Together Queensland, Industrial Union of Employees v Scales (No 2)
[2021] QIRC 428
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- Unreported Judgment
- Together Queensland, Industrial Union of Employees v Scales (No 2)[2021] QIRC 428
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Together Queensland, Industrial Union of Employees v Scales (No 2)[2021] QIRC 428
Together Queensland, Industrial Union of Employees v Scales (No 2)[2021] QIRC 428
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Together Queensland, Industrial Union of Employees v Scales & Anor (No 2) [2021] QIRC 428 |
PARTIES: | TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES (applicant) v NEIL SCALES (first respondent) STATE OF QUEENSLAND (DEPARTMENT OF TRANSPORT AND MAIN ROADS) (second respondent) |
FILE NO/S: | B/2021/27, B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/32, B/2021/33 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 15 December 2021 |
HEARING DATE: | 15 December 2021 |
MEMBERS: | Davis J, President, O'Connor VP, Power IC |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – where a union on behalf of workers has brought applications alleging breaches of an award – where the union seeks pecuniary penalty orders against the State (as employer) and the Director-General of the Department – where both respondents seek leave to be legally represented – where the State has a right to be represented by government employee lawyers – where the State seeks leave for those lawyers to brief private counsel – where the other respondent seeks leave to be represented by government employee lawyers instructing private counsel – whether the discretion ought to be exercised in favour of the respondents – whether the matter is complex – whether the matter will be dealt with more efficiently if the respondents are represented – where the fairness lies - where there is a risk of reputational damage. |
LEGISLATION: | Industrial Relations Act 2016, s 147, s 151, s 486, s 529, s 530, s 942 Statutory Instruments Act 1992, s 7 Queensland Public Service Officers and Other Employees Award - State 2015 |
CASES: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited |
APPEARANCES: | K McKay, Together Queensland, Industrial Union of Employees A Lane-Mullins for the first respondent L Grant for the second respondent |
- [1]Seven applications were filed by the Together Queensland, Industrial Union of Employees (the Union) on 9 April 2021. We shall call these “the principal applications”. The principal applications seek civil penalty orders[1] against Mr Neil Scales who is the first respondent, or alternatively the State of Queensland (the State) who is the second respondent consequent upon alleged breaches of an industrial award[2] - the Queensland Public Service Officers and Other Employees Award - State 2015 (the Award). The principal applications allege non-payment of benefits to particular workers working under the Award.
- [2]The State is the employer of the workers the subject of the applications. Mr Scales is the Director-General of the Department of Transport and Main Roads where the workers are employed.
- [3]On 27 October 2021, the President made orders referring the matter to the Full Bench and directing that he sit on the Full Bench hearing.[3] Various other directions were given. Pursuant to those other directions, the Vice President has been managing the case.
- [4]There are now before the Full Bench three applications in the principal applications. They are:
- an application by the State of Queensland to be legally represented by private counsel in the hearing of the principal applications;
- an application by Mr Scales to be legally represented by Crown Law and private counsel in the hearing of the principal applications;
- an application by the Union for disclosure of documents (the disclosure application).
- [5]Recently the State sought to withdraw an admission that it had previously made in the proceedings. That necessitated the adjournment of the disclosure application.
- [6]After hearing argument, we:
- ordered that the respondents have leave to be legally represented by Crown Law instructing private counsel;
- reserved our reasons for making that order.
- [7]These are our reasons for making that order.
The applications for legal representation
- [8]As observed already, there are two applications for leave to be legally represented, one brought by the State and one brought by Mr Scales. They can be dealt with together. In proceedings under the Industrial Relations Act 2016 (the Act) in the Industrial Court (the Court), the Queensland Industrial Relations Commission (the Commission), in the Industrial Magistrates Court or before the Registrar, in most instances a party may only be represented by a lawyer if all parties consent or the respective court or the Commission gives leave. A party may be represented by an agent appointed in writing or, if the party is an organisation, an officer or member of the organisation.[4]
- [9]Section 530 of the Act allows for legal representation in certain circumstances. That section provides, relevantly here:
“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—
- (a)for proceedings in the court—
- (i)all parties consent; or
- (ii)the court gives leave; or
- (iii)the proceedings are for the prosecution of an offence; or
- (b)for proceedings before the full bench—the full bench gives leave; or
- (c)for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or
- (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 …
- (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.
Examples of when it may be unfair not to allow a party or person to be represented by a lawyer—
• a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy
• a person is from a non-English speaking background or has difficulty reading or writing
- (5)For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
- (a)an employee or officer of the party or person; or
- (b)an employee or officer of an entity representing the party or person, if the entity is—
- (i)an organisation; or
- (ii)an association of employers that is not registered under chapter 12; or
- (iii)a State peak council. …
- (7)In this section—
industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.
proceedings—
- (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”
- [10]Section 530 deals with proceedings before the Commission, before the Commission constituted as a Full Bench, before the Court and before an Industrial Magistrates Court and the Registrar.[5] While the Commission not sitting as a Full Bench may give leave only in relation to “a matter under a relevant provision”,[6] the Full Bench has a discretion to give leave in any matter before it.
- [11]While the discretion bestowed upon the Full Bench under s 530(1)(b) seems unfettered, the discretion is limited by s 530(4).
- [12]What is contemplated by the respondents is that they will both be represented by Crown Law briefing the same private counsel.
