Champkin v I.C.E. Vacations Asia Pacific Pty Ltd and Ors [2022] QIRC 127

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Champkin v I.C.E. Vacations Asia Pacific Pty Ltd and Ors [2022] QIRC 127 PARTIES: Champkin, Jessica (Complainant) v I.C.E. Vacations Asia Pacific Pty Ltd (First Respondent) and Kerr, Michael (Second Respondent) and Our Vacation Centre Pty Ltd (Third Respondent) and Subramanium, Santhosh (Fourth Respondent) and Econe-Penelope, Tanya (Fifth Respondent) and Reardon, Tiffany (Sixth Respondent) CASE NO.: AD/2022/7 PROCEEDING: Application in existing proceedings DELIVERED ON: 5 April 2022 MEMBER: HEARD AT: Merrell DP On the papers -- 1 of 4 -- 2 ORDER: Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the First, Second, Third, Fourth and Fifth Respondents are given leave to be represented by a lawyer. CATCHWORDS: HUMAN RIGHTS - JURISDICTION AND PROCEDURE - APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER - Complainant made complaint to the Queensland Human Rights Commission against the Respondents alleging contraventions of various provisions of the Anti-Discrimination Act 1991 - complaint referred to the Queensland Industrial Relations Commission - application in existing proceedings by the First to Fifth Respondents for leave to be given to be legally represented in the proceeding pursuant to s 530(1)(c) of the Industrial Relations Act 2016 - no opposition by Complainant and Sixth Respondent to First to Fifth Respondents being given such leave - whether leave should be given to First to Fifth Respondents to be legally represented having regard to s 530(4) of the Industrial Relations Act 2016 - First to Fifth Respondents given leave to be legally represented LEGISLATION: Industrial Relations Act 2016, s 530 CASES: State of Queensland (Queensland Health) v Hume [2022] ICQ 1 Reasons for Decision Introduction [1] On 18 December 2020, Ms Jessica Champkin made a complaint to the Queensland Human Rights Commission ('QHRC') alleging that the Respondents had contravened various provisions of the Anti-Discrimination Act 1991 ('the AD Act'). [2] On 10 February 2022, Ms Champkin's complaint was referred to this Commission. [3] The proceeding has been allocated to me for conciliation and I have yet to direct the parties to file and serve their statements of facts and contentions for the purpose of conducting the conciliation. [4] By application filed on 24 February 2022, the First to Fifth Respondents, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), made application for leave -- 2 of 4 -- 3 to be given to them to be legally represented before this Commission ('the First to Fifth Respondents' application'). [5] Ms Champkin and Ms Tiffany Reardon, the Sixth Respondent, have not taken up the opportunity given to them to be heard about the First to Fifth Respondents' application. [6] This is my decision about the First to Fifth Respondents' application. The legislative provisions [7] The effect of s 530(1)(c) of the IR Act is that a party to proceedings or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer1 only if for proceedings before the Commission, other than the Full Bench, under the AD Act, the Commission gives leave. [8] Section 530(4) of the IR Act provides: (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 (c) it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings. Examples of when it may be unfair not to allow a party or person to be represented by a lawyer- • a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy • a person is from a non-English speaking background or has difficulty reading or writing Leave should be given to the First to Fifth Respondents to be legally represented [9] Recently in State of Queensland (Queensland Health) v Hume,2 I set out how, in my opinion, s 530(4)(a) of the IR Act is to be construed. I will not repeat what I said in that case. [10] In respect of s 530(4)(a) of the IR Act, the First to Fifth Respondents contend that: • the complaint concerns alleged contraventions of the AD Act over a period of approximately three years involving six separate Respondents; • the involvement of certain of the Respondents is not yet clear from the prior proceedings before the QHRC, however, it is foreseeable that the allegations are 1 A lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007: Acts Interpretation Act 1954, sch 1 (definition of 'lawyer'). 2 [2022] ICQ 1. -- 3 of 4 -- 4 likely to be numerous and require the Commission to give consideration to a broad range of potential issues in dispute; • the material in the proceedings before the QHRC and the material anticipated to be filed in this matter, is voluminous and traverses a range of jurisdictional and other issues under the AD Act; and • the matter would be able to be dealt with more efficiently should the majority of the Respondents be represented by the same lawyer in the proceedings. [11] As best as I can make out from the referred complaint, the allegations arise out of work performed by Ms Champkin for the First and Third Respondents, in relation to conduct by the workers or agents of the First and Third Respondents which allegedly contravened the AD Act for which Ms Champkin contends the First and/or Third Respondents are vicariously liable. The QHRC treated the referred complaint as one relating to or including the work or work-related area, involving allegations of direct and indirect sex and impairment discrimination, sexual harassment and victimisation. [12] Whether or not the allegations or controversies in the referred complaint are in themselves complex, given the broad range of allegations made involving six Respondents, which in itself gives rise to the matter being complex, my opinion is that if five of the Respondents had the one legal representative, then that would enable the proceedings to be dealt with more efficiently, even at the conciliation stage of the proceeding. Conclusion [13] For the reason I have given, I will exercise my discretion in favour of the First to Fifth Respondents. [14] Pursuant to s 530(1)(c) of the Act, I give leave for the First to Fifth Respondents to be represented by a lawyer. Order [15] I make the following order: Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the First, Second, Third, Fourth and Fifth Respondents are given leave to be represented by a lawyer. -- 4 of 4 --