A recent decision of the Full Bench of the Queensland Industrial Relations Commission (QIRC) has granted leave to a government department to be legally represented by a private law firm and Counsel.
In the case of Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (No 3)  QIRC 280, the QIRC was asked to determine whether Queensland Health, the First Respondent to a substantive application to vary a modern award, ought to be granted leave to be legally represented according to section 530(1)(b) of the Industrial Relations Act 2016 (Qld) (IR Act).
Section 530(1)(b) of the IR Act gives a discretionary power to the Full Bench to allow legal representation where one or more of the requirements in section 530(4) is satisfied. In considering whether or not to grant leave for a lawyer to represent a party or person, the Full Bench may give leave only if:
Queensland Health applied for leave under section 530(1)(b) on the basis that the issues in dispute before the Commission in the substantive proceeding were complex and novel, and likely to have “significant financial and industrial consequences not just for Queensland Health but also other State Government departments”.
The applicant to the substantive application, Together Queensland, opposed Queensland Health’s application on several grounds, including that the substantive proceeding was not sufficiently complex. Together Queensland also contended that Queensland Health had its own legal personnel and Crown Law to represent its interests.
The Full Bench was ultimately persuaded by Queensland Health’s submissions. The Full Bench found that the matter was indeed sufficiently complex to warrant legal representation and that Together Queensland would not be unduly disadvantaged by the Commission granting the leave.
The Full Bench was also persuaded by Queensland Health’s submission “that neither it [nor] the State of Queensland presently employ qualified lawyers or experienced advocates with the desirable level of experience, that would enable it to be effectively represented in a matter of this type”.
In any litigation in the QIRC, deciding whether to engage legal representation, and if so, who to engage, are important considerations. This Full Bench decision underscores that while the IR Act does impose limitations on government departments engaging external legal representation, those limitations are not absolute. There are circumstances, such as where the proceeding raises complex issues or where there are insufficient in-house resources, which may be relied on in support of seeking leave to be represented by a private law firm and Counsel who are experienced in industrial matters and advocacy.
If you have any questions about legal representation in an industrial matter, please contact us below or send in your enquiry here.
Authors: Lara Hues & Jack Purtill
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