Watton v TAFE Queensland - [2021] QIRC 268

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION_:	Watton v TAFE Queensland [2021] QIRC 268
PARTIES:	Watton, Rodney Peter (Applicant) v TAFE Queensland (Respondent)
CASE NO'S:	B/2021/1 and GP/2021/11
PROCEEDING:	Application to be legally represented
DELIVERED ON:	4 August 2021
HEARING DATE:	On the papers
MEMBER: HEARD AT:	Hartigan IC Brisbane
ORDERS:	*1. Leave for the Respondent to be legally represented is granted pursuant to s 530(4) of the Industrial Relations Act* 2016.**
CATCHWORDS: LEGISLATION:	GENERAL PROTECTIONS - APPLICATION FOR LEGAL REPRESENTATION - Industrial Relations Act 2016 - whether Respondent can be legally represented under s 530 of the Industrial Relations Act 2016 - where application opposed - where factors to be considered by the Commission - where circumstances of the case - Respondent granted leave to be legally represented. Industrial Relations Act 2016 (Qld), s 530 Public Service Act 2008 (Qld) TAFE Queensland Act 2013 (Qld), s 6
CASES:	State of Queensland (Department of Premier and Cabinet) v Dawson [2021] QIRC 118 Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079

Reasons for Decision

The Respondent, TAFE Queensland ("TAFE"), has filed an application within this proceeding seeking an order pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 ("IR Act") that TAFE be granted leave to be legally represented.
As an alternative argument, TAFE contends that it is not required to seek leave to be represented by Crown Law by operation of s 530(5)(a) of the IR Act.

The Applicant in the proceedings, Mr Watton, has commenced a bullying application (B/2021/1) and a general protections application (GP/2021/11) arising out of incidents that are alleged to have occurred involving Mr Watton in his workplace at TAFE.
By an Order issued on 7 May 2021, the two proceedings were joined pursuant to rule 98 of the Industrial Relations (Tribunal) Rules 2011.
The proceedings have to date, been subject to several interlocutory applications and approximately 60 documents have been filed in the Industrial Registry in the proceedings.
Mr Watton objected to leave being granted for TAFE to be legally represented by Crown Law and Counsel, and raises the following issues, as summarised by me, for consideration:
(a)      Crown Law does not have an automatic right to represent TAFE;
(b)      the matter is not sufficiently complex to grant leave for legal representation;
(c)      granting leave will amount to a disparity in TAFE's favour;
(d)      the Commission is not bound by the rules of evidence and the Commission is guided in its decision by equity, good conscious and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole;
(e)      the subject matter of the proceedings, in part, concern Mr Watton and include allegations made by him of workplace bullying and adverse action and if leave is granted for TAFE to be legally represented, it could amount to a continuance of intimidation…

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 268
Decision Date: 4 August 2021

CaseChat Overview and Summary

In the matter of Watton v TAFE Queensland, the court was asked to determine whether the respondent, TAFE Queensland, could be legally represented under section 530 of the Industrial Relations Act 2016. The applicant, Mr Watton, opposed the application for legal representation, arguing that TAFE Queensland, being a statutory body, was not entitled to legal representation in the proceedings. The court had to decide on the interpretation of section 530 of the Industrial Relations Act 2016 and whether TAFE Queensland, as a statutory body, could be legally represented.

The court considered the relevant provisions of the Industrial Relations Act 2016, the Public Service Act 2008, and the TAFE Queensland Act 2013 to determine the eligibility of TAFE Queensland for legal representation. The court noted that section 530 of the Industrial Relations Act 2016 provides for the representation of a party by a lawyer under certain conditions. The court further examined the provisions of section 530(5) of the Act, which excludes certain categories of lawyers from the need to satisfy the preconditions outlined in section 530. The court also considered the delineation between the State of Queensland, as the owner of TAFE, and the statutory body that is TAFE, as expressed in the TAFE Queensland Bill 2013.

