Neither Simple nor Fair - Restricting Legal Representation before Fair Work Australia

Abstract

Fair Work Australia is the Commonwealth Government’s proposed ‘one-stop shop’ for employment relations matters. An important feature of FWA is its unfair dismissal jurisdiction, which is supposedly designed to deliver a simpler, faster and less costly process by restricting legal representation of parties before FWA and instituting a mixed ‘inquisitorial-adversarial’ model of dispute resolution. This study examines whether restricting legal representation achieves the primary goal of Labor’s substantive workplace relations reforms - fairness by reference to three key elements: legal truth, cost and efficiency. Following this examination, the article finds that imposing further restrictions on legal representation undermines fairness because it creates an imbalance between costs, legal truth and efficiency. The article recommends that, subject to minor amendments aimed at improving the unfair dismissal process, the present statutory treatment of legal representation should remain.

Keywords: Fair Work Australia, fairness, unfair dismissal, legal representation

JEL Classification: K10, K31, K39