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- Modong v Hamad Group Pty Ltd[2022] QIRC 452
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Modong v Hamad Group Pty Ltd[2022] QIRC 452
Modong v Hamad Group Pty Ltd[2022] QIRC 452
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Modong v Hamad Group Pty Ltd [2022] QIRC 452 |
PARTIES: | Modong, Robinah Juru (Applicant) v Hamad Group Pty Ltd (Respondent) |
CASE NO.: | FWC/2022/53 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 21 November 2022 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDER: | Pursuant to s 530(1)(h) of the Industrial Relations Act 2016, the Respondent is given leave, in this proceeding before the Commission, to be legally represented. |
CATCHWORDS: | EMPLOYMENT LAW – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION FOR LEAVE FOR RESPONDENT TO BE LEGALLY REPRESENTED – consideration of s 530(1)(h) of the Industrial Relations Act 2016 – construction of s 530(4)(a) of the Industrial Relations Act 2016 – consideration of whether discretion to give leave for respondent to be legally represented is enlivened – whether giving leave for respondent to be legally represented would enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter – where matters in proceeding complex – consideration of fairness – discretion enlivened – leave given |
LEGISLATION & OTHER INSTRUMENTS: | Fair Work Act 2009 (Cth) s 596 Industrial Relations Act 2016 (Qld) s 507D, s 529, s 530 Industrial Relations (Tribunals) Rules 2011 (Qld) r 226 |
CASES: | Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2018] QIRC 132 Fitzgerald v Woolworths Ltd (2017) 270 IR 128 Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434 National Tertiary Education Industry Union v Monash University [2016] FWC 5539 NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 R v Workers' Compensation Board of Queensland ex parte Heffernan [1979] Qd R 563 R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd (1936) 56 CLR 20 State of Queensland v Dodds [2021] ICQ 007 State of Queensland (Queensland Health) v Hume [2022] ICQ 001 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 |
Reasons for Decision
Introduction
- [1]Between 2014 and 2020, the Applicant worked for the Respondent as a Store Person on a casual basis.
- [2]On 27 September 2022, the Applicant filed a Form 90 – Fair Work Claim (the Claim) at the Queensland Industrial Relations Commission.
- [3]The Applicant alleges the Respondent has contravened the National Employment Standards and terms of the General Retail Industry Award 2010 and General Retail Industry Award 2020. Further, the Applicant alleges contraventions relating to record keeping.
- [4]Stemming from the allegations, the Applicant claims unpaid wages, allowances, overtime rates and superannuation in the total of $90,782.06.
- [5]Along with the Claim, the Applicant filed a Form 33 – Notice of appointment of agent appointing Mr Miles Heffernan of Supportah Australia Pty Limited as the Applicant's agent.
- [6]On 18 October 2022, the Respondent filed a Form 4 – Application in existing proceedings seeking leave to be legally represented (the Application). The Application was accompanied by a Form 34 – Lawyer's notice of address for service listing Mr Cameron Niven of NB Lawyers as the Respondent's contact person.
- [7]On 19 October 2022, the Applicant's agent advised the Industrial Registry the Applicant objects to leave being granted for the Respondent to be legally represented and "would like to make fulsome submissions to this objection." As a result, on 20 October 2022, I issued a Directions Order requiring the parties to file written submissions addressing whether the Respondent should be granted leave to be legally represented.
Relevant legislation
- [8]Chapter 11, pt 3, div 4 of the Industrial Relations Act 2016 (Qld) (the IR Act) pertains to Fair work claims. Section 507D of the IR Act states that "Each commissioner is a conciliator for fair work claims". Section 530(1)(h) of the IR Act provides that a party to proceedings may be represented by a lawyer only if "for proceedings before a conciliator – the conciliator gives leave".
- [9]The question for my determination is whether, pursuant to s 530(1)(h) of the IR Act, I should give leave for the Respondent to be legally represented.