The court concluded that TAFE Queensland was eligible for legal representation under section 530(4) of the Industrial Relations Act 2016. The court found that granting leave for legal representation would likely shorten the length of the trial, reduce the potential cost of the matter proceeding to hearing for both parties, and was in line with the purpose of section 530 of the Act. The court further noted that TAFE Queensland, while having the status, privileges, and immunities of the State, was not an employer within the meaning of the Industrial Relations Act 2016.

The court made the following orders: 1. Leave be granted for the Respondent to be legally represented in B/2021/1 and GP/2021/11 pursuant to s 530(4) of the Industrial Relations Act 2016.

Orders

Orders of the court

1. Leave for the Respondent to be legally represented is granted pursuant to s 530(4) of the Industrial Relations Act 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am also satisfied that granting leave is likely to shorten, rather than expand, the length of the trial, and consequently, reduce the ultimate potential cost of the matter proceeding to hearing for both parties.Conclusion For the reasons outlined above, I have concluded that leave be granted for the Respondent to be legally represented in this proceeding pursuant to s 530(4) of the IR Act. I make the following orders:1. Leave be granted for the Respondent to be legally represented in B/2021/1 and GP/2021/11 pursuant to s 530(4) of the Industrial Relations Act 2016.

Ratio Decidendi

Legal Principle Established

Mr Watton submits that if the appointment of all board members, employees and officers of TAFE is by the TAFE Act and not the PS Act, this provides a clear delineation between the State of Queensland, as owners of TAFE, and the statutory body that is TAFE, as expressed in the TAFE Queensland Bill 2013. Mr Watton submits that this delineation results in TAFE, its officers and employees, as not being able to claim the status, right and/or obligations of a state of Queensland employee or officer. Consideration His Honour, Martin J considered the operation of s 530 of the IR Act in Together Queensland, Industrial Union of Employees v State of Queensland.[2] Relevantly His Honour stated:[2] [2018] ICQ 008. [33] Section 530 provides when a party may be "represented by a lawyer". A party may be "represented by a lawyer": ·by right, for example s 530(1)(a)(iii); ·by leave, for example s 530(1)(a)(ii); ·by consent, for example s 530(1)(a)(i). [34] Section 530(5) also provides that a party is taken not to be "represented by a lawyer" if a lawyer falls within an identified category. The effect of this provision is to exclude certain categories of lawyer from the need to otherwise satisfy the preconditions in s 530. Those categories are: "(5)For this section, a party or person is taken not to be represented by a lawyer if the lawyer is - (a)an employee or officer of the party or person; or (b)an employee or officer of an entity representing the party or person, if the entity is - (i)an organisation; or (ii)an association of employers that is not registered under chapter 12; or (iii)a State peak council." [35] Therefore, a lawyer who is an employee of the relevant party to the proceedings is not required to "run the gauntlet" of the various pre-conditions previously outlined in s 530.…[39] Section 530(5) does not have the effect of changing the fact that someone is a lawyer. Rather, it works by deeming a lawyer not to be a lawyer for the purposes of s 530 and thus not caught by the earlier proscriptions in that section. It goes no further than that. So much can be seen from the introductory words of s 530(5): "For this section …". In other words, where a lawyer is an employee or officer of a party etc., that party may be represented by the lawyer and the restrictions in the preceding sub-sections do not apply. Thus, it is a provision which works to allow a unit to be represented by a lawyer and, therefore, comes within s 944(2). Whilst the TAFE Act, by operation of s 6, provides that TAFE represents the State, (and has the status, privileges and immunities of the State) it does not confer the status of employer, to employees, or officers of the State to TAFE.[3] [3] See also s 943 of the IR Act which provides that the IR Act binds a related State entity as it binds an employer other than the State. TAFE is a 'related State entity' within the meaning of s 943(3) of the IR Act. The chief executive and board are each appointed in accordance with the provisions and terms of the TAFE Act.[4] Relevantly, s 29 of the TAFE Act provides for the employment of staff and that such staff are appointed pursuant to the terms of the TAFE Act and not the PS Act. [4] See s 24.