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Modong v Hamad Group Pty Ltd

Modong v Hamad Group Pty Ltd

Case [2022] QIRC 452 21 November 2022

Employment & Labour Law

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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Modong v Hamad Group Pty Ltd [2022] QIRC 452
PARTIES:	Modong, Robinah Juru (Applicant) v Hamad Group Pty Ltd (Respondent)
CASE NO.:	FWC/2022/53
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	21 November 2022
MEMBER:	McLennan IC
HEARD AT:	On the papers
ORDER:	*Pursuant to s 530(1)(h) of the Industrial Relations Act 2016, the Respondent is given leave, in this proceeding before the Commission, to be legally represented.*
CATCHWORDS:	EMPLOYMENT LAW – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION FOR LEAVE FOR RESPONDENT TO BE LEGALLY REPRESENTED – consideration of s 530(1)(h) of the Industrial Relations Act 2016 – construction of s 530(4)(a) of the Industrial Relations Act 2016 – consideration of whether discretion to give leave for respondent to be legally represented is enlivened – whether giving leave for respondent to be legally represented would enable the proceedings to be dealt with more efficiently having regard to the complexity of the matter – where matters in proceeding complex – consideration of fairness – discretion enlivened – leave given
LEGISLATION & OTHER INSTRUMENTS:	Fair Work Act 2009 (Cth) s 596 Industrial Relations Act 2016 (Qld) s 507D, s 529, s 530 Industrial Relations (Tribunals) Rules 2011 (Qld) r 226
CASES:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2018] QIRC 132 Fitzgerald v Woolworths Ltd (2017) 270 IR 128 Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434 National Tertiary Education Industry Union v Monash University [2016] FWC 5539 NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 R v Workers' Compensation Board of Queensland ex parte Heffernan [1979] Qd R 563 R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd (1936) 56 CLR 20 State of Queensland v Dodds [2021] ICQ 007 State of Queensland (Queensland Health) v Hume [2022] ICQ 001 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Reasons for Decision
Introduction

Between 2014 and 2020, the Applicant worked for the Respondent as a Store Person on a casual basis.
On 27 September 2022, the Applicant filed a Form 90 – Fair Work Claim (the Claim) at the Queensland Industrial Relations Commission.

The Applicant alleges the Respondent has contravened the National Employment Standards and terms of the General Retail Industry Award 2010 and General Retail Industry Award 2020. Further, the Applicant alleges contraventions relating to record keeping.
Stemming from the allegations, the Applicant claims unpaid wages, allowances, overtime rates and superannuation in the total of $90,782.06.
Along with the Claim, the Applicant filed a Form 33 – Notice of appointment of agent appointing Mr Miles Heffernan of Supportah Australia Pty Limited as the Applicant's agent.
On 18 October 2022, the Respondent filed a Form 4 – Application in existing proceedings seeking leave to be legally represented (the Application). The Application was accompanied by a Form 34 – Lawyer's notice of address for service listing Mr…

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.

Continue reading Modong v Hamad Group Pty Ltd

Details

AGLC: Modong v Hamad Group Pty Ltd [2022] QIRC 452
Case: [2022] QIRC 452
Decision Date: 21 November 2022

CaseChat Overview and Summary

The case of Modong v Hamad Group Pty Ltd involved a dispute in the Fair Work Commission, where the applicant sought leave for the respondent to be legally represented. The respondent, Hamad Group Pty Ltd, applied for legal representation under section 530(1)(h) of the Industrial Relations Act 2016. The primary issue before the Commission was whether the discretion to allow the respondent to be legally represented was enlivened under section 530(4)(a) of the Act, considering the complexity of the matter and whether such representation would facilitate a more efficient resolution of the proceedings.

The court was required to consider whether the discretion to allow legal representation was triggered and if granting leave would enable the proceedings to be dealt with more efficiently. The complexity of the matters in question was a significant factor, as was the fairness between the parties. The Commission needed to balance these considerations to determine whether the discretion under section 530(1)(h) of the Act was enlivened and whether granting leave would be appropriate.

The Commission concluded that granting leave for the respondent to be legally represented would be fair and necessary given the complexity of the case. The discretion to grant leave was considered to be enlivened under section 530(1)(h) and (4)(c) of the Industrial Relations Act 2016. The decision was made based on the need for fairness and the potential for more efficient handling of the proceedings. Consequently, the Commission allowed the respondent to be legally represented in the proceedings.

ORDER:
Pursuant to s 530(1)(h) of the Industrial Relations Act 2016, the Respondent is given leave, in this proceeding before the Commission, to be legally represented.

