4512- S - Paid agents and the Fair Work Commission

The Law Council is grateful for the opportunity to provide a submission to the Fair Work Commission (Commission) about the Paid Agents and the Fair Work Commission Options Paper. [...] However, in relation to section 596 of the Fair Work Act 2009 (Cth) (FW Act), the Law Council’s position remains that parties in conferences and conciliations should have a general right to legal representation.3 In the Law Council’s view, it is not appropriate for the Commission to consider the ‘capacity’ of a lawyer to represent a particular party, to the extent that assessing the ‘capacity’ of. [...] The system could include professional standards and a code of conduct covering: • overarching duties to the Commission and to clients; • overarching standards of professionalism in the conduct of matters in the Commission, including in communications and dealings with other parties; • client engagement, including disclosure as to the terms of engagement; • appropriate requirements of the role, par. [...] The concerns raised in the Options Paper do not relate to the conduct of lawyers and the Law Council would regard it as inappropriate for the Commission to recommend legislative reform that would unnecessarily increase regulation and potentially further limit the ability of parties to access their lawyer of choice. [...] In the event that no other system for regulating paid agents is developed, it may be appropriate to amend section 596 of the FW Act to clarify the Commission’s discretion to refuse leave for a paid agent to represent a particular party on the basis of the paid agent’s competency to do so.