Mark Irving QC specialises in employment, industrial and anti-discrimination law. He has been briefed in over 100 matters in the Federal Court and other superior courts, as well as in the High Court of Australia. Mark has appeared for and advised employees, unions, directors and corporations in a broad range of commercial, employment and industrial matters. He has extensive experience appearing in litigation involving complex legal and factual issues. Since 2013 he has appeared in five large scale arbitrations about the value of the work of 1,000’s of employees (and often more than 20,000 employees) in the Fair Work Commission, and state industrial commissions in Tasmania, WA and SA. In recent years Mark has been briefed in dozens of matters concerning ‘wage theft’ and the mischaracterisation of employees as independent contractors. He was appointed silk in 2017. He acts as mediator and arbitrator.
Mark has appeared for and advised directors, employees and unions in a broad range of commercial, employment and industrial matters before superior courts and tribunals. He has extensive experience appearing in litigation involving complex legal and factual issues. Over the last 12 months he has acted for a presenter of a leading television program, a coach of an international sports team, the dismissed principal of a leading private school, an employee of a prominent sporting team affected by allegations concerning the use of drugs in sport and various professors and senior academics. Some of the larger or more significant cases he has appeared in include:
- August 2013: appeared for the successful intervener, the ACTU, in the landmark Full Federal Court decision in Commonwealth Bank of Australia v Barker  FCAFC 83 concerning the implication of the mutual trust and confidence term.
- April 2013: appeared for the successful plaintiffs in various proceedings before Justice Dodds-Streeton in the Federal Court in a matter concerning the removal of directors of a company limited by guarantee, the fulfilment of the charitable purposes of the company, the membership of the company, the alleged misuse of confidential information, breaches of directors’ duties, admissibility of expert evidence and the awarding of indemnity costs: see Ananda Marga Pracaraka Samgha Ltd v Tomar  FCA 284;  FCA 390;  FCA 385; (2012) 202 FCR 564; (2012) 291 ALR 292;  FCA 184;  FCA 1342; and  FCA 565.
- June 2012: acted for the Health Services Union, and some of its senior officers, in various proceedings in the Federal Court under the Fair Work (Registered Organisations) Act 2009. These include acting for the successful applicant in an inquiry into an election before Justice Tracey in the Federal Court: Re Asmar  FCA 1242;  FCA 1243 and (2012) 207 FCR 476. Acting for the union in proceedings before Justice Flick seeking the removal of 86 office-holders from positions they held in the Health Services Union: Brown v Health Services Union (2012) 205 FCR 548; (2012) 291 ALR 497;  FCA 644;  FCA 1014;  FCA 1246;  FCA 1376. Acting for the intervener in General Manager of the Fair Work Commission v Thomson  FCA 380 (stay of application for pecuniary penalty).
- August – October 2012: acted for Rosa Storelli, the former Principal of MLC College, against her former employer in proceedings before the Visitor to the College and in the successful mediation of her claims.
- 2011-2012: acted for the employee and the union at first instance (Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251;  FCA 284) on appeal in the Full Court of the Federal Court (2011) 191 FCR 212; (2011) 274 ALR 570; (2011) 203 IR 312;  FCAFC 14) and on appeal in the High Court (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445.
- 2010 – early 2012: wrote The Contract of Employment. The book is over 1,100 pages long, refers to over 3,000 cases. In October 2013 the text won the LexisNexis Centenary Book Award.
- December 2008 – November 2009: Australian Education Union v Department of Education and Children’s Services (South Australia): appeared as junior counsel, led by Mordy Bromberg SC, in the largest arbitration conducted in the history of the South Australian Industrial Relations Commission. The matter concerned wages and conditions for 27,000 public education employees. It involved about 150 witnesses.
- August – November 2008: Australian Education Union v Department of Education and Training: prepared for a major arbitration in Western Australia concerning wages and conditions of public education workers.
- 2004-2005: appeared for the respondent union and others in a 67-day trial before Justice Ashley in a matter concerning false imprisonment, trespass, various economic torts and the tort in Wilkinson v Downton. He also appeared for the respondents in the unsuccessful appeals in the Court of Appeal and the High Court: McFadzean v Construction, Forestry, Mining & Energy Union  VSC 289; (2007) 20 VR 250;  VSCA 289.
Mark has appeared in well over a dozen matters before Full Benches of Fair Work Australia and its predecessors.
Recent appearances in the Federal Court:
- Commonwealth Bank of Australia v Barker  FCAFC 83 (implication of the mutual trust and confidence term in employment contracts)
- General Manager of the Fair Work Commission v Thomson  FCA 380 (stay of application for pecuniary penalty)
- United Voice v Accolade Wines Australia Limited  FCA 285 (preliminary discovery application),
- State of Victoria v Australian Education Union  FCA 72 (resisted application for an injunction to prevent industrial action)
- Ananda Marga Pracaraka Samgha Ltd v Tomar (No 6)  FCA 284; (2013) 94 ACSR 199 (removal of directors of a company limited by guarantee, the fulfilment of the charitable purposes of the company, membership of the company)
- Re Asmar  FCA 1289; (2012) 207 FCR 476 (breach of Union rules, establishing financial membership)
- Brown v Health Services Union (No 4)  FCA 1376 (access to affidavits filed, amendment of scheme of administration)
- Brown v Health Services Union (No 3)  FCA 1246
- Re Asmar  FCA 1243 (stay of elections)
- Re Asmar  FCA 1242 (election inquiry)
- Brown v Health Services Union (No 2)  FCA 1014
- Brown v Health Services Union  FCA 644; (2012) 205 FCR 548; (2012) 291 ALR 497 (branch ceased to function effectively; removal of office holders)
- Ananda Marga Pracaraka Samgha Ltd v Tomar (No 5)  FCA 390
- Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4)  FCA 385; (2012) 202 FCR 564; (2012) 291 ALR 292 (independence of expert witnesses)
- Ananda Marga Pracaraka Samgha Ltd v Tomar (No 3)  FCA 184 (orders under s 237 of Corporations Act)
Australian Institute of Employment Rights
Mark is a committee member of the Australian Institute of Employment Rights. The AIER is a tripartite think-tank formed to research and promote the rights and responsibilities of employees and employers in Australia’s industrial relations system, particularly through the ratification of International Labour Organization Conventions. In 2006 Mark participated in the formulation of the Charter of Employment Rights, which sets out ten employment rights of employers and employees. The Charter forms a template that workplaces are encouraged to adopt and observe as well as being an instrument for advocating the reform of labour law in Australia. The rights are based on Australian industrial practice, the common law and international treaty obligations binding on Australia. In 2007 he co-edited a book titled The Australian Charter of Employment Rights, with Mordy Bromberg SC. He also co-wrote two chapters in the book.