The idea of pursuing any sort of court action can be daunting, particularly when a part is not legally represented. In the Fair Work Commission, Australia’s national workplace relations system, representation is optional and there is no automatic right to representation. Even if a person has the option to be represented, they may decline the opportunity due to various concerns such as cost. Despite these concerns, it is important to acknowledge the real benefits of representation and the importance in having a Workplace Advisor or legal representation at the Fair Work Commission.
Knowledge and expertise
One of the most obvious reasons to be represented is that the law is not easy to interpret or apply. Qualified lawyers are experienced and will advise you on your rights and potential liability in a court action. Without proper representation, you may be compromising your rights, reputation and finances.
Aside from representing you efficiently, representatives are aware of the standards that are required in regards to the conduct of all parties attending a conference or hearing. The standards are in place to assist the Commission in providing fair hearings for all parties. Providing fair hearings involves allowing all parties to put their case forward, and to have their case determined impartially and according to law. The Commission and all parties appearing before it, including representatives, have responsibilities to each other and in providing a fair hearing for all participants. When you have a representative, they will guide you as to what these standards are, and this will indicate to the Commission and the opposing party that you are taking the matter seriously. To argue the best possible outcome, applicants need to seize both the moral and legal high ground in the way they carry themselves during these Fair Work conferences and conciliation hearings.
Representatives have your best interests in mind
Your representative is solely on your side and always has your best interests in mind. Like all courts and tribunals, the Fair Work Commission is an independent government body and so they are impartial. This means that the agents of the Fair Work Commission, such as conciliators or members, are not on your side. Instead, they can only provide even handed advice to both the applicant and respondent. If you engage a representative, they will address the merits of your claim, the Respondent’s arguments and provide you with the best advice on how your case can be best handled.
When the matter is listed for a conciliation conference, representatives make need to seek leave, or permission, to appear on an Applicant’s behalf, depending on the Application. In most cases, representatives are allowed to appear on behalf of the Applicant as the Commission understands that the Applicant unfamiliar with these types of proceedings. The Applicant would be going up against large companies and corporations who have more knowledge about the requirements and procedures under the Fair Work Act 2009 (Cth). In addition, most claims have a great deal of complexity in regards to the issues involved and so your representative will assist you in outlining the relevant argument for your particular application in order to “make your case” and convince the other side to settle.
Increases your chance of reaching a resolution
Although courts, tribunals and commissions have measures in place for self-represented individuals, statistics show that applications with representatives have a higher settlement rate all together. For instance, the 2018-19 Annual Report for the Anti-Discrimination Board of New South Wales indicates that only 19.1 percent of cases settle at or after conciliation and only 7.5 percent of cases settle prior to conciliation. This means that there is a total settlement rate of 26.6 percent. A total of 14.6 percent of cases that are resolved at the Anti-Discrimination Board of New South Wales, these are referred to the New South Wales Civil and Administrative Tribunals. This data indicates that your chances of reaching a resolution are significantly higher where an employee engages a representative.
Mitigates your liability for counterclaims or costs
Given a representative’s expertise and familiarity with legal actions, they will provide you with advice regarding the prospects of your case in a realistic way. Often, court actions are fuelled by emotion for applicants. Thus, they may not be thinking clearly or logically, which can impede on any outcome or resolution. Prior to a formal determination or decision, there are plenty of opportunities to reach a settlement agreement. Without proper advice, the applicant will be unaware as to whether any settlement offers are reasonable and within an acceptable range.
For instance, some applicants 2 years’ pay for an unfair dismissal but are unaware that there is a statutory cap of 26 weeks. By not accepting a reasonable offer or seeking unreasonable and unattainable remedies, you risk an order to pay costs. This means that if a judge or Commission member decide your case and you lose or receive less money than what was offered to you within settlement negotiations, a court or Commission can make an order that you are required to pay the other side’s legal costs. By engaging a representative, you are giving yourself the best change at making well-informed choices in your court case and minimises your risk of having costs awarded against you.
No-Win, No-Fee Options are available
Depending on the organisation and type of application, many representatives offer a no-win, no-fee arrangement to their clients. In the case of unfair dismissal or general protections, many paid agents or lawyers offer a variation of this fee arrangement and so applicants should not be discouraged from lodging an application out of concern about legal costs. The several benefits of representation should not be outweighed by the concern about your potential legal bill and so it is important that you investigate no-win, no-fee representatives, such as AWNA.
A Whole New Approach Can Help You!
A Whole New Approach (AWNA), is an independent body of workplace advisors and paid agents. We have run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards, VCAT and Tribunals. We are experienced in drafting the claims and applications on your behalf to a Federal Court standard, representing you in the conciliation conference, preparing documents for hearings or arbitrations and we are master negotiators. A Whole New Approach has acted for applicants in thousands of decisions published in various jurisdictions across Australia. Although we would act as your advocate, we provide realistic advice in regards to the prospects of your case. We are so confident in our ability, the majority of our cases are run on a no-win, no-fee basis. This means we are happy to carry the risk and run your case until you decide you are satisfied with the resolution.
Resources & Guides for Employees
- Unfair Dismissal Victoria – Find everything you need to know about Unfair Dismissal in Victoria.
- General Protections Victoria – When it comes to General Protections this is your definitive guide.
- Workplace Advice Victoria – Offering leading advice, take a look at how we support employees.
- Constructive Dismissal Victoria – Forced to resign? Have you fallen victim to constructive dismissal and/or constructive bullying?
For more help and support contact our team on 1800 333 666.
