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  4. Johanson v Queensland Teachers Union of Employees and Ors - [2024] QIRC 272

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Johanson v Queensland Teachers Union of Employees and Ors[2024] QIRC 272

Johanson v Queensland Teachers Union of Employees and Ors[2024] QIRC 272

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johanson v Queensland Teachers Union of Employees and Ors [2024] QIRC 272

PARTIES:

Johanson, Madonna

(Appellant)

v

Queensland Teachers Union of Employees

(First Respondent)

and

Ruttiman, Kate

(Second Respondent)

and

Richardson, Cresta

(Third Respondent)

and

Olsson, Leah

(Fourth Respondent)

and

Cleary, Josh

(Fifth Respondent)

CASE NO:

C/2024/30

PROCEEDING:

Appeal of Industrial Registrar's decision

DELIVERED ON:

31 October 2024

HEARING DATE:

31 October 2024

MEMBERS:

Davis J, President

O'Connor VP

Caddie IC

PLACE OF HEARING:

Brisbane

ORDERS:

  1. 1.
    The appeal is allowed.
  1. 2.
    Decision of Industrial Registrar of 24  June 2024 is set aside.
  1. 3.
    The matter is remitted to the Industrial Registrar to be determined according to law.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS – ELECTIONS – appeal to Full Bench of the Queensland Industrial Relations Commission against the decision of Industrial Registrar – where Industrial Registrar determined not to refer application for an election inquiry to the Commission – where appeal filed pursuant to s 569 of the Industrial Relations Act 2016 on the grounds of an error of law or excess or want of jurisdiction – where appeal against decision of the Industrial Registrar to consider a submission by Queensland Teachers Union of Employees' lawyers without giving leave and/or without consent of all parties pursuant to s 530(1)(g) of the Industrial Relations Act 2016 and r 126(1) of the Industrial Relations (Tribunal) Rules 2011 – whether appeal should be allowed

LEGISLATION AND OTHER INSTRUMENTS:

Industrial Relations Act 2016, s 530, s 560, s 561, s 569, s 690

Industrial Relations (Tribunal) Rules 2011, r 41, r 124, r 126

CASES:

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Johanson v Queensland Teachers Union of Employees and Ors [2024] QIRC 157

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

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

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

Warrell v Walton [2013] FCA 291

APPEARANCES:

Ms M Johanson, the Appellant representing herself.

Mr D Quinn, Holding Redlich for the Queensland Teachers Union of Employees, the First Respondent.

Reasons for Decision

Introduction

  1. [1]
    This Application to appeal to the Full Bench was heard on 31 October 2024 at which time the Full Bench issued the following orders:
  1. 1.
    The appeal is allowed.
  1. 2.
    Decision of Industrial Registrar of 24  June 2024 is set aside.
  1. 3.
    The matter is remitted to the Industrial Registrar to be determined according to law.
  1. 4.
    The Full Bench will deliver reasons at a later date.
  1. [2]
    These are the reasons for the decision of the Full Bench.

