Fair Work Act 2009

s.394 - Unfair dismissal

Department of Immigration and Border Protection

Termination of employment - identity of Respondent - representation.

[1] This decision concerns firstly an application by the Respondent to amend the application to change how the Respondent is identified and the second application is for the Australian Government Solicitor's lawyers to be permitted to represent the Respondent.

[2] The Respondent has made written submissions on these applications which have been provided to Mr Gibbens and he has similarly responded with his submissions in writing. I have considered those submissions in my decision which follows.

[3] The substantive application as filed by Mr Gibbens identifies the Respondent as "Department of Immigration and Border Protection".

[4] I accept the submission of the Respondent that the "Department of Immigration and Border Protection" does not have a separate legal identity from the Commonwealth of Australia. I also accept that the correct Respondent in this instance is the Commonwealth.

[5] Consequently for convenience and for clarity I will amend the identity of the Respondent to the application to read "The Commonwealth of Australia (Department of Immigration and Border Protection)". This amendment does not change the legal identity of the employer.

[6] The Australian Government Solicitor (the AGS) submits that lawyers employed at the AGS are employees of the Commonwealth in the ordinary meaning of the term and are Australian Public Service employees under the Public Service Act 1999. As employees of the Commonwealth it is submitted they have a right to appear for and represent the Commonwealth by virtue of section 596(4) (a) of the Fair Work Act 2009 which allows that an employer is not taken to be represented by a lawyer if the lawyer is an employee of that employer. Mr Gibbens disputes this interpretation.

[7] 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.

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