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- Unreported Judgment
Mason v Paroo Shire Council QIRC 316
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Mason v Paroo Shire Council  QIRC 316
Paroo Shire Council
Application to be legally represented
13 September 2021
On the papers
INDUSTRIAL LAW – QUEENSLAND – respondent seeks leave for legal representation in conciliation conference – applicant does not consent – whether Commission can grant leave – leave to be legally represented refused
Industrial Relations Act 2016 (Qld) s 283, s 379, s 386, s 396, s 475, s 476, s 451, s 530, s 547D, ch 11 pt 5 div 5A
Fitzgerald v Woolworths Limited  FWCFB 2797
Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison  ICQ 21
King v Patrick Projects Pty Ltd  FWCFB 2679
McKenzie v McKenzie  3 All ER 2034
Palk of the Department of Industrial Relations v Carey and Sons Pty Ltd (2001) 168 QGIG 231
Queensland Nurses' Union of Employees v The Corporation of the Diocesan Synod of North Queensland as Trustee for the Good Shepherd Nursing Home (No.W87 of 2005) (2005) 179 QGIG 207
Reasons for Decision
- Paroo Shire Council seeks leave of the Commission to be legally represented in these proceedings at a conciliation conference.
- Ms Mason opposes the application.
- The substantive matter concerns an application Ms Mason filed to recover unpaid wages pursuant to sections 475 of the Industrial Relations Act 2016 (Qld) ('IR Act').
- On 21 May 2021, the respondent filed a Lawyer's notice of address for service.
- Correspondence was received from the applicant's union representatives objecting to the respondent being legally represented in the matter.
- A mention was held and subsequently an order was issued on 20 July 2021 requiring that the parties file submissions on the question of legal representation.
Submissions of the parties
- Ms Mason contends, for reasons set out in her written submissions filed on 26 July 2021, that the Commission does not have the jurisdiction to grant leave for legal representation. In summary, she submits that:
- The IR Act at s 530(1)(d)(i) provides that the Commission may only grant legal representation if all parties consent, and the applicant does not consent;
- The Commission may also grant legal representation pursuant to s 530(1)(d)(ii) for a proceeding relating to a matter under a relevant provision. This is defined in s 530(7) as being a proceeding before the commission under chapter 8, section 471 or chapter 2, part 2 or 16 – none of which apply to these proceedings;
- The respondent's representative has also suggested that advocacy could be provided by an employee of the law firm who is not a lawyer, but the applicant does not consent to this proposal;
- Citing the decision of Fitzgerald v Woolworths Limited by the Full Bench of the Fair Work Commission, the applicant submits that legal representation extends not only to advocacy in a conference or hearing, but also to all other aspects of the matter including listings and the preparation of submissions. The approach and the policy considerations cited in Fitzgerald v Woolworths Limited should be applied in these circumstances; and
- Although Ms Mason engaged legal representation to prepare her application, work undertaken prior to commencing proceedings is not impacted by s 530.
- The respondent contends, for reasons set out in their written submissions filed on 2 August 2021, that leave to be legally represented should be granted. In summary, it submits that:
- The only ground upon which the applicant objects is lack of consent, thus this should be the sole consideration in the circumstances;
- Pursuant to s 530(1)(g) a conciliation conference is a proceeding before a conciliator, not a proceeding before the Commission as set out in s 530(1)(d);
- In a conciliation, consent from the parties is not required and it is at the discretion of the conciliator whether leave to be represented should be granted;
- Per section 530(7), proceedings include a conciliation as conducted under part 5, division 5A of the IR Act by a conciliator, which refers to unpaid amount claims, defined as a claim made by application under sections 379, 386, 396 or 476 of the IR Act. Section 476 sets out the requirements of an application made under s 475 therefore, Ms Mason's application is one capable of being made under s 476;
- Section 547D states that 'each commissioner is a conciliator for unpaid amount claims', therefore where the respondent is granted leave by the Commissioner, consent of the applicant is not required;
- The respondent seeks leave be granted pursuant to section 530(4), as it would enable the proceedings to be dealt with more efficiently. The matter requires interpretation of various contracts and awards and is sufficiently complex to warrant legal representation. In addition, it would be unfair not to grant leave in the circumstances where the applicant initially had legal representation and now has union representation;
- Citing King v Patrick Projects Pty Ltd, the respondent is a regional council with limited resources and has relied on outside assistance to draft contracts and aid in industrial relations matters. The applicant is represented by a senior industrial officer from the Services Union with extensive industrial relations experience. The respondent would be prejudiced if leave was not granted;
- The applicant has provided consent to legal representation by herself, engaging in the matter with legal representation initially and by engaging with the respondent's legal representative. Revoking consent would be arbitrary and to the respondent's detriment, as the same legal arguments would be advanced as initially put forward by her legal representative prior to engaging her union;
- Contrary to Fitzgerald v Woolworths Limited and citing McKenzie v McKenzie, the respondent intends to have a non-legal representative (present but not advocating) in the proceedings before the Commission, and whether a lawyer has assisted in the preparation of the matter is irrelevant under the IR Act; and
- The policy considerations in Fitzgerald v Woolworths Limited support the argument that the Commission proceedings must be conducted in a manner that is fair and just, and refusal of representation would not be fair and just.
