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’s practice consists of four parts: employment law, industrial law, wage theft cases, and teaching and writing.
Mark has extensive experience in dealing with legally and factually complex employment law matters. He provides legal and strategic advice as well as representing clients in litigation. He has considerable experience in representing clients in all manner of employment contract disputes, from disputes around remuneration and termination to acting for employers against employees setting up rival businesses.
In industrial law, over the last few years Mark represented and advised many of Australia’s major unions. Since 2013 he has represented unions in six large-scale work value arbitrations (often involving more than 20,000 employees) in the Fair Work Commission and State Industrial Commissions in NSW, WA and SA. He has appeared for unions in the Federal Court and elsewhere in issues arising out of industrial action. He represents various unions in disputes about corporate governance. He also represents and advises regulators about a range of industrial law issues.
One of Mark’s passions is representing victims of wage theft, being employees who are paid about 20% less than the statutory minimum. He often represents migrant workers. In 2019, for example, he represented about 100 employees in various wage theft actions, including over 50 seasonal workers from various Pacific nations, over 25 workers on temporary work visas, and advised about and represented numerous workers on working holiday visas. He works with unions and community legal centres across Australia and over the last two years has delivered over 10 seminars to about 200 lawyers in New South Wales, Victoria and Western Australia about wage theft litigation.
The final part of Mark’s practice is teaching and writing. He is a Senior Fellow of the University of Melbourne and lectures undergraduate and postgraduate classes in various aspects of employment law. Mark is the author of both editions of The Contract of Employment. The first edition was awarded the Centenary Book Award by the Honourable Dyson Heydon AC, QC, the former Federal Court judge the Honourable Kevin Lindgren AM, QC and Emeritus Professor Gillian Triggs, the then President of the Australian Human Rights Commission. The prize was awarded to foster ‘the highest standards of authorship in legal publishing’. The judges praised the ‘depth and quality’ of the commentary in Mark’s book. The second edition is about 1500 pages long, cites around 4000 cases and seeks to be a comprehensive analysis of the contract of employment. He is also the co-author of the leading textbook, Creighton and Stewart’s Labour Law, with Professor Stewart, Professor Forsyth, Professor Johnstone and Professor McCrystal. He is the author of various articles and case notes, and is often a referee for law journals. He often presents conference and seminar papers on a broad range of topics touching on employment and industrial law.
Mark has adopted the Law Council of Australia Equitable Briefing Policy.
Appeallate and superior court matters: 2018-21
Proceedings in the VSC seeking judicial review on behalf of a dismissed teacher: Torosidis v Department of Education and Training  VSC 93
Proceedings before a Full Bench of the FWC on behalf of a union pursuing a work value claim for pharmacists across Australia: Pharmacy Industry Award 2010  FWCFB 7621; 284 IR 121
Proceedings in the FCA on behalf of the putative employer concerning the status of a priest and his entitlement to benefits under the FW Act.
Proceedings in the FCA on behalf of an employee engaged as an investigator concerning the recovery of underpayments of entitlements under the FW Act and adverse action.
Proceedings in the FCA on behalf of a managing director concerning contractual entitlements arising from the termination of employment.
Proceedings in the FCA on behalf of a senior executive alleging adverse action.
Acted for an industry superannuation fund in the Banking Royal Commission.
Proceedings in the FCA seeking the recovery of underpayments and unlawful deductions under s 323 made by 5 seasonal horticulture workers engaged as pieceworkers as through the Commonwealth Seasonal Worker Program.
Proceedings in the FCA concerning the underpayment of a farm worker under the Pastoral Industry Award.
Proceedings in the FCA on behalf of a senior executive alleging adverse action and seeking reasonable notice.
Proceedings in the FCA on behalf of an executive concerning contractual entitlements, the failure to provide leave entitlements, and adverse action.
Proceedings in the FCA seeking the recovery of underpayments and unlawful deductions under s 323 made by 26 seasonal horticulture workers engaged as through the Commonwealth Seasonal Worker Program.
Proceedings in the FCA on behalf of an employee who was dismissed after giving evidence in proceedings before the FWC.
Proceeding in the FCA for a multinational company concerning breaches of restraints of trade clause, breaches of duties of confidence, and interference with contractual relations.
Proceedings in the FCA for a managing director alleging breach of the ACL and claiming contractual entitlements on termination.
Proceedings in the FCA on behalf of a union in an appeal concerning a classification dispute: Australian Education Union v Yooralla (No 2)  FCA 1749
Proceedings in the FCA on behalf of a senior executive arising from his classification as an independent contractor rather than an employee.
Appeal in the FCA concerning the status of actors in a travelling theatrical show: Jensen v Cultural Infusion (Int) Pty Ltd  FCA 358.
Claim in the VSC concerning the enforcement of a contract and the relationship between an enterprise agreement and a statute Tucker v State of Victoria  VSC 420; rev’d  VSCA 120
Proceedings in the FCA on behalf of three managerial employees concerning the recovery of redundancy payments under a policy and an EA.
Claim in the FCA concerning underpayments by a multinational employer under the Pastoral Industry Award made to 17 workers working under various ‘backpacker’ visas.
Claim in the FCA concerning the status of a builders’ labourer engaged through a labour hire company: CFMEU v Personnel Contracting Pty Ltd  FCA 1806
Resisting interlocutory injunction application in the FCA on behalf of a union arising from protected industrial action.
Proceedings in the FCA on behalf of an employee concerning the proper classification under an award and alleged underpayments.
Write the 2nd edition of the Contract of Employment.
Claim alleging underpayments, unlawful deductions, made by 18 seasonal horticulture workers engaged as through the Commonwealth Seasonal Worker Program.
Special case concerning relationship between a federal Act and an enterprise agreement: Reynolds v Commissioner of Australian Federal Police  FCAFC 82; 276 FCR 536
Appeal concerning the status of a builders’ labourer engaged through a labour hire company: CFMEU v Personnel Contracting Pty Ltd  FCAFC 122; 381 ALR 457
Proceedings in the FWC on behalf of a union concerning the unfair dismissal of a member.
Arbitration in the FWC concerning the calculation of working time for TAFE teachers in Victoria.
Claim for entitlements on behalf of a casual employee in the County Court.
Trial in a matter concerning the opposition to a union altering its eligibility rules: Re Australian Federation of Air Pilots  FWC 1012
Claim in the FCA concerning the correct payment of 150 employees under an EA.
Claim on behalf of a union against a multinational employer concerning the alleged underpayment of over 60 employees, including allegations of serious contraventions.
Claim in the FCA on behalf of a senior executive who was dismissed after exercising a workplace right.
Claims in the FCA concerning the correct payment of an employee classified as a casual, and claims arising from alleged contraventions of s 62 of the FW Act by requiring an employee to work unreasonable hours.
Appear in the High Court successfully seeking special leave concerning the status of a builders’ labourer engaged through a labour hire company.
Appeal before the FWCFB in a matter concerning the opposition to a union altering its eligibility rules: Re Australian Federation of Air Pilots
Claim on behalf of a union against a multinational employer concerning the alleged underpayment of 180 employees, including allegations of serious contraventions.
Application on behalf of a union and its delegate challenging a dismissal, resolved by the reinstatement of the delegate and other relief.
Appeal before the FWCFB in an arbitration concerning the calculation of working time for TAFE teachers in Victoria.
Claim in the FCA on behalf of a union against a multinational employer involving over 20 allegations of adverse action taken against employees, contraventions of an EA, and a campaign conduct by the employer that is alleged to have induced employees to cease being union members.
Claim alleging underpayments arising from incorrect classification of 36 employees under the Horticulture Industry Award.