Queensland v Together Queensland (No. 1)
[2018] QIRC 5
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- Unreported Judgment
- Queensland v Together Queensland (No. 1)[2018] QIRC 5
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Queensland v Together Queensland (No. 1)[2018] QIRC 5
Queensland v Together Queensland (No. 1)[2018] QIRC 5
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Queensland v Together Queensland (No. 1) [2018] QIRC 005 |
PARTIES: | State of Queensland (applicant) v Together Queensland, Industrial Union of Employees (respondent) |
CASE NO: | B/2017/37 |
PROCEEDING: | Application to be legally represented |
DELIVERED ON: | 17 January 2018 |
HEARING DATE: | Decision on the papers |
HEARD AT: | Brisbane |
MEMBER: | Deputy President O'Connor Deputy President Swan Industrial Commissioner Thompson |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – LEGAL REPRESENTATION – where application for leave to be legally represented made – where matter is before a Full Bench – where leave for legal representation granted – where application for leave is opposed – whether sole member of Full Bench able to grant leave – whether discretion to grant leave should have been exercised |
LEGISLATION: CASES: | Industrial Relations Act 2016 (Qld), s 432, s 530 National Tertiary Education Industry Union v Monash University [2016] FWC 5539 Warrell v Walton [2013] FCA 291; 233 IRJ 335 |
Reasons for Decision
- [1]This matter arises within the context of an application made by Together Queensland, Industrial Union of Employees, that this Commission make a declaration under section 463 of the Industrial Relations Act 2016 (Qld). The intended effect of the declaration sought would prevent employees of Crown Law from representing another Public Sector Unit of the State of Queensland in matters before this Commission. The merits of the substantive application will be determined following a hearing before the Full Bench which is currently set-down for 20 February 2018.
- [2]Crown Law sought the leave of this Commission to be legally represented in the substantive proceedings, that is, the State of Queensland sought to be represented by counsel for the substantive hearing of the matter. That application was made on 11 December 2017 and the grounds supporting that application will be detailed further below.
- [3]On 14 December 2017 the Commission granted the Crown's application for leave to be legally represented for the purposes of the substantive hearing of this matter.
- [4]Following the grant of leave, Together Queensland sought an opportunity to make submissions in response to Crown Law's application. Consequently, the matter was reopened and a direction was issued to permit Together Queensland to provide written submissions. The matter was then to be heared on 19 December 2017.
- [5]Together Queensland filed submissions on 18 December 2017. Submissions in reply from the State of Queensland were filed on 19 December, shortly after which both parties consented to vacating that afternoon's hearing and allowing the Full Bench to decide the issue on the papers. Accordingly, the hearing was vacated.
- [6]Together Queensland agitated two issues in response to the Crown's application and the Order of 14 December 2017. Those issues are summarised as follows: the Commission exceeded its power in making the Order; and, the Full Bench should not grant leave for the Crown to be legally represented as the grounds for making such an order cannot be satisfied.
- [7]For the reasons which follow, the Full Bench affirms the Order made on 14 December 2017 granting leave for the State of Queensland to be legally represented before the Full Bench.
Exercise of discretion
- [8]Presently, a party requires the permission of the Commission before it can be legally represented. Section 530 of the Act gives a discretionary power to the Full Bench to allow legal representation where one or more of the requirements in s 530(4) is satisfied.
- [9]Section 530(4)(a) relevantly provides that the Full Bench may grant permission for a person to be represented by a lawyer only if:
"…it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter…"
- [10]The Full Bench was referred to a decision of the Fair Work Commission which considered s 596(2)(a) of the Fair Work Act 2009 (Cth).[1] Section 596(2)(a) of the Fair Work Act is substantially similar to the section currently being considered. Relevantly, the Fair Work Commission wrote:
"The NTEU is correct when it says that just because a matter involves contested facts or there is contest of interpretation this does not mean that the matter is inherently complex. However, the decision as to whether the requirements of s.596(2)(a)-(c) have been met such that permission might be considered in any particular case requires a consideration of the circumstances of that case. Broad statements as to complexity are of little use in making such an assessment. Assumptions should be avoided.
…
The question pursuant to s.596(2)(a) is whether the matter could be dealt with more efficiently taking into account its complexity. The matter does not have to be complex per se or reach some threshold level of complexity before permission might be considered. The test is one of efficiency taking into account the complexity that is in the matter.
In any event, I am satisfied that there is a level of complexity in the matter before me. In these circumstances I am satisfied that the matter could be dealt with more efficiently if permission was granted."[2]
- [11]The Commissioner then went on to observe:
The decision as to whether permission should be granted is not a contest as to who has the most lawyers or has done the most or best advocacy. It is a discretionary decision of the Commission as to whether to grant permission. This is a finely balanced decision but in this case I have decided to grant permission. I have done so because of the subject of the dispute and the contest involved. …."[3]
- [12]The Federal Court of Australia also considered section 596 in Warrell v Walton, relevantly Flick J wrote:
"[A] decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission…". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission".[4]
- [13]The decision to allow the State of Queensland to be legally represented does change the dynamics of the matter, but it is a change which is warranted when regard to the complexity and wide-ranging implications stemming from Together's application.
- [14]The terms of the declaration sought by Together are as follows:
"That pursuant to section 944 of the Industrial Relations Act 2016 that employees of Crown Law a Business Unit within the Department of Justice and Attorney General are not able to represent another Public Sector Unit in a matter relating to Chapter 6 of the Industrial Relations Act 2017 (sic)."
