Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2018] QIRC 132

Local Government Regulation 2012

Fair Work Act 2009, s 596

Warrell v Walton [2013] FCA 291

National Tertiary Education Industry Union v Monash University [2016] FWC 5539

Chris Papaioannou v CSL Limited [2017] FWC 5231

Mr D. Blackmore for Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland.

[1] This decision concerns an application by Toowoomba Regional Council (the Council), for the grant of leave to be represented by an engaged lawyer, pursuant to s 530(1)(d)(ii) and s 530(4)(a) or (b) of the Industrial Relations Act 2016 (the Act), in matter TD/2018/63, being an Application for Reinstatement of Mr Craig Tanswell, lodged by the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU). The Council's application for the grant of leave is opposed.

[2] Relevantly, s 530 provides:

(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 -

(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

proceedings means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.

relevant provision, for a proceeding before the commission other than the full bench, means -

[3] On behalf of the Council it is argued that, in determining the CFMEU's application for Mr Tanswell's reinstatement, the Queensland Industrial Relations Commission (the Commission) will not only be required to consider the provisions of s 320 of the Act in determining whether the termination was harsh, unjust or unreasonable, it will also be required to consider whether the Council carried out the disciplinary action involved in accordance with its obligations under the Local Government Act 2009 and the Local Government Regulation 2012. Such consideration, it is said, will involve statutory interpretation where the Commission would be able to have the proceedings dealt with more efficiently, having regard to the complexities involved, if the Council is legally represented.

[4] Further, because the application alleges that Mr Tanswell was unfairly singled out due to him making "high profile complaints to Work Health and Safety Queensland (WHSQ) about ongoing issues with asbestos at Council waste facilities", the hearing will be more complex than a normal, run-of-the-mill, reinstatement proceeding. As such, the proceedings would, again, be able to be dealt with more efficiently if the Council was granted leave to be represented by a lawyer, especially one experienced in "general protection" matters.

[5] In addition, Mr Bigby, who represented the Council, submitted that it would be unfair if the Council was not granted leave to be represented on the basis that while he and some other more junior staff members of the Council's legal team were qualified, none of them were experienced in employment law or advocacy before a tribunal such as the Commission. As such, the Council would be unable to adequately represent itself in the proceedings. By contrast, the CFMEU, as the actual applicant, would be represented by an experienced industrial advocate - potentially with legal qualifications - who was well used to appearing in unfair dismissal and/or general protection applications in the Commission and the Fair Work Commission. This would be unfair in that the Council would not be able to represent itself at an equivalent level.

[6] In opposing the Council's request for leave to be represented Mr D. Blackmore, for the CFMEU, referred me, inter alia,[1] to a passage in a decision of Flick J. in Warrell v Walton (Walton)[2] where he considered comparable provisions to s 530 of the Act contained in the Fair Work Act 2009 (C'th) (the FWA) as follows:

"A decision to grant or refuse 'permission' for a party to be represented by 'a lawyer' pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party 'in a matter before FWA' must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere 'formal' act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted 'only if' one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence (sic) exercise of the discretion conferred by s 596(2): i.e., 'FWA may grant permission ...'. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting 'permission'.".

[7] However, while His Honour's observations about the restrictive nature of the operation of s 596(2) of the FWA are clearly correct, it is to be noted that the case involved a selfrepresented applicant who had difficulties with reading and writing and was brain damaged whereas the respondent employer (Bacto Laboratories Pty Ltd) had briefed Counsel. As such, His Honour's comments concerning the potential for there to be a fundamental change "to the dynamics and manner in which a hearing is conducted" need to be read in that context.

[8] This case will be very different to Walton. Mr Tanswell will not be representing himself. He will be represented by an experienced industrial advocate employed by the applicant organisation, the CFMEU.

[9] Be that as it may, leave for the Council to be represented may only be granted if at least one of the provisions of s 530(4)(a) and (b) are satisfied. Even then, it is still up to the Commission to decide whether to exercise its discretion to grant leave to the Council to be represented.

[10] While the CFMEU submits that the issues which will be canvassed in the hearing will not be unusually difficult or complex, and that what should be a relatively simple proceeding has the potential to turn unnecessarily adversarial if the Council is granted leave to brief Counsel, I am not convinced - on past experience - that that will be the case here, for two reasons.

[11] Firstly, Schedule 2 to the Application for Reinstatement highlights the Applicant's belief that Mr Tanswell's termination was, in whole or part, linked to the fact that he made "high profile" complaints to WHSQ about issues concerning asbestos at Council waste facilities. Such allegations are serious and will require the Council to establish that Mr Tanswell's termination was not because of, or linked to, his complaints to WHSQ. This requirement will add an extra layer of complexity to the proceedings and, in my view, an experienced industrial lawyer will be able to deal with such issues much more efficiently (and helpfully) than someone employed by the Council, whether legally qualified or not.

[12] Secondly, an experienced industrial lawyer will be better able to identify, and deal with, the "real issues" involved in the matter than someone without industrial advocacy experience. Again, this will enable the proceedings to be dealt with more efficiently in that only relevant matters are likely to be canvassed. This is particularly so in the area of examination and cross-examination of witnesses, where inexperienced advocates may not ask the necessary or relevant questions.

[13] In all the circumstances, I am satisfied that the proceedings, scheduled for hearing in Toowoomba on 4 and 5 December 2018, will be dealt with more efficiently if the Council is granted leave to be represented by an engaged lawyer than they would be if leave was not granted and the Council was required to utilise one of its own employees as an advocate.

[14] I am also satisfied that this is an appropriate occasion on which to exercise my discretion to grant leave, pursuant to s 530(4)(a), for the Council to be represented by an engaged lawyer.

[1] National Tertiary Education Industry Union v Monash University [2016] FWC 5539; Chris Papaioannou v CSL Limited [2017] FWC 5231.

[2] Warrell v Walton [2013] FCA 291.