Watton v TAFE Queensland[2021] QIRC 268

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   The Respondent, TAFE Queensland ("TAFE"), has filed an application within this proceeding seeking an order pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 ("IR Act") that TAFE be granted leave to be legally represented.

2. [2]
   As an alternative argument, TAFE contends that it is not required to seek leave to be represented by Crown Law by operation of s 530(5)(a) of the IR Act.

3. [3]
   The Applicant in the proceedings, Mr Watton, has commenced a bullying application (B/2021/1) and a general protections application (GP/2021/11) arising out of incidents that are alleged to have occurred involving Mr Watton in his workplace at TAFE.

4. [4]
   By an Order issued on 7 May 2021, the two proceedings were joined pursuant to rule 98 of the Industrial Relations (Tribunal) Rules 2011.

5. [5]
   The proceedings have to date, been subject to several interlocutory applications and approximately 60 documents have been filed in the Industrial Registry in the proceedings.

6. [6]
   Mr Watton objected to leave being granted for TAFE to be legally represented by Crown Law and Counsel, and raises the following issues, as summarised by me, for consideration:

1. (a)
   Crown Law does not have an automatic right to represent TAFE;

2. (b)
   the matter is not sufficiently complex to grant leave for legal representation;

3. (c)
   granting leave will amount to a disparity in TAFE's favour;

4. (d)
   the Commission is not bound by the rules of evidence and the Commission is guided in its decision by equity, good conscious and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole;

5. (e)
   the subject matter of the proceedings, in part, concern Mr Watton and include allegations made by him of workplace bullying and adverse action and if leave is granted for TAFE to be legally represented, it could amount to a continuance of intimidation by TAFE toward Mr Watton; and

6. (f)
   to permit TAFE to be legally represented will have far wider implications and could influence the teaching profession within TAFE as to how teachers speak up and seek justice.

7. [7]
   The questions for my determination in this proceedings are as follows:

1. (a)
   Is Crown Law required to seek leave pursuant to s 530 of the IR Act to appear for TAFE?

2. (b)
   Should leave be granted for TAFE to be legally represented?

Relevant legislative provisions

8. [8]
   Section 530 of the IR Act provides for legal representation in the following terms:

9. [9]
   Whilst TAFE raises representation by Crown Law as of right as an alternative argument, it is convenient for me to deal with the matter at the outset.

10. [10]
    The issue for my determination is whether, for the purpose of s 530(5)(a) of the IR Act, an employee and/or officer of the State is properly an employee or officer of TAFE.

11. [11]
    TAFE contends that it is.

12. [12]
    TAFE makes the following submissions in support of its position:

1. (a)
   TAFE is a statutory body established by the TAFE Queensland Act 2013 ("TAFE Act");

2. (b)
   the board of TAFE is appointed by the Governor in Council and its chief executive officer is appointed by the board with the prior written approval of the Minister;

3. (c)
   TAFE's other staff are appointed under the TAFE Act and not the Public Service Act 2008 ("PS Act"); and

4. (d)
   however, s 6 of the TAFE Act provides as follows:

6 TAFE Queensland represents the State

1. (1)
   TAFE Queensland represents the State.
2. (2)
   Without limiting subsection (1), TAFE Queensland has the status, privileges and immunities of the State.

13. [13]
    TAFE submits that, it has, for any purpose, the "status" of the State, and on that basis an employee of the State can be taken, for the purpose at hand, to be "an employee or officer" of TAFE. TAFE submits that such a finding is harmonious with one of the broad aims of the TAFE Act,^[1] that TAFE will also need the flexibility to engage and interchange work performance arrangements in the same way as public service departments under the PS Act, and that these arrangements will be used for a range of purposes until TAFE has established its own employment arrangements.

