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Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (No 3)[2022] QIRC 280

Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (No 3)[2022] QIRC 280

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (No 3) [2022] QIRC 280

PARTIES: 

Together Queensland, Industrial Union of Employees

(Applicant)

v

State of Queensland (Queensland Health)

(First Respondent)

AND

The Australian Workers' Union of Employees

(Second Respondent)

AND

Transport Workers' Union of Australia, Union of Employees

(Third Respondent)

AND

United Voice, Industrial Union of Employees, Queensland

(Fourth Respondent)

CASE NO:

MA/2020/23

PROCEEDING:

Application in Existing Proceedings

DELIVERED ON:

26 July 2022

MEMBERS:

Knight IC, Dwyer IC, Hartigan IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 530(1)(b) of the Industrial Relations Act 2016 (Qld), leave is granted for the State of Queensland (Queensland Health) to be legally represented.

CATCHWORDS:

INDUSTRIAL LAW VARIATION OF A MODERN AWARD QUEENSLAND application by the first respondent to substantive matter seeking leave to be legally represented under s 530(1)(b) of the Industrial Relations Act 2016 – where application opposed by the applicant to the substantive matter – whether legal representation would allow the matter to be dealt with more efficiently having regard to the complexity of the matter – consideration of complexity – where few, if any, matters previously decided with respect to same or similar issue – consideration of efficiency – where likely to be extensive number of witnesses and cross-examination – whether experienced legal representation and Counsel would assist the Commission – whether it would be unfair to allow the first respondent to be legally represented – consideration of unfairness – where substantive applicant has the benefit of experienced industrial advocate – application granted

LEGISLATION AND

INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) sch 1

Ambulance Service Act 1991 (Qld)

Directive 02/21 Senior officers – employment conditions

Fair Work Act 2009 (Cth) s 596

Fire and Emergency Services Act 1990 (Qld)

Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007

Hospital and Health Boards Act 2011 (Qld)

Hospital and Health Service General Employees (Queensland Health) Award – State 2015

Industrial Relations Act 2016 (Qld) ss 141, 143, 147, 530, ch 4 pt 3 div 2, ch 4 pt 4

Industrial Relations Bill 2016 (Qld)

Public Service Act 2008 (Qld) s 217

Queensland Fire and Emergency Service Employees Award – State 2016

Queensland Government, Model Litigant Principles (at 4 October 2010)

Queensland Law Society, Australian Solicitors Conduct Rules 2012

TAFE Queensland Act 2013 (Qld)

CASES:

Allen v Fluor Construction Services Pty Ltd (2014) 240 IR 254

King v Patrick Projects Pty Ltd [2015] FWCFB 2679

NSW Bar Association v McAuliffe (2014) 241 IR 177

Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 [2021] QIRC 103

Re: variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 [2021] QIRC 088

State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118

State of Queensland (Queensland Health) v Hume [2022] ICQ 001

State of Queensland v Dodds [2021] ICQ 007

Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 016

Warrell v Walton (2013) 233 IR 335

Wellparks Holdings Pty Ltd (t/as ERGT Australia) v Govender [2021] FWCFB 268

Reasons for Decision

  1. [1]
    The issue for determination is whether the State of Queensland (Queensland Health) ought to be granted leave to be legally represented pursuant to s 530(1)(b) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). Queensland Health is the First Respondent to the substantive application.
  2. [2]
    The application is opposed by Together Queensland, Industrial Union of Employees, the substantive Applicant. The Second, Third and Fourth Respondents made no objection to Queensland Health's application and did not make submissions or otherwise take part with respect to this particular issue.
  3. [3]
    The circumstances surrounding the present application are set out in Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health).[1] It is not necessary to repeat those facts here.
  4. [4]
    For the reasons which follow, the Full Bench grants leave for Queensland Health to be legally represented.