Background

  1. [3]
    On 9 May 2024, Ms Madonna Johanson ('Appellant') filed in the Industrial Registry an application for an election inquiry pursuant to s 687 of the Industrial Relations Act 2016 ('the IR Act') concerning an election held by the First Respondent, Queensland Teachers Union of Employees ('QTU').
  1. [4]
    Directions Orders were issued for the Applicant to submit the relevant Rule for each of the 21 identified alleged irregularities within the application by 22 May 2024.  The Respondents were given an opportunity to file a statement in response by 29 May 2024.
  1. [5]
    The Industrial Registrar released a decision on 24 June 2024 with orders issued pursuant to s 690 of the IR Act, that the application filed on 9 May 2024 will not be referred to the Queensland Industrial Relations Commission ('the Commission') to conduct an election inquiry.  This is the decision the Appellant now appeals.[1]
  1. The Election
  1. [6]
    The Queensland Teachers Union of Employees ('the QTU') is an employee organisation registered under ch 12 of the IR Act.
  1. [7]
    On 24 May 2023 the QTU filed the prescribed information for an election and the Industrial Registrar issued a decision 25 May 2023 instructing the Electoral Commission of Queensland (ECQ) to conduct an election for President, Vice-President (Full-Time) and Vice-President (Honorary).[2]
  1. [8]
    At the conclusion of the election process, the ECQ issued a Certificate of Election with a declaration by the Returning Officer declaring that the QTU election was conducted in accordance with the Queensland Teachers Union of Employees Rules and indicating the names of the elected senior officers.[3]
  1. The Appeal
  1. [9]
    The Appellant outlines the following grounds in the amended application to appeal filed on 29 July 2024:
  1. 1.
    This appeal is being made under s 560 of the IR Act.  In particular s 560(1)(a) on the ground of an error of law; and s 560(1)(b) excess or want, of jurisdiction against:
  1. (a)
    a decision of the registrar to consider a submission by union lawyers without the registrar giving leave and/or without consent of all parties, as required by s 530(1)(g) of the IR Act (Qld) and Rules 124(2) and 126(1) of the Industrial Relations (Tribunal) Rules 2011;
  1. (b)
    a decision of the registrar to not refer an Election Inquiry Application under s 690 of the IR Act;
  1. (c)
    a decision of the registrar to consider a legal submission by union lawyers when the Further Directions Order permitted the submission of a statement in response, as per Rule 41(2)(1)(ii) of the Industrial Relations (Tribunal) Rules 2011.
  1. [10]
    The decision sought by the Appellant is as follows:
  1. 1.
    The decision sought is that in accordance with s 561 of the IR Act (Qld), that the full bench:
  1. (a)
    allow the appeal, set aside the decision and substitute another decision; or
  1. (b)
    allow the appeal and amend the decision; or
  1. (c)
    allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the registrar to act according to law; or
  1. (d)
    any other order that the Commission thinks fit.
  1. [11]
    At a mention of the matter on 30 July 2024 before the Vice President, the Appellant consented to leave for the First Respondent to be legally represented.  An order was subsequently issued that day by the Full Bench granting legal representation for the First Respondent pursuant to s 530 of the IR Act.
  1. [12]
    A Directions Order was also issued that day, by consent, for the Appellant to file submissions specifying errors relied upon by 30 August 2024; the Respondents to file written submissions by 20 September 2024 and the Appellant to file reply submissions by 4 October 2024.  The matter was listed for hearing before the Full Bench on 31 October 2024.
  1. [13]
    In her reply submissions filed on 4 October 2024, the Appellant included an additional error of law after reading the Respondent's submissions filed on 20 September 2024.  The Appellant said she had not been provided an email Ms Kate Ruttiman had sent to the Industrial Registry at 9:43am on 17 May 2024.  This was promptly sent to the Appellant by the Registry.[4]
  1. [14]
    Mr Quinn acknowledged that he did not make an application for leave to represent the First Respondent.  He filed a notice of appearance and that puts the Industrial Registrar and the Appellant on notice that leave is being sought.[5]
  1. [15]
    This does not provide the Appellant with the opportunity to argue the point when no application has been brought.  Mr Quinn went on to say that the directions order issued by the Industrial Registrar provided for any of the parties, including the Appellant, to request some further directions.  None were sought by either party and without leave being granted the Registrar made a decision on the material before her.[6]
  1. [16]
    In referring to s 530(1)(g) of the IR Act the Appellant has not consented and the Industrial Registrar has not given leave.[7]
  1. [17]
    Mr Quinn argued that the Appellant waited until the decision went against her and she should not be entitled to appeal in relation to a procedural issue when she had every opportunity to deal with it at the time the material was filed and well before the decision was released by the Industrial Registrar.[8]
  1. Legislation
  1. [18]
    The appeal by Ms Johanson is sought to be mounted under ss 560 and 561 of the IR Act. Sections 560 and 561 of the IR Act provide:
  1. 560
    Appeal from registrar
  1. (1)
    A person aggrieved by a decision of the registrar may appeal against the decision to the full bench on the ground of -
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, a person aggrieved by a decision of the registrar may appeal against the decision to the full bench, with the full bench's leave, on a ground other than -
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (3)
    For an appeal against a decision of the registrar relating to a general ruling under section 460 (2), the full bench must be constituted in the same way as it was when the general ruling under section 458 was made.
  1. 561
    What full bench may do
  1. On an appeal under section 560 the full bench may -
  1. (a)
    dismiss the appeal; or
  1. (b)
    allow the appeal, set aside the decision and substitute another decision; or
  1. (c)
    allow the appeal and amend the decision; or
  1. (d)
    allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the registrar to act according to law.
  1. [19]
    The requirement for permission for legal representation, and the exceptions to that requirement, are contained in s 530 of the IR Act.
  1. [20]
    Section 530 of the IR Act provides, relevantly, as follows:
