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Carey v State of Queensland (Parliamentary Service)[2021] QIRC 358

Carey v State of Queensland (Parliamentary Service)[2021] QIRC 358

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Carey v State of Queensland (Parliamentary Service) [2021] QIRC 358

PARTIES: 

Carey, Collette

(Applicant)

v

State of Queensland (Parliamentary Service)

(Respondent)

CASE NO.:

TD/2020/121

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

25 October 2021

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 4 August 2021 and on 2 September 2021

Applicant's written submissions filed on 17 September 2021

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDER:

Pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016, the respondent is given leave to be represented by a lawyer.

CATCHWORDS:

INDUSTRIAL LAW – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER – applicant employed in the Parliamentary Service under the Parliamentary Service Act 1988 – applicant retrenched – applicant applied for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 – application in existing proceedings by respondent for leave to be given to be legally represented in the proceeding pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 – correct identification of the respondent – whether a lawyer employed by the State of Queensland is an employee of the respondent for the purposes of s 530(5)(a) of the Industrial Relations Act 2016 – applicant opposes respondent being given leave to be legally represented &ndash– whether leave should be given for respondent to be legally represented – respondent given leave to be legally represented

LEGISLATION:

Constitution of Queensland 2001, s 51

Crown Proceedings Act 1980, s 8

Industrial Relations Act 2016, s 165, s 316, s 320 and s 530

Parliamentary Service Act 1988, s 7, s 18, s 20, s 23, s 26, s 26A, and s 49

Public Service Act 2008, s 24, s 92, s 93, s 113, s 119, s 147 and s 219

CASES:

Greguric v Department of Works, Queensland [1988] 2 Qd R 545

Ostwald Accommodation Pty Ltd v Western Downs Regional Council [2015] QSC 210; [2015] 2 Qd R 14

State of Queensland v Heraud [2011] QCA 297; [2012] 2 Qd R 598

State of Queensland v Queensland Teachers' Union & Anor [2014] ICQ 012

State of Queensland v Roane-Spray [2017] QCA 245; [2018] 2 Qd R 511

Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008

Watton v TAFE Queensland [2021] QIRC 268

Reasons for Decision

Introduction

  1. [1]
    Ms Collette Carey was employed in the Parliamentary Service in the position of Research Officer within the Parliamentary Library Research and Information Services.
  1. [2]
    By letter dated 17 December 2020 from Mr Craig Atkinson, Director of Corporate Services and Electorate Office Liaison to Ms Carey, she was informed that Mr Atkinson had decided to approve her retrenchment from the Parliamentary Service effective as from close of business on 18 December 2020. In that correspondence, reasons were given by Mr Atkinson for his decision to dismiss Ms Carey.
  1. [3]
    By application filed on 24 December 2020, Ms Carey seeks reinstatement. Ms Carey's application was unable to be resolved by way of conciliation and the matter has been referred to me for arbitration.
  1. [4]
    By application in existing proceedings filed on 4 August 2021, the former employer of Ms Carey, in that application referred to as 'State of Queensland (through Parliamentary Service)' applied for an order pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016 ('the Act') that it be given leave to be legally represented by counsel ('the application for legal representation'). The application for legal representation was made by the Crown Solicitor on behalf of the State of Queensland ('the State'). As part of that application, it was asserted that Crown Law may appear as of right pursuant to s 530(5)(a) of the Act '… as Crown Law lawyers are employees of the State.'
  1. [5]
    Ms Carey opposes the application for legal representation. By directions order dated 27 August 2021, the parties were directed to file written submissions in relation to the application for legal representation. Both parties have filed written submissions. I have determined the application for legal representation on the papers.
  1. [6]
    The question for my determination is whether I should make an order that Ms Carey's former employer be represented by a lawyer in the proceeding commenced by her application for reinstatement.
  1. [7]
    Having regard to the submissions made by the parties, there are two issues for my determination.
  1. [8]
    The first is the correct identification of Ms Carey's former employer.
  1. [9]
    The second is whether or not I should exercise discretion pursuant to s 530(1)(d)(ii) of the Act to give leave for Ms Carey's former employer to be represented by a lawyer.
  1. [10]
    For the reasons given below:
  • the State was Ms Carey's employer and is the proper respondent to Ms Carey's application for reinstatement; and
  • pursuant to s 530(1)(d)(ii) of the Act, I will give leave for the State to be represented by a lawyer in respect of Ms Carey's application for reinstatement.

