On 4 April 2016, the decision of Brisbane City
Council v Gillow & Simon Blackwood (Workers' Compensation
Regulator)  ICQ 007 and held the Queensland Industrial
Relations Commission does not have power to give an employer leave
to appear on appeals. This decision has significant ramifications
for both self-insurers and employers.
This appeal arose in circumstances where Mr Gillow claimed he
had suffered injuries during his employment with Brisbane City
Council ('the Council'). The matter was reviewed by City
WorkCover, the self-insurance body within the Council, who rejected
his claims. The rejections were upheld by the Regulator. Mr Gillow
then instituted three appeals against the decision of the Regulator
but prior to the hearing the Regulator settled the appeals and
entered into consent orders.
The Council had sought leave to be heard on the appeals, but its
application was dismissed. The Council then brought this appeal
which focussed on the power of the Commission to grant leave to
appear at a hearing and whether the Council was a party to the
proceedings. President Martin held the Commission doesn't have
power to grant leave to an employer to appear at a hearing.
Traditionally, ss.329(b)(v) and 320(2) of the Industrial
Relations Act provide the Commission with the power to hear
from employers and self-insurers in good conscious and to properly
inform itself of all matters. However, President Martin noted that
s.549 of the Workers Compensation & Rehabilitation Act
("WCR") specifically sets out who may appeal a
review decision being an insurer aggrieved by a decision of the
Regulator or an employer if aggrieved by the decision of
Section 561 of the WCR Act gives a party aggrieved by a decision
a right to appeal to the Industrial Court. However, President
Martin held the Council was not a party to the proceedings and
therefore had no standing to appeal the decision.
There is an inherent inconsistency in the WCR Act as an insurer
aggrieved by a decision of the Regulator, that is having the
Regulator disagree with its decision to reject a claim, has a right
to appeal against the decision of the Regulator under section
549(2). However, an insurer loses the opportunity to be
'aggrieved' under the WCR Act if its decision is initially
upheld by the Regulator, but that decision is subsequently
abandoned or compromised prior to hearing. In these circumstances,
when the matter has progressed past the review decision, the
insurer no longer falls within section 549(2).
This case highlights shortcomings in the WCR Act with respect to
rights in the review process as opposed to the appeal process and
most importantly, the space between the review decision being made
and the appeal being heard. The WCR Act does not specifically
contemplate the Regulator conceding an appeal or in effect, making
a further review of its earlier review decision.
Arguably, steps now need to be taken to address circumstances
where this occurs through legislative change giving the employer
standing to be a party in both matters of review and appeal or by
adding an intermediate provision to cover the period between the
review decision and hearing when the Regulator in effect reverses
In the meantime, it will be interesting to see any interim
measures adopted by the Regulator to remove the inherent unfairness
to an employer in circumstances where the Regulator changes its
earlier review decision prior to hearing, and if this will be taken
to be an amended review decision which could potentially reactivate
the parties review rights giving employers and self-insurers the
opportunity to be 'aggrieved' and seek appeal under the WCR
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).