- In her reply submissions filed 9 August 2021, Ms Mason submits in summary that:
- The IR Act does not distinguish between a conciliation and other proceedings, as advanced by the respondent relying on s 530(1)(d);
- The respondent relies on s 530(4) which concerns leave for legal representation under s 530(1), knowing that the applicant does not consent;
- The respondent has not provided reasons to support the claim that legal representation would enable the proceedings to be conducted efficiently;
- The applicant has now changed representatives to the Services Union as a consequence of an objection by the respondent and is now not represented by a lawyer;
- It is of no consequence that a lawyer drafted the Application as there was no proceeding at the time of making it; and
- The view of the Commission appears to be that if leave is not granted, then other forms of participation such as that in McKenzie v McKenzie are also excluded and will extend to preparation of the matter as well as advocacy. To blur this would be inconsistent with the scheme of the IR Act.
What decisions can the Industrial Commissioner make?
- The relevant provisions of the IR Act for consideration in this application are set out below.
- Section 530 of the IR Act governs legal representation in the Commission in circumstances other than public service appeals, it relevantly provides:
530 Legal representation
- (1A)This section applies in relation to proceedings other than a proceeding for a public service appeal.
- (1)A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if—
- (d)for other proceedings before the commission other than the full bench—
(i) all parties consent; or
(ii) for a proceeding relating to a matter under a relevant provision—the commission gives leave; or
- (2)However, the person or party must not be represented by a lawyer—
- (a)if the party is a negotiating party to arbitration proceedings before the full bench under chapter 4, part 3, division 2; or
- (b)in proceedings before the commission under section 403 or 475; or
- (c)in proceedings remitted to the Industrial Magistrates Court under section 404(2) or 475(2).
- (4)An industrial tribunal may give leave under subsection (1) only if—
- (a)it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
- (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
- (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.
- (7)In this section—
- (a)means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
- (b)includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.
Relevant provision for a proceeding before the commission
other than the full bench, means—
- (a)chapter 8; or
- (b)section 471; or
- (c)chapter 12, part 2 or 16.
- Section 475 of the IR Act relevantly provides:
475 Power to recover unpaid wages and superannuation contribution etc.
- (1)On application by a person under section 476, the commission may order payment of the following for the period of 6 years before the date of the application—
- (a)an employee’s unpaid wages;
- (b)an apprentice’s unpaid tool allowance under section 137;
- (c)remuneration lost by an apprentice or trainee because the employer has contravened section 371(2);
- (d)contributions to the approved superannuation fund payable for an eligible employee that are unpaid.
- The substantive application filed by Ms Mason is for recovery of unpaid wages. The claim was commenced by the filing of a Form 15 and identifies that claim being made pursuant to s 475 of the IR Act.
- I note that s 530 of the IR Act has a broad application to all manner of proceedings before the Commission. There are, as identified in the submissions of the parties, any number of scenarios where the Commission can (and commonly does) exercise a discretion to grant leave for a party to be legally represented.
- Applications for recovery of unpaid wages have a long history of being set apart from other matters in which leave for legal representation can be the subject of consent of the parties or discretion of the Commission. The current iteration of the IR Act dealing with legal representation continues that practice.