The Substantive Application

  1. [5]
    The background to and circumstances of the substantive application are set out in some detail in Re: variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015,[2] where McLennan IC determined it was appropriate the matter be referred to a Full Bench for hearing.
  2. [6]
    In summary, through the substantive proceedings, Together Queensland seeks orders pursuant to s 147 of the IR Act, varying the Hospital and Health Service General Employees (Queensland Health) Award – State 2015 ('the Award') such that its coverage is broadened to encompass 'District Senior Officers' ('DSOs') through the insertion of a classification structure and appropriate pay rates for that cohort.
  3. [7]
    Queensland Health estimates there are approximately 365 DSOs throughout Queensland Health who are employed under the Hospital and Health Boards Act 2011 (Qld).
  4. [8]
    DSO roles are characterised by Queensland Health as management positions, having responsibility for the supervision and direction of a combination of employees holding various roles within the Award streams. In the same materials, it claims DSOs exercise high degrees of independent judgement in performing their work and are closely aligned with Senior Executive positions, which are not covered by an industrial instrument.

The IR Act and Legal Representation

  1. [9]
    The circumstances in which a party or person may be legally represented are set out under s 530 of the IR Act, which relevantly provides:

530 Legal representation

  1. (1A)
    This section applies in relation to proceedings other than a proceeding for a public service appeal.
  1. (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—

...

  1. (b)
    for proceedings before the full bench—the full bench gives leave; or

  1. (3)
    Despite subsection (1), a party or person may be represented by a lawyer in making a written submission to the commission in relation to—
  1. (a)
    the making or variation of a modern award under chapter 3; and

...

  1. (4)
    An industrial tribunal may give leave under subsection (1) only if
  1. (a)
    it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1. (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
  1. (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

...

  1. (5)
    For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
  1. (a)
    an employee or officer of the party or person; or

...

  1. (7)
    In this section—

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.[3]

  1. [10]
    Although Queensland Health acknowledges it has access to lawyers employed by the State of Queensland, in addition to its internal industrial capability, it is seeking to be represented by a private law firm and Counsel.
  2. [11]
    As it currently stands, Queensland Health requires leave of the Full Bench before it can be legally represented in this way.
  3. [12]
    Section 530(1)(b) of the IR 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. In considering whether or not to grant leave for a lawyer to represent a party or person, the Full Bench may give leave only if:
  1. (a)
    it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;[4]
  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;[5] 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.[6]

Queensland Health's Submissions

  1. [13]
    Queensland Health contends this matter satisfies the limbs in s 530(4) of the IR Act in that the issues in dispute are complex, novel and will have significant financial and industrial consequences not just for Queensland Health but also other State Government departments.[7] Queensland Health also highlights the substantive application is materially different from other award variation applications considered by the Commission under s 147 of the IR Act in that it is opposed.[8]
  2. [14]
    If the substantive application were granted, Queensland Health argues this would be a significant departure from historical industrial arrangements, the financial impacts and consequences of which would include:
  • an estimated initial cost of 7.9 million dollars per annum (based on an assumed commencement date of 1 June 2022), with an ongoing annual increase in costs of 3.7 million dollars,[9] which excludes any costs associated if other provisions of the Award were to be extended;[10]
  • the application of an industrial instrument to a particular cohort of employees who are not presently covered by any industrial instrument,[11] and who are located across Queensland Health and not in a discrete region;[12]
  • inconsistencies between the terms and conditions of employment for DSOs and senior officers in Queensland Health, potentially resulting in reduced flexibility and workforce mobility and the entrenchment of DSO employment terms and conditions in the Award;[13] and
  • disruption to the pay relativities with respect to employees employed above and below DSOs within Queensland Health's organisational hierarchy.[14]
  1. [15]
    Queensland Health submits the proposed variations, if allowed, may also result in a precedent for award coverage being sought in respect of the 1,670 senior officers employed under the Public Service Act 2008 (Qld) ('the PS Act'), in addition to those employed under the Ambulance Service Act 1991 (Qld), Fire and Emergency Services Act 1990 (Qld) ('the FES Act') and TAFE Queensland Act 2013 (Qld).[15] It contends that such a precedent would undoubtedly result in significant financial, industrial and organisational implications across all State Government departments.[16]
  2. [16]
    Further, Queensland Health submits there are likely to be evidentiary disputes throughout the proceedings, including as to the nature of the DSO role and the true extent of the consequences set out above.[17] The Full Bench would, it submits, be assisted by experienced legal representatives who will be able to identify and confine evidentiary and legal issues, and also undertake proper cross-examination of witnesses in relation to such issues.[18]
  3. [17]
    Although it recognises its internal industrial capability and access to lawyers employed by the State of Queensland, it maintains it would be unfair to refuse leave for external legal representation having regard to the complexity and significance of the matters raised.[19] Moreover, such leave would not be unfair to Together Queensland, it submits, in circumstances where it will have the benefit of an experienced industrial advocate.[20]