14. [14]
    TAFE submits that the effect of s 530(5) of the IR Act is to confer an advantage, or "privilege" on certain classes of lawyers, by removing the need for them to run the gauntlet of various pre-conditions outlined in s 530 of the IR Act in order to be entitled to appear for a party. TAFE further submits that the State enjoys the privilege of an entitlement to be represented by Crown Law as a right, the proper effect of s 6(2) of the TAFE Act is that TAFE should equally enjoy that privilege.

15. [15]
    Mr Watton contends that Crown Law is required to seek leave to represent TAFE.

16. [16]
    Mr Watton argues that TAFE is a statutory body established by the TAFE Act and therefore not an employee or officer of the State.

17. [17]
    Further, Mr Watton contends that, pursuant to s 12 of the TAFE Act, the board is established by one nominee of the Minister and seeks to aid appointed members under s 14 of the TAFE Act.  All board members are appointed under the TAFE Act, not the PS Act.

18. [18]
    Mr Watton submits that pursuant to s 29 of the TAFE Act, all other TAFE  employees are appointed under the TAFE Act and not the PS Act.

19. [19]
    Mr Watton further contends that pursuant to s 5 of the PS Act, the Queensland Public Service consists of persons who are employed under the PS Act, called public service employees.

20. [20]
    Pursuant to s 6 of the PS Act, public service employees are employed in departments or public service offices.

21. [21]
    Mr Watton further contends that pursuant to s 7 of the PS Act, a department is an entity declared under Division 2.  Mr Watton submits that Division 2, s 14 prescribes that government departments are government entities when declared by the Governor in Council by gazette notice.  Mr Watton submits that to date, TAFE has not been declared a government department by the Governor in Council by gazette notice.

22. [22]
    Mr Watton submits that if the appointment of all board members, employees and officers of TAFE is by the TAFE Act and not the PS Act, this provides a clear delineation between the State of Queensland, as owners of TAFE, and the statutory body that is TAFE, as expressed in the TAFE Queensland Bill 2013.  Mr Watton submits that this delineation results in TAFE, its officers and employees, as not being able to claim the status, right and/or obligations of a state of Queensland employee or officer.

Consideration

23. [23]
    His Honour, Martin J considered the operation of s 530 of the IR Act in Together Queensland, Industrial Union of Employees v State of Queensland.^[2]  Relevantly His Honour stated:

24. [24]
    Whilst the TAFE Act, by operation of s 6, provides that TAFE represents the State, (and has the status, privileges and immunities of the State) it does not confer the status of employer, to employees, or officers of the State to TAFE.^[3]

25. [25]
    The chief executive and board are each appointed in accordance with the provisions and terms of the TAFE Act.^[4]  Relevantly, s 29 of the TAFE Act provides for the employment of staff and that such staff are appointed pursuant to the terms of the TAFE Act and not the PS Act.

26. [26]
    Whilst ss 31 to 33 of the TAFE Act provide for an employee interchange arrangement between other entities and TAFE and preserves the continuity of rights of public service employees appointed to TAFE and similarly provides for continuity of service for TAFE employees who are appointed as public service employees, that does not affect their status as employees and officers of TAFE.

27. [27]
    TAFE appoints its employees and officers pursuant to the TAFE Act. Employees of Crown Law are not appointed pursuant to the TAFE Act, but rather the PS Act, and, consequently, are not employees or officers of TAFE.

28. [28]
    Accordingly, for the purposes of s 530(5) of the IR Act, Crown Law is not entitled to represent TAFE as of right.

29. [29]
    Mr Watton, belatedly, raises a concern about Crown Law having appeared at a mention of the matter before me on 14 May 2021.  On that occasion, Crown Law did not seek leave to appear.  Relevantly, Mr Watton did not object to Crown Law's appearance during the course of the mention.  The issue of legal representation was raised by Crown Law, to the extent that it foreshadowed that an application for legal representation would be made in order for Counsel to appear for TAFE.