- [10]Section 530(4) of the IR Act provides:
- (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
Respondent's submissions
- [11]The Respondent argues it should be granted leave to be legally represented because:
- it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter;
- with reference to National Tertiary Education Industry Union v Monash University, "The matter does not have to be complex per se or reach some threshold level of complexity before permission might be considered. The test is one of efficiency taking into account the complexity that is in the matter";[1]
- the Claim contains a "confusing pleading which does not adequately establish causes of action within the Commission's jurisdiction";
- "it appears the majority of the Application is submission and is liable to be struck out";
- the matter will require consideration of a modern award over various timeframes, applicable penalties and calculations of entitlements and overtime;
- the involvement of a qualified legal practitioner will assist the Commission and the Respondent to clarify the nature of the alleged contraventions, ensure there is sufficient particularisation of matters, and allow the Applicant to understand the claim being brought against them;
- the "evidence speaking Respondent's credibility and character" and "the likelihood of an application for costs" weighs in favour of a finding that leave should be granted;
- it would be unfair not to allow the Respondent to be represented having regard to the fairness between the parties;
- with reference to Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council, "…an experienced industrial lawyer will be better able to identify, and deal with, the "real issues" involved in the matter than someone without industrial advocacy experience";[2]
- the Applicant is supported by Mr Heffernan of Supportah Australia who has been involved in previous matters involving the Applicant within the Commission's jurisdiction and is primarily involved with industrial claims;
- it cannot be said that the Applicant will be prejudiced by the Respondent seeking leave to be legally represented and therefore there are no issues of unfairness between the parties; and
- the Applicant has not brought a wage theft claim, but rather a Fair Work Claim under s 507 of the IR Act.
Applicant's submissions
- [12]The Applicant objects to the Application on the basis that:
- the conciliator is not the fact finder;
- the Application is defective because it was filed without an affidavit and by legal representatives rather than the Respondent itself;
- parliament intended for the conciliation to not be burdened by the costs of seeking legal representation;
- this is not a complex matter;
- the Respondent's concerns about not knowing the case against it are disingenuous;
- the granting of the leave requested is meant to be the exception, not the rule;
- this matter is analogous with State of Queensland v Dodds as "there is nothing to suggest that the presence of private counsel will lead to the appeal being dealt with more efficiently";[3]
- the Respondent can source assistance from lay agents or an employer organisation without leave to appear – meaning it would not be unfair to deny legal representation;
- ss 507C and 507E of the IR Act "make the Proceeding the antithesis of complex";
- the Application "is demonstrable of the very things the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (Qld) sought to eradicate" with reference to the Explanatory memorandum which states, "The Committee heard accounts of wage theft as well as deliberate action by employers to frustrate employees' attempts to recover their entitlements";
- the Applicant is a Level 1 Store Person, of Sudanese ethnicity, with English as her second language;
- the words within the Applications are designed to strike fear into the Applicant with reference to "an Application for Costs" and a planned "character" assassination;
- "There is no place in fighting wage theft and underpayments with linguistic elitism, weaponizing smug legalese in the Leave Application";
- the Respondent's case has evolved; and
- the Respondent has not presented a compelling case.
- [13]On 27 October 2022, the Applicant also filed an Affidavit of Mr Heffernan which pertained to the following:
- "Supportah Australia accepted instructions to assist Ms. Modong with a complex case with the Respondent involving alleged unlawful discrimination and underpayment of wages";
- on 1 July 2022, the directors and executives of various companies in the Supportah Group implemented a significant change to their operating model, that included separating legal services from lay advocacy services;
- Mr Dryley-Collins on behalf of Supportah Australia emailed a courtesy copy of the Form 90 to Mr Niven to which Mr Niven replied, "We consider the Applicant is attempting to obtain an advantage in the upcoming Conciliation by providing an Application regarding a separate matter";
- Mr Heffernan was concerned by Mr Niven's tone and his intimation that the Form 90 was for a collateral purpose;
- Mr Heffernan was surprised Mr Niven did not reach out to seek consent from the Applicant with respect to legal representation; and
- the approach taken in the Application reminded Mr Heffernan of the Wage Theft Inquiry.
Other matters
- [14]In reply submissions filed 7 November 2022, the Respondent appears to argue that Mr Heffernan, as a paid agent, may not appear in the proceeding in circumstances where he receives payment of a fee for providing his representation – with reference to s 529(1A)(a) of the Industrial Relations and Other Legislation Amendment Bill 2022 (Qld).
- [15]This Decision concerns the issue of whether or not the Respondent should be granted leave to be legally represented. Therefore, the argument summarised in [14] is irrelevant to the Application and will not be determined in this Decision.
The construction of s 530(4)(a) of the IR Act
- [16]
- [32]The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose; and context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense.[5]
- [33]In my opinion, s 530(4)(a) of the IR Act should be construed in the following manner.