- The respondent has relied primarily on the powers of a Member of the Commission serving as a conciliator to give leave pursuant to s 530(1)(g). While s 530(1)(g) bestows a discretion on a Member serving as a conciliator in broad terms, it must be read in the context of the subsequent provisions of s 530 and is subject to any limitations those subsequent provisions might impose.
- Section 530(2) commences with the word 'However'. The use of this term quite clearly infers that the provisions of s 530(2) are to be read as the exceptions to the wide range of circumstances in s 530(1) where the Commission has discretion to grant leave.
- Further, the terms 'must not be represented' that appear at the introduction to s 530(2) equally clearly establishes an absolute prohibition on legal representation i.e. regardless of consent of the parties or a willingness by the Commission to grant leave.
- The parties are ad idem in their submissions that a conciliation conference is 'proceedings' for the purposes of s 530 generally however, the submissions about s 530(7) are misplaced.
- Section 530(7) contains a definition of 'proceedings' as it applies to very specific circumstances. I note that this matter was not referred to me by the Registrar for conciliation pursuant to Division 5A, part 5 of Chapter 11 of the IR Act. The previous conciliation conference in this matter was scheduled at my discretion in accordance with my general powers under s 451 of the IR Act.
- Notwithstanding, I concur with the views of the parties that a conciliation conference is 'proceedings' within the meaning of the term as it appears more broadly in the IR Act.
- While 'proceedings' is not defined in the general usage of the IR Act, there any a number of other provisions of the IR Act that make clear reference to 'proceedings' before the Commission that incorporate e.g. conciliation. Further, there are a number of provisions that use the term 'proceedings' in a broad way that clearly appears to capture all steps from the filing of an application.
- There are multiple references in the IR Act to the 'commencement of proceedings' and 'the hearing of proceedings' that leave no doubt that the term refers to all steps from the first filing, to the decision or a discontinuance.
- Section 530(2) establishes an absolute barrier to legal representation in proceedings before the commission under s 475. There is no discretion granted to me to order otherwise.
- In those circumstances I must decline the respondent's request for leave.
- The parties have also raised a number of issues with respect to the scope of any order I might make with respect to this request for leave. The applicant in particular has raised the decision of the Full Bench of the Fair Work Commission in Fitzgerald v Woolworths Limited.
- I note that I am not bound by the decision in Fitzgerald v Woolworths Limited though it is not without some influence. However, I do not consider it necessary or appropriate to make pre-emptive orders in the abstract about how the respondent conducts itself going forward. I am refusing leave for the respondent to be legally represented in these proceedings. That is sufficient to resolve the contest currently before me.
- The respondent's legal representative will now be required to formally withdraw from the record as a consequence of this decision. I do not consider it necessary, nor do I consider that I have the power to make injunctive style orders regulating the future conduct of the parties or their legal representatives in such a way.
- If any facts subsequently emerge that arguably indicate that the respondent continues to be 'represented' in the broad sense contemplated by Fitzgerald v Woolworths Limited, then it will be a matter for the applicant to present her concerns to me in a further application if that scenario arises.
- In the circumstances I make the following order:
- Leave for the respondent to be legally represented is refused pursuant to section 530(2)(b) of the Industrial Relations Act 2016 (Qld).
  FWCFB 2797, .
  FWCFB 2679, .
  3 All ER 2034.
 Palk of the Department of Industrial Relations v Carey and Sons Pty Ltd (2001) 168 QGIG 231; Queensland Nurses' Union of Employees v The Corporation of the Diocesan Synod of North Queensland as Trustee for the Good Shepherd Nursing Home (No.W87 of 2005) (2005) 179 QGIG 207.
 Fair Work Claims and matters referred by the Registrar for conciliation under Industrial Relations Act 2016 (Qld) ch 11 pt 5 div 5A.
 See for example Industrial Relations Act 2016 (Qld) s 283(a).
 See for example Industrial Relations Act 2016 (Qld) ss 547C(3)(a), 568.
 See for example Industrial Relations Act 2016 (Qld) s 539 which refers extensively in distinct terms that refer to hearings as a specific event and proceedings to describe the process more broadly.
 Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison  ICQ 21.
- Published Case Name:
Mason v Paroo Shire Council
- Shortened Case Name:
Mason v Paroo Shire Council
 QIRC 316
Member Dwyer IC
13 Sep 2021