Australian Liquor, Hospitality and Miscellaneous Workers Union Queensland Branch, Union of Employees (Hanley) v Quest Security Pty Ltd [2003] QIRC 118 (2003) 173 QGIG 803

4 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 803 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Australian Liquor, Hospitality and Miscellaneous Workers Union Queensland Branch, Union of Employees (Lex Ross Thomas Hanley) AND Quest Security Pty Ltd (No. B724 of 2003) COMMISSIONER BECHLY 24 June 2003 DECISION By Direction of the Vice President of the QIRC of Monday 2 June 2003 it was determined that there be a hearing to decide the matter of legal representation sought by the respondent in this matter. At the outset of this hearing Mr Crank for the Australian Liquor, Hospitality and Miscellaneous Workers Union Queensland Branch, Union of Employees opposed legal representation and proposed, as a threshold matter, that no application had been filed as required by s. 319 (2)(b)(iii) and that the present proceeding should terminate. Reference, in support of this proposal was made to rule 9 “Form of Applications” which describes the layout required for applications and the requirement for a supporting affidavit preferably incorporated in the application. It was put that no application in that form had been filed by the respondent to secure legal representation. Rule 7(i) provides that a proceeding before the Court, Commission or Registrar must be started by an application in the approved form. The application commencing the proceedings out of which the issue now before me has arisen was filed by the ALHMWU in the prescribed form on 28 April 2003. It seems that the Vice President has responded to an interlocutory application to have the matter of legal representation determined. I will deal with the matter in accordance with the Directions issued by the Vice President. Section 319(2) of the Act relevantly provides for legal representation in the following terms: “The party or person may be represented by a lawyer if and only if – (a)….. (b) for proceedings before the commission, other than proceedings under section 278 or 408F – (i)…. (ii)…. (iii) the proceedings relate to a matter under chapter 3, or under section 110, 275, 276 or 279, or under chapter 12, part 2 or part 16 and, on application be a party or person – (A) the commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the part or person to be legally represented; or (B) the commission is satisfied the part or person can be adequately represented only be a lawyer; or” The ALHMWU propose that there is no basis for leave to be granted for legal representation as none of the requirements of s. 319 (2)(b)(iii) or (4) have been met and that the respondent is capable of using a lay advocate as the matter is a “nuts and bolts” industrial relations issue. It further holds the view that logically a person can only be adequately represented by a lawyer if no lay advocate or other person is able to adequately represent. This is based on the belief that the relevant provision is a restrictive rather than a beneficial provision and so should not be read to remove the restriction where there is doubt or discretion. Furthermore, it is said, the fact that issues of law are involved would only be relevant if one assumes that a party can only be adequately represented by a lawyer where an issue of law is involved. The view then adopted is that that this is plainly not the case given that there are lay advocates adequately representing people in this Commission every day. It is contended for the respondent that the allegations against it are very serious in that it is claimed that the termination was made for an invalid reason. Terminations for such a reason attracts a penalty of up to 135 penalty points, i.e. up to $10,125. In terms of testing the evidence to be adduced the usual civil standard of proof does not apply but that the Briggenshaw test applies. The matter to be argued relates to freedom of association, although this present matter is not taken under chapter 4 – “Freedom of Association”. Legal representation is permitted by s. 319 (2)(b)(iii) for chapter 4 matters. Furthermore, the matter is complex in that the issues to be determined include consideration of probationary employment and continuity of service in addition to the matter of invalid reason. A significant aspect of the argument of the ALHMWU went to the comparability of lay advocates and lawyers and the relative adequacy of their representation skills. With the greatest respect to lay advocates it must be taken into account when considering the views expressed between the parties as to their relative merits that any person is able to hang up a shingle as a lay advocate regardless of their qualification, capacity or experience. Lay advocates are not bound by any regulation or code of conduct nor subject to any disciplinary body which might deal with ethical standards or indemnification of clients. In practice lay advocates’ skills, knowledge and qualifications range from minimal to very high and there is no requirement for lay advocates offering their services to inform a prospective client as to experience, education or qualifications, resources and faculties available to adequately represent the client, professional indemnity, prospects of success based upon available facts and law etc. -- 1 of 2 -- 804 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 July, 2003 On the other hand those practicing law are only able to do so subsequent to completing a law degree following several years of study and subsequent to being formally admitted to practice. Lawyers are governed by prescribed codes of conduct both to the client and the court or tribunal in which they represent their client. Lawyers are also subject to a disciplinary body in the event of transgression of codes of practice or performance. While s. 319 does act in a restrictive manner, I do not consider that the restriction is at the level proposed by Mr Crank which seems to suggest almost total exclusion of lawyers. The issues to be dealt with in this matter are more than “nuts and bolts” issues. The allegation as to invalid reason for termination is of serious nature and will require close examination of witness evidence. A substantial penalty flows from an adverse finding. The Act does allow legal representation if that same matter had been raised under chapter 3. Taking into account the issues raised at s. 319 (4) I determine that the respondent be allowed legal representation in this matter. R.E. BECHLY, Commissioner. Hearing Details: Appearances: Mr K. Crank representing the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Ms C. Tucker of Gilshenan and Luton on behalf of Quest Security Pty Ltd. -- 2 of 2 --