- [34]First, the purpose of the combined effect of s 530(1)(a)(ii) and s 530(4) of the IR Act is to confer on the Court discretion to give leave, for a party or person ordered or permitted to appear or to be represented in proceedings before it, to be represented by a lawyer if the Court forms one of the value judgments in s 530(4)(a) to (c).
- [35]Secondly, it is clear that the power conferred on the Court is discretionary and not obligatory. The use of the verb 'may' in s 530(4) of the IR Act logically imports an element of discretion on the part of the Court.[6] The discretionary character is not displaced by the mandatory requirement that the Court must form a value judgment about whether, relevantly to the present case, the giving of the leave sought would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter.[7] That is to say, if the Court forms that value judgment, then there is still a discretion to be exercised. The formation of one of the value judgments in s 530(4)(a) to (c) does not dictate that the discretion is automatically exercised in favour of an applicant seeking leave to be represented by a lawyer.[8]
- [36]Thirdly, s 530(4)(a) of the IR Act refers to the question of whether leave would enable '… the proceedings' to be dealt with more efficiently, having regard to the complexity of '… the matter.'
- [37]Chapter 11, pt 5, div 3 of the IR Act is headed 'Conduct of proceedings.' Division 3 contains s 529 and s 530 of the IR Act. Section 529(1) of the IR Act provides that a person or party may be represented in the proceedings by an agent appointed in writing or, if the party or person is an organisation, an officer or member of that organisation. In s 529(2)(a) of the IR Act, the noun 'proceedings' is relevantly defined to mean proceedings under the IR Act or another Act being conducted by the Court, the Commission, an Industrial Magistrates Court or the Registrar. The noun 'proceedings' is relevantly defined in the same way in s 530(7) of the IR Act.
- [38]Having regard to that context, when s 530(4)(a) of the IR Act refers to '… the proceedings', my opinion is that phrase, relevantly to matters such as the present, refers to an application for relief made by a person which an industrial tribunal has jurisdiction to grant.
- [39]By contrast, s 530(4)(a) of the IR Act then refers to the complexity of '… the matter.' Because of the different phrase used, my opinion is that '… the matter' is a reference to the particular controversy or controversies requiring determination by the industrial tribunal so as to make a decision about the application for relief or, put another way, to determine the proceedings.[9]
- [40]Fourthly, 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.
- [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.
- [42]Fifthly, 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.[10]
- [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.
- [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.[11]
- [17]I adopt that consideration in this Decision.
Would giving leave to the Respondent to be legally represented enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter?
Complexity of the matter
- [18]The Applicant alleges the Respondent has contravened the National Employment Standards and terms of the General Retail Industry Award 2010 and General Retail Industry Award 2020. Further, the Applicant alleges contraventions relating to record keeping and non-compliance with the Fair Work Regulations 2009 (Cth) and Fair Work Act 2009 (Cth).
- [19]Stemming from the allegations, the Applicant claims unpaid wages, allowances, overtime rates and superannuation in the total of $90,782.06.
- [20]I agree with the Respondent that there is some complexity to the matter, noting the allegations outlined above and by virtue of the consequent need to undertake calculations with respect to those allegations.
- [21]On his own admission within his affidavit filed 27 October 2022, Mr Heffernan on behalf of the Applicant stated, "Supportah Australia accepted instructions to assist Ms. Modong with a complex case with the Respondent involving alleged unlawful discrimination and underpayment of wages."
- [22]Although I do not agree with the Respondent's submission that the Claim is "confusing", I find that it does contain a substantial amount of information which supports the complexity of the matter. The significant amount of information has stemmed from the alleged contraventions of two awards over various timeframes including applicable penalties and calculations of entitlements and overtime. Those factors also support the complexity of the matter.
- [23]For these reasons, I find that the matter holds a degree of complexity.
Dealing with the matter more efficiently
- [24]I have been persuaded by the Respondent's submissions with respect to dealing with the proceeding more efficiently. I accept that the assistance of legal representation will enable the Respondent to more fully and accurately understand the Claim against them, which includes understanding their responsibilities under the relevant industrial instruments.
- [25]Notably, the professional skill of a legal practitioner will enable the Respondent to express oral arguments about complex matters in a clear and concise matter. That will assist the efficient running of the conciliation including the negotiation process.