Together Queensland's Submissions

  1. [18]
    Together Queensland contends it is not sufficient merely to meet one of the preconditions under s 530(4) to warrant the exercise of the Commission's discretion under s 530(1)(b) of the IR Act.[21] Instead, it submits the grounds on which an application is made must also be sufficiently meritorious.[22]
  2. [19]
    Citing earlier decisions referring the substantive application to the Full Bench,[23] Together Queensland submits that while those decisions may have characterised the matter as significant, neither determined the issues in dispute are 'complex'.[24] It submits instead that the substantive proceedings are of the kind that are the 'bread and butter' of proceedings ordinarily before the Commission.[25]
  3. [20]
    It draws a parallel to applications brought under ch 4 pt 3 div 2 of the IR Act in relation to collective bargaining, submitting those matters also regularly relate to cost implications of proposed industrial instruments and pay relativities.[26] It notes legal representation is specifically prohibited in relation to such matters and it would be incongruous for identical issues in this proceeding to be considered sufficiently complex to warrant the granting of leave.[27]
  4. [21]
    Together Queensland argues Queensland Health's submissions with respect to setting a precedent go towards significance, not complexity, and are otherwise misplaced as s 217 of the PS Act prevents an industrial instrument from applying to a senior officer.[28] Likewise, senior officers under the FES Act are already covered by an award.[29]
  5. [22]
    Further, it submits Queensland Health's submissions are misleading in that DSOs have historically been covered by awards or certified agreements.[30] Consequently, it argues there is no novelty in applying an industrial agreement to DSOs.[31]
  6. [23]
    In any event, it contends mere complexity does not trigger the precondition under s 530(4)(i).[32] Rather, the test is whether it would be more efficient to grant leave, having regard to the complexity of the matter.[33]
  7. [24]
    Queensland Health has failed, it submits, to disclose any adequate explanation as to how legal representation would assist the Commission, arguing instead that the involvement of legal representatives to date has hampered the efficient conduct of proceedings.[34]
  8. [25]
    Together Queensland argues that unless the Commission is able to determine that particular external lawyers will be more efficient than Queensland Health's internal lawyers, that test cannot be satisfied.[35]
  9. [26]
    Finally, with respect to unfairness, it argues Queensland Health has misapplied the legislative test.[36] Referring to the example provided under s 530(4), it submits the relevant operative factor is the absence of equivalent industrial advocacy.[37] In this respect it highlights Queensland Health's own acknowledgment that it is entitled to be represented by lawyers employed by the State of Queensland, and submits the State of Queensland is the most well-resourced party in terms of access to qualified industrial advocates and practitioners.[38]

