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Commission confirms requirements for lawyers to legally represent parties

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On 2 May 2024, a Full Bench of the Queensland Industrial Relations Commission (Full Bench) comprising of President Davis, Vice President O’Connor and Industrial Commissioner Pidgeon delivered its judgment in Johnson v State of Queensland (Queensland Health) [2024] QIRC 102 confirming the circumstances in which a person can be represented by a lawyer.

Background

Ms Johnson is a former employee of Queensland Health who sought to be represented by Mr William Parry, an admitted solicitor, who provides services to various organisations under “The Red Union” name. Mr Parry does not hold a practising certificate. Neither The Red Union nor any entity under its name is a registered organisation under the Industrial Relation Act 2016 (IR Act).

Sections 529, 530 and 530A of the IR Act regulate the rights of parties to representation before the Commission.

A person may be represented by:

  • an agent appointed in writing, provided the agent is not receiving a payment;
  • an employee or officer of a registered union;
  • if the party or person is an organisation—an employee, officer or member of the organisation, however organisation means a registered union;
  • if the party or person is an employer – an employee or officer of the employer;
  • a lawyer provided certain circumstances are met. A person is not taken to be represented by a lawyer if the lawyer is an employee or officer of the party or person; or an employee or officer of an entity representing the party or person, if the entity is an organisation.

Section 530(5) of the IR Act permits solicitors of Crown Law to represent government agencies in the Commission. It also permits solicitors employed by registered unions to represent employees.

Decision

The Full Bench held Mr Parry was disqualified from representing Ms Johnson as an agent because he receives remuneration (from The Red Union) for providing legal services and representing Ms Johnson in relation to her application for reinstatement before the Commission.

The Full Bench held Mr Parry could not lawfully represent Ms Johnson as her lawyer because he did not hold a practising certificate and therefore is not an Australian legal practitioner. The Full Bench’s reasons included:

  • The Legal Profession Act differentiates between “lawyers” and “legal practitioners”. The distinction is that legal practitioners are lawyers who hold a current practising certificate.
  • Section 530 of the IR Act picks up, by the Acts Interpretation Act 1954, the term “Australian lawyer”, not the term “Australian legal practitioner”.
  • Given Mr Parry’s status as a person admitted to the legal professional, he is an “Australian lawyer” and is within the category of persons who could be the subject of a grant of leave under s 530(1)(ii) of the IR Act.
  • However, by virtue of s 21 of the Legal Profession Act, only an “Australian lawyer” who holds a current practising certificate is an “Australian legal practitioner” and thereby authorised to practise.

The decision establishes that any lawyer (other than a lawyer who is an employee or officer of a party, or registered union) appearing before the Commission may only do so lawfully if they hold a current practising certificate. To do otherwise, as noted by the Full Bench, would be a breach of s 24 of the Legal Profession Act.

The decision also enforces the legislative intention to prohibit agents receiving remuneration for representing parties to proceedings before the Commission.