In our August 2015 edition, we commented on the Industrial Relations Commission (IRC) decision in Brisbane City Council v Gillow [2015] QIRC 124 (Gillow) and the implication such decision has on employers wishing to be a party to an appeal in the IRC.
To re-cap, s549 of the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act) provides that if an appellant to an appeal in the IRC is the employer, the worker has a right to be a party to the employer’s appeal. However, there is no similar provision should the worker be the appellant to the appeal, hence the practice was for employers to file an application in the IRC for leave to be heard pursuant to ss320 and/or 329 of the Industrial Relations Act 1999 (IR Act).
That all changed on 1 July 2015 when the IRC handed down its decision in Gillow, finding the IRC does not have the power to make any orders pursuant to ss320 and/or 329 of the IR Act to allow an employer leave to be heard in a worker’s appeal.
The Brisbane City Council (BCC) appealed the decision in Gillow to the Industrial Court, where the matter came on for hearing before President Martin J on 15 September 2015. His Honour handed down his judgment on 4 April 2016, dismissing the BCC’s appeal. In handing down his judgment, his Honour relevantly determined:
Section 549 sets out a series of events which give rise to a right to various entities to become parties to an appeal. It should be noted that the amendments which give a specific, but restricted, right to employers to become a party to an appeal were made in the light of decisions of the Commission and the Court which allowed an employer to be heard on an appeal. The amendments made to s 549 added subsections 3 and 4 and, thus, gave an employer a limited right to take part in appeals. It would be inconsistent with the history of the legislation to conclude that, notwithstanding the confined legislative provisions allowing an employer to be a party, the general provisions of the IR Act can be called upon to allow an employer to take part in an appeal by other means.
The Commission does not have power to give an employer leave to appear on appeals under Chapter 13 Part 3 of the WCR Act.
What does all that mean for employers?
President Martin J’s dismissal of the BCC’s appeal confirms an employer has no standing to be a party to a worker’s appeal in the IRC. That has serious ramifications, particularly where the employer’s legal and/or financial rights may be affected by the appeal. The employer must, essentially, rely on the Workers’ Compensation Regulator (Regulator) to, in effect, ‘stand in its shoes’ and defend any appeal that a worker may bring. However, the Regulator has different interests to that of the employer, hence does not have to act as the employer would.
Hence, until such time as the government amends s549 of the WCR Act to include a sub-section that provides an employer (and/or self-insurer) has a right to be a party to an appeal filed by a worker in the IRC, as Vice President Linnane alluded to in her first instance judgment, the only action an employer can really take in a matter such as this, where it has initially rejected a claim, the Regulator has upheld that rejection and the worker has subsequently appealed to the IRC, is to assist the Regulator at all times and impress upon him the need to fight the appeal to the end. It is a situation we are currently dealing with in a matter of ours.
This article was written by Kyle Norton, Special Counsel and Graeme Traves, Partner.