ exceptions as distinct from saying they are definite exceptions.

With respect, given the centrality of those exceptions to the construction and operation of the provision as a whole, it is suggested that it was incumbent upon the Full Bench to go further and to express a definite conclusion about both their existence and scope – any conclusion about the meaning and effect of s.596(1) was inchoate without it.

Further, it is suggested that for the disposition of the appeal question presented it was necessary for the Full Bench do so and then go on to decide whether, on the facts, the provision of legal advice exception applied.

 

This is because:

  • the s.596 issue presented on the appeal was whether or not the function that the lawyer performed in the Commission at first instance required Commission s.596 permission.
  • on the facts, the function that the external lawyer performed was the so called ‘McKenzie friend’ like function, that is, during the course of the unfair dismissal hearing, lending assistance to the person who was performing the advocacy function on behalf of the corporate client. On the facts related, that function did not involve the external lawyer making any submission to the Commission – just endeavouring to give ‘on the spot’, in hearing assistance to the advocate representing the client.
  • therefore, on those facts it is suggested that it was strongly arguable that the function that the external lawyer performed was aptly categorised as the provision of legal advice to the client.
  • accordingly, the disposition of the appeal by the Full Bench naturally engaged the (probable) provision of legal advice exception the Full Bench had itself identified as carried in s.596(1), and therefore required it to reach definite conclusions on its existence, scope or content and, in turn, as to whether it applied or did not apply on the facts.   

 

A reading of the decision from paragraph [45] onwards indicates that, despite the general conclusion it had reached on the construction of s.596(1) (as set out in the formulation above), the Full Bench did not look at its decision-making task in that way.

When in the paragraphs that followed paragraph [44] it turned to deciding the particular external legal representation point raised in the appeal, it left behind the conclusion it had by then reached on the meaning and effect of s.596(1), and swung back to a discussion simply of whether the function that the external lawyer performed in the case constituted ‘legal representation’. It concluded that it did, that it was a function obviously performed before the Commission and treated that conclusion as determinative that Commission permission was required: see [47] – [55].

In taking that approach, the Full Bench made no explicit reference to, and ventured no discussion of the provision of legal advice exception it identified in paragraph [44], and it did not discuss what amounted to interaction with the Commission for the purposes of that exception.

It may be remarked that if the Full Bench had instead firmed up and applied its conclusions about the scope of the provision of legal advice exception it had identified as one of several  ‘probable’ exceptions, it seems almost inevitable that it would have found it necessary to elaborate on what situations involving the provision of legal advice to a client in connection with a Commission matter were to be regarded as also entailing ‘interaction’ with the Commission, and therefore not within that exception.

Further, it is suggested that in order to sustain its actual decision on the question in the appeal, it would have been necessary for it to explicitly conclude that the provision of ‘in hearing’ advice and assistance by the external lawyer to the person performing the role of the client’s advocate did entail interaction with the Commission, even though the external lawyer made no submissions and did not otherwise themselves directly interact with the Commission in the hearing.

With that said, the outcome is that the Full Bench left the scope of the provision of legal advice exception significantly at large. In consequence it is only by inferring what the Full Bench’s reasoning on the scope of that exception ‘might have been’ that it is possible to work out the full meaning and effect that the Fitzgerald decision attributes to s.596(1) – see Part 3 below. That is necessarily and unsatisfactorily a conjectural exercise.

 

Practical implications of Fitzgerald decision – uncertainty as to when permission required

Because of the point just made about the uncertain scope of the Category (c) exceptions, it is difficult to be definitive as to what functions or activities performed by an external lawyer for a client in a Commission matter are subject to the Commission permission requirement according to the Fitzgerald decision.

The best that can be said is that it is clear that in the case of a Commission hearing in a matter, the giving by an external lawyer of ‘in room’, on the spot advice to a person who is performing the role of advocate as to how they should go about performing that role or representative requires permission.

It would also seem to follow that the performance by an external lawyer of that role or activity in any other setting where the Commission is constituted/sitting to deal with a Commission matter, such as a conciliation conference or directions conference would also attract the permission requirement.