30. [30]
    Whilst a view was expressed that Crown Law need not seek leave to appear for TAFE, Mr Watton was further advised that an application for legal representation would be made in due course and, after consideration of the application, a decision would be made. 

Should leave be granted for TAFE to be legally represented?

31. [31]
    The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Commission may grant leave if:

1. (a)
   it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or

2. (b)
   it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself, or herself; or

3. (c)
   it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Efficiency and complexity

32. [32]
    TAFE submits that the matter involves complex questions of fact and law, and allowing the Respondent to be represented by Crown Law and Counsel will enable the proceedings to be dealt with more efficiently, because:

1. (a)
   the proceedings require the determination of two claims which arise out of the same factual substratum, but which involve different legal tests;

2. (b)
   there are disputed facts dating back to 2018 including whether Mr Watton was bullied in the workplace and whether there was any detriment to the Mr Watton in his employment;

3. (c)
   Mr Watton has filed 20 attendance notices to give evidence and there is likely to be a large volume of oral evidence led at the hearing; and

4. (d)
   there are complicated questions of law, including whether any proper allegations of adverse action are made.

33. [33]
    Mr Watton contends that the complexity of the matter will not be more efficiently dealt with if TAFE is granted leave to be legally represented because:

1. (a)
   whilst Mr Watton has filed 20 attendance notices to give evidence, there is unlikely to be a large volume of oral evidence led at the hearing because, inter alia;

1. (i)
   Mr Watton intends to rely on, in the whole, documentary evidence; and

2. (ii)
   it can be presumed that the action to remove Mr Watton from teaching equates to adverse action because of the effect of s 306 of the IR Act, which reverses the onus of proof from Mr Watton to TAFE and creates a presumption in favour of Mr Watton and presumably, at least it is argued, Mr Watton will not be required to call evidence in chief;

2. (b)
   Mr Watton will not be attempting to discredit any witnesses and as noted above, a great deal of the evidence Mr Watton will rely on is documentary evidence;

3. (c)
   the "ambiguity of the issue" does not require intervention of legal representation as the ambiguity stems from TAFE's failure to present a clear defence; and

4. (d)
   efficiency can be achieved through the parties agreeing to an agreed list of issues to be arbitrated.

34. [34]
    There is no doubt that the proceedings as they appear in their current form before me include matters of disputed law and fact and contain serious allegations made by Mr Watton against officers of TAFE.  Some of these allegations date back to 2018.

35. [35]
    Further, I accept the argument that the Commission would be assisted by having some examination in chief and cross-examination of the parties undertaken by Counsel.  I note Mr Watton's submissions, that he does not intend to adduce significant evidence in chief of the approximately 20 witnesses who are the subject of the notices to appear, however, there is no doubt that there are a significant number of witnesses Mr Watton intends to call.  Tendering documents through witnesses and examining witnesses on documents involves potentially technically complex matters with respect to the Commission's receipt of such evidence.

36. [36]
    To that end, I consider that the conduct of the matter will be assisted with the involvement of legal representation to ensure that the evidence presented to the Commission is done so with care and precision and that only those matters relevant to the determination of the proceedings are presented to the Commission.

37. [37]
    In State of Queensland (Department of Premier and Cabinet) v Dawson^[5] (Dawson) His Honour O'Connor VP referred to the involvement of legal representation and the efficient conduct of litigation and the consideration of those matters in various authorities as follows:

22. The involvement of Counsel in the efficient conduct of litigation was expressed in Application by R.A.v,[8] where Deputy President Sams wrote:

[18]  Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner's professional obligations to the Commission and the Courts. In this respect, I refer to the comments of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52:

[19] More recently, a Full Bench of the Commission in E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 said at para [48]:

[20] Informality is one thing, but there is still a statutory foundation which must be observed in the exercise of all the Commission's powers and functions.  In my experience, the prospects of a case being run more efficiently and focused on the relevant issues to be determined, is more likely where competent legal representation is involved. I agree with what was said by the Full Bench in Priestley:

[13] In our view DPS has established that representation would assist DPS to bring the best case possible. Representation by persons experienced in the relevant jurisdiction will be of undoubted assistance in this regard.  We are satisfied that the particular counsel has the capacity to assist the DPS and assist the Tribunal in performing its functions.