Queensland Health's Reply Submissions

  1. [27]
    In reply, Queensland Health denied the substantive application was of the 'bread and butter' kind submitting it is not aware of any other contested application before the Commission for the introduction of a new classification into a modern award.[39] Consequently, it maintains the matter is 'unique', 'the first of its kind' and precisely the type of matter that would benefit from experienced legal representation.[40]
  2. [28]
    Queensland Health also denied it or the State of Queensland employ qualified lawyers who are experienced industrial advocates in the Commission, and who have the level of experience necessary to assist the Commission in significant or complex matters.[41]
  3. [29]
    It contends the benefit of experienced advocates representing parties before the Commission is well recognised,[42] and rejects any submission its representatives have hindered proceedings to date as untrue and inappropriate.[43] In this respect, it highlights Queensland Health is bound by the model litigant principles and its legal representatives are bound by their paramount duty to the administration of justice.[44]
  4. [30]
    In response to Together Queensland's comparisons of the degree of complexity associated with certain applications that come before the Commission, Queensland Health submits the leading of evidence relating to cost impacts and crossexamination of witnesses is in no way limited to applications under ch 4 pt 3 div 2 and any parallel between the substantive proceedings and such matters is irrelevant.[45]
  5. [31]
    Likewise, it submits the analogy drawn is 'convenient' and misconceived in that ch 4 pt 3 div 2 deals with applications regarding employees who are already covered by an industrial instrument, as opposed to extending coverage to a new cohort of employees.[46] If analogies were to be drawn, Queensland Health submits the more analogous type of matter is that under ch 4 pt 4, which deals with scope orders and in respect of which there is no prohibition against legal representation.[47]
  6. [32]
    With respect to the subset of employees covered by the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007, Queensland Health clarifies the roles covered in this subset are allied health roles and were classified as HP7 roles in or around April 2008 as a consequence of the creation of the health practitioner classification structure.[48] It argues these roles have not been considered DSO roles since that time and the substantive application does not seek to apply to those roles in any event.[49]
  7. [33]
    Finally, Queensland Health notes a distinction between two types of senior officers employed by Queensland Fire and Emergency Services, being: those who are not covered by industrial instruments and who are remunerated under Directive 02/21 Senior officers – employment conditions; and those who are covered by industrial instruments and are colloquially referred to as 'senior officers', but are in fact employed in the ranks of Inspector, Superintendent and Chief Superintendent.[50]

Consideration

  1. [34]
    Section 596 of the Fair Work Act 2009 (Cth), which is substantially similar to s 530(4) of the IR Act, was considered by Flick J in Warrell v Walton ('Warrell')[51] and subsequently adopted by a Full Bench of the Fair Work Commission ('the FWC') in NSW Bar Association v McAuliffe.[52]
  2. [35]
    In Warrell, Flick J said:

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 [sic] 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".[53]

  1. [36]
    Similarly, in Wellparks Holdings Pty Ltd (t/as ERGT Australia) v Govender,[54] the Full Bench of the FWC stated:

The assessment of whether permission should be granted under s 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step 'involves the making of an evaluative judgment akin to the exercise of a discretion'. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.[55]

  1. [37]
    More recently, the construction of s 530(4)(a) of the IR Act and the circumstances in which a party or person may be granted leave to be represented in proceedings by a lawyer in this Commission were helpfully considered by Merrell DP in State of Queensland (Queensland Health) v Hume ('Hume'),[56] where his Honour observed:
  1. [40]
    ... s 530(4)(a) of the IR Act is otherwise to be construed according to the ordinary meaning of the words used in that provision. A value judgment has to be formed as to whether or not the giving of leave to a party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The matter does not have to be complex, or compared to other matters that have or may become before the Court, be more complex; but regard must be had to the complexity of the matter.
  1. [41]
    Further, in having regard to that complexity, a judgment has to be formed as to whether allowing the party or person to be represented by a lawyer would enable the proceedings to be dealt with more efficiently. Section 530(4) of the IR Act is relevantly concerned with whether or not discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings before the Court. As a consequence, my opinion is that the adverb 'efficiently', in the context that it is used in s 530(4)(a) of the IR Act, is concerned with, at least, timeliness.
  1. [42]
    ... if the Court forms one of the value judgments in s 530(4)(a) to (c) of the IR Act, s 530 is otherwise silent as to the factors the Court must consider in terms of exercising the discretion. In such a case, the relevant considerations must be determined from the scope and object of the provision conferring the discretion.
  1. [43]
    The object of s 530 of the IR Act is to set out the circumstances by which a party or person may be represented in the proceedings by a lawyer. The circumstances described in s 530(4), which enliven the discretion of the Court to give leave, concern efficiency in the conduct of the proceedings. The circumstances also concern fairness, having regard to the particular circumstances of the person or party seeking leave to be represented by a lawyer, and also fairness having regard to the other parties or persons in the proceedings.
  1. [44]
    As a consequence, depending on the circumstances of a particular case, matters such as efficiency and, or in the alternative, fairness, may be relevant considerations as to whether or not the discretion, once enlivened, should be exercised.[57]