However, a particular and besetting question is whether giving ‘out of room’ advice in the course of a hearing or conference (say, during a break in the hearing or conference) to a person who is performing the role of advocate or representative in a Commission matter requires permission.[10]

On that score, it could be fairly argued on the basic logic of the Fitzgerald decision that the performance of that function does require permission. The argument would be that although the external lawyer activity or function is properly described as involving the provision of legal advice to a client, its proximate relationship to a hearing or conference is such as to warrant the conclusion that its performance involves interaction with the Commission and hence falls outside that Category (c) exception as outlined by the Full Bench in paragraph [44]. If that argument were to prevail, it would be correct to say that the Fitzgerald decision effected a radical change in relation to the subject of permission for external legal representation.[11]

 

Part 3 –  Full Bench reasoning and error in approach

Full Bench reasoning described

It is suggested that the Full Bench employed the following course of reasoning to reach its conclusion about the meaning and effect of s.596(1):

  • The Full Bench commenced by referring to two extant decisions concerning s.596, namely, the Federal Court decision of Flick J in Warrell[12] and the Commission Full Bench decision in McAuliff[13] concluding that they were not of immediate assistance in the resolution of the issue presented in the appeal because they did not address the ‘scope of the concept of representation in section 596’.[14]
  • Continuing, the Full Bench maintained its focus on what representation and its cognates covered in the context of the provision. At [34] it states that ‘the text of ss.596 and 609 makes it apparent that representation on s.596 is concerned with more than advocacy at a hearing’.
  • From there, the Full Bench reasons that there are a wide range of activities that a lawyer performs for a client that fall within the concept of representation; those lawyer representation activities extend well beyond performing the role of the client’s advocate in a hearing: [34]-[35].
  • That juncture reached, the Full Bench then observes that the text of sections 596(1), and correspondingly s.596(2), refer to representation ‘in a matter’ in the Commission. It observes that this phrase is apt to refer the whole of the justiciable controversy bound up in a proceeding in the Commission: [36]

 

(Note: As pointed out below, significantly the Full Bench at this early part of its reasoning elects to focus only on part of the phrase which qualifies the word ‘represented’ in s.596(1) – the full phrase is ‘in a matter before the FWC’ (underlining added))

  • Putting those several strands of reasoning together, the Full Bench appears to conclude that the subject that s.596(1) regulates is all activities that fall within the concept of lawyer representation in connection with the justiciable controversy that is in the Commission, subject only to the exceptions made by s.596(3) and Rule 12 of the FWC Rules. Significantly, the Full Bench observes that this extends to lawyer representation activity in connection with the Commission matter that occurs outside the confines of a hearing or conference setting as well as lawyer representation activity within such a setting: [37]
  • The Full Bench then observes at paragraph [38] that ‘s.596 is drawn in broader terms than the requirements for permission for legal representation contained in predecessor statutes’.

 

(Note: Again, the Full Bench at this point is stating a decided view about an aspect of the reach of s.596(1) – about its broadness in contrast to representation provisions in predecessor legislation – doing this before it has concluded its analysis of the complete text of the provision).

  • After reference to decisions that considered the reach of legal representation provisions contained in predecessor legislation, in the first sentence of paragraph [44], the Full Bench expresses the concluded view that:

we consider that s.596 is not confined to permission for courtroom advocacy, and indeed appears to be drafted in a way that is deliberately distinct from its predecessors provisions and was intended to put doubt that all aspects of representation in connection with a [Commission] mater were to be encompassed’.’

 

(Note: Again, the Full Bench at this point is stating its decided view about the scope of s.596(1) before it has considered the whole text of the provision as it, in effect, acknowledges in what it says in the remainder of paragraph [44].)

  • Then (and only then) does the Full Bench in the remainder of paragraph [44] turn to the words ‘before the FWC’ that appear immediately after the words ‘represented in a matter’ in s596(1) and consider their significance and effect. Of those words the Full Bench says they would:
    • naturally exclude legal and agency services provided in relation to a justiciable controversy under the FW Act before an application is made to the Commission’ (bold emphasis added);
    • probably also exclude the provision of legal advice to a party, inter parte dealings and other activities which do not involve interaction with the Commission itself even after an application is made to the Commission.’ (bold emphasis added).

(As is apparent, those italicized statements describe categories of lawyer activity and function that are, to use the Full Bench’s language, ‘excluded’ from the need to obtain Commission permission under s.596(2). On the Commission’s own reasoning those exclusions arise from the text of s.596(1) itself, and in that sense they are not properly described as ‘exclusions’ or ‘exceptions’ to the application of s.596(1) although the Full Bench treats them as such and thereby dictates that its conclusion as to the meaning and effect of s.596(1) be formulated in the way set out under Part 2 of this note.)