Orders

Orders of the court

Pursuant to s 530(1)(h) of the Industrial Relations Act 2016, the Respondent is given leave, in this proceeding before the Commission, to be legally represented.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of the above consideration, I conclude that it would be unfair not to allow the Respondent to be represented having regard to fairness between the parties. In accordance with s 530(1)(4)(c) of the IR Act, my discretion to grant leave is enlivened. Conclusion For the reasons given, I will give leave for the Respondent to be legally represented in this proceeding before the Commission. Order I make the following order:

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Modong v Hamad Group Pty Ltd [2022] QIRC 452

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

State of Queensland (Queensland Health) v Hume
[2022] ICQ 1 Para 1

…In State of Queensland (Queensland Health) v Hume, [4] Merrell DP held: [4] [2022] ICQ 1. [32]The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose; and context should be regarded at the firs…
State of Queensland v Dodds
[2021] ICQ 7

…land v Dodds as "there is nothing to suggest that the presence of private counsel will lead to the appeal being dealt with more efficiently";[3] [3] [2021] ICQ 7, [41].…
Rupinderjit Kaur v Hartley Lifecare Incorporated
[2020] FWCFB 6434 Para 1

…ed by the Full Bench of the Fair Work Commission in respect of s 596(2) of the Fair Work Act 2009 in Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434, [23] (Vice President Hatcher, Deputy President Mansini and Commissioner McKinnon).…
Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council
[2018] QIRC 132 Para 1

…between the parties; and ·the Applicant has not brought a wage theft claim, but rather a Fair Work Claim under s 507 of the IR Act. [2] [2018] QIRC 132. Applicant's submissions…
Queensland v Together Queensland (No. 1)
[2018] QIRC 5 Para 1

…account the complexity that is in the matter";[1] [1] [2016] FWC 5539 [23], [29]-[30] applied in State of Queensland v Together Queensland (No. 1) [2018] QIRC 5, [10]. ·the Claim contains a "confusing pleading which does not adequately establish causes of action within the Commission's jurisdiction"; ·"it appea…
Fitzgerald v Woolworths Limited
[2017] FWCFB 2797

…or (1996) 186 CLR 541 Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2018] QIRC 132 Fitzgerald v Woolworths Ltd (2017) 270 IR 128 Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434 National Tertiary Education Industry Union v Monash University [2016] FWC 5539 NOM…
SZTAL v Minister for Immigration and Border Protection
[2017] HCA 34 Para 1

…first stage and not at some later stage and it should be regarded in its widest sense.[5] [5] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ). [33]In my opinion, s 530(4)(a) of the IR Act should be construed in the following manner…
National Tertiary Education Industry Union v Monash University
[2016] FWC 5539 Para 1

…f complexity before permission might be considered. The test is one of efficiency taking into account the complexity that is in the matter";[1] [1] [2016] FWC 5539 [23], [29]-[30] applied in State of Queensland v Together Queensland (No. 1) [2018] QIRC 5, [10]. ·the Claim contains a "confusing pleading which does…
NOM v Director of Public Prosecutions
[2012] VSCA 198 Para 1

…979] Qd R 563 (' Heffernan '), 568‑569 (Kelly J with Stable SPJ and Dunn J at 570 agreeing) and see NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618, [47] (Redlich and Harper JJA and Curtain AJA). [8] Warrell (n 18), [24]. [9] See Fitzgerald v Woolworths Ltd [2017] FWCFB 2797; (2017) 270 IR…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25

…Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2018] QIRC 132 Fitzgerald v Woolworths Ltd (2017) 270 IR 128 Kaur v Hartley Lifecare Incorporated [2020] FWCFB 6434 National Tertiary Education Industry Union v Monash Univer…
R v Trebilco
[1936] HCA 63 Para 1

…in the comparable provisions in the Fair Work Act 2009 , namely, ss 596(1) and (2). [10] R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd [1936] HCA 63; (1936) 56 CLR 20, 32 (Dixon J) and Heffernan (n 23), 569. [11] A similar view was expressed by the Full Bench of the Fair Work Commission in respect of s 596(2)…
State of Queensland v Dodds
[2021] ICQ 007

…Board of Queensland ex parte Heffernan [1979] Qd R 563 R v Trebilco; Ex Parte F. S. Faulkner & Sons Ltd (1936) 56 CLR 20 State of Queensland v Dodds [2021] ICQ 007 State of Queensland (Queensland Health) v Hume [2022] ICQ 001 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362…
[2022] ICQ 001
[2022] ICQ 001

…ebilco; Ex Parte F. S. Faulkner & Sons Ltd (1936) 56 CLR 20 State of Queensland v Dodds [2021] ICQ 007 State of Queensland (Queensland Health) v Hume [2022] ICQ 001 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362…

Legislation cited in this decision · 4

Fair Work Act 2009 (Cth)
596 2 mentions (from Para 1)
Industrial Relations (Tribunals) Rules 2011 (Qld)
226 2 mentions (from Para 1)
Industrial Relations Act 2016 (Qld)
507D 2 mentions (from Para 1)
Fair Work Regulations 2009 (Cth)
1 mention (from Para 1)