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.
Judgments in the Federal Court: 2012–2016
Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (No 2)  FCA 783 (costs and damages)
Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd  FCA 430 (action for misleading conduct concerning an offer of employment)
General Manager of the Fair Work Commission v Musicians’ Union of Australia  FCA 302 (penalties for breach of FWRO Act)
Health Services Union v Jackson (No 5)  FCA 1467 (interest and costs)
General Manager of the Fair Work Commission v Thomson (No 4)  FCA 1433 (compensation and penalties)
Jackson v Health Services Union  FCAFC 188 (objection to the competence of the appeal)
Health Services Union v Jackson (No 4) (2015) 108 ACSR 156 (improper use of position – misuse of union funds)
Health Services Union v Jackson (No 3)  FCA 694 (leave to proceed against a bankrupt)
Health Services Union v Jackson (No 2)  FCA 670 (abuse of process application)
Health Services Union v Jackson  FCA 1215
General Manager of Fair Work Australia v Health Services Union  FCA 970 (compensation and penalties for breach of FWRO Act)
Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2)  FCA 351 (costs application)
Elliott v Health Services Union  FCA 296 (consolidation of actions)
Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd  FCA 239 (adverse action claim)
Russell v Institution of Engineers Australia  FCA 1250 (injunction application in an adverse action claim)
Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118 (penalties and compensation)
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 (breach of contract and adverse action)
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 7)  FCA 863 (indemnity costs)
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) (2013) 300 ALR 492; (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 (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 (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) (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).