Council denied legal representation in the QIRC

Written by Brian O'Shea, Special Counsel

As employees of the Local Government Association of Queensland, the peak body representing Queensland local governments, the Peak Services Legal and Workforce Services team can appear and represent councils in the Commission on any matter without requiring leave or the consent of other parties. The case below highlights why this is a critical need that councils are able to leverage when in a similar situation. 

A QIRC decision on legal representation by a council has ramifications across the sector. It makes more sense now than ever to have Peak’s Legal Team in your corner if you’re headed to the QIRC.

There are many circumstances where councils may wish to have legal representation on their behalf before the Queensland Industrial Relations Commission. One such example is where there are unpaid wages claim against council, the outcome of which may have far-reaching implications to all councils throughout Queensland.

A recent decision of the Queensland Industrial Relations Commission (Commission) reinforces the need for councils to consider whether they can be legally represented in a matter before the Commission. The decision confirmed that the Commission had no power to involve lawyers in an unpaid wages application1[TC4].  The case involved a Queensland local government (Council) which attempted to appoint lawyers to represent Council in defending the claim.

In referring to s530 of the Industrial Relations Act, [TC5] the Commission noted "any number of scenarios where the Commission can (and commonly does) exercise a discretion to grant leave for a party to be legally represented".

It was noted however that applications for recovery of unpaid wages under s475 which is referred to in section 530(2)(b) of the Act had a "long history" of being distinguished from other matters where legal representation could be granted based on the parties' consent or the Commission's discretion.

The Commission noted that the use of the word “However” [TW6] clearly inferred that the provisions of s530(2) are to be read as the exceptions to the wide range of circumstances in s530(1) where the Commission has discretion to grant leave.

The Commission also stated that “[f]urther, the terms 'must not be represented' that appear at the introduction to s530(2) equally clearly establishes an absolute prohibition on legal representation i.e., regardless of consent of the parties or a willingness by the Commission to grant leave".

Finding that "proceedings" before the Commission incorporated every step of the process from filing to conciliation, decisions and discontinuance, the Commissioner concluded that s530(2) "establishes an absolute barrier to legal representation in proceedings before the Commission under s475" and that "there is no discretion granted to …order otherwise".

Under the Act, a party or person is taken not to be represented by a lawyer if the lawyer is:

a. an employee or officer of the party or person; or

b. an employee or officer of an entity representing the party or person, if the entity is

i. an organisation; or

ii. an association of employers that is not registered under chapter 12 ; or

iii. a State peak council.

If your council requires representation on any matter in the Commission or needs advice on any industrial relations or employment law matter, please contact the team at peaklegal@wearepeak.com.au or call 07 3000 2148.

1  Mason v Paroo Shire Council [2021] QIRC 316 (13 September 2021)

Industrial Relations Act https://www.legislation.qld.gov.au/view/html/inforce/current/act-2016-063#sec.530