Complexity of the Matter

  1. [38]
    Having regard to the substantive application, Together Queensland seeks orders pursuant to s 147 of the IR Act, varying the Award such that it would include:
  • a new classification level of DSOs;
  • specific rates of pay for DSOs; and
  • accompanying work level descriptors relevant to work undertaken by DSOs.
  1. [39]
    In support of their respective positions, both parties in this matter have drawn parallels between the complexity of various applications that would ordinarily be determined by this Commission, with a view to highlighting circumstances where legal representation would (or would not) be permitted. However, as observed by Merrell DP when determining whether or not to grant leave for legal representation in Hume:

The matter does not have to be complex, or compared to other matters that have or may come before the Court, be more complex, but regard must be had to the complexity of the matter.[58]

  1. [40]
    Together Queensland maintains the substantive application is not complex and has characterised the matter as 'the ordinary bread and butter of proceedings' before this Commission.[59]
  2. [41]
    Conversely, Queensland Health argues the issues for determination in these proceedings are of a complex nature, are novel and will have significant financial and industrial consequences for Queensland Health and other State Government departments.[60]
  3. [42]
    The basis of Queensland Health's argument dealing with the issue of complexity arises from:
  • the unique nature of Together Queensland's application in circumstances where it is submitted it is, as far as Queensland Health can determine, the first contested application for the introduction of a new classification in a modern award;
  • the nature of the proposed variation, which could result in a significant departure from the historical industrial arrangements of DSOs;
  • the substantial financial impact on Queensland Health;
  • the potential disruption to pay relativities and the consequences for employees engaged in positions both below and above DSOs within the Queensland Health organisational hierarchy;
  • the potential precedent that could be established;
  • the ensuing award coverage which may be sought on behalf of other senior employees within the Public Sector and the significant financial, industrial and organisational implications for Queensland Health and other departments that would follow; and
  • the likely evidentiary disputes and arguments in the proceedings regarding the nature of the DSO role, the construction of legislation and the extent of the cost and other implications.
  1. [43]
    There is some force to Queensland Health's arguments in respect of the limited number of contested applications (if any) where an applicant has sought to introduce a new classification, job descriptors and accompanying pay rates into an established modern award.
  2. [44]
    We accept the substantive application, proposing a variation to a modern award, is certainly novel in this respect.
  3. [45]
    In exercising its powers when considering an application related to a modern award, the Commission must ensure the outcome:
  • provides for fair and just wages and employment conditions that are at least as favourable as the Queensland Employment Standards; and
  • generally reflects the prevailing employment conditions of employees covered, or to be covered, by the award.[61]
  1. [46]
    The factors the Commission must have regard to when exercising its powers include, among others:
  • the need to promote flexible modern work practices and efficient and productive performance of work; and
  • the efficiency and effectiveness of the economy, including productivity, inflation and the desirability of achieving a high level of employment.[62]
  1. [47]
    The Commission is also obligated to ensure the content of the modern award or any subsequent proposed variation complies with s 143 of the IR Act, which includes a requirement the modern award 'is suited to the efficient performance of work according to the needs of the particular enterprises, industries or workplaces'.[63]
  2. [48]
    Having regard to the nature of the substantive application and the submissions of the parties to date, it seems highly likely several witnesses will be called and cross-examined during the substantive matter, particularly when one has regard to the legislative framework under which DSOs are engaged, the differing views between the parties as to the historical award coverage of DSOs and the requirement for the Full Bench to consider the factors set out in ch 3 of the IR Act.
  3. [49]
    For these reasons, we are satisfied that, when considered in its entirety, the determination of Together Queensland's substantive application is not without a degree of complexity of a nature that extends beyond the resolution of simple factual disputes, having regard to well established principles that might ordinarily arise.