38. [38]
    I consider for the foregoing reasons, legal representation will assist the Commission in relation to matters involving points of law and that the skilful cross-examination of witnesses can only assist the Commission in determining the matters it must decide.  Relevantly, I consider that it will assist if one of the parties is legally represented to ensure that the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced and that submissions are confined to the matters which the Commission must decide.^[6]

Fairness

39. [39]
    Mr Watton contends that whilst neither TAFE's employed lawyer, Mr Connolly, nor Mr Watton are recognised by the IR Act as lawyers,  they each have undertaken sufficient legal training to be admitted to practice, and are both ably equipped to assist the Commission in ensuring that the proceedings remain focused on the real issues of fact and law.  Mr Watton contends, therefore that it is not necessary for the Commission to provide TAFE with leave to be legally represented by Crown Law and/or Counsel.  Further, Mr Watton contends that granting leave for TAFE to be represented by an agent or officer of TAFE and Mr Watton, self-representing himself, accords with the intent of s 529 of the IR Act.

40. [40]
    In Wanninayake v State of Queensland (Department of Natural Resources and Mines) (Wanninayake) it was held that the decision by the Applicant not to engage legal representation did not mean that the Respondent should be denied the opportunity to efficiently present its case through legal representation.  In Wanninayake, Neate IC relevantly held:

… competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by cross examination and by examination in chief, or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.^[7]

41. [41]
    I further accept the submissions made on behalf of TAFE that it considers that it is bound by the model litigant principles which require, amongst other things, that:

1. (a)
   the power of the State be used for public good and in the public interest; and

2. (b)
   the principle of fairness are adhered to in the conduct of all litigation.

42. [42]
    In addition to that, if leave is granted for TAFE to be legally represented and if it engages Counsel, then I also have regard to the fact that Counsel's paramount duty is to the court and the administration of justice and accordingly, they must assist the Commission in identifying the real issues in dispute and in dealing with those issues efficiently. As noted by His Honour O'Connor VP in Dawson, there is no exception to this expectation because of the size or nature of the matter. 

43. [43]
    Relevantly, adherence to the model litigant principles, and Counsel's duty, together with the Commission's conduct of proceedings, will ensure that no disadvantage is suffered by Mr Watton if TAFE is legally represented and, further, will safeguard against any concern Mr Watton might have about any feelings of alleged "intimidation" if TAFE were to be granted leave to be legally represented. 

44. [44]
    Mr Watton further raises matters of potential broader implication by contending that if leave is granted for TAFE to be legally represented, it may potentially influence when other teachers "speak up and seek justice".  I do not accept Mr Watton's submission that exercising a discretion to grant leave in the discrete factual circumstances of this matter would have the far-reaching effect suggested by Mr Watton.

45. [45]
    Accordingly, balancing the fairness between parties can be aided through the proper case and court room management of a proceeding, and given the complexity of the matter involved, including the number of documents filed to date and the potential number of witnesses, I consider that granting leave for TAFE to be legally represented will assist in the efficient conduct of this proceeding.

46. [46]
    I am also satisfied that granting leave is likely to shorten, rather than expand, the length of the trial, and consequently, reduce the ultimate potential cost of the matter proceeding to hearing for both parties.

Conclusion

47. [47]
    For the reasons outlined above, I have concluded that leave be granted for the Respondent to be legally represented in this proceeding pursuant to s 530(4) of the IR Act.

48. [48]
    I make the following orders:

1. Leave be granted for the Respondent to be legally represented in B/2021/1 and GP/2021/11 pursuant to s 530(4) of the Industrial Relations Act 2016.