The Australian Workers' Union of Employees, Queensland v Queensland
[2016] QIRC 69
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- The Australian Workers' Union of Employees, Queensland v Queensland[2016] QIRC 69
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The Australian Workers' Union of Employees, Queensland v Queensland[2016] QIRC 69
The Australian Workers' Union of Employees, Queensland v Queensland[2016] QIRC 69
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | The Australian Workers’ Union of Employees, Queensland v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 069 |
PARTIES: | The Australian Workers’ Union of Employees, Queensland (Applicant) v State of Queensland (Department of Justice and Attorney-General) (Respondent) |
CASE NO: | TD/2016/45 |
PROCEEDING: | Reinstatement |
DELIVERED ON: | 24 June 2016 |
CONFERENCE DATE: | 22 June 2016 |
MEMBER: | Industrial Commissioner Knight |
ORDER: |
|
CATCHWORDS: | REINSTATEMENT – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 1999 – Whether Respondent can be represented by a lawyer under s 319 Industrial Relations Act 1999 – Application opposed – Commission’s discretion – Factors to be considered by the Commission in deciding whether to allow legal representation – Circumstances of the case – Leave granted to be legally represented |
CASES: | Industrial Relations Act 1999 s 319 Le Pierres v Herzfeld Pty Ltd (2000)163 QGIG 124 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079. |
APPEARANCES: | Mr T. McKernan for the Australian Workers’ Union, the Applicant Ms M. Marincowitz, Solicitor from Crown Law for the State of Queensland (Department of Justice and the Attorney General), the Respondent |
Report on Decision (as edited)
In giving her decision in a Conference on 22 June 2016, Industrial Commissioner Knight stated:
- [1]On 31 May 2016, the Queensland branch of the Australian Workers' Union, in this matter filed an unfair dismissal application.
- [2]Crown Law on behalf of the Respondent, the State of Queensland Department of Justice and the Attorney-General, has applied for leave to be legally represented in relation to these proceedings.
- [3]Subsection 319(1) if the Industrial Relations Act 1999 (Qld) ('the Act') sets out the circumstances where a party to the proceedings may be legally represented. Section 319 provides:
"319 Representation of parties
(1) In proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by—
(a) an agent appointed in writing; or
(b) if the party or person is an organisation—an officer or member of the organisation.
(2) The party or person may be represented by a lawyer if, and only if—
(a) for proceedings in the court—
(i) the proceedings are for the prosecution of an offence; or
(ii) all parties consent; or
(iii) the court gives leave; or
(b) for proceedings before the commission, other than proceedings under section 278 or 408F—
(i) the proceedings relate to a matter under chapter 4; or
(ii) all parties consent; or
(iii) the proceedings relate to a matter under chapter 3, or under section 275, 276 or 279, or under chapter 12, part 2 or part 16 and, on application by a party or person—
- (A)the commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances making it desirable for the party or person to be legally represented; or
(B) the commission is satisfied the party or person can be adequately represented only by a lawyer; or
…
(5) In this section—
proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar."
- [4]In support of the application, Ms Marinowitz of Crown Law on behalf of the Respondent provided the Commission with written submissions which relied on a number of legal authorities including Le Pierres v Herzfeld Pty Ltd ('Le Pierres')[1] and Wanninayake v State of Queensland (Department of Natural Resources and Mines) ('Wanninayake').[2]
- [5]Section 319(4) of the Act provides, in effect, that in deciding in accordance with s 319(2)(b)(iii) of the Act whether the Commission is satisfied that it is desirable for the respondent employer to be legally represented in these proceedings, it may consider, for example:
- (a)The amount claimed in the proceedings;
- (b)The nature and complexity of the matter;
- (c)The nature of the evidence to be adduced;
- (d)The cross-examination likely to be required;
- (e)The capacity of the party or person to represent himself or herself;
- (f)The questions of law likely to arise; and
- (g)Whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented.
- [6]Against a number of those criteria, Ms Marincowitz on behalf of the Respondent has highlighted:
- (a)the maximum compensation payable to Mr Cassidy in circumstances where the Respondent was ordered to pay compensation. The Respondent calculated this amount to be approximately $42,746.34;
- (b)the complexity of the matter and in particular, the value Crown Law could provide during the proceedings in the application of complex legal issues relevant to the matter;
- (c)the inevitable requirement for witnesses to be called in circumstances where the matter proceeds to be a formal hearing and the assistance Crown Law could provide to the Commission in this regard; and
- (d)that the Respondent would be forced to rely on an untrained advocate with limited experience in industrial matters and court proceedings.
- [7]Mr Troy McKernan, advocate for the Australian Workers Union of Employees on behalf of Mr Cassidy is objecting to Ms Marincowitz's application for legal representation.
- [8]Mr McKernan has raised concerns that the nature of the Ms Marincowitz's submissions indicate the Respondent Employer and its representatives have no intention of participating in the conference in a meaningful manner and that the Respondent appears to be simply going through the motions prior to proceedings to a hearing.
- [9]Mr McKernan has drawn a distinction between the conciliation and arbitration stages of an unfair dismissal "proceeding" and argued there is no cross-examination required in a conference, and further, there are no special circumstances that could justify granting permission to the Respondent to appear.
- [10]He has also questioned the submission that the Respondent (the Department of Justice and Attorney General) would experience challenges representing itself in circumstances where Crown Law’s application was unsuccessful.
- [11]In accordance with s 319(2)(b)(iii), I need to be satisfied it is desirable for the Respondent Employer to be legally represented by Crown Law in these proceedings.
- [12]The authorities relied on by Ms Marincowitz deal with circumstances where the conference in relation to the unfair dismissal has concluded and the matter has been referred to a formal hearing for determination of the application. Ms Marincowitz's submissions predominately consider circumstances that would arise in a formal hearing such as calling witness, adjournments in hearings and skillful cross examination.
- [13]In the decisions of Wanninayake and Le Pierres reference is made to the length of time allocated to a hearing and the importance of skillful cross-examination when investigating matters, however these considerations are not relevant in the context of a conference.
- [14]I did consider the use of the word 'proceeding' in the Act to determine whether today's conciliation could be considered a separate 'proceeding' when considering the criteria set out in s 319(4)(2)(b)(iii). However, s 319(5) is not very helpful in this regard.
- [15]In schedule 1 of the Acts Interpretation Act 1954 (Qld) "proceeding" is defined as "a legal or other action or proceeding".
- [16]Having considered the construction of Chapter Three of the Act and in particular s 74, the conclusion I have arrived at is irrespective of whether we are at the conciliation stage or the arbitration stage of the proceeding, it is essentially the same proceeding. The proceeding commenced when Mr Cassidy 'took action' to file his unfair dismissal application.
- [17]I have taken into consideration the submissions of the Respondent notwithstanding they predominately deal with circumstances which could arise if the matter proceeded to a formal hearing.
- [18]In this regard, having considered:
- the nature of the application Mr Cassidy has filed and the reasons for his termination;
- the amount that can be claimed in the proceeding;
- the possibility that if Mr Cassidy's matter proceeded to arbitration questions of law would arise;
- that these questions of fact and law are somewhat complex; and
- that if the matter proceeded to a formal hearing cross-examination would more than likely be necessary;
I am inclined to grant the Respondent's application for legal representation.
- [19]In doing so, I acknowledge Mr McKernan's concerns about meaningful participation by the parties at the conciliation stage of these proceeding as well as the Respondent's undertaking to comply with the model litigant principles and encourage both parties, where possible, to constructively work towards resolving the matter, at the conciliation stage before rushing off to a hearing.