The correct identification of Ms Carey's former employer

The State's submissions

  1. [11]
    In its further written submissions in support of its application for legal representation, the State submitted that it was the proper respondent in Ms Carey's application for reinstatement because:
  • by virtue of s 8(1) of the Crown Proceedings Act 1980, in respect of civil proceedings in a court or tribunal, a claim made by or against the Crown is made and enforced by a proceeding by or against the State;
  • the Parliamentary Service:
  • is established by s 23 of the Parliamentary Service Act 1988; and
  • is established as a statutory body but is not established as a body corporate and cannot sue or be sued in its own name, it therefore has no relevant legal personality for the purposes of enforcing or defending proceedings and in that sense, the Parliamentary Service is analogous to a government department;
  • the Parliamentary Service is not established as a separate legal entity to the State, is therefore not an entity capable of employing anyone and as a consequence the employing entity is the State;
  • on the authority of Greguric v Department of Works, Queensland ('Greguric')[1] and State of Queensland v Queensland Teachers' Union & Anor ('QTU'),[2] the employing entity is the State;
  • employees of the Parliamentary Service are appointed by, and may enter into an employment contract with the Clerk of the Parliament ('the Clerk') as the chief executive of the Parliamentary Service in the same way that employees of government departments are appointed by, and may enter into an employment contract with, the chief executive of the Department;[3]
  • while employees and officers of the Parliamentary Service are not employed under the Public Service Act 2008 and are not officers of the public service, that has no relevance to the question of the legal identity of their employer;
  • the functions of the Parliamentary Service are, in broad terms, to provide administrative support to the Legislative Assembly;
  • the Parliamentary Service is part of the State, it is not a separate legal entity which merely represents the State or is deemed to have the rights, privileges and immunities of the State such that, given its functions, it would be absurd if the Parliamentary Service was not part of the body politic known as the '… State of Queensland';
  • unlike TAFE Queensland which, in Watton v TAFE Queensland,[4] was found to be the employer and proper respondent rather than the State of Queensland, the Parliamentary Service is not established as a body corporate;
  • the employer in respect of proceedings under the Act that relate to employees of the Parliamentary Service is the State; and
  • it then follows that the relevant respondent to Ms Carey's application for reinstatement is the State, the consequence of which is that s 530(5)(a) of the Act will apply to any employee or officer of the State such that lawyers employed in Crown Law are employees of the State and are not prevented by s 530 of the Act from representing the State, of which the Parliamentary Service is part, in any proceeding in respect of which the State is a party.

Ms Carey's submissions

  1. [12]
    Ms Carey submitted that:
  • section 24 of the Public Service Act 2008 provides that the Parliamentary Service and the Legislative Assembly are not government entities within the meaning of the Public Service Act 2008, the consequence of which is that they are different to government departments such that the proposition referred to in Greguric is not applicable;
  • section 7 of the Parliamentary Service Act 1988, which sets out the powers for the administrative functions of the Speaker, provides at s 7(2) that the powers include all the powers and the legal capacity that an individual has in a private capacity and, at s 7(4) provides that the powers are exercised for the Legislative Assembly; and
  • section 20 of the Parliamentary Service Act 1988 sets out the functions of the Clerk as the chief executive officer of the Parliamentary Service which, at s 20(3) provides that the Clerk is to be the employing authority, for the Legislative Assembly, of Parliamentary Service officers and employees.
  1. [13]
    Ms Carey then submits:
  1. The Respondent submits that the Speaker of the Legislative Assembly has the legal capacity of an individual i.e. he can be [sic] sue and be sued. in addition, as the Speaker has overall control over the matters to be dealt with by the Clerk, including employment of officers, the Speaker may be the correct respondent in this case.
  1. In the alternative, the Clerk of the Parliament may be the correct respondent in this case.
  1. The Respondent further submits that the Parliamentary Service is carved out specifically as a particular entity to be distinguished from government departments or other entities - the Parliamentary Service Act 1988, at s 22, states:

(2) The Parliamentary Service is not an instrument of executive government.

The State was Ms Carey's former employer and is the proper respondent in Ms Carey's application for reinstatement

  1. [14]
    For the reasons given earlier, the State submits that it was the employer of Ms Carey.
  1. [15]
    In considering the State's submission, regard needs to be had to:
  • the basis upon which the State is the employer of employees in State government departments; and
  • the provisions of the Parliamentary Service Act 1988.