  • That overall conclusion as to the meaning and effect of s.596(1) having been stated, at [45] the Full Bench then turns to a description of the operation of s.596 of the FW Act and the relevant rules which govern legal representation in an unfair dismissal matter.  

(It might be expected that this description of the application of s.596(1) would relate and justify itself by reference to the conclusion that the Full Bench has expressed through paragraph [44] and the reasoning that precedes that paragraph. However, the Full Beach reasoning does not follow that path.)

  • On the understanding of the author of this note, the Commission in paragraph [45] essentially says:

»Once an unfair dismissal application is commenced in the Commission, a person involved in the matter thereby instituted, who uses the services of an external lawyer in connection with that matter is being represented by an external lawyer in that Commission matter within the meaning of the word ‘represented’ in s.596. On that footing ‘all dealings with the Commission undertaken [by the external lawyer] on behalf of either party from that point onwards in connection with the application constitute representation [for the purposes of s.596]’.

»[It is noted that, no particular elaboration is given regarding the concept of ‘dealings with the Commission’, being an expression which may be taken in the context of the decision to have the same meaning as the concept of ‘interaction’ with the Commission as referred to in the exceptions identified in paragraph [44].]

»However, representation activities performed by an external lawyer ‘outside of’ a conciliation conference, determinative conference or interlocutory or final hearing ‘generally’[15] do not attract the permission requirement. This is because those activities (subject to any contrary Rule 12(2) direction) come within the types of representation activity that is exempted from the permission requirement by rule 12(1).[16]

(With respect, this second proposition is very puzzling and it is suggested is not supportable.

On its language, Rule 12(1) plainly does not have such a large exempting operation – the categories of activity or function exempted by Rule 12(1) are stated precisely and quite narrowly; its language cannot be construed as establishing a general exemption for all lawyer functions or activities performed in connection with a Commission matter where they are performed physically outside a conciliation conference, determinative conference or interlocutory or final hearing setting.[17]

It is suggested that on the Full Bench’s own reasoning, if lawyer activities and functions performed outside those settings are not subject to the permission requirement, then to the extent they are not covered by the precise exemptions in Rule 12(1), the reason why they are exempted must lie in the fact that they fall within the Category (c) exceptions identified by the Full Bench in paragraph [44] as arising from the phrase ‘before the FWC’ in s.596(1).)

  •  That general explanation of s.596 in the context of an unfair dismissal matter having been given, it is suggested that the Full Bench then proceeds in paragraphs [46] to [55] to decide the appeal question by simply deciding that the performance of the ‘McKenzie friend’ function by the external lawyer in the unfair dismissal hearing at first instance amounted to an external lawyer performing a legal representation function at a hearing before the Commission.[18] (Note: The Full Bench did not refer to the possible or actual relevance of the Category (c) exceptions in its reasoning on the issue.)

 

Primary errors in Full Bench reasoning

It is suggested that the course of reasoning employed by the Full Bench to reach the conclusion about the meaning and effect of s.596(1) is unorthodox as a matter of legal principle and unsound.

In this regard it is sufficient for the purposes of this note to refer to the injunction in the judicial authorities that ‘the task of statutory construction must begin with a consideration of the [statutory] text’ and that the task is ‘to construe the language of the statute, not individual words’.[19]

On that foundational principle, it has also been emphasised in the authorities that the task is not properly undertaken by pulling apart a provision, or composite phrase within a provision, into its constituent words, selecting one meaning, divorced from the context in which it appears, and then reassembling the provision.[20]

It is suggested that the Full Bench reasoning departs significantly from the approach that those principles dictate.

In this case, on a straightforward reading of the text of the provision it can be seen that it imposes a restriction that applies in relation to the performance of activities or functions that constitute representation. The activities or functions which are identified as subject of restriction is that of representing a person in a matter before the FWC.

The subject of the restriction is not ‘legal representation’, it is the performance of the identified activities or functions by an external lawyer.

Once the content or boundaries of the restricted activities or functions are ascertained by a process of statutory construction, the provision operates to exclude external lawyers from the field of those activities or functions demarked unless Commission permission is first obtained.

To put this in another, more concise way, as a matter of ordinary language, the text of the provision declares that without Commission permission under s.593(2), the activity or function of representing a person in a matter before the FWC cannot be performed by an external lawyer unless it is within the exceptions created by s.596(3) or Rule 12(1).

