Blackheath and Thornburgh College v Worsfold [2008] ICQ 6 (2008) 187 QGIG 97

[Extract from Queensland Government Industrial Gazette, Dated 29 February 2008, Vol. 187, No. 7, pages 97-98] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal from commission, magistrate or registrar Blackheath and Thornburgh College AND Jonathon Worsfold (C/2007/64) PRESIDENT HALL 18 February 2008 DECISION The Respondent (Jonathon Nigel Worsfold) was formerly employed by the Appellant (Blackheath and Thornburgh College). Differences have arisen between the Respondent and the Appellant about the duration of the Respondent's employment and whether his termination enlivened an entitlement to severance payments (and the extent of any such payments). There is also an issue about entitlement to payment in lieu of notice. By an "Application for a Claim before an Industrial Magistrate" dated 20 November 2006, the Respondent initiated proceedings in the Industrial Magistrate's Court at Townsville to enforce his claim. He was entitled to do so. The entitlement to payment was said to arise under a certified agreement entitled Blackheath and Thornburgh College - Certified Agreement 2004. It is the effect of ss. 292(1)(b)(ii) and 399 of the Industrial Relations Act 1999 that claims for severance pay and payment in lieu of notice pursuant to a certified agreement are within the scope of an Industrial Magistrate's jurisdiction. However, had he so wished, the Respondent might have brought his proceedings in the District Court. By s. 68(1)(a)(iv) of the District Court of Queensland Act 1967 the District Court has jurisdiction to hear and determine all personal actions including any debt arising under any Act, where the amount sought to be recovered does not exceed the monetary limit of $250,000. Here, the Industrial Relations Act 1999, operated upon the Blackheath and Thornburgh College - Certified Agreement 2004 to create an obligation on the part of the Appellant to pay the Respondent the amounts contemplated in the Agreement when it was in operation, see ss. 164 and 391(1). In the absence of any provision in the Industrial Relations Act 1999 denying employees access to the remedies provided by the District Court of Queensland Act 1967 the Respondent had a right to pursue his claim in that Court: compare Mollinson v Scottish Australian Investment Co Limited (1920) 25 CLR 66 at 72 to 74. In fact, as outlined, the Respondent chose to pursue his remedy in the Industrial Magistrate's Court at Townsville. In the course of somewhat protracted preliminary proceedings, the Appellant took the point that the Respondent was not entitled to be represented by his solicitor. The Acting Industrial Magistrate into whose hands the matter had fallen rejected that submission. His Honour was right to do so. Section 319(2)(c) of the Industrial Relations Act 1999 does not impose an absolute barrier to legal representation in the Industrial Magistrate's Court. In particular, where (as here) proceedings are brought personally by an employee and relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrate's Court, there is no bar to legal representation. In fairness to counsel for the Appellant, I should record that it is not suggested that the Acting Industrial Magistrate was in error if a literal construction of s. 319 be adopted. Rather, the contention is that if s. 319 is read literally the right of an employer to legal representation in defending a claim for wages is dependent upon the identity of the claimant and/or the court or tribunal chosen by that claimant to adjudicate upon the claim. In reliance upon s. 320, there is an appeal to justice and a submission that the language of s. 319 should be read so as to achieve consistency. The first point, of course, is that it is plainly arguable that s. 320 has no application to proceedings for the recovery of amounts of money (other than proceedings under ss. 278 or 408F). The more important point is that the Second Reading Speech to the Bill (Hansard 25.5.1999 at p. 1836) by the Honourable Minister for Employment, Training and Industrial Relations (to which the Appellant refers in reliance upon s. 14B of the Acts Interpretation Act 1954) makes plain that the Minister was aware of what are now said to be the idiosyncratic provisions. It is apparent that s. 319 has the purpose of accommodating divergent interests. In those circumstances, it is not appropriate to strain language to achieve consistency. I dismiss the appeal. I reserve all questions as to costs. If there is an issue about costs my associate will arrange for submissions to be taken in writing. Dated 18 February 2008. D. R. HALL, President. Released: 18 February 2008 Appearances: Mr H. Walters, directly instructed, for the Appellant. Mr J. Merrell instructed by Wilson Ryan Grose, Solicitors, for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 1 of 1 --