The State as an employer

  1. [16]
    The State of Queensland is a body politic.[5]
  1. [17]
    Section 51(1) of the Constitution of Queensland 2001 provides:

51 Powers of the State

  1. (1)
    The Executive Government of the State of Queensland (the State) has all the powers, and the legal capacity, of an individual.
  1. (2)
    The State may exercise its powers-
  1. (a)
    inside and outside Queensland; and
  1. (b)
    inside and outside Australia.
  1. (3)
    This part does not limit the State’s powers.

Example-

This part does not affect any power a Minister has apart from this part to bind the State by contract.

  1. [18]
    In Greguric,[6] Williams J relevantly stated:

Whilst government departments hold themselves out as the employers of public servants, and purport to deal as such with members of the public, it is not surprising that it is only a lawyer who can fathom the mysteries, realise that there is no such legal entity as a government department despite the representations it makes, and appreciate that the only legal entity is the State of Queensland. But even the lawyers sometimes, quite understandably, fall into the error of believing that a government department purporting to “hire and fire” employees existed in law and was the relevant employer.[7]

  1. [19]
    Similarly, in QTU,[8] Martin J, President relevantly stated:

[2] The appellant has referred to itself in the proceedings in this Court and before the Commission as the Department of Education, Training and Employment (“DETE”). That is, no doubt, a convenient way to describe the “employer” but it is inaccurate. The Department is not an entity capable of employing anyone. The employing entity will be either the State of Queensland or, in some limited circumstances, the Director-General of the Department. That fact should be recognised in all documents relating to departments of the government of the State of Queensland. I have amended the title in this appeal to reflect that.

  1. [20]
    The reason why the departmental employees, the subject of the above two cases, were employees of the State was clearly identified in State of Queensland v Heraud.[9] In that case, the question arose as to the correct identity of the employer of an employee employed in the Department of Public Works pursuant to the Public Service Act 1996. Chesterman JA, with whom Muir JA and White JA agreed, relevantly held:

[28]  The Chief Executive of a department is, by s 47 appointed by the Governor‑in‑Council. By s 67 a Chief Executive may appoint officers in his or her department and, by s 112, may employ a person in the categories set out in the section. Section 115(2) provides:

“A person who employs another person under this Act employs the person as the authorised agent of the Crown”.

The consequence is that a person employed, as the respondent would have been, by the Chief Executive of the Department of Public Works would have been employed by an agent of the Crown acting on behalf of the Crown. The respondent therefore became an employee of the Crown in right of the State of Queensland. The Crown is the executive government of the State of Queensland. The identity of the two may be seen by reference to s 43 and s 44, s 48 and s 50 of the Constitution of Queensland 2001.

[29]  Dr Hogg points out in his work “Liability of the Crown” 1st edition (9–10) (the subsequent editions deal with the Crown in Canada and are less relevant here):

"Each of [the Australian] States recognizes the same Queen as its Head of State; in each the powers of government are exercisable in the name of that Queen; and in each "the Crown" is regarded … as the personification of the State. No such personification is needed, for the State is itself a legal person. … But it is far more common, in the language of parliaments, courts and commentators, to find that "the Crown" is used as, … "a convenient symbol for the State". According to this usage, in order to distinguish a particular State from others which recognize the same Queen, it is necessary to speak of "the Crown in right of" the particular State. … In asking whether the Crown in right of Victoria, for example, is liable under a contract, we are asking a question about the legal duties of a legal person, the State of Victoria. We might have asked simply whether "the State" of Victoria was liable". (footnotes omitted)

[30]  Suits against the State have been simplified by the Crown Proceedings Act 1980 which applies “to all proceedings instituted … in respect of any claim made in respect of or based upon a cause of action …”. The Act, by s 6, binds the Crown and provides, by s 8, that:

“… a claim by or against the Crown may be made and enforced by a proceeding by or against the Crown under the title the ‘State of Queensland’.”

By s 9(2), in a proceeding by or against the Crown, the rights of the parties shall as nearly as possible be the same as in a proceeding between subject and subject. The liability of the Crown, in tort and contract, is equated to the liability of a subject.

[31]  The respondent was employed by the State of Queensland, or the Crown in right of the State of Queensland, and not by the Department of Public Works.