Understood in this way, it is suggested that it is a plain error to begin with a discussion about what constitutes legal representation or what activities of functions constitute legal representation in a matter before the Commission. The text and structure of the provision does not invite that approach.

On that basis it is suggested that by beginning the exercise of construction of s.596(1) with a discussion of the concept of legal representation was a first and primary error in the Full Bench’s reasoning and that this renders the conclusion reached on the construction of s.596(1) unreliable.

On an orthodox approach, the critical first task was to determine what activities or functions constitute representation of a person in a matter before the Commission, whether or not they be regarded as belonging to the concept of legal representation.

That approach calls attention to the phrase ‘in a matter before the FWC’ found in s.596(1) and repeated in s.596(2). It is that particular type of representation that is the subject or target of the provision and which is forbidden to an external lawyer absent Commission permission.

In this regard, the phrase ‘in a matter before the FWC’ is a composite phrase and therefore it is necessary to construe it as a whole.

In relation to construing that phrase, it is suggested the Full Bench committed another serious error.

As stated, the phrase is a composite phrase in that the concluding words ‘before the FWC’ are grammatically connected to and qualify the words ‘in a matter’.

As the description of the Full Bench reasoning set out above shows, the way it went about construing s.596(1) involved isolating the words ‘in a matter’ from the words ‘before the FWC’ (those later words were notionally put out of sight until paragraph [44] was reached) and construing the effect of the words ‘in a matter’, up to paragraph [44] as the only qualifier on the kind of (legal) representation caught by the provision.

It is suggested that also was a plain error, and again as shown in the description of the Full Bench’s reasoning set out above, this approach led it to express in the first sentence of paragraph [44] the definitive (and it is suggested premature) conclusion that s.596(1) was drafted in a way that ‘is deliberately distinct from its predecessors provisions and was intended to put doubt that all aspects of representation in connection with a [Commission] matter were to be encompassed’.

With respect, a conclusion of that kind could not be properly expressed at a point which fell ahead of any consideration being given to the words ‘before the FWC’ in the context of the whole composite phrase.

That flaw in the Full Bench reasoning was not remedied by the Full Bench then turning to the effect of the phrase ‘before the FWC’ on the operation of s.596(1) as if those words raised a distinct and subsequent question, and operated to introduce exceptions to a prima facie position about the operation of s.596(1) already reached. The words ‘before the FWC’ are an embedded component of the whole composite phrase and the exercise of construction needed to proceed on that basis from the beginning.

It is suggested that if those errors in reasoning had not been made, difficulties with the scope of ‘exceptions’ created by the words ‘before the FWC’ would not have arisen; it would have been necessary for the Full Bench to squarely confront the question of activities or functions constituted representation ‘in a matter before the FWC’ and which did not.

It may be accepted that this may have resulted in a line drawn by reference to whether the performance of the activity or function involved interaction with the Commission (on the basis that the words ‘before the FWC’ carried a connotation of that kind), but in that case it is suggested that the Full Bench would have recognised that arriving at a conclusion about that matter was integral to the process of construction of the composite phrase to which it needed to direct its attention.

 

Part 4 – Some arguments about the proper construction s.596(1) and implications

In view of the Fitzgerald decision and what this note argues are the serious flaws in its reasoning, it is submitted that there is a strong case for its conclusions about the construction of s.596(1) to be reconsidered.

Apart from the points already made under Part 3, and without purporting to set out a comprehensive set of contentions regarding the construction of the provision, it is thought worthwhile to tentatively put forward the following inter-related arguments:

 

  • The words in the composite phrase ‘in a matter before the FWC’ do seem to be squarely capable, in the context of the provision, of referring to the situation of representation ‘in front of’ of the Commission such as to indicate that it is the performance of a representative function when the Commission is actively dealing with a matter through hearing or conference that is the target of the provision.
  • In that respect, it is suggested that:

 

»that construction would seem available as a matter of ordinary meaning of the word ‘before ’in its collocation with the words ‘the FWC’, and also with the general notion of being ‘before’ a court or tribunal;

»if that construction was adopted, it would be intelligible as referring to performing an advocacy function in a hearing, conciliation or like setting and hence workable in practice including as far as working out when permission needed to be sought and when it was warranted according to the criteria in s.596(2);[21] and

»its adoption would not seem to give rise to any particular or irresolvable tension or inconsistency between the operation of the provision as construed in that way, and the operation of other associated provisions of s.596 including the true exceptions in s.596(3) or Rule 12(1).