- [13]The State has a right to be represented by Crown Law. That is because lawyers working at Crown Law are employees of the State. That fact engages s 530(5)(a). Mr Scales has no right of representation by Crown Law. That is because, although he is the Director General of the Department of Transport and Main Roads, he does not employ the lawyers in Crown Law. Both the State and Mr Scales need leave before they can be represented by private counsel.[7]
- [14]The respondents submit, by reference to the considerations in s 530(4):
- (a)Having regard to the complexity of the matter, the legal representation sought will enable the proceedings to be dealt with more efficiently. Specifically, they submit:
- the matter is complicated, raising issues such as the construction of the Award, the construction and operation of various provisions of the Act, including s 571 (which visits accessorial liability for contraventions) and s 942(2) which provides defences, and the fact that there is no jurisprudence directly upon the operation of the pecuniary penalty provisions of the Act;
- joint representation avoids duplicity;
- the application is novel, especially given that applications against directors general of departments have not previously been made and the decision will therefore have broad application. It ought to be determined authoritatively and expediently and that will be facilitated by the legal representation sought;
- (b)The respondents submit that it would be unfair not to allow them to be represented when regard is had to the different considerations of the respective parties. This submission is made in reliance upon s 530(4)(c). In particular, it is submitted that:
- the matter is complex;
- it is a test case brought by the Union to determine the scope of the liability, in particular of directors general, to pecuniary penalties;
- there is a potential of personal liability being imposed upon Mr Scales;
- there is also the potential of reputational damage;
- the State may ultimately bear any pecuniary penalty order;
- there is no disadvantage to the Union as it has access to competent experienced industrial advocates. The Union itself can bring an application under s 530 to be legally represented if it wishes.
- (a)
- [15]The Union submits:
- (a)the matter is not complex. It rests on the correct construction of provisions in the Award and provisions of the Act which have Commonwealth equivalents which have been considered;
- (b)the State can be represented by Crown Law as of right and there are qualified and experienced practitioners within Crown Law. Access to private counsel is therefore not required;
- (c)Mr Scales can be adequately represented by specialist human resources staff;
- (d)the respondents have not discharged the onus of proof on them under s 530(4);
- (e)Mr Scales will be indemnified in any event against any order made against him.
- (a)
- [16]As already observed, a referral of the principal applications to the Full Bench was made by the President on 27 October 2021.[8] That was the result of a contested hearing on 21 October 2021. The President held:
“[36] The principal applications raise novel legal issues. Even accepting that there is a civil penalty regime in the Fair Work legislation, the IR Act[9] provisions have not previously fallen for consideration. There is, therefore, no jurisprudence from the Commission, the Industrial Court of Queensland, or the Court of Appeal dealing with:
- the operation and scope of the civil penalty provisions in the IR Act;
- the operation and scope of the accessorial provisions;
- whether s 942(2) of the IR Act avails the first respondent of a defence.
[37] The principal applications brought by the Union raise important issues. The Union has legitimate industrial reasons for seeing that benefits flow to its members under the Award pursuant to law. One way of enforcing the award is through the pecuniary penalty regime. Visiting liability directly upon a Director-General of a department is no doubt seen by the Union as a way of encouraging compliance with awards. The Union seeks to test that avenue of enforcement.
[38] The important issues raised by the Union by the principal applications ought to be determined authoritatively and expediently.”
- [17]The discretion to refer the principal applications to the Full Bench was vested in the President pursuant to s 486(4) of the Act. The order made by the President was to refer the principal applications to the Full Bench. The referral order was not an order of the Full Bench.
- [18]In Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health),[10] it was held that the power of the Full Bench to give leave for legal representation under s 530(1)(b) was a power that could only be exercised by the Full Bench sitting as a Full Bench. Consequently, any observations or findings made by the President in the referral application is not binding upon the Full Bench on the question of leave of a party to be legally represented.
- [19]After consideration, the Full Bench adopts the findings made by the President at paragraphs [36] and [37] of the judgment on the referral application.
- [20]The Union, by the principal applications, raises significant and complex issues concerning the interpretation of both the award and the Act. The respondents have similar (although not identical) interests and can be represented by one legal team.
- [21]While it might be that Mr Scales is indemnified against any liability consequent upon the applications, there is a significant risk of reputational damage. The Union is seeking to prove that he has intentionally breached an award governing employees of the State within the department that he manages. Reputation is a recognised interest worthy of protection.[11] Given the complexities of the matter, the potential for reputational damage, and the lack of prejudice to the Union, it is appropriate for Mr Scales to be represented by Crown Law and by private counsel.
- [22]That being so, there is no sensible reason to deny the State that representation, it being through the same lawyers as will be retained by Mr Scales.
Conclusions
- [23]For the reasons we have given, the respondents ought to be legally represented by Crown Law instructing private counsel.
- [24]It was ordered:
- The respondents have leave to be legally represented in the proceedings by Crown Law instructing private counsel.
Footnotes
[1]Industrial Relations Act 2016, Chapter 11, Part 8.
[2]Industrial Relations Act 2016, s 151.
[3]Together Queensland Industrial Union of Employees v Scales & Anor [2021] QIRC 364.
[4]Industrial Relations Act 2016, s 529.
[5]Section 530(1)(e) and 530(1)(f), both omitted from that part of s 530 set out above.
[6]See s 530(1)(d)(ii).
[7]Together Queensland Industrial Union of Employees v State of Queensland [2018] ICQ 008 at [35]; State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118 at [7]; State of Queensland v Dodds [2021] ICQ 007.
[8]Together Queensland Industrial Union of Employees v Scales & Anor [2021] QIRC 364.
[9]A reference to the Industrial Relations Act 2016.
[10][2021] ICQ 016.
[11]Annetts & Anor v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.