  1. [21]
    The provisions of the Public Service Act 1996, referred to by Chesterman JA, have, in general, been preserved in the Public Service Act 2008.
  1. [22]
    Pursuant to s 92 of the Public Service Act 2008, the Governor in Council may, by gazette notice, appoint chief executives. Pursuant to s 93(2) of the Public Service Act 2008, the Minister may, by signed notice, appoint a chief executive to be the chief executive of any Department.
  1. [23]
    Pursuant to s 119(1) of the Public Service Act 2008, a chief executive may, by signed notice, appoint public service officers in the chief executive's Department. Pursuant to s 147 of the Public Service Act 2008, a chief executive may employ a person as a general employee to perform work of a type not ordinarily performed by a public service officer; and such employment may be either on tenure, or on a temporary basis for a fixed term, and may also be full-time or part-time. A general employee can also be employed on a casual basis.
  1. [24]
    Pursuant to s 219(2) of the Public Service Act 2008, a person who employs another person under the Public Service Act 2008 employs the person as the authorised agent of the State.
  1. [25]
    As a consequence of the reasons given by Chesterman JA and the above‑mentioned provisions of the Public Service Act 2008, a person appointed by the chief executive of a State government department as an officer of the public service, or employed by the chief executive as a general employee, is employed by the State.

The Parliamentary Service Act 1988

  1. [26]
    Section 23 of the Parliamentary Service Act 1988 provides:

23  Parliamentary service

  1. (1)
    There is hereby established a parliamentary service.
  1. (2)
    The parliamentary service is not an instrument of the Executive Government.
  1. (3)
    The parliamentary service shall consist of-
  1. (a)
    officers of the Legislative Assembly being-
  1. (i)
    the Clerk who shall be the chief executive of the parliamentary service; and
  1. (ii)
    other officers required to sit at the table of the House; and
  1. (iii)
    the parliamentary librarian; and
  1. (iv)
    the chief reporter; and
  1. (b)
    other officers of and employees in the parliamentary service.
  1. [27]
    Section 18 of the Parliamentary Service Act 1988 provides for the appointment by the Governor of the Clerk. Section 20(3) of the Parliamentary Service Act 1988 provides that the Clerk is to be the employing authority, for the Legislative Assembly, of Parliamentary Service officers and employees. Section 26(1) of the Parliamentary Service Act 1988 provides that the Clerk may appoint properly qualified and competent persons as officers of the Parliamentary Service or as employees in the Parliamentary Service. Section 26A of the Parliamentary Service Act 1988 provides that officers and employees of the Parliamentary Service are to be employed under the Parliamentary Service Act 1988, and not under the Public Service Act 2008.
  1. [28]
    Section 49 of the Parliamentary Service Act 1988 provides:

49  Clerk and parliamentary service officers and employees are employees in industrial law

  1. (1)
    Each parliamentary service officer or employee who receives salary or wages (other than on a contract basis) is an employee and the Clerk is his or her employer within the meaning of the Industrial Relations Act 2016 and that Act applies to them accordingly.
  1. (2)
    The Clerk is an employee and the Speaker is the Clerk’s employer within the meaning of the Industrial Relations Act 2016 and that Act applies to them accordingly.
  1. [29]
    In my opinion, there are three reasons why Ms Carey's employer was the State.
  1. [30]
    First, in my view, despite s 23(2) of the Parliamentary Service Act 1988 providing that the Parliamentary Service is not an instrument of the Executive Government, that does not mean that a person employed by the Clerk as an officer or employee in the Parliamentary Service is not employed by the State. In my opinion, the purpose of that provision is to reflect the fact that the Parliamentary Service is independent to the Executive Government in its functions of providing support services to the Legislative Assembly.
  1. [31]
    Secondly, the Parliamentary Service is an unincorporated body which consists of the Clerk, other officers required to sit at the table of the House, the parliamentary librarian, the chief reporter and other officers of and employees in the Parliamentary Service.[10] It has been accepted as uncontroversial that a paramedic employed in the Queensland Ambulance Service, established pursuant to the Ambulance Service Act 1991, and which similarly is an unincorporated body consisting of particular persons being the Commissioner of the Ambulance Service, ambulance officers, medical officers and other staff members, was employed by the State.[11] There is no reason to conclude any different result in respect of a person employed in the Parliamentary Service. There is no provision in the Parliamentary Service Act 1988 which has the effect that a person employed in the Parliamentary Service is employed other than by the State.
  1. [32]
    In particular, s 49(1) of the Parliamentary Service Act 1988, set out above, does not mean that the State is not the employer of officers or employees of the Parliamentary Service. In my opinion, that section provides that, where the context requires it,[12] the Clerk is the 'employer', within the meaning of the Act, of each Parliamentary Service officer or employee who receives salary or wages other than on a contract basis. An example of the operation of s 49(1) of the Parliamentary Service Act 1988 is in respect of ch 4 of the Act which provides for collective bargaining and the making of a certified agreement between an employer and either one or more relevant employee organisations or the employees of the employer at the time the agreement is made.[13] The State Government Entities Certified Agreement 2019 applies to employees of the Parliamentary Service. Clause 1.9 of that certified agreement defines 'Employer' to mean the Chief Executive of the entities referred to in Appendix 1 to the agreement which includes the Parliamentary Service.
  1. [33]
    For this reason, my opinion is that s 49(1) of the Parliamentary Service Act 1988 does not, in the context of Ms Carey's application for reinstatement, have the effect of determining that the State is not Ms Carey's former employer.
  1. [34]
    Thirdly, officers of the public service are appointed, and general employees are employed, by chief executives of State government departments pursuant to the Public Service Act 2008, where the chief executives are agents of the State, such that those persons are employed by the State. The same circumstances apply in respect of officers and employees of the Parliamentary Service appointed by the Clerk. In my view, the Clerk appoints officers and employees of the Parliamentary Service as an agent of the State.
  1. [35]
    For these reasons, I am of the view that the State was Ms Carey's former employer. It follows that, by virtue of s 530(5)(a) of the Act, the State, in being represented by a lawyer who is employed by it, including a lawyer employed in the Crown Law business unit of the Department of Justice and Attorney-General, is taken not to be represented by a lawyer.[14]
  1. [36]
    The next question is whether, pursuant to s 530(1)(d)(ii) of the Act, I should give leave for the State to be represented by a lawyer.