  • Relatedly, there would seem to be an argument that if the legislature was concerned to prima facie encompass all representation activities or functions performed in connection with a Commission matter, the phrase ‘in a matter in the FWC’ would have been selected rather than phraseology which read ‘in a matter before the FWC’.[22]
  • The adoption of the construction suggested would overcome any objections that the provision made a significant inroad upon the capacity of a person involved in a Commission matter to enlist and receive external legal assistance or that the provision raised a fundamental question of ‘legality’ as regards fundamental legal rights.  
  • That construction, at least on the author’s reading of the relevant part of the Explanatory Memorandum, would not seem to aggressively collide with what is said about the provision in that document.  

 

It is also suggested (perhaps somewhat controversially in the eyes of some lawyers) that the construction would not necessarily invalidate the actual conclusion reached in the Fitzgerald decision about the performance of a ‘McKenzie friend’ type function by an external lawyer.

In that regard, it is suggested that there is a substantial argument that the performance of that function by an external lawyer, both as a matter of the text of the provision and its policy, is intended to attract the Commission permission requirement.

The essence of that argument would be that, where in the course of a Commission hearing, an external lawyer advises a person performing the advocacy role as to the course of action to be taken by them, in real substance and by its effect, the external lawyer is performing a representative role in that hearing – ‘before the FWC’.

This proposition might be supported by a contention that says that it is apparent that s.596 at least carries the notion that the conduct of a party’s case or representation of a party’s position in a hearing or on any other occasion on which the Commission is sitting to deal with the matter is not to be in the hands of an external lawyer absent s.596(2) permission.

It would be said that any narrower view of its operation would not be possible to reconcile with the text of the provision, its apparent object found in the text of s.596 as a whole, other provisions of the Act bearing on the matter such as s.577, and the explanation of the provision in the Explanatory Memorandum.

It would be said also, powerfully it is thought, that an approach that allowed so called ‘McKenzie friend’ arrangements to obtain in hearing or conciliation settings without Commission permission would be an approach that allows that which is prohibited from being done directly, to be done indirectly.

It is on this basis that, as a final point, it is suggested that if the concept of interaction with the Commission in its operation in the Category (c) exceptions is treated as requiring that the representative activity or function be an activity performed in a Commission hearing or conference setting, the conclusion reached by the Full Bench about the construction of s.596(1) in practical impact corresponds with that which might be reached by following a more orthodox path of reasoning.

 

 

Bryan Mueller

Bartlett Workplace

8 March 2018

 

Postscript

The Fitzgerald decision and what is suggested in this note to be the uncertainty about its meaning (and also about its correctness) raises difficult questions for participants in the system. Clients and practitioners alike will need to make their own decisions about what it requires of them in relation when s.596(2) permission needs to be sought. Decisions may also be made in some instances as to whether, when permission is sought or when it is suggested by another party or the Commission that permission needs to be sought, a substantive or at least formal contention should be made that the Fitzgerald decision is wrong as well as a submission based on what Fitzgerald decided.

 


 

 

[1] The view that the Full Bench does apply in that later phase of the decision, if extrapolated to non-unfair dismissal matters, arguably means that the decision only extends the Commission permission requirement to the performance by an external lawyer of a ‘McKenzie friend role’ in a Commission hearing or conciliation setting and no more. The trouble is that it is quite uncertain as to whether the fundamental, lynch-pin view expressed by the Full Bench on the construction of s.596(1) (as described in Part 2 of this note) earlier in its reasons produces that same outcome.

[2] In the circumstances, it may be that the Full Bench would need to be constituted by 5 members. It is also observed that, understandably, one aspect of the decision, namely, that Rule 12(1) operates to make it unnecessary to obtain Commission permission for any representational activities undertaken prior to or outside a conciliation conference, determinative conference or interlocutory hearing in an unfair dismissal matter, is being applied (see Stringfellow v CSIRO [2018] FWC 1136 at [33] – [35]) despite that aspect of the decision being both plainly unsupportable on the text of Rule 12(1) and out of keeping with the Full Bench’s conclusion on the construction of s.596(1) and the course of reasoning used to reach it – see comments in Part 2 on that part of the reasoning of the Full Bench which attributes that wide ranging operation to Rule 12(1).  