Efficiency

  1. [50]
    When determining whether or not to give leave to a party to be represented by a lawyer, the Full Bench must evaluate whether the granting of such leave would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter.[64]
  2. [51]
    In support of its position that legal representation will not lead to the matter being dealt with more efficiently, we note the submissions of Together Queensland suggesting the presence of private lawyers earlier on in the proceedings has enticed the Commission to act in excess of its jurisdiction and hampered the proceedings.[65]
  3. [52]
    That a party was legally represented in the earlier stages of a proceeding, where a decision was made and overturned, does not necessarily support a conclusion that the substantive proceedings could be dealt with more efficiently if leave was denied.
  4. [53]
    Having considered the nature of the substantive application, we accept the proceedings will involve evidentiary disputes and arguments. Therefore, there is some force to Queensland Health's arguments that the involvement of qualified legal representatives, with prior experience advocating before the Commission in significant industrial matters, will enable the proceedings to be conducted more efficiently. We accept there may well be value in having cross-examination and re-examination (where required) undertaken by experienced advocates.
  5. [54]
    As observed by Merrell DP in Hume:

One of the main areas of the demonstration of professional skill by counsel is the ability to present oral argument about complex legal issues in a concise manner so as to efficiently assist a court or tribunal to understand the matters in issue. True it is that the State is presently represented by lawyers employed by Crown Law. However, it is the specialised skill of private counsel that comes to the fore in concisely identifying the material issues for determination and in making precise arguments to assist the Court in resolving the issues in question.[66]

  1. [55]
    Likewise, in this matter, we consider the conduct of the matter will be greatly assisted by the involvement of private Counsel, with a view to 'identifying the material issues for determination and in making precise arguments' to assist the Full Bench in resolving the substantive application.[67]
  2. [56]
    A further criticism made by Together Queensland is that Queensland Health has access to 'extensive in-house legal capacity' through officers employed within both Crown Law and Queensland Health.[68]
  3. [57]
    We acknowledge Queensland Health has available to it both in-house resources and access to qualified solicitors through Crown Law. However, its arguments that neither it or the State of Queensland presently employ qualified lawyers or experienced advocates with the desirable level of experience, that would enable it to be effectively represented in a matter of this type, are persuasive.
  4. [58]
    In any event, the question to be determined, for the purposes of granting permission for the reasons set out at s 530(4)(a), is not whether Queensland Health can be represented, or even just as effectively represented, by in-house resources or lawyers. Instead, the relevant question is whether, having regard to the complexity of the matter, the grant of permission to Queensland Health to be represented by a lawyer[69] would enable the matter to be dealt with more efficiently.
  5. [59]
    Although the legal and industrial capacity of Queensland Health and the in-house resources of Crown Law are a consideration when making such a decision, on balance, we are satisfied that, in this case, representation by a private legal firm and Counsel experienced in industrial law and advocacy will enable this particular matter to be dealt with more efficiently.

Discretion

  1. [60]
    In order to enliven the discretion available to the Full Bench to grant leave to be legally represented, at least one of the conditions in s 530(4) of the IR Act must be satisfied.
  2. [61]
    Having met such a condition, however, does not necessarily make granting leave to be represented automatic. Such leave still requires the exercise of discretion by the Full Bench.[70]

Fairness Between the Parties

  1. [62]
    The legislative intention of ensuring legal representation is only by leave of the Commission in Full Bench matters is reflected in the terms of the Explanatory Notes to the Industrial Relations Bill 2016 ('the IR Bill'), which provide as follows:

The amendments to be moved in consideration in detail:

  • address issues raised by stakeholders in relation to legal representation by making amendments to:
  1. clarify that legal representation is generally to be by consent of the parties as is currently provided under the [Industrial Relations Act 1999 (Qld)];
  2. maintain the Bill provisions such that legal representation is only by leave of the commission in matters before the full bench …[71]
  1. [63]
    The amendments to the IR Bill sought to reflect a recommendation made by the Industrial Relations Reform Reference Group, and further to 'strike an appropriate balance to maintain the "layperson tribunal" provisions while recognising complexity in some matters where legal representation may be required'.[72]
  2. [64]
    We acknowledge a decision by a Full Bench to exercise its discretion to grant leave for legal representation, including private Counsel, has the potential to alter the dynamics of a matter, particularly in so far as it may concern formality, cost and expertise.
  3. [65]
    However, in this matter, Together Queensland has access to highly experienced and, in some cases, legally qualified advocates currently engaged by the Union, who regularly appear in Full Bench matters before the Commission.
  4. [66]
    Moreover, even if Queensland Health were to be represented by external legal representatives, it remains bound by the model litigant principles which require, amongst other things, that:
  • the power of State Government departments be used for a public good and in the public interest; and
  • the principles of fairness are adhered to in the conduct of all litigation.[73]
  1. [67]
    Equally, as observed by a Full Bench of the FWC in the context of a legal representative's ethical obligations more broadly:

In this context it is important to appreciate that legal representatives have a duty to bring all relevant authorities to the attention of the Commission, whether or not they assist the party they represent. A lawyer's duty to the Commission is paramount and supercedes [sic] a lawyer's duties to their client. A grant of permission to appear pursuant to s 596(1) of the Act is based upon a presumption that the representative to whom leave is granted will conduct themselves with probity, candour and honesty. The duty of advocates in that regard has been long recognised by the Commission. As a Full Bench noted in Re Automotive, Food, Metals, Engineering, Printing and Kindred Industires [sic] Union:

It is a long standing principle of this Commission and its predecessors that there is a duty on persons appearing before the Commission to ensure that there is full and frank disclosure of all matters which are relevant to the proper determination of the matter before the Commission (see Municipal Officers Association of Australia v City of Greater Brisbane (1927) 25 CAR 932 at 935 per Lukis J).[74]

  1. [68]
    In these circumstances, we are not persuaded Queensland Health being granted leave to be legally represented would result in Together Queensland being unduly disadvantaged.
  2. [69]
    Together Queensland submits Queensland Health is well resourced with access to qualified industrial advocates and legal officers, to such an extent that it would not be unfair to deny leave for it to be represented by external legal representation.[75]
  3. [70]
    While we acknowledge Queensland Health has access to internal industrial expertise, the application being pursued by Together Queensland seeks to create a new award classification for a senior cohort of employees, with conditions of employment that have, for the most part, been subject to administrative arrangements for many years.
  4. [71]
    The Full Bench was not referred to any other decisions concerning modern awards where the issues, which are the subject of Together Queensland's application, have been previously considered. Moreover, it is plausible the outcome of the substantive hearing may impact upon other government departments in both a financial and industrial sense.
  5. [72]
    The novel circumstances of the substantive application, in concert with the potential financial and industrial implications identified in submissions, weigh in favour of making an order for Queensland Health to be granted leave in the proceedings to be represented by qualified lawyers and Counsel with experience advocating before the Commission in significant industrial proceedings.

Conclusion

  1. [73]
    For the reasons advanced above, the Full Bench is of the view that Queensland Health ought to be granted leave to be legally represented pursuant to s 530(1)(b) of the IR Act.
  2. [74]
    We order accordingly.

Order

Pursuant to s 530(1)(b) of the Industrial Relations Act 2016 (Qld), leave is granted for the State of Queensland (Queensland Health) to be legally represented.

Footnotes

[1] [2021] ICQ 016.

[2] [2021] QIRC 088, [1]-[17] ('Referral Decision').

[3] Emphasis added.

[4] Industrial Relations Act 2016 (Qld) s 530(4)(a).

