QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Queensland Services, Industrial Union of Employees v Logan City Council [2022] QIRC 275
	
PARTIES:	
	Queensland Services, Industrial Union of Employees 
(Applicant)

v

Logan City Council 
(Respondent)
	
CASE NO.:
	TD/2022/161
	
PROCEEDING:
	Application in existing proceedings	
DELIVERED ON:
	21 July 2022
	
MEMBER:

HEARD AT:	Power IC

On the papers 
	
ORDER:
	Leave is granted for the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).
	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – application for reinstatement – application for legal representation – where Respondent has applied for leave to be legally represented – where Applicant opposes application – factors to be considered by the Commission in determining whether to allow legal representation – circumstances of the case – where leave is granted for legal representation
	
LEGISLATION:
	Industrial Relations Act 2016 (Qld), ss 530 and 531
	
CASES:	Alderton v Fraser Coast Regional Council [2019] QIRC 058

Hamilton v Carter Holt Harvey Wood Products Australia Pty Ltd [2012] FWA 5219

Lam v Gold Coast Hospital and Health Service [2021] ICQ 010

Wilcox v Holcim (Australia) Pty Ltd t/a Humes [2016] FWC 2359	

Reasons for Decision

Introduction

[1]	On 31 May 2022, the Queensland Services, Industrial Union of Employees ('QSU'; 'the Applicant') filed an application for reinstatement on behalf of its member, Mr Bradley Newton, pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[2]	On 6 July 2022, Logan City Council ('the Respondent') filed an application in existing proceedings, seeking leave to be legally represented pursuant to s 530(4) of the IR Act.

[3]	The Applicant objects to the Respondent being granted leave to be legally represented.

[4]	The question for determination is whether leave should be granted for the Respondent to be legally represented in the proceedings.

Relevant legislation provision

[5]	Section 530 of the IR Act relevantly provides:

530 	Legal representation

…
(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
…
(4)	An industrial tribunal may give leave under subsection (1) only if—
(a)	it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
(b)	it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
(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.

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 association or another person with experience in industrial relations advocacy
•	a person is from a non-English speaking background or has difficulty reading or writing

(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.
…
(7)	In this section—
…
relevant provision, for a proceeding before the commission other than the full bench, means—
(a)	chapter 8; 
…

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

[6]	The discretion to grant leave for a party to be legally represented is outlined in s 530(4) of the IR Act. The Commission may grant leave if: 

(a)	it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or

(b)	it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or

(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.

Efficiency and complexity of the matter

[7]	The Respondent submits that, whilst the matter is not necessarily legally complex, the degree of complexity is due to the safety and wellbeing of the Respondent's employees if they are compelled to represent the Respondent in these proceedings. In support, the Respondent submits that:

(a)	the Applicant was dismissed as the Respondent determined that on balance, Mr Newton had inter alia made serious threats to the safety of his co-workers relating to gun violence after being informed that those co-workers had made adverse statements about him;

(b)	as a result of Mr Newton's threat, the Respondent's employees hold a genuine concern for their safety, and do not feel safe having any involvement in these proceedings because they do not want to be perceived by Mr Newton as being the 'voice' of the Respondent, or make any comments which may be perceived by Mr Newton as being adverse to him;

(c)	the Respondent holds a genuine concern for anyone who becomes involved in this matter and has a duty of care to its employees to ensure a safe workplace and as a result, the Respondent:

(i)	removed Mr Newton from the workplace immediately on 9 March 2022;

(ii)	engaged a process server to deliver documents to Mr Newton instead of the Respondent's employees;

(iii)	increased security and monitoring of the workplace from on or around 9 March 2022; and

(iv)	offered counselling and additional support to affected staff.

[8]	The Applicant rejects the Respondent's submissions, submitting that the matter does not involve the determination of jurisdictional or technical matters, and that the 'safety of employees' is not a relevant consideration under s 530(4) of the IR Act.

[9]	The Applicant further submits that it is not equitable, in good conscience, in the interests of Mr Newton or the community for the Commission to determine these proceedings on a factual matter that is yet to be supported through proper evidence.

[10]	The Respondent submits that legal representation will assist in the efficiency of the matter in identifying and responding to relevant facts, issues and legal principles, ensuring that only the necessary evidence is placed before the Commission and will further assist in identifying agreed facts in order to prevent these matters being unnecessarily agitated.

