Crown Law can now represent State Government employers in public service appeals before the Queensland Industrial Relations Commission

The Industrial Relations Act 2016 (IR Act) has recently been amended. One of the more notable amendments is to section 530A, which relates to representation of parties in public service appeals under the Public Service Act 2008 (PS Act), before the Queensland Industrial Relations Commission (QIRC).

The amendment broadens the scope of people who may represent State Government employees and employers in public service appeals. Its effect, relevantly, is to permit Crown Law and in-house lawyers employed by the State of Queensland in departments and Queensland government agencies to appear as legal representative for a State Government employer in an appeal.

The amendment came into effect on 3 November 2022, meaning that Crown Law (and in-house lawyers employed by the State) may now represent State Government employers in public service appeals before the QIRC, whether lodged before or after 3 November 2022.

How has section 530A of the Industrial Relations Act 2016 changed?

Prior to 3 November 2022, lawyers (including Crown Law lawyers) were not permitted to appear as the legal representative for parties in public service appeals. Section 530A of the IR Act, as it then existed, stated that a party to a public service appeal could appear personally or by an agent (s 530A(2)), but could not be represented by a person if the party had instructed that other person to act as their lawyer, and in so acting, the other person would be subject to the Legal Profession Act 2007 (s 530A(3)).

The operation of s 530A of the IR Act, prior to 3 November 2022, limited the support Crown Law (and other lawyers) could provide to State Government employers in responding to public service appeals.

The amendment to s 530A of the IR Act in November 2022 provides an exception to the prohibition against lawyers representing parties in public service appeals. Section 530A, in its current form, now provides that a party to a public service appeal:

• may appear personally or by another person under s 529 of the IR Act (such as an agent), though the party may not be represented by a lawyer (ss 530A(2) and (3)); and
• is taken not to be represented by a lawyer if the lawyer is an employee or officer of the party (s 530A(4)(a)), or if the party is represented by an organisation (specifically defined under the IR Act), an employee or officer of the organisation (s 530A(4)(b)).

The effect of the amendment is that a lawyer may now represent a party to a public service appeal, irrespective of when the appeal was lodged, if the lawyer is an employee or officer of that party, or an employee or officer of the organisation representing the party. That being a registered industrial organisation (Schedule 5 of the IR Act).

Section 530A(4)(a) of the IR Act, concerning representation by lawyers who are employees or officers of a party, has not been judicially considered. However, it is identical in terms to s 530(5)(a) of the IR Act, which applies to QIRC proceedings other than public service appeals. The Full Bench of the QIRC considered the operation of s 530(5)(a) in Together Queensland, Industrial Union of Employees v State of Queensland [2018] QIRC 046. It held that Crown Law lawyers are employees of the State of Queensland (being public service employees employed within the Department of Justice and Attorney-General), and can therefore rely on s 530(5)(a) to appear on behalf of the State as of right in proceedings before the QIRC and the Industrial Court of Queensland where the State is a party (other than public service appeals).

Crown Law has regularly relied on the Full Bench’s decision in Together Queensland, Industrial Union of Employees v State of Queensland to appear as the legal representative for the State in proceedings before the QIRC and the Industrial Court (other than public service appeals).

Given the identical terms of s 530(5)(a) and s 530A(4)(a) of the IR Act, Crown Law considers that where the State of Queensland is a named party to a public service appeal (whether lodged before or after 3 November 2022), the Full Bench’s interpretation of s 530(5)(a) in Together Queensland, Industrial Union of Employees v State of Queensland may be relied upon to support an argument that Crown Law lawyers may represent the State in the appeal as of right, under s 530A(4)(a). That right of representation would in our view extend to any appeal lodged with the Industrial Court about a decision of the QIRC regarding a public service appeal. This point has not, however, been judicially considered.

As stated above, s 530A(4)(a) of the IR Act would also permit other lawyers employed by the State of Queensland (for example, lawyers employed internally within Departments) to represent the State in public service appeals (and any subsequent appeal to the Industrial Court).

Section 530A does not extend to permit lawyers employed by private law firms to represent parties’ interests in public service appeals.

How can Crown Law assist you?

Crown Law’s Workplace Law team has significant expertise and experience in all aspects of public sector employment law (including regarding public service appeals under the PS Act), and in industrial advocacy before the QIRC and the Industrial Court.

The Workplace Law team is happy to assist State Government employers manage every stage of public service appeals, and can provide support and representation throughout the proceedings, including in relation to drafting or settling written submissions and any other documents required by the QIRC (or the Industrial Court if the QIRC’s decision is appealed), and representing employers at any conferences, mentions or other hearings of the appeal before the QIRC or the Industrial Court.

Please contact Crown Law’s Assistant Crown Solicitors for the Workplace Law team: Fiona Black (fiona.black@crownlaw.qld.gov.au), Samantha Kane (samantha.kane@crownlaw.qld.gov.au) or Catriona McPherson (catriona.mcpherson@crownlaw.qld.gov.au), or any of the lawyers in the team, for further information and assistance.