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Moving forward, paid agents representing applicants in Fair Work matters will have to disclose their cost estimates, among other changes to be adopted in the wake of “concerning” conduct from such agents.
In January of this year, FWC president Adam Hatcher (pictured) established a Paid Agents Working Group to review the procedures that apply to the participation of paid agents in FWC proceedings and consult on potential options to manage challenging paid agent conduct.
While many paid agents are competent professionals who act in the best interests of the parties they represent, commission members and staff “have observed some paid agents engaging in conduct that may not be in the best interest of the paid agent’s client, may not assist the commission to exercise its powers in a manner that is efficient or quick, or is otherwise concerning”, Hatcher said in a statement issued on Monday, 9 September.
Concerns identified, as per the working group’s paid agents and the Fair Work Commission report, include payment arrangements and fee structures, quality of representation, whether a paid agent is contactable, aggressive conduct towards conciliators, misleading clients to mistakenly believe that the paid agent is part of the FWC, or is a legal professional, and/or acting contrary to or without instructions.
The working group was tasked with identifying ways to ensure that paid agents appearing in FWC matters conduct themselves ethically and honestly, act in their clients’ best interest, and operate in accordance with the expected standards that a lawyer would have to adhere to.
Following its “extensive” consultation period, the working group produced five recommendations: that members and conciliators determine applications under s596 of the Fair Work Act for representation by a paid agent prior to any conciliation, conference, or hearing; that cost arrangements be disclosed prior to the conciliation process; that information about representation by paid agents be bolstered on the FWC website; that payment of settlements should only be made into the bank account of an applicant; and that referral arrangements with community legal centres and other pro bono legal services be enhanced.
Moreover, the working group also suggested – separate from its five recommendations – that a “scheme of registration” of paid agents would go some way to addressing issues with conduct by paid agents.
Such registration, the report outlined, could include a “fit and proper” test akin to that for the legal profession and the capacity for a tribunal to investigate possible breaches and deregister participants for those breaches.
This, the working group and Hatcher ceded, would require legislation in order to be implemented.
