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Queensland Services, Industrial Union of Employees v Central Highlands Regional Council[2023] QIRC 94

Queensland Services, Industrial Union of Employees v Central Highlands Regional Council[2023] QIRC 94

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Services, Industrial Union of Employees v Central Highlands Regional Council [2023] QIRC 094

PARTIES:

Queensland Services, Industrial Union of Employees

(Applicant)

v

Central Highlands Regional Council

(Respondent)

CASE NO:

TD/2023/15

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

27 March 2023

WRITTEN SUBMISSIONS:

Applicant's submissions filed 20 March 2023

Respondent's submissions filed 23 March 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDERS:

  1. Leave is granted for the Respondent to be legally represented for any conciliation conferences regarding matter TD/2022/272 pursuant to s 530(1)(e) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – application in existing proceedings – application for leave to be legally represented – where Respondent applied for leave to be legally represented – where Applicant opposes application – factors to be considered by the Commission in determining whether to allow legal representation – efficiency of proceedings – where leave is granted for legal representation

LEGISLATION:

Industrial Relations Act 2016 ss 318, 517, 529, 530

CASES:

Bezett v State of Queensland (Queensland Fire and Emergency Services) [2023] QIRC 048

Corney v State of Queensland (Queensland Health) [2020] QIRC 219

McKeown v The Smith’s Snackfood Company Pty Ltd [2023] FWC 91

Smith v State of Queensland (Queensland Health) & Anor [2022] QIRC 462

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

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

Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079

Reasons for Decision

Introduction

  1. [1]
    On 13 February 2023, the Queensland Services Union, Industrial Union of Employees (the Applicant) filed an application on behalf of its member, Mr Michael Grayson, for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (the IR Act). The Applicant claims that Mr Grayson was unfairly dismissed by the Central Highlands Regional Council (the Respondent).
  1. [2]
    On 27 February 2023, the Respondent filed an application in existing proceedings seeking leave to be legally represented pursuant to s 530 of the IR Act.
  1. [3]
    In correspondence to the Industrial Registry on 10 March 2023, the Applicant advised that it objected to the Respondent being legally represented in accordance with s 530(1)(e)(i) of the IR Act. On 16 March 2023, the Applicant confirmed its objection to the Respondent being legally represented for the entire proceedings, including the conciliation conference.
  1. [4]
    I subsequently issued a Directions Order on 16 March 2023 directing the parties to file submissions in relation to the Applicant’s objection to the Respondent being legally represented.
  1. [5]
    The application for reinstatement has been allocated me for the purpose of conducting a conciliation to attempt to settle the application in accordance with s 318 of the IR Act. It is generally the case that where a member of the Commission has conducted the conciliation of an application for reinstatement and the matter, having not settled, is referred for arbitration, a different member of the Commission will conduct the hearing. Therefore, my decision on the application for leave to be legally represented relates only to the conciliation of the matter.
  1. [6]
    The question before me is therefore whether leave should be granted for the Respondent to be legally represented in any s 318 conciliation conferences held before the Queensland Industrial Relations Commission.

Legal framework

  1. [7]
    Section 529 of the IR Act deals with representation of parties generally in proceedings before the Queensland Industrial Relations Commission and says:

529 Representation of parties generally

  1. (1)
    A party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented in the proceedings by—
  1. (a)
    a lawyer, only in accordance with section 530…
  1. [8]
    Section 530 of the IR Act addresses the issue of legal representation and relevantly states:

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. (e)
    for other proceedings before the commission, other than the full bench-
  1. (i)
    all parties consent; or
  1. (ii)
    for a proceeding relating to a matter under a relevant provision – the commission gives leave; or…
  1. [9]
    Section 530(7) of the IR Act defines ‘relevant provision’ to include Chapter 8, of which Division 2, 'Unfair Dismissals', is a part.
  1. [10]
    Section 530(4) of the IR Act outlines the following considerations in determining whether to grant leave for legal representation:
  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.
  1. [11]
    Deputy President Merrell considered the construction of ss 530(1) and 530(4) of the IR Act in State of Queensland (Queensland Health) v Hume.[1] His Honour said:

[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. 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. 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.

[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.

[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.

[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.