[5] Ibid s 530(4)(b).

[6] Ibid s 530(4)(c).

[7] Queensland Health's submissions filed 5 November 2021, [4]-[5], [10].

[8] Ibid [9].

[9] Queensland Health's reply submissions filed 10 December 2021, [17]. The figures with respect to costs were clarified in reply following submissions from Together Queensland confirming it did not seek any retrospective application of the orders sought in the substantive proceedings.

[10] Queensland Health's submissions filed 5 November 2021, [12].

[11] Ibid [10].

[12] Ibid [13].

[13] Ibid.

[14] Ibid [14].

[15] Ibid [15].

[16] Ibid.

[17] Ibid [16].

[18] Ibid [16]-[17].

[19] Ibid [18].

[20] Ibid [19].

[21] Together Queensland's submissions filed 24 November 2021, [4].

[22] Ibid.

[23] Referral Decision (n 2); Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 [2021] QIRC 103.

[24] Together Queensland's submissions filed 24 November 2021, [10].

[25] Ibid [5].

[26] Ibid [15]-[16].

[27] Ibid.

[28] Ibid [20].

[29] Ibid, citing Queensland Fire and Emergency Service Employees Award – State 2016.

[30] Ibid [17]-[18], citing the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007.

[31] Ibid [21].

[32] Ibid [11].

[33] Ibid.

[34] Ibid [5], [12].

[35] Ibid [11].

[36] Ibid [6], citing State of Queensland v Dodds [2021] ICQ 007, [49].

[37] Ibid [7].

[38] Ibid.

[39] Queensland Health's reply submissions filed 10 December 2021, [11].

[40] Ibid.

[41] Ibid [12].

[42] Ibid [13] citing State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118, [22].

[43] Ibid [14].

[44] Ibid, citing the Law Society of Queensland, Australian Solicitors Conduct Rules 2012.

[45] Ibid [19].

[46] Ibid.

[47] Ibid [20].

[48] Ibid [22].

[49] Ibid.

[50] Ibid [23].

[51] [2013] FCA 291; 233 IR 335 ('Warrell').

[52] [2014] FWCFB 1663; 241 IR 177.

[53] Warrell (n 51) [24]; emphasis in original.

[54] [2021] FWCFB 268.

[55] Ibid [48]; footnotes omitted.

[56] [2022] ICQ 001 ('Hume').

[57] Ibid; footnotes omitted.

[58] Ibid [40].

[59] Together Queensland's submissions filed 24 November 2021, [5].

[60] Queensland Health's submissions filed 5 November 2021, [14].

[61] Industrial Relations Act 2016 (Qld) s 141(1).

[62] Ibid s 141(2).

[63] Ibid s 143(1)(j).

[64] Hume (n 56) [35].

[65] Together Queensland's submissions filed 24 November 2021, [5], [12].

[66] Hume (n 56) [55].

[67] Ibid [53].

[68] Together Queensland's submissions filed 24 November 2021, [7].

[69] As defined by Acts Interpretation Act 1954 (Qld) sch 1 (definition of 'lawyer').

[70] King v Patrick Projects Pty Ltd [2015] FWCFB 2679.

[71] Explanatory Notes, Industrial Relations Bill 2016 (Qld) 1.

[72] Ibid; Legislative Reform Reference Group, A review of the industrial relations framework in Queensland (Report, December 2015) recommendation 64.

[73] See Queensland Government, Model Litigant Principles (at 4 October 2010).

[74] Allen v Fluor Construction Services Pty Ltd [2014] FWCFB 174; 240 IR 254, [48].

[75] Together Queensland's submissions filed 24 November 2021, [7].

Close

Editorial Notes

  • Published Case Name:

    Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (No 3)

  • Shortened Case Name:

    Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (No 3)

  • MNC:

    [2022] QIRC 280

  • Court:

    QIRC

  • Judge(s):

    Knight IC, Dwyer IC, Hartigan IC

  • Date:

    26 Jul 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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