- [15]However, before a declaration under section 463 of the Act can be granted, Together must persuade the Full Bench that it has the jurisdiction to grant the declaration sought. Section 463(1) of the Act relevantly provides:
"The Commission may, on application by an entity mentioned in section 464, make a declaration about an industrial matter."
- [16]An industrial matter is defined in section 9 of the Act and by reference to Schedule 1.
- [17]Broadly speaking, there are three issues which the Full Bench will be required to determine at the hearing of the substantive matter:
- (a)whether the subject of the declaration is an "industrial matter" within the meaning of the Act;
- (b)whether the Full Bench has jurisdiction to deal with the matter; and
- (c)if the answer to (b) is yes, whether the Full Bench should exercise its discretion to grant the declaration sought by Together.
- [18]Together would urge on the Full Bench that the task of interpreting the relative statutory provisions does not, in the present circumstance, engender any degree of complexity. The Hon Michael Kirby in writing on the challenges involved in statutory interpretation said:
"Today there is nothing modest about the output of federal, state and territory legislation. Every year it is contained in multiple volumes of printed paper. Happily, it is now more readily accessible because of the advances that have occurred in electronic technology. The shift in the expression of law from judge-made expositions to statutory and other rules has led to a number of changes in how statutory interpretation is undertaken.
First, by the mid-20th century, it was generally appreciated that the words of judges, written in their opinions, should not be subjected to the precise analysis appropriate to statutory and similar texts. Deriving the ratio decidendi of judicial holdings was recognised to be an art. Yet it was still commonly thought that securing the meaning of legislation was more of a science.
The explosion in the variety, detail and complexity of legislation has sorely tested this 'scientific' theory. It has undermined the view that legislation has but one accurate meaning, which those bound by it only need to search long and hard enough to find. The growth in the quantity of the written law has led to demands for plain English expression. However, it has also resulted in an appreciation that deriving the meaning of such laws presents 'leeways for choice', which courts, lawyers and others need to make in a transparent, consistent and principled manner.
…
… The notion that a word of the English language has a single, objective and scientific meaning that has only to be discovered has gradually given way to a more candid recognition of the choices that face those who interpret the written law and the way in which values and policy considerations can influence the making of those choices. That realisation presents the third element in contemporary statutory interpretation in Australia. Today, that task requires a combined exercise involving analysis of the text, context and purpose (or policy) of the statute in question.
…
The task of construing statutory language is notorious for generating opposing answers, no one of which is indisputably correct. That makes statutory interpretation an activity that is challenging, interesting and important for the content, application and future of the law. The fascination of its puzzles extends far beyond appellate judges. Because of its character, legislation affects all those who are bound by its commands."[5]
- [19]The task of dealing with this matter is not as straight forward as Together would contend. As the State of Queensland notes in its submissions, the Full Bench must resolve, amongst other things, the following:
- (a)The meaning and effect of s 944(1);
- (b)The effect of s 944(2);
- (c)Who is a "party" for the purposes of s 530; and
- (d)The meaning and effect of s 530(5)(a) and its interaction with ss 944(1) and (2).
- [20]The State of Queensland contends that the resolution of issues of statutory interpretation and the interaction and application of statutory provisions are matters in respect of which the Full Bench would derive benefit from the assistance of legal representation in terms of marshalling and presenting the relevant arguments and authorities, responding to the submissions of the applicant and responding to any questions from the bench. We agree.
- [21]We are satisfied that in respect of the matters set out in paragraph 20 to 27 of the applicant's submissions that they are not relevant to this application as they relate to different proceedings; they represent the applicant’s subjective views; and, they do not support, and certainly are not evidence for, the conclusion that legal representation by a lawyer would cause the substantive proceedings before the Full Bench to be conducted in a less efficient manner than would otherwise have been the case if only a lay advocates were involved.
- [22]The Full Bench observes that the current statutory provision relating to the right of representation has the potential to bring about an inherent unfairness between the parties. It is not uncommon within this jurisdiction to have a situation where legal representation is restricted or prohibited yet an officer of a registered organization, for example, can be represented by an officer who is often a highly skilled advocate and, in some circumstances, is also legally trained. In these circumstances, the only true distinction is that the industrial advocate has never sought admission as a legal practitioner of the Supreme Court.
- [23]The Full Bench recognises that the declaration sought by Together seeks to determine the right of the State of Queensland to be legally represented in a proceeding under Chapter 6 of the Act. As a consequence, the outcome of the substantive hearing before the Full Bench will potentially have significant public sector-wide implications and impact upon all government departments and those who bring a dispute against a government department.
- [24]For the reasons advanced above, the Full Bench is of the view that the State of Queensland ought to be granted leave to be legally represented pursuant to section 530(1)(b) of the Act.
Order
- The Order of 14 December 2017 granting leave for the applicant to be legally represented is affirmed.
Footnotes
[1] National Tertiary Education Industry Union v Monash University [2016] FWC 5539.
[2] National Tertiary Education Industry Union v Monash University [2016] FWC 5539, [23], [29]-[30].
[3] Ibid [38].
[4] Warrell v Walton [2013] FCA 291; 233 IRJ 335, 342 [24].
[5] Michael Kirby, 'Statutory Interpretation: The Meaning of Meaning' [2011] 35(1) Melbourne University Law Review 113, 114-115, 116, 118.