David and Goliath in the Fair Work Commission

By John Wilson

July 17, 2017

A recent Fair Work Commission decision has permitted Australian Government Solicitor lawyers and their state or territory counterparts to appear as of right in the industrial tribunal. This is a troubling judgment for a number of reasons, but is particularly concerning for public servants.

Typically, parties can only be represented by a lawyer before the Commission with the approval of a Commissioner. This is because the Fair Work Act jurisdiction is intended to operate in an informal and non-adversarial manner. Until this point, lawyers for both the applicant (say an aggrieved public servant) and the respondent (the government department) would have to state their case as to why they should be allowed to represent their client. While in most cases leave to appear was granted, the Commission retained the discretion to decline representation when appropriate.

A leg up for government departments

Following Gibbens v Department of Immigration and Border Protection, only the employee’s lawyer has to make such arguments. At first glance this is unproblematic; few Commissioners would decline an employee representation when the government is represented by the Australian Government Solicitor. But often employees do not have the finances to procure legal representation. It is now likely that, despite the clear inequity, a public servant might be forced to battle their department and the Australian Government Solicitor. Employees already feel disadvantaged when legally sparing with their employer, let alone when they are unrepresented against the largest employer in Australia with guaranteed legal representation.

Beyond the tangible effect on employees, taxpayers might also be burdened. The Australian Government Solicitor must bid for government work alongside private law firms, to ensure public legal work is done at competitive rates. But departments will now have an added incentive to engage their services over private options, regardless of costs differences.

The Gibbens precedent

Given these deleterious side effects, what motivated Commissioner Williams’ decision in Gibbens? Under the Fair Work Act, in-house lawyers – employees of the organisation before the Commission – are excused from the requirement to seek permission to appear. The Department of Immigration and Border Protection argued that, as Australian Government Solicitor lawyers are employees of the Commonwealth, they were effectively in-house counsel for the department.

Commissioner Williams agreed. He observed: “I have considered the submissions of both parties and am satisfied that lawyers of the AGS are entitled, as of right, to represent the Respondent being the Commonwealth of Australia (Department of Immigration and Border Protection) and consequently permission from the Commission is not required.” Commissioner Williams offered no further reasons and did not consider the policy consequences of his judgment. I have already seen other departments seeking to rely on this decision.

Whether the judgment stands is another question. While Commissioner Williams’ interpretation of the legislation is sound, the practical implications strike at the heart of the Fair Work Act’s objectives in this regard. Additionally, the relevant statutory provisions relied upon in Gibbens concerning in-house lawyers hardly represents an accurate description of the Australian Government Solicitor. That agency has to bid for government work alongside other law firms, which is rather inconsistent with being in-house. Yet the likelihood of a public servant appealing the Gibbens precedent is slim – few employees have the funds or desire to challenge such a procedural point of principle.

To further illustrate the issue, departments do have their own in-house lawyers. The Department of Immigration and Border Protection has an extensive legal department. If this is the case, why would any department choose to engage the Australian Government Solicitor’s services over that of its in-house lawyers? Probably because such counsel are not well versed in employment law matters while the Australian Government Solicitor have specialists.

Gibbens leaves public servants in an undesirable position. The odds have always been stacked against public servants in disputes with the government, and department are already spoilt for choice when it comes to legal representation. David against Goliath indeed.

John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Rebecca Richardson and Kieran Pender in the preparation of this article.

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