Respondent's application for legal representation

  1. [12]
    On 27 February 2023, the Respondent filed an employer response to the application for reinstatement, an application in existing proceedings seeking leave to be legally represented, and a lawyer’s notice of address for service nominating McCullough Robertson Lawyers as the Respondent’s legal representative.
  1. [13]
    In a schedule to its application, the Respondent makes a number of submissions as to why it says leave should be granted for it to be legally represented. Its submissions address the complexity and efficiency of the proceedings as well as fairness to the parties in granting leave for the Respondent to be legally represented.

Efficiency and complexity

  1. [14]
    The Respondent says that its representatives will assist the Commission in efficiently dealing with the application by narrowing the issues in dispute, preparing concise and relevant evidence and submissions, testing the evidence by examining evidence, and aiding the Commission in identifying and applying the relevant legal principles.
  1. [15]
    The Respondent also contends that its representatives have experience in the jurisdiction and a paramount duty to both the Commission and the administration of justice.
  1. [16]
    With regard to the substantive application, the Respondent says the following issues raise factual and legal complexity:
  • Whether Mr Grayson made various statements and the manner in which he made them;
  • Whether the Respondent warned Mr Grayson about his conduct;
  • The consequences of Mr Grayson’s conduct upon his co-workers and the Respondent’s operations;
  • The appropriateness of the dismissal; and
  • The unsuitability of reinstatement or re-employment in the context of the Respondent’s obligations and its industrial circumstances.
  1. [17]
    The Respondent submits that the Commission has consistently held that legal representatives assist the Commission to efficiently deal with proceedings. In particular, the Respondent cites State of Queensland (Department of the Premier and Cabinet) v Dawson (‘Dawson’),[2] where Vice President O'Connor said:

[23] The Commission has a responsibility to ensure that its practice and procedure are adhered to in order to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Equally, the Commission has an obligation to ensure its limited resources are effectively utilised. The involvement of Counsel will, in my view, assist in achieving that objective.

  1. [18]
    The Respondent also points to the following remarks made by Deputy President Sams in Application by R.A.v,[3] cited by Vice President O'Connor in Dawson:[4]

[18]Invariably, I have found the skills and expertise of an experienced industrial legal practitioner will be more of a help than a hindrance, particularly bearing in mind a legal practitioner’s professional obligations to the Commission and the Courts…

Fairness to the parties

  1. [19]
    The Respondent submits that it would be unfair not to allow the Respondent to be legally represented as the Applicant is a union with qualified and experienced advocates, including employed lawyers.
  1. [20]
    Conversely, the Respondent has a small Human Resources (HR) team with no experience in managing litigation, preparing legal arguments or examining witnesses. Further, the Respondent says that its HR team would be further diminished as at least one of its staff would be a material witness in the proceedings and therefore unable to manage the matter.

Exercise of discretion

  1. [21]
    The Respondent provides two further factors which it says favour leave being granted. Firstly, in circumstances where the Commission can award reinstatement with backpay and make significant findings about the Respondent and its employees, the Respondent should have the opportunity to present a cogent legal defence.
  1. [22]
    Secondly, the Respondent does not oppose the Applicant engaging external legal representation or Mr Grayson bringing the matter in his own right and with legal representation. The Respondent says whether by choice or circumstance, the Applicant or its member not having legal representation ‘is no reason to deny the other party or parties legal representation’.[5]

Applicant's submissions

  1. [23]
    In its submissions filed on 20 March 2023, the union addresses the arguments made by the Respondent and makes its own submissions on efficiency and fairness.

  1. [24]
    The union’s submissions address the issue of legal representation at the conference only, citing my decision in Bezett,[6] where I granted leave for the Respondent to be legally represented at any conciliation conferences to be conducted in the matter.

Efficiency and complexity

  1. [25]
    The Applicant says that the Respondent’s submissions do not address the relevance of legal representation at the conciliation conference. Rather, the Respondent appears to presume the parties will be unable to reach a settlement at the conference and the matter will proceed to hearing. Therefore, the Applicant contends that the Respondent’s submissions and authorities regarding its legal representation assisting with the efficiency of the proceedings are not relevant to the conference.
  1. [26]
    Moreover, the Applicant says that the conciliation will not involve factual and legal complexity, evidence, testing of evidence, or examining witnesses.