[3] See paragraph [47] – the Full Bench contented itself with the conclusion that the provision of professional legal services constituted representing Woolworths before the Commission for the purposes of s.596 going on to say in paragraph [48] that the role played by the external lawyer ‘appears to have been, at least, roughly analogous to that taken by an instructing solicitor and/or junior counsel assisting senior counsel in the conduct of a matter on behalf of a client.

[4] The notion and role of a ‘McKenzie friend’ in court and tribunal hearings is referred to in paragraphs [49]-[51] of the decision.

[5] The Full Bench nevertheless dismissed the appeal essentially because it considered that Woolworths’ jurisdictional objection was well founded and the error regarding the issue of permission for representation did not cause prejudice to the applicant: see paragraph [57].

[6] As pointed out in Part 3, when it came to deciding the particular representation issue raised in the appeal, the Full Bench explains the operation of s.596(1) in relation to representation in unfair dismissal matters in a way that does not really accord with or at least methodically apply this formulation, even though it is submitted that this formulation accurately reflects what the Full Bench concluded about the construction of s.596(1).

[7]  Section 596(3) speaks for itself with its ‘excepting’ operation referred to in the opening words of s.596(1), and this is acknowledged in the Fitzgerald decision in a number passages which precede the critical passage that occurs at [44] and against which that paragraph must be read.

[8] Again, these exceptions to the permission requirement for external legal representation imposed by s.596(1) arise from the opening words of the provision which provide that the restriction imposed is subject to ‘the procedural rules’. Rule 12(1) of the FWC Rules is the relevant procedural rule.

[9] As the description of Full Bench reasoning found in Part 3 of this note shows, at paragraph [44] the Full Bench describes the Category (c) exceptions as being exceptions that ‘probably’ apply by reason of the phrase ‘before the FWC’ in the text of s.596(1). In the same passage the Full Bench also states that the phrase would also operate to ‘naturally exclude legal and agency services provided in relation to a justiciable controversy under the FW Act before an application to the Commission is made.’

[10] It is possible also to at least argue on one view of the logic of the Fitzgerald decision that the giving of any ‘advocacy directed advice’ in the period leading up to a Commission hearing or conference might be captured by s.596(1) to the extent it is not within a Rule 12(1) exception.

[11] Of course, that argument would confront the contention that when the Full Bench in the Fitzgerald decision came to describe the operation of s.596(1) in the context of a unfair dismissal matter, it stated that ‘generally’ the performance of representative functions by external lawyers ‘outside of a conciliation conference, determinative conference or interlocutory or final hearing’ would not require permission – see below.

[12] [2013] FCA 291

[13]  [2014] FWCFB 1663

[14] At paragraph [33], thereby prefiguring the importance that the Full Bench reasoning was to attach to the use of the word ‘represented’ in the provision.

[15] The meaning of that potentially important but indeterminate qualifier is not discussed in the decision.

[16] See also last sentence of paragraph [46].

[17] It would also be a type of inverse interpretative error to use the terms of a procedural rule to affect the construction of a substantive provision.

[18] It may be said it was implicit in that conclusion that the fact that the function was performed in the hearing setting in the course of the hearing gave the performance of the function its requisite ‘interaction with the Commission’ aspect, but the point is that if that is so, it is only at best implicit in the Full Bench reasoning and it leaves the question of what constitutes interaction for the purposes of the analysis unstated and unexplored.

[19] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46 [47]; St George Bank Ltd v Federal Commissioner of Taxation [2009] FCAFC 62; (2009) 176 FCR 424 at [28]; see also XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532 at [102]; R v Brown [1996] AC 543 at 561 quoted in Agfa-Gevaert at 397 and Metropolitan Gas Company v Federated Gas Employees’ Industrial Union [1925] HCA 5; (1925) 35 CLR 449 at 455.

[20] Lorimer v Smail [1911] HCA 44; (1911) 12 CLR 504 at 508–10; R v Carter; Ex parte Kisch [1934] HCA 50; (1934) 52 CLR 221; Biga Nominees Pty Ltd v Commissioner of Taxation (1991) 21 ATR 1459 at 1468–1469

[21] That matter is a matter which is very clouded under the Fitzgerald decision.

[22] It seems that existing judicial decisions bearing on s.596(1) would not stand in the way of these contentions.