[11]	The Applicant submits that the Respondent has a dedicated team of industrial relations professionals, including Mr Geoff Watson, who is a seasoned advocate with more than 16 years' experience in employee relations. The Applicant submits that representation by Mr Watson would only add to the efficiency of the proceedings because of his depth of knowledge of the Respondent's operation.

[12]	The Respondent submits that Mr Watson would ordinarily be nominated as the Respondent's representative, however, as Mr Watson is to be called as a material witness in the proceedings, the Respondent would be prejudiced if he was to conduct the case in such circumstances. 

[13]	The Applicant submits that Mr Watson has no bearing in the matter and any evidence proposed to be given by him is immaterial as Mr Watson was not the decision maker and was not involved in such a way that would add any probative value to the proceedings. The Applicant submits that, in any event, the Respondent has several other employee relations advisors and legal officers who are able to appear for the Respondent.

Fairness between the parties

[14]	The Respondent submits that there is no apparent prejudice to the Applicant if leave is granted for the Respondent to be legally represented and that there is no imbalance in power or unfairness to the parties as the Applicant, being a union representative, also has access to legal representation.

[15]	The Applicant rejects the Respondent's submissions and submits that there is no apparent prejudice to the Respondent and is capable of representing itself in these proceedings without the need for legal representation.

Consideration

[16]	The Respondent submits that there is a degree of complexity to this matter based upon safety and wellbeing of employees who will be required to represent the Respondent in this matter. Whilst this may be a genuine concern for the Respondent, the submissions by the Applicant on behalf of Mr Newton are correct in that circumstances relating to employee health and safety do not form part of the considerations under s 530(4) of the IR Act. I also note that the basis of concerns relating to the safety and wellbeing of employees form part of the factual dispute in the substantive application. The allegations regarding threats made to employees have been disputed, and in my view to give leave based on the presumed accuracy of such allegations would be inappropriate at this stage of the proceedings. The Respondent has not demonstrated that the facts of this application are complex to the extent that legal representation should be granted to ensure the efficient conduct of the matter. 

[17]	In circumstances where Mr Watson, Acting Manager of the People and Culture Branch, was available to represent the Respondent, the Respondent would not suffer prejudice if it were to be denied leave to be legally represented. However, the likelihood that Mr Watson will be required to provide evidence in the hearing of this matter will undoubtedly impact on the Respondent's ability to represent itself. 

[18]	It is not clear that the evidence to be provided by Mr Watson is 'immaterial' as submitted by the Applicant, nor that it will be of limited probative value. In circumstances where Mr Watson is to provide evidence, the task of representing the Respondent would fall to less experienced advocates given Mr Watson's role as a witness.

[19]	The Applicant identified other employees of the Respondent who they submit could appear for the Respondent, however there is no evidence that those identified have the requisite tribunal experience and advocacy skills to represent the Respondent in this matter. 

[20]	In the Alderton v Fraser Coast Regional Council, Commissioner Thompson considered a similar matter, stating:

…In the absence of the two senior employee relations officers by virtue of their witness status, it does in my view support the respondent's application that in the circumstances it would be unfair not to allow the respondent to be represented on the basis of an inability to represent itself.

[21]	In Wilcox v Holcim (Australia) Pty Ltd t/a Humes, it was determined that it was reasonable for the employer to not want an employee to have carriage of a matter in which the employee was to be a witness.

[22]	President Davis considered the issue of an advocate also appearing as a witness in Lam v Gold Coast Hospital and Health Service and determined that where possible it ought not to occur as the advocate should be independent to the extent possible. 
 
[23]	In this matter, Mr Newton is represented by an experienced advocate from the QSU and if the Respondent was to be legally represented, I am satisfied there will be no prejudice suffered by the Applicant.

[24]	In my view, denying leave to obtain legal representation in these circumstances would result in significant prejudice to the Respondent. Pursuant to s 530(4)(b) of the IR Act and in the interest of fairness, leave is granted for the Respondent to be legally represented in the proceedings. 

Conclusion

[25]	For the reasons outlined above, I grant leave for the Respondent to be legally represented in the proceedings pursuant to s 530(4) of the IR Act. 

Order

[26]	I make the following order:

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