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  4. Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) - [2023] QIRC 141

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Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service)[2023] QIRC 141

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service)[2023] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) [2023] QIRC 141

PARTIES:

TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES

(applicant)

v

STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE)

(respondent)

FILE NO:

CB/2023/21

PROCEEDING:

Application

DELIVERED ON:

25 May 2023

HEARING DATE:

Application decided on written submissions with no oral hearing

MEMBERS:

Davis J, President, Hartigan DP, Knight IC

ORDER:

That pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016, leave be given for the respondent to be legally represented.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – where the Queensland Police Service (QPS) is regulated by the Police Service Administration Act 1990 – where the Government Entities Certified Agreement 2019 (Core CA) applies to public sector employees – where the Core CA applies to many employees of the QPS – where the applicant seeks a scope order excluding QPS employees from a certified agreement which will replace the Core CA – where the State seeks leave to be represented by King’s Counsel on the application –  whether, having regard to the complexity of the application, representation of the State by King’s Counsel would enable the proceedings to be dealt with more efficiently

Industrial Relations Act 2016, s 486, s 530, s 554

Police Service Administration Act 1990

CASES:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2017] QIRC 087, cited

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356, cited

State of Queensland (Queensland Health) v Dodds [2021] ICQ 007, cited

State of Queensland v Hume [2022] ICQ 001, cited

Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008, cited

APPEARANCES:

Written submissions for the State of Queensland by GR Cooper, Crown Solicitor

No written submissions filed on behalf of Together Queensland, Industrial Union of Employees

  1. [1]
    This is an application brought by the respondent, the State of Queensland, for leave to be represented in the principal application[1] by King’s Counsel practicing at the private Bar.
  2. [2]
    The present application is brought pursuant to s 530(1)(b) of the Industrial Relations Act 2016 (IR Act).
  3. [3]
    Section 530 of the IR Act provides, relevantly:

“530 Legal representation

(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. (a)
    …
  1. (i)
    all parties consent; or
  1. (ii)
    the court gives leave; or
  1. (iii)
    the proceedings are for the prosecution of an offence; or
  1. (b)
    for proceedings before the full bench—the full bench gives leave…
  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 the party’s or person’s interests in the proceedings; 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 organisation or another person with experience in industrial relations advocacy

• a person is from a non-English speaking background or has difficulty reading or writing

  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. (b)
    an employee or officer of an entity representing the party or person, if the entity is—
  1. (i)
    an organisation; or
  1. (ii)
    a State peak council; or
  1. (iii)
    another entity that only has members who are employers…
  1. (7)
    In this section—

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

proceedings—

  1. (a)
    means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1. (b)
    includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator…”
  1. [4]
    It is well-established that s 530(5) of the IR Act operates so that any lawyer (including a barrister) employed by the State is entitled to appear for the State as of right,[2] but leave must be obtained for State representation by counsel in private practice.
  2. [5]
    Up to this point, Mr L Grant, Senior Principal Lawyer at Crown Law, has had carriage of the principal application on behalf of the State.  While Mr Grant holds an employed barrister’s practising certificate, he is primarily employed by Crown Law in the role of a solicitor.
  3. [6]
    Section 530 has been the subject of consideration on numerous occasions.[3]
  4. [7]
    By s 530(1), the Full Bench is empowered to grant leave but only in one or more of the circumstances identified in s 530(4).  The issue here then is whether one of the three jurisdictional facts identified in s 530(4)(a), (b) or (c) is established.[4]
  5. [8]
    In our view, the fairness considerations[5] have no relevance here.  The Union is represented by a very experienced industrial advocate Mr Ken McKay and Mr Grant is an experienced industrial lawyer for the State who has appeared many times before the Commission and the Industrial Court of Queensland.  Both parties are well resourced and appear regularly before the Commission and the Industrial Court of Queensland.
  6. [9]
    The real issue is whether the engagement by the State of King’s Counsel “would enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter”.[6] 
  7. [10]
    The principal application is for scope orders pursuant to Chapter 4, Part 4 of the IR Act. 
  8. [11]
    The principal application came before the President for mention on 19 May 2023.  The President made orders for the exchange of written submissions on the State’s application under s 530. 
  9. [12]
    The State, pursuant to the directions, filed written submissions.  The Union did not file submissions but advised the Full Bench:

“…Our union has decided not to file any submissions in respect of the Crown’s application. We will leave the matter to the discretion of the Full Bench.”

