Mason v Paroo Shire Council - [2021] QIRC 316

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Mason v Paroo Shire Council [2021] QIRC 316
PARTIES:	Mason, Barbara (Applicant) v Paroo Shire Council (Respondent)
CASE NO:	B/2021/45
PROCEEDING:	Application to be legally represented
DELIVERED ON:	13 September 2021
HEARING DATE:	On the papers
MEMBER:	Dwyer IC
HEARD AT:	Brisbane
ORDER:	*1. Leave for the respondent to be legally represented is refused pursuant to section 530(2)(b) of the Industrial Relations Act 2016* (Qld).**
CATCHWORDS:	INDUSTRIAL LAW - QUEENSLAND - respondent seeks leave for legal representation in conciliation conference - applicant does not consent - whether Commission can grant leave - leave to be legally represented refused
LEGISLATION:	Industrial Relations Act 2016 (Qld) s 283, s 379, s 386, s 396, s 475, s476, s 451, s 530, s 547D, ch 11 pt 5 div 5A
CASES:	Fitzgerald v Woolworths Limited [2017] FWCFB 2797 Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison [2019] ICQ 21 King v Patrick Projects Pty Ltd [2015] FWCFB 2679 McKenzie v McKenzie [1970] 3 All ER 2034 Palk of the Department of Industrial Relations v Carey and Sons Pty Ltd (2001) 168 QGIG 231 Queensland Nurses' Union of Employees v The Corporation of the Diocesan Synod of North Queensland as Trustee for the Good Shepherd Nursing Home (No.W87 of 2005) (2005) 179 QGIG 207

Reasons for Decision

Background

Paroo Shire Council seeks leave of the Commission to be legally represented in these proceedings at a conciliation conference.
Ms Mason opposes the application.

The substantive matter concerns an application Ms Mason filed to recover unpaid wages pursuant to sections 475 of the Industrial Relations Act 2016 (Qld) ('IR Act').
On 21 May 2021, the respondent filed a Lawyer's notice of address for service.
Correspondence was received from the applicant's union representatives objecting to the respondent being legally represented in the matter.
A mention was held and subsequently an order was issued on 20 July 2021 requiring that the parties file submissions on the question of legal representation.
Submissions of the parties
Ms Mason contends, for reasons set out in her written submissions filed on 26 July 2021, that the Commission does not have the jurisdiction to grant leave for legal representation. In summary, she submits that:
·The IR Act at s 530(1)(d)(i) provides that the Commission may only grant legal representation if all parties consent, and the applicant does not consent;
·The Commission may also grant legal representation pursuant to s 530(1)(d)(ii) for a proceeding relating to a matter under a relevant provision. This is defined in s 530(7) as being a proceeding before the commission under chapter 8, section 471 or chapter 2, part 2 or 16 – none of which apply to these proceedings;
·The respondent's representative has also suggested that advocacy could be provided by an employee of the law firm who is not a lawyer, but the applicant does not consent to this proposal;
·Citing the decision of Fitzgerald v Woolworths Limited by the Full Bench of the Fair Work Commission,[1] the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QIRC 316
Decision Date: 13 September 2021

CaseChat Overview and Summary

The matter of Mason v Paroo Shire Council was heard by the Queensland Industrial Commission, where Ms Mason, the applicant, sought recovery of unpaid wages from the Paroo Shire Council, the respondent. The applicant filed a claim for unpaid wages under section 475 of the Industrial Relations Act 2016 (Qld). The respondent sought leave to be legally represented at the conciliation conference, a request which the applicant did not consent to. The central issue before the court was whether the Industrial Commissioner could grant leave for the respondent to be legally represented in the absence of the applicant’s consent.

The court examined the relevant provisions of the Industrial Relations Act 2016 (Qld), specifically section 530(1)(d) and (2)(b). Section 530(1)(d) allows for legal representation in proceedings before the Commission unless all parties consent or the Commission grants leave. Section 530(2)(b) prohibits legal representation in proceedings before the Commission under section 475. The court noted that the applicant had changed representatives to the Services Union due to the respondent's objection, and was no longer represented by a lawyer. The court also considered that the drafting of the application by a lawyer did not constitute a proceeding at the time it was made. The court concluded that granting leave for legal representation would be inconsistent with the scheme of the Industrial Relations Act.

The court refused the respondent's application for leave to be legally represented, stating that such leave was not permitted under section 530(2)(b) of the Industrial Relations Act 2016 (Qld). The court emphasised that granting leave would blur the distinction between conciliation and other proceedings and would be inconsistent with the statutory scheme. The court's decision was based on the statutory prohibition of legal representation in proceedings under section 475 of the Act.

ORDERS:
1. Leave for the respondent to be legally represented is refused pursuant to section 530(2)(b) of the Industrial Relations Act 2016 (Qld).

Orders

Orders of the court

1. Leave for the respondent to be legally represented is refused pursuant to section 530(2)(b) of the Industrial Relations Act 2016 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In her reply submissions filed 9 August 2021, Ms Mason submits in summary that:·The IR Act does not distinguish between a conciliation and other proceedings, as advanced by the respondent relying on s 530(1)(d);·The respondent relies on s 530(4) which concerns leave for legal representation under s 530(1), knowing that the applicant does not consent; ·The respondent has not provided reasons to support the claim that legal representation would enable the proceedings to be conducted efficiently;·The applicant has now changed representatives to the Services Union as a consequence of an objection by the respondent and is now not represented by a lawyer; ·It is of no consequence that a lawyer drafted the Application as there was no proceeding at the time of making it; and·The view of the Commission appears to be that if leave is not granted, then other forms of participation such as that in McKenzie v McKenzie are also excluded and will extend to preparation of the matter as well as advocacy. To blur this would be inconsistent with the scheme of the IR Act.What decisions can the Industrial Commissioner make? The relevant provisions of the IR Act for consideration in this application are set out below. Section 530 of the IR Act governs legal representation in the Commission in circumstances other than public service appeals, it relevantly provides:530 Legal representation(1A) This section applies in relation to proceedings other than a proceeding for a public service appeal.(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—…(d) for other proceedings before the commission other than the full bench—(i) all parties consent; or(ii)for a proceeding relating to a matter under a relevant provision—the commission gives leave; or…(2) However, the person or party must not be represented by a lawyer—(a) if the party is a negotiating party to arbitration proceedings before the full bench under chapter 4, part 3, division 2; or(b) in proceedings before the commission under section 403 or 475; or(c) in proceedings remitted to the Industrial Magistrates Court under section 404(2) or 475(2).… Section 475 of the IR Act relevantly provides:475 Power to recover unpaid wages and superannuation contribution etc.(1) On application by a person under section 476, the commission may order payment of the following for the period of 6 years before the date of the application—(a)an employee’s unpaid wages;(b) an apprentice’s unpaid tool allowance under section 137;(c) remuneration lost by an apprentice or trainee because the employer has contravened section 371(2);(d) contributions to the approved superannuation fund payable for an eligible employee that are unpaid.Consideration The substantive application filed by Ms Mason is for recovery of unpaid wages. The claim was commenced by the filing of a Form 15 and identifies that claim being made pursuant to s 475 of the IR Act.

Ratio Decidendi

Legal Principle Established

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