Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v WASP Securities and Services Pty Ltd [2000] QIRC 55 (2000) 164 QGIG 225

30 June, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 225 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISISON Industrial Relations Act 1999 – s. 278 – application for unpaid wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND WASP Securities and Services Pty Ltd (Nos. W17 to W20 of 2000) COMMISSIONER BLADES 22 June 2000 -- 1 of 2 -- 226 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 June, 2000 Unpaid wages – Adjournment – Identity of employer – Confusion – Joinder in the alternative – Legal representation – Section 319 of the Industrial Relations Act 1999 – Lawyers excluded from wages claims before the Commission. REPORT ON DECISION (as edited) In giving his decision from the Bench on 21 June, 2000, Commissioner Blades said:– “There is a number of preliminary matters to be dealt with in conjunction with this application for adjournment. 1. The evidence of the witness Struthers: This is sought to be given by telephone because of his absence on leave. Because of my attitude to the adjournment, it is perhaps unnecessary to say anything except that telephone evidence is inadvised should a witness’s credibility be in question. That may not be the case here because the witness’s statement appears to contain mostly inadmissible material relating to opinions. But I need say no more about it. Whilst the rules of evidence do not apply, it would be a brave Tribunal which made findings significantly affecting another party on inadmissible evidence. 2. Who is the employer: The applicant indicates that a search of records reveals that the business name Wasp Securities is constituted by Wasp Securities and Services Pty Ltd. There is other evidence in the form of the Group Certificates which show that Thomas Sugden is the operator of Wasp Securities. There is clearly an inconsistency. The respondent claims it is important because the respondent’s case has been formulated on the basis that the employer is Wasp Securities and Services Pty Ltd. There is no doubt, contrary to the submissions of the applicant, that the applicant bears the onus of proving who the employer is. These are not arbitral or investigative proceedings. They are more judicial in nature and therefore adversarial. They are akin to civil proceedings. It is not up to the employer to prove a case against himself. It is up to the applicant to prove the case. However, the Commission will not stand by and let confusion and technicalities defeat the proceedings. Section 329 clearly indicates that the Commission has power to join parties and for the same reasons I advanced in Baumann v. Devine Limited (157 QGIG 247), I consider that I have the power, especially where there is some doubt, to order that Thomas Ronald Sugden be joined as an alternative respondent. These matters can then proceed and the proper employer determined at the hearing. I order that the applications be amended by adding Thomas Ronald Sugden as a respondent, in the alternative. But the eventual onus of proof rests upon the applicant. This ruling in itself, probably entitles the respondent to an adjournment. I would further order for completeness, that the amended applications be served upon Thomas Ronald Sugden. 3. Time and Wages Records: As to the production of time and wages records, there is no reason why a subpoena duces tecum can not be issued to have those documents produced at the hearing. However, it would appear a simpler process to order discovery and allow the applicant to inspect and take copies. I therefore order under Rule 39 that both respondents to the amended applications make discovery of the time and wages records relative to these employees by 4.00pm on 28 June, 2000 that the applicant be permitted to inspect and take copies by 4.00pm on 7 July, 2000. 4. The adjournment: It should seem apparent that I intend to grant an adjournment. Apart from the amendment there are two grounds. Firstly, it does seem that there are questions of law which are common to the employment of the four applicants and to the employment of a Mr Fennamore. Mr Fennamore’s case was heard in the Ipswich Industrial Magistrates Court and orders made against Mr Sugden. An appeal has been lodged against the questions of law and findings of fact made in that case. It would seem that the questions of law have a real significance in the employment of all persons involved with either Mr Sugden or Wasp Securities and Services Pty Ltd so that it seems to me appropriate that an adjournment should be granted on those grounds pending the determination of that appeal. Moreover, there was the other matter raised by me and that is the right of the respondent to be represented at all by a lawyer. Whilst the parties did not have proper time to formulate arguments or consider the matter, it seems to me that lawyers are excluded from the jurisdiction. Section 319 gives a right to persons in proceedings to be represented by an agent or an officer of an organisation. Lawyers do not have a right to appear. They receive authority to appear by virtue of s. 319(2) which allows them to appear, if and only if, in proceedings before the commission, other than s. 278 proceedings, the proceedings relate to chapter 4, there is consent, there are special circumstances or the party can only be adequately represented by a lawyer. But s. 278 proceedings are excluded. Section 278 proceedings are proceedings for the recovery of wages before the Commission. The general right to appear does not include lawyers at all. I do not think there is any question about the provisions. Lawyers cannot appear in proceedings for the recovery of wages before the Commission. The respondent and indeed the applicant have been caught by surprise. It is in the interests of justice that the respondent be granted an adjournment solely on this basis so that the respondent can formulate its intentions from here on in. I do not consider it wise to allow the issues to fall into some deep hole. The appeal will have to be progressed without undue delay. The respective cases should already be in a fit state to proceed to trial. Whatever else Mr Sugden has to do would be minimal. If the appeal is to be heard probably late July, I anticipate a decision very soon thereafter. I think these matters should be ready to proceed by 14 August. I would therefore adjourn all matters to 9.00am on Monday 14 August, also reserving Tuesday 15 August. I do not see the necessity for a third day. The evidence does not appear convoluted or lengthy. The matter should be able to be disposed of in the time allocated.”. Dated this twenty-second day of June, 2000. By the Commission, Appearances:– [L.S.] E. EWALD, Mr J. Martin for the Australian Miscellaneous Workers Union, Industrial Registrar. Queensland Branch, Union of Employees. Mr B. Ryan, of Counsel, for the respondent. Released: 22 June 2000 -- 2 of 2 --