Pursuant to s 530(1)(d)(ii) of the Act, leave will be given for the State to be represented by a lawyer

  1. [37]
    The effect of s 530 of the Act is that a party to proceedings or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer[15] only if:
  • for proceedings before the Full Bench, the Full Bench gives leave;
  • for proceedings before the Commission, other than the Full Bench, under the Anti‑Discrimination Act 1991, the Commission gives leave; or
  • for other proceedings before the Commission, other than the Full Bench:
  • all parties consent; or
  • for a proceeding 'relating to a matter under a relevant provision', the Commission gives leave.
  1. [38]
    The phrase 'relevant provision' for a proceeding before the Commission other than the Full Bench, includes ch 8 of the Act, which, in pt 2, div 2, deals with unfair dismissals.
  1. [39]
    In considering whether or not to give leave for a lawyer to represent a person or party, the Commission may only give leave if:
  • it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  • it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
  • it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.[16]

The State's submissions

  1. [40]
    The State submitted that it should be given leave to be represented by counsel because:
  • Ms Carey's application for reinstatement will require detailed examination of the evidence of the parties, and will involve a number of factual disputes in respect of which it is highly likely that the Commission will be required to make findings of credit in respect of various witnesses including senior officers of the Parliamentary Service;
  • to do so efficiently, the Commission will likely be assisted by counsel's experience and skill in examination and cross-examination of Ms Carey and her witnesses;
  • the efficient conduct of the matter will be enabled by counsel's involvement, through ensuring the evidence presented to the Commission is relevant to the facts in issue and is presented with care and precision;
  • Ms Carey's application for reinstatement raises various and complex questions of law including those referred to in s 316 and s 320 of the Act, such that the Commission would benefit from the presence of counsel who has significant experience in proceedings under the Act and who will make submissions that may assist the Commission in the application of complex principles, including the interpretation and application of the Parliamentary Service Act 1988 and the Act;
  • the involvement of counsel will reduce the duration and cost of the proceedings;
  • because Ms Carey, on the understanding of the State, is an admitted solicitor in Ireland, England and Wales, such that if the State was represented by counsel, then there would be no unfairness between the parties; and
  • in any event, Crown Law is bound by the model litigant principles and, if leave was given for the State to be represented by counsel, Crown Law would seek to ensure that counsel also complies with the model litigant principles and does not take unfair advantage of Ms Carey.

