Mark Irving KC 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 three matters in the High Court of Australia in the last decade. He regularly practices in administrative law, restraint of trade law, equitable obligations, aspects of tort, and trade practices matters.
Mark is the author of numerous texts and articles about the contract of employment, discrimination law and labour law (see publications list). He has extensive experience in dealing with legally and factually complex matters. He has represented and advised many of Australia’s major unions and regulators. In the last decade he has represented unions in six large-scale work value arbitrations (often involving more than 20,000 employees) in various industrial tribunals in three states. He has extensive issues in dealing with corporate governance issues in registered organisations.
Underpayment claims: Mark regularly acts in large underpayment claims on behalf of unions, employees and others. He is the lead counsel in three matters seeking in excess of $100 million in underpayments from large employers for over 10,000 employees, as well as two other wage theft claims concerning over 150 employees seeking in excess of $10 million. In the last few years he has acted, in some cases pro bono, in multiple ‘wage theft’ actions involving about 50 Vanuatuan seasonal workers under the PALM scheme, 40 Vietnamese and Cambodian vegetable pickers, 20 Taiwanese dairy workers on working holiday visas, 8 students who were migrant workers in the cleaning industry and 12 Pacific Island seasonal workers. He has developed a course to teach practitioners how to pursue underpayment claims and has delivered that course to unions and community legal centres in over 10 seminars to about 200 lawyers in three States, as well as teaching about underpayment claims at the University of Melbourne.
Discrimination and sexual harassment law: Mark often acts in discrimination and sexual harassment cases. He was one of the counsel in the principal High Court authority on discrimination under the FW Act. He is lead counsel in one of the largest sexual harassment claims brought in Australia. He is writing a text dedicated to Anti-Discrimination Law, including sexual harassment, and is the author of the chapter dedicated to these issues in the leading Australian labour law text. He is a member of the Victorian Bar Equality and Diversity Committee, author of an article in the Victorian Bar News about cultural diversity and is one of the co-ordinators of the Bar scheme to deliver training about sexual harassment to senior members of the Bar and applicants for silk. He has, in the last 2 years, delivered five seminars on sexual harassment to various cohorts at the bar and multiple seminars on gender equity, most recently in June 2023 to an ACTU conference in Brisbane. He is a member of the Expert Panel appointed by the ACTU to advise unions on strategic litigation to promote gender equity. Mark has adopted the Law Council of Australia Equitable Briefing Policy.
2024 – Employment Discrimination Law (forthcoming)
2023 – ‘Shifting and Ignoring the Balance of Power: The High Court’s New Rules for Determining Employment Status’, co-author with Professor Andrew Stewart and Associate Professor Pauline Bomball, UNSWLJ (forthcoming issue).
2023 - Creighton and Stewart’s Labour Law 7th edition, co-author with Professor Stewart, Professor Forsyth, Professor Johnstone and Professor McCrystal (forthcoming), Federation Press
2019 - The Contract of Employment, 2nd edition, Lexis Nexis. The second edition is about 1300 pages long, cites around 4000 cases and seeks to be a comprehensive analysis of the contract of employment.
2016 – Creighton and Stewart’s Labour Law 6th edition, co-author with Professor Stewart, Professor Forsyth, Professor Johnstone and Professor McCrystal, Federation Press
2015 – ‘Australian and Canadian approaches to the assessment of the length of reasonable notice’ (2015) 28 Australian Journal of Labour Law 159
2012 - The Contract of Employment, Lexis Nexis
2006 - Australian Charter of Employment Rights, co-editor with Mordy Bromberg SC, Hardie Grant Books
2003 – ‘Damages Arising from the Manner of an Employee’s Dismissal’ (2003) 16 Australian Journal of Labour Law
1991 – Enterprise Bargaining and the Law, CCH
1990-1995 - contributor of case notes and articles to the CCH Labour Law Reporter and Australian Industrial Law Review
The Contract of Employment: reviews, prizes etc
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: ‘Mark Irving wins Australia’s most prestigious prize for legal literature’ LexisNexis Media Centre, 24 October 2013.
Dr Gabrielle Golding and Dr Joanna Howe: ‘Irving’s writing remains cogent and concise throughout. This succinctness allows the reader to quickly identify and understand the principles applicable to the idea being discussed…. He takes the employment contract to task and comprehensively explores it… Irving’s contribution is an exceptional dedication to the Australian employment contract and one that is fast becoming a ‘tool of the trade’ for those working in employment law. It strikes the perfect balance between exposing the distinct features of employment contract law and placing them in context with useful commentary. As a book dedicated to the Australian employment contract, it presents an innovative contribution to employment law.’ Book Review, (2015) 28 Australian Journal of Labour Law 214.
The Hon Dr Chris Jessup KC: ‘It was only in 2012, upon the publication of the first edition of the present work by Mark Irving, that Australian employment lawyers could see what they had been missing for so many years. Of that event, one would not say that the book filled a void which had existed since the non-appearance of a new edition of someone else’s standard text; rather, one would have said that the book filled a void which had ever been there. It stood as the most comprehensive, systematic and intellectually rigorous treatment of the contract of employment to which Australian lawyers had then been exposed.’
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.