- [26]
- [55]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…
- [27]I have had regard to the complexity of the matter and similarly conclude that the professional skill of a legal practitioner will assist in the efficient running of the conference and facilitation of settlement. I find that a legal practitioner is more likely to present the Respondent's case in a concise and specific manner which will assist both myself and the Applicant in understanding the Respondent's position. That is, in comparison to if the Respondent was self-represented.
Conclusion
- [28]In light of the above consideration, I conclude that giving leave to the Respondent to be legally represented would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. In accordance with s 530(1)(4)(a) of the IR Act, my discretion to grant leave is enlivened.
Would it be unfair not to allow the Respondent to be legally represented having regard to fairness between the parties?
- [29]It is relevant to note that the Applicant is represented by Mr Heffernan, an industrial lay advocate and director of Supportah Australia Pty Limited. Supportah Australia Pty Limited frequently represents Applicants in matters of this type in the Commission. On that basis, I find there would be a degree of unfairness to not allow the Respondent to be legally represented.
- [30]Mr Heffernan refers to his client being of Sudanese ethnicity, working as a Level 1 Store Person and having English as her second language, seemingly inferring that on those bases it would be unfair to enable the Respondent to be legally represented. However, factors such as difficulty with language may have rendered legal representation unfair in circumstances where the Applicant was self-represented. Notably, she is not. Mr Heffernan has been appointed to engage with the Respondent (including through legal representatives) on behalf of the Applicant.
- [31]Further, Mr Heffernan takes issue with the "embittered tone" of correspondence issued by Mr Niven. Upon review of that correspondence, I do not share this view. In any event, Mr Heffernan has been appointed as the Applicant's agent and therefore any concern for the Applicant's vulnerability is surely mitigated by the fact that Mr Heffernan receives the correspondence first and is able to explain and advise the Applicant accordingly.
- [32]Finally, the Applicant made submissions with respect to alleged failures to comply with the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules). Pursuant to r 226(1) of the rules, "A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity." With the interests of efficiency in mind, those submissions do not affect my decision to grant leave for the Respondent to be legally represented and I consider it appropriate to declare the steps taken and documents filed by the Respondent to be effectual pursuant to r 226(2)(d) of the Rules.
- [33]As Deputy President Merrell concluded in Hume, "There are no other circumstances thrown up by this case that militate against exercising my discretion" in favour of the Respondent.
- [34]In light of the above consideration, I conclude that it would be unfair not to allow the Respondent to be represented having regard to fairness between the parties. In accordance with s 530(1)(4)(c) of the IR Act, my discretion to grant leave is enlivened.
Conclusion
- [35]For the reasons given, I will give leave for the Respondent to be legally represented in this proceeding before the Commission.
Order
- [36]I make the following order:
Pursuant to s 530(1)(h) of the Industrial Relations Act 2016, the Respondent is given leave, in this proceeding before the Commission, to be legally represented.
Footnotes
[1] [2016] FWC 5539 [23], [29]-[30] applied in State of Queensland v Together Queensland (No. 1) [2018] QIRC 5, [10].
[2] [2018] QIRC 132.
[3] [2021] ICQ 7, [41].
[4] [2022] ICQ 1.
[5] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ).
[6] See Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 546 (Toohey and Gaurdon JJ).
[7] See R v Workers' Compensation Board of Queensland ex parte Heffernan [1979] Qd R 563 ('Heffernan'), 568‑569 (Kelly J with Stable SPJ and Dunn J at 570 agreeing) and see NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618, [47] (Redlich and Harper JJA and Curtain AJA).
[8] Warrell (n 18), [24].
[9] See Fitzgerald v Woolworths Ltd [2017] FWCFB 2797; (2017) 270 IR 128, [27] and [36] (Vice President Hatcher, Deputy President Dean and Commissioner Wilson) in respect of the meaning of 'matter' as used in the comparable provisions in the Fair Work Act 2009, namely, ss 596(1) and (2).
[10] R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd [1936] HCA 63; (1936) 56 CLR 20, 32 (Dixon J) and Heffernan (n 23), 569.
[11] A similar view was expressed by the Full Bench of the Fair Work Commission in respect of s 596(2) of the Fair Work Act 2009 in Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434, [23] (Vice President Hatcher, Deputy President Mansini and Commissioner McKinnon).
[12] [2022] ICQ 1.