Johanson v Queensland Teachers Union of Employees (No. 2)

[2025] QIRC 51

INDUSTRIAL REGISTRAR

CITATION:

Johanson v Queensland Teachers Union of Employees and Ors (No. 2) [2025] QIRC 051

PARTIES:

Johanson, Madonna
(Applicant)

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:

RIO/2024/137

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

HEARING DATE:

14 February 2025

On the papers

MEMBER:

Industrial Registrar Shelley

ORDERS:

CATCHWORDS:

The application made by the First Respondent for leave to be legally represented, pursuant to s 530(1)(g)(ii) of the Industrial Relations Act 2016, is granted.
INDUSTRIAL LAW - QUEENSLAND - REGISTERED INDUSTRIAL ORGANISATIONS - APPLICATION FOR LEGAL REPRESENTATION - where application by First Respondent for legal representation - where First Respondent has applied for leave to be legally represented in accordance with s 530(1)(g) of the Industrial Relations Act 2016 - where Applicant opposes application - whether leave should be granted - consideration of Industrial Registrar - leave granted

LEGISLATION:

CASES:

Industrial Relations Act 2016, s 530

Industrial Relations (Tribunals) Rules 2011, r 51

Applicant v Respondent [2014] FWC 2860

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

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

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

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

Reasons for Decision

Background

1. Ms Madonna Johanson (Applicant) filed in the Industrial Registry an application for an election inquiry on 9 May 2024.

2. A Further Directions Order was issued requiring the Applicant to submit the relevant union rules which applied to each of the 21 identified alleged irregularities within the Application and for the Respondents to file a statement in response.

3. On 24 June 2024 I issued a decision[1] that I was not satisfied that 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 that the circumstances justify an election inquiry.

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

4. The Applicant appealed this decision to the Full Bench on 15 July 2024 on the grounds of an error of law; and excess, or want, of jurisdiction relating to:

   ·        the consideration of submissions made by the Queensland Teachers Union of Employees' (First Respondent) legal representatives without giving leave and/or without consent of all parties; and

   ·        the decision not to refer an Election Inquiry Application under s 690 of the Industrial Relations Act 2016 (Act).

5. The Full Bench handed down their decision on 31 October 2024 allowing the appeal, setting aside my decision of 24 June 2024, and remitting the matter back to me for determination according to law.

   The Application for legal representation

6. I issued a Further Directions Order on 5 December 2024 requiring the First Respondent to file (and serve) an application regarding legal representation, to be accompanied by a submission in support of the application, by Friday 20 December 2024.  The Second, Third, Fourth and Fifth Respondents were required to file (and serve) submissions regarding legal representation by Friday 10 January 2025 and further, for the Applicant to file (and serve) submissions in response by Friday 24 January 2025.

7. The First Respondent filed and served their application and submissions, as required, to be granted leave to be legally represented pursuant to s 560(1)(g)(ii) (sic) of the IR Act.

8. Ms Kate Ruttiman (Second Respondent) forwarded correspondence to the Industrial Registry on 10 January 2025 stating that she did not wish to be heard in the matter, she did not oppose any party having legal representation, and that she "will abide by the decision of the Commission".

9. Ms Cresta Richardson (Third Respondent) and Mr Josh Cleary (Fifth Respondent) also forwarded correspondence to the Industrial Registry on 6 January 2025, followed by Ms Leah Ollson (Fourth Respondent) forwarding correspondence on 10 January 2025, all stating that they do not wish to be heard in the matter and "will abide by the decision of the Commission".

10. The Applicant filed and served submissions on 12 January 2025 objecting to leave being granted for the First Respondent to be legally represented.

11. There has been no application made by the Applicant seeking leave to be represented by a lawyer or agent.

    Relevant legislation

1. Section 530 of the Act states:

   (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 -

   …

   (g)for proceedings before the registrar, including interlocutory proceedings –

   (i)       all parties consent; or

   (ii)      the registrar gives leave. [emphasis added]

   Should leave be granted for the First Respondent to be legally represented?

1. The Full Bench in its reasons for decision said:

   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. 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.[2]

   [2] Johanson v Queensland Teachers Union of Employees and Ors [2024] QIRC 272 at [29]

   Conclusion

2. The sole question for me to determine is whether I should exercise my discretion to grant leave to the First Respondent to be legally represented pursuant to s 530(1)(g)(ii) of the IR Act.

1. Having regard to the reasons of the Full Bench in respect of the interpretation of s 530(1)(g)(ii) of the IR Act, I need not have regard to the statutory preconditions set out in s 530(4) of the IR Act. Nevertheless, I am mindful that this application involves matters which are 'novel' within this jurisdiction and for which there is little jurisprudence. My consideration of the issues for determination would benefit from the involvement of legal representation, recognising also the primary duty of a solicitor to assist the Commission.

2. Having considered the submissions of the parties, I am of the view that I should exercise my discretion to permit the First Respondent to be legally represented and accordingly I make the following order:

   The application made by the First Respondent for leave to be legally represented, pursuant to s 530(1)(g)(ii) of the Industrial Relations Act 2016, is granted.