Ms Carey's submissions

  1. [41]
    Ms Carey submitted that:
  • there are no matters of 'legal interpretation or legal or other complexity' that would require the appointment of counsel;
  • whilst the appointment of counsel may be of particular assistance in certain cases where one of the parties has no legal knowledge and, or in the alternative, no knowledge of the justice system and the practices and procedures of the legal forum, that is not the case in her application;
  • she would be able enough to assist the Commission in carrying out its functions;
  • the Commission was not intended to be a '… lawyer-heavy forum' as confirmed in the second reading speech for the Industrial Relations Bill 2016 ('the Bill'), when the responsible Minister stated that the legislation was intended to '… strike the appropriate balance between maintaining the commission as a layperson's tribunal while recognizing the need for legal representation to be an option in more complex legal matters';
  • the same sentiment is repeated in the Explanatory Notes to the Bill;
  • contrary to popular view, there are no legal firms who will undertake unfair dismissal cases on a no win, no fee basis in that she has approached a number of firms and has been advised that this is not a 'no fee' area of practice; and
  • the appointment of counsel for the State would unfairly disadvantage her.
  1. [42]
    The reasons given by Mr Atkinson in his letter dated 17 December 2020 for Ms Carey's retrenchment were:
  • her continued employment within the Parliamentary Library in a Research Officer capacity was not tenable;
  • over the last five months, he had not been able to identify any other suitable employment options that he was able to offer Ms Carey; and
  • the Parliamentary Service had limited financial capacity to create new additional roles and there was no established position in the Parliamentary Library in respect of the work that Ms Carey had been undertaking in recent months, such that while work may exist, there was not a position to which he could appoint Ms Carey.
  1. [43]
    The Parliamentary Service contends that it was reasonable for Mr Atkinson to form the view that Ms Carey's continued employment in the Research Officer position in the Parliamentary Library Service was untenable in circumstances where she had been provided extensive guidance, support and assistance over a period of nine months but remained unable to perform the requirements of the role and that despite considerable vacant positions, the Parliamentary Service was unable to identify any suitable vacant position to which Ms Carey could be redeployed apart from one position which Ms Carey deemed unacceptable.
  1. [44]
    Ms Carey contends, amongst other reasons, that her dismissal was harsh, unjust or unreasonable because:
  • in July 2019, she was involuntarily transferred to the position of Research Officer in the Parliamentary Library Service;
  • she was not a specialist researcher as required by the Parliamentary Library Service;
  • there was ambiguity about the actual reason for her retrenchment, namely, at all times she had understood that the position to which she had been deployed in the Parliamentary Library Service was a permanent position; and
  • the Parliamentary Service was required to consider all alternative positions to which she might be deployed before retrenchment, however, there were vacant positions for which she was not considered, such that the Parliamentary Service did not fulfil its obligations in maintaining her service.
  1. [45]
    Whilst the above is a brief summary of some, but not all, of the contentions raised by the parties, it seems to me that they amount to significant disputed questions of fact that will need to be resolved in determining whether Ms Carey's dismissal was harsh, unjust or unreasonable. In my view, giving leave for the State to be represented by a lawyer will allow the examination of its witnesses and the cross‑examination of Ms Carey and the witnesses she calls to be carried out in an efficient manner.
  1. [46]
    Furthermore, in my view, in giving leave for the State to be represented by a lawyer, the material questions of fact will be identified which will allow the matter to proceed in an efficient and time effective manner.
  1. [47]
    Of course, the efficient conduct of the proceedings will also be promoted by the presence of a lawyer in respect of making clear and concise submissions as to the relevant questions of law and application of facts to the relevant provisions of the Act. For these reasons, the State being represented by a lawyer will enable the proceedings to be dealt with more efficiently having regard to the relative complexity of the disputed issues that I have referred to earlier.
  1. [48]
    Even though Ms Carey is not a practising lawyer, having regard to the way Ms Carey has drawn her Statement of Facts and Contentions, it seems to me that Ms Carey has a good grasp of the matters that are in dispute and the matters that she needs to address to prove that her dismissal was harsh, unjust or unreasonable. For this further reason, I am not persuaded that it would be unfair to allow the State to be represented by a lawyer.

Conclusion

  1. [49]
    For the reasons I have given, I will exercise my discretion in favour of the State. Pursuant to s 530(1)(d)(ii) of the Act, I give leave for the State to be represented by a lawyer in Ms Carey's application for reinstatement.

Order

  1. [50]
    I make the following order:

Pursuant to s 530(1)(d)(ii) of the Industrial Relations Act 2016, the respondent is given leave to be represented by a lawyer.

Footnotes

[1] [1988] 2 Qd R 545, 547-548 ('Greguric') (Williams J, Connolly J at 546 agreeing).

[2] [2014] ICQ 012 