Fairness to the parties

  1. [27]
    The Applicant submits that there will not be a lack of fairness afforded to the parties if union officials and HR staff participate in the conference without lawyers. The Applicant says that its member will be represented by a union official and not a lawyer.
  1. [28]
    On the other hand, the Applicant says that the Respondent has a dedicated HR team of experienced professionals capable of considering the issues in dispute. According to the Applicant, the Respondent’s HR team deals with union officials regularly and negotiates on complex, employment-related matters.
  1. [29]
    The Applicant also says the conference will not involve preparing legal arguments, managing litigation or examining witnesses (including any member of the HR team).

Exercise of discretion

  1. [30]
    The Union says that the Commission cannot order reinstatement with backpay or make findings during the conciliation conference. The conference will not require ‘the most cogent legal defence available’, but a willingness to participate in good faith with a view of reaching a settlement.
  1. [31]
    The Applicant further submits that the default position is that parties are not to be legally represented, and discretion to grant leave for the Respondent to be legally represented should not be exercised lightly but as an ‘exception’ to the default position.

Respondent's reply submissions

  1. [32]
    In its reply submissions filed on 23 March 2023, the Respondent begins with an argument about whether s 530(4) of the IR Act confines the Commission to considering an application for legal representation at a particular stage of the proceedings, or whether the Commission has discretion to deal with legal representation for the proceedings as a whole.
  1. [33]
    The Respondent says that on the proper construction of the test in s 530(4), the Commission must have regard to the complexity of the matter, the efficiency of the proceedings, and fairness in the proceedings.
  1. [34]
    The Respondent again points to the Vice President O'Connor’s decision in Dawson where his Honour granted leave for legal representation for the entire proceedings and before a compulsory conference had occurred.
  1. [35]
    Therefore, the Respondent says that its application and submissions rightfully address the entire proceedings rather than the conciliation conference only.
  1. [36]
    In terms of the efficiency of the proceedings, the Respondent says its representatives have already assisted the efficiency of the proceedings by identifying and narrowing matters at issue through its Employer Response. The Respondent says its lawyers will facilitate the efficiency of the proceedings further by enabling the Respondent to access immediate advice and consider avenues for resolution, and drafting a potential deed of settlement.
  1. [37]
    Turning to the issue of fairness, the Respondent says that its HR team does not have a particularly relevant skillset for appearing at the Commission, citing the following observations of Deputy President Lake of the Fair Work Commission in McKeown v The Smith’s Snackfood Company Pty Ltd:[7]

The human resources function is one that covers a broad field – payroll, recruitment, policy development, administration of benefits, engagement and diversity programs, workcover management, learning and development and in some cases employee relations.

…

Although Mr Peverill was not legally qualified, he is a UWU official who has significant advocacy experience in the Fair Work Commission. The Respondent is unable to provide someone of similar experience and skills in industrial advocacy, noting they are a very different skill set to those of an experienced HR manager, the skills are not interchangeable and quite specific. I weigh this factor in favour of granting representation to the Respondent.

  1. [38]
    Finally, the Respondent also explains that a staff member from the Council’s HR team was ‘subjected to Mr Grayson’s inappropriate conduct’ which creates practical issues for the Respondent, including that the matter is ‘close to home for other members of the HR team’. The Respondent seeks to be legally represented to access ‘appropriately dispassionate advocacy’.[8]

Consideration

  1. [39]
    I have had regard to the submissions of the parties and for the reasons below, I have determined to grant leave for the Respondent to be legally represented for the purposes of conciliation of this matter.

Section 530(4)(a) Enabling the proceedings to be dealt with more efficiently, having regard to the complexity of the matter

  1. [40]
    I understand that the Applicant is of the view that the conciliation proceeding will not involve factual and legal complexity, evidence or testing of evidence of the examination of witnesses. While it is the case that evidence is not led and tested at a conciliation conference, I disagree with the Applicant’s submission that the conciliation proceeding will not involve factual or legal complexity.
  1. [41]
    I have reviewed the Application for Reinstatement and the Employer Response and it is clear to me that there remains a disagreement about the factual circumstances with regard to one of the allegations, the Applicant claims there are mitigating circumstances regarding Mr Grayson’s conduct on the day in question, and there is disagreement about whether there have been any prior issues involving conduct similar to that on the day in question.
  1. [42]
    Further to this, in its Application, the Applicant raises a range of reasons it says the dismissal was ‘exceptionally harsh, and clearly unfair’ while the employer states that the dismissal was justified and argues that if it is found that the dismissal was harsh, it opposes reinstatement or re-employment on a range of grounds set out in its response.
  1. [43]
    It seems to me that there are range of factual and legal complexities arising from the matter which will need to be explored at the conciliation. Robust exploration of issues in dispute is important if parties are to be in a position to explore a resolution of the matter in a timely and efficient way.
  1. [44]
    In my view, the Commission will be assisted by both the presence of a legal representative for the Respondent and of a skilled and experienced union advocate appearing as the Applicant’s representative. Having reviewed both the Application and the Employer Response, I find that the proceedings will be dealt with more efficiently, having complexity of the matter if the Respondent is granted leave to be legally represented.

Section 530(4)(b) and (c) - Fairness

  1. [45]
    As I have determined to grant leave for the Respondent to be legally represented on the basis of s 530(4)(a), I am not required to consider s 530(4)(b)-(c). However, I note the references in the Employer Response regarding the presence of at least one member of the HR ream during the events subject of Allegation 3 (which I again note are challenged by the Applicant) and the challenges or ‘practical issues’ that the HR team may confront arising from that individual potentially being a witness in the matter. In the circumstances, I find that fairness between the parties may be enhanced by the presence of a legal representative external to the Respondent’s HR team.

Conclusion

  1. [46]
    Having determined that legal representation for the Respondent would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, I have decided to exercise the discretion afforded by s 530(1)(e) to give leave for the Respondent to be legally represented.

Order

  1. Leave is granted for the Respondent to be legally represented for any conciliation conferences regarding matter TD/2023/15 pursuant to s 530(1)(e) of the Industrial Relations Act 2016 (Qld).

Footnotes

[1] [2022] ICQ 001.

[2] [2021] QIRC 118 (‘Dawson’).

[3] Application by R.A.v [2014] FWC 2860.

[4] Dawson (n 3) [22].

[5] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 79, 6, cited in Corney v State of Queensland (Queensland Health) [2020] QIRC 219, [27] and Smith v State of Queensland (Queensland Health) & Anor [2022] QIRC 462, [34].

[6] Bezett v State of Queensland (Queensland Fire and Emergency Services) [2023] QIRC 048.

[7] [2023] FWC 91. Deputy President Lake considered s 596(2)(c) of the Fair Work Act 2009 (Cth).

[8] Respondent’s reply submissions filed 23 March 2023, [18].

Close

Editorial Notes

  • Published Case Name:

    Queensland Services, Industrial Union of Employees v Central Highlands Regional Council

  • Shortened Case Name:

    Queensland Services, Industrial Union of Employees v Central Highlands Regional Council

  • MNC:

    [2023] QIRC 94

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    27 Mar 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
Applicant v Respondent [2014] FWC 2860
1 citation
Jump To
Cite 1 - [2014] FWC 2860
Bezett v State of Queensland (Queensland Fire and Emergency Services) [2023] QIRC 48
2 citations
Jump To
Cite 1 - [2023] QIRC 48
Cite 2 - [2023] QIRC 48
Corney v State of Queensland (Queensland Health) [2020] QIRC 219
2 citations
Jump To
Cite 1 - [2020] QIRC 219
Cite 2 - [2020] QIRC 219
McKeown v The Smith’s Snackfood Company Pty Ltd [2023] FWC 91
2 citations
Jump To
Cite 1 - [2023] FWC 91
Cite 2 - [2023] FWC 91
Smith v State of Queensland (Queensland Health) [2022] QIRC 462
2 citations
Jump To
Cite 1 - [2022] QIRC 462
Cite 2 - [2022] QIRC 462
State of Queensland (Department of the Premier and Cabinet) v Dawson [2021] QIRC 118
3 citations
Jump To
Cite 1 - [2021] QIRC 118
Cite 2 - [2021] QIRC 118
Cite 3 - [2021] QIRC 118
State of Queensland (Queensland Health) v Hume [2022] ICQ 1
2 citations
Jump To
Cite 1 - [2022] ICQ 1
Cite 2 - [2022] ICQ 1
Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 79
2 citations
Jump To
Cite 1 - [2014] QIRC 79
Cite 2 - [2014] QIRC 79

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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