  1. 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. (a)
    for proceedings in the court -
  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; or
  1. (c)
    for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991 - the commission gives leave; or
  1. (d)
    for proceedings before the commission, other than the full bench, relating to an industrial matter involving allegations of sexual harassment or sex or gender-based harassment - the commission gives leave; or
  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. (f)
    for proceedings before an Industrial Magistrates Court -
  1. (i)
    all parties consent; or
  1. (ii)
    both of the following apply -
  1. (A)
    the proceedings relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; and
  1. (B)
    an Industrial Magistrates Court gives leave; or
  1. (iii)
    the proceedings are for the prosecution of an offence; or
  1. (g)
    for proceedings before the registrar, including interlocutory proceedings -
  1. (i)
    all parties consent; or
  1. (ii)
    the registrar gives leave; or
  1. (h)
    for proceedings before a conciliator - the conciliator gives leave.
  1. (2)
    However, the person or party must not be represented by a lawyer -
  1. (a)
    if the party is a negotiating party to arbitration proceedings before the commission under chapter 4, part 3, division  2; or
  1. (b)
    in proceedings before the commission under section 403 or 475;  or
  1. (c)
    in proceedings remitted to the Industrial Magistrates Court under section 404(2) or 475(2).
  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 chapter3; and
  1. (b)
    the making of a general ruling about the Queensland minimum wage under section 458.
  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.
  1. 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. (6)
    In proceedings before the Industrial Magistrates Court for the prosecution of an offence under subsection (1)(f), the person represented can not be awarded costs of the representation.
  1. (7)
    In this section -
  1. industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.
  1. 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. relevant provision, for a proceeding before the commission other than the full bench, means -
  1. (a)
    chapter 8; or
  1. (b)
    section 471; or
  1. (c)
    chapter 12, part 2 or 16.
  1. [21]
    Rules 124 and 126 of the Industrial Relations (Tribunals) Rules 2011 provide as follows:
  1. 124
    Representation in proceedings
  1. (1)
    An act required or permitted to be done by a party or person in a proceeding may be done by -
  1. (a)
    the party or person; or
  1. (b)
    the party's or person's lawyer or agent; or
  1. (c)
    if the party or person is an industrial organisation - an employee, officer or
  1. (d)
    if the party or person is an employer - an employee or officer of the employer.
  1. (2)
    Subrule (1) applies unless the Act, an enabling Act or these rules provide otherwise.
  1. 126
    Lawyer's notice of address for service
  1. (1)
    Unless an address for service has already been filed and served in another way, a lawyer who represents a party or person under section 530 of the Act must, as soon as practicable after being appointed, file a notice of address for service and serve a copy of the notice on all parties to the proceeding.
  1. (2)
    The notice must be in the approved form.
  1. Consideration
  1. [22]
    A point was taken by the Appellant that the Industrial Registrar had not given leave under s 530 of the IR Act for Holding Redlich to represent the QTU.
  1. [23]
    It is not in contention that Holding Redlich had taken instructions from the QTU to act in the proceedings before the Industrial Registrar.
  1. [24]
    Proceedings are defined under s 530 (7)(a) of the IR Act to mean, proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.
  1. [25]
    Section 530 of the IR Act severely restricts the right of appearance of lawyers in the Commission. In the absence of the consent of all parties, a discretion to allow legal representation only occurs in relation to a small number of matters which arise under a "relevant provision".[9]
  1. [26]
    A distinction needs to be drawn between the giving of legal advice by Holding Redlich and representation.  A lawyer acts for a person in relation to a proceeding before the Commission (including the Industrial Registrar) if they provide their professional services to the person in relation to the proceeding.  In this case, preparing written submissions.  Broadly, the giving of legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct.  It requires a lawyer to rely on legal education, training, and experience to inform that advice.
  1. [27]
    It is not in doubt that Mr Quinn was tasked with the responsibility of presenting to the Industrial Registrar the QTU's case of responding to the application for an election inquiry.  In doing so, Mr Quinn was acting as a legal practitioner on behalf of the QTU in the proceedings.
  1. [28]
    We consider in the preparation of the written submissions and the filing of those submissions in the Industrial Registry, Holding Redlich was representing the QTU in proceedings before the Industrial Registrar.  It must follow that in those proceedings a party may only be represented by a lawyer if the Industrial Registrar gives leave.[10]
  1. [29]
    Section 530(1)(g)(ii) grants a discretion to the Industrial Registrar to permit a person to be represented in a proceeding before her.  Section 530(4) of the IR Act is relevantly concerned with whether or not a discretion should be exercised in favour of a party seeking leave to be represented by a lawyer in proceedings.  However, the Industrial Registrar's discretion does not appear to be restricted by s 530(4).  Section 530(4) provides that an Industrial Tribunal may only give leave if one of the value judgments in s 530(4)(a) to (c) is satisfied.[11]  Industrial Tribunal is defined in s 530 (7) to include the Court of Appeal, Industrial Court, Full Bench, Commission or Industrial Magistrates Court.  It makes no reference to the Industrial Registrar. Irrespective, leave must still be granted.
  1. [30]
    We consider that the decision under appeal was attended with error.  The Industrial Registrar's reasons for decision did not refer to the granting of leave or the statutory requirement in respect of permission for representation identified in s 530.  A failure to consider and determine the question of representation by reference to the statutory requirements constitutes jurisdictional error.[12]
  1. [31]
    In Hossain v Minister for Immigration and Border Protection, Kiefel CJ, Gageler and Keane JJ said:

Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.  To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law.  But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all".  To that extent, in traditional parlance, the decision is "invalid" or "void".[13]

  1. [32]
    It follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.
  1. [33]
    At the hearing on 31 October 2024 Mr Quinn on behalf of the First Respondent submitted in respect of grounds 1, 2 and 3 of the appeal that s 690 of the IR Act provided a broad discretion to the Industrial Registrar. 
  1. [34]
    Section 690 of the IR Act provides as follows:
  1. 690
    Referral to commission
  1. (1)
    The registrar may refer the application to the commission only if satisfied -
  1. (a)
    there are reasonable grounds to inquire whether there has been an irregularity in the election that may have affected, or may affect, the election result; and
  1. (b)
    the circumstances justify an election inquiry.
  1. (2)
    In deciding whether to refer the application, the registrar may consider other relevant information of which the registrar has knowledge.
  1. (3)
    An election inquiry is taken to have been started in the commission when the application is referred.
  1. [35]
    It was contended by Mr Quinn, that the discretion afforded the Industrial Registrar under s 690 of the IR Act entitled her to consider other relevant material, irrespective of how that material came to her.[14]
  1. [36]
    The submission ought to be rejected.  The Industrial Registrar was not entitled to rely on the submissions.  A decision involving jurisdictional error has no legal foundation and is properly to be regarded as no decision at all.[15]  It could not be said, in those circumstances that the submissions filed by Holding Redlich on behalf of the QTU could be regarded as 'relevant information' upon which the Industrial Registrar could properly rely.
  1. [37]
    In forming our view of the representation question, we emphasise that we do not intend any criticism of the Industrial Registrar or Mr Quinn on the basis that no leave was sought or granted pursuant to s 530 of the IR Act.  Applications to the Industrial Registrar in reliance on s 687 of the IR Act are novel.  It was a regrettable oversight requiring the Full Bench to make the orders that it has.
  1. [38]
    The failure to grant leave is an error and an error which, by itself, justifies the granting of this appeal.  It is not necessary therefore to consider the other grounds of appeal.

Footnotes

[1] Johanson v Queensland Teachers Union of Employees and Ors [2024] QIRC 157.

[2] Ibid [6].

[3] Ibid [9].

[4] Appellant's reply submissions filed on 4 October 2024, [5]-[6].

[5] TR1-4, LL6-11.

[6] TR1-4, LL13-21.

[7] TR1-4, LL46-47.

[8] TR1-7, LL1-5.

[9] Section 530(1)(d). See also: Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 016.

[10] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

[11] State of Queensland (Queensland Health) v Hume [2022] ICQ 001, [34].

[12] Warrell v Walton [2013] FCA 291.

[13] (2018) 264 CLR 123, [23] (citations omitted).

[14] TR1-3, LL3-10.

[15] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

Close

Editorial Notes

  • Published Case Name:

    Johanson v Queensland Teachers Union of Employees and Ors

  • Shortened Case Name:

    Johanson v Queensland Teachers Union of Employees and Ors

  • MNC:

    [2024] QIRC 272

  • Court:

    QIRC

  • Judge(s):

    Davis J, President, O'Connor VP, Caddie IC

  • Date:

    31 Oct 2024

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
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
2 citations
Jump To
Cite 1 - (2018) 264 CLR 123
Cite 2 - (2018) 264 CLR 123
Johanson v Queensland Teachers Union of Employees [2024] QIRC 157
2 citations
Jump To
Cite 1 - [2024] QIRC 157
Cite 2 - [2024] QIRC 157
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
3 citations
Jump To
Cite 1 - (2002) 209 CLR 597
Cite 2 - (2002) 209 CLR 597
Cite 3 - (2002) 209 CLR 597
State of Queensland (Queensland Health) v Hume [2022] ICQ 1
2 citations
Jump To
Cite 1 - [2022] ICQ 1
Cite 2 - [2022] ICQ 1
Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 16
2 citations
Jump To
Cite 1 - [2021] ICQ 16
Cite 2 - [2021] ICQ 16
Warrell v Walton [2013] FCA 291
2 citations
Jump To
Cite 1 - [2013] FCA 291
Cite 2 - [2013] FCA 291

Cases Citing

Case NameFull CitationFrequency
Johanson v Queensland Teachers Union of Employees (No. 2) [2025] QIRC 512 citations
Johanson v Queensland Teachers Union of Employees (No. 3) [2025] QIRC 1702 citations
1

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