  1. [13]
    The State has made submissions on both the questions of complexity[7] and fairness.[8]  It is unnecessary, for the reasons we have given,[9] to deal with questions of fairness.

Complexity

  1. [14]
    The principal application seeks a scope order which will remove public sector employees of the Queensland Police Service (QPS) from a certified agreement which will replace the Government Entities Certified Agreement 2019 (Core CA).
  2. [15]
    The effect of such an order is to pave the way for a separate agreement to be negotiated on behalf of the QPS employees.
  3. [16]
    The Core CA affects the employment of approximately 30,000 Queensland Government employees.  The QPS employees number 4,121.
  4. [17]
    The primary justification for the scope order is submitted by the Union in the principal application to be that the QPS has a separate and distinct organisational structure.  That the QPS has a unique structure was acknowledged and was the subject of consideration by a Full Bench in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors.[10]
  5. [18]
    The present case is one of both legal and factual complexity for the following reasons:
  1. Scope orders were considered in Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland & Ors v Brisbane City Council,[11] but the provisions have not otherwise been considered.  The principal application therefore involves the consideration of provisions about which there is little jurisprudence.
  2. The case is likely to raise questions as to the operation of the Police Service Administration Act 1990.
  3. The case is likely to give rise to an analysis of various industrial instruments, including the Core CA.
  4. The importance of the present case has already been recognised by the decision to refer it to a Full Bench.[12]
  5. The President will sit on the Full Bench meaning that any judgment could be the subject of an appeal directly to the Court of Appeal.[13]
  6. There are a number of witnesses and various disputed facts.
  7. Four days has been allocated for the Full Bench to hear the application.
  1. [19]
    In those circumstances, the involvement of King’s Counsel will enable the proceedings to be dealt with more efficiently.
  2. [20]
    The discretion having arisen, it should be exercised in favour of giving leave to the State as sought as:
  1. A more efficient hearing is in the interests of justice and all users of the Commission.[14]
  2. The decision may have significant impact upon collective bargaining under the IR Act.
  3. The decision is likely to provide important jurisprudence on Chapter 4, Part 4 of the IR Act.
  1. [21]
    For those reasons, we order that:

That pursuant to s 530(1)(a)(ii) of the Industrial Relations Act 2016, leave be given for the respondent to be legally represented.

Footnotes

[1]  Application for a scope order under Part 4 of Chapter 4 of the Industrial Relations Act 2016.

[2] Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008.

[3]  For recent cases see State of Queensland v Dodds [2021] ICQ 007 and State of Queensland v Hume [2022] ICQ 001.

[4]  Section 530(4)(a) more efficiency having regard to complexity; s 530(4)(b) unfairness because the party is unable to represent their interests; s 530(4)(c) unfairness having regard to the respective positions of the parties.

[5]  Sections 530(4)(b) and (c).

[6]  Section 530(4)(a).

[7]  Section 530(4)(a).

[8]  Section 530(4)(b) and (c).

[9]  Paragraph [8] of these reasons.

[10]  [2021] QIRC 356.

[11]  [2017] QIRC 087.

[12] Industrial Relations Act 2016, s 486.

[13] Industrial Relations Act 2016, s 554(1).

[14] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [6], [17], [23]-[27].

Close

Editorial Notes

  • Published Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service)

  • MNC:

    [2023] QIRC 141

  • Court:

    QIRC

  • Judge(s):

    Davis J, President, Hartigan DP, Knight IC

  • Date:

    25 May 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2017] QIRC 87
2 citations
Jump To
Cite 1 - [2017] QIRC 87
Cite 2 - [2017] QIRC 87
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
State of Queensland (Queensland Health) v Hume [2022] ICQ 1
2 citations
Jump To
Cite 1 - [2022] ICQ 1
Cite 2 - [2022] ICQ 1
State of Queensland v Dodds [2021] ICQ 7
2 citations
Jump To
Cite 1 - [2021] ICQ 7
Cite 2 - [2021] ICQ 7
Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 8
2 citations
Jump To
Cite 1 - [2018] ICQ 8
Cite 2 - [2018] ICQ 8

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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