Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Heley v State of Queensland (Department of Natural Resources, Mines and Energy)[2019] QIRC 32

Heley v State of Queensland (Department of Natural Resources, Mines and Energy)[2019] QIRC 32

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Heley v State of Queensland (Department of Natural Resources, Mines and Energy) [2019] QIRC 032

PARTIES: 

Heley, Brett

(Applicant)

v

State of Queensland (Department of Natural Resources, Mines and Energy)

(Respondent)

CASE NO:

TD/2019/09

PROCEEDING:

Application for reinstatement

DELIVERED ON:

15 February 2019

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

ORDER:

Application dismissed.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - whether Commission has jurisdiction - whether respondent is the employer of the applicant - whether further proceedings are necessary or desirable in the public interest.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 7, s 317, s 318, s 541

Fair Work Act 2009 (Cth), s 7, s 14

Reasons for Decision

 Application Details

  1. [1]
    Mr Heley (the Applicant) commenced a six-month contract with the Department of Natural Resources, Mines and Energy (DNRME) on or around 22 November 2018 as an eLearning specialist in the capacity as a contractor, non-payroll employee.  On 11 January 2019, he was informed by his manager that he was no longer required. He lodged his Application for Reinstatement on 1 February 2019.

Background and Jurisdiction

  1. [2]
    On 1 February 2019, the Industrial Registrar issued a Directions Order requiring the Respondent file in the Industrial Registry and serve a copy on the Applicant, a completed Form 12A – Employer’s Response to Application for Reinstatement (Form 12A) within seven days of receipt of the Directions Order.
  1. [3]
    The Form 12A was received on 7 February 2019. In this response, the respondent raised a jurisdictional objection to the application on the basis that the applicant was not an employee.  The Respondent stated that the Applicant was engaged by Hudson Global Resources Australia Pty Ltd (Hudson) as a casual employee.
  1. [4]
    Section 318 of the Industrial Relations Act 2016 (the Act) requires the Queensland Industrial Relations Commission (Commission) to hold a conference to attempt to settle an application under s 317 by way of a conciliation conference before it hears the application.
  1. [5]
    On 8 February 2019, the Industrial Registry provided a Notice of Listing to all parties setting down a conference to be held before me at 10.00am on 15 February 2019.

 Jurisdiction  

  1. [6]
    The Applicant’s affidavit states that:

I commenced a 6 month contract with the Department of Natural Resources Energy and Mines (DNRME) on or around the 22 [sic] of November 2018 as an eLearning specialist in the capacity as a contractor, non-payroll employee Queensland Government.

  1. [7]
    The Applicant's Confirmation of Assignment letter and Hudson On-Hire Employment Agreement (OEA) was provided as an attachment to the Respondent’s Form 12A.  The email header indicates that Hudson provided the Confirmation of Assignment and attachments to the Respondent on 1 February 2019.
  1. [8]
    The letter and OEA set out the Applicant’s employment relationship with Hudson including the process for submitting timesheets and completing payroll documents.
  1. [9]
    The OEA relevantly states:
  1.  Termination

12.1 An assignment may be terminated by Hudson without notice for any reason, including but not limited to the following situations:

  1. A Client of Hudson to whom you are assigned cancels its contract with Hudson for any reason…
  1. [10]
    For proceedings under the Act, an employer is a person who "is not a national system employer within the meaning of the Commonwealth Fair Work Act 2009."[1]             
     
  2. [11]
    Section 14(1)(a) of the Fair Work Act 2009 (FW Act) states that a national system employer is "a constitutional corporation, so far as it employs, or usually employs an individual."
  1. [12]
    Having read all materials in preparation for the conference, it is apparent that the Respondent was not the employer of the Applicant.
  1. [13]
    Hudson was the Applicant's employer and is a national system employer under the FW Act.
  1. [14]
    As such, the Commission has no jurisdiction to hear the matter.

 Non-attendance by Applicant at conference

  1. [15]
    It was my intention at the conference to speak with the Applicant and explain to him that his employer, Hudson, is a national system employer and that the Commission cannot deal with his application for reinstatement.
  1. [16]
    At the appointed start time for the conference, the Applicant was not in attendance.  He was contacted by phone but did not answer.
  1. [17]
    The Respondent was in attendance.
  1. [18]
    At about 10.15am, the Applicant was again contacted and upon answering the call said words to the effect that he had mixed up the dates, was about to attend a job interview and would not be attending the conference in the Commission.

 Decisions the Commission may make

  1. [19]
    Section 541 of the Act states that the Commission may, in an industrial cause do any of the following -
  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers
    1. the cause is trivial; or
    2. further proceedings by the court or commission are not necessary or desirable in the public interest;…
  1. [20]
    Taking into account the lack of jurisdiction for the Commission to hear the matter and the non-attendance of the Applicant without provision of notice to the Respondent or the Commission, I am of the view that it is not necessary or desirable in the public interest for the Respondent or the Commission to expend further cost or time in relation to this application.
  1. [21]
    The cause is dismissed under s 541 of the Act in that further proceedings by the Commission are not necessary or desirable in the public interest.
  1. [22]
    I so order.

  

Footnotes

[1] Industrial Relations Act 2016 s 7(1).

Close

Editorial Notes

  • Published Case Name:

    Heley v State of Queensland (Department of Natural Resources, Mines and Energy)

  • Shortened Case Name:

    Heley v State of Queensland (Department of Natural Resources, Mines and Energy)

  • MNC:

    [2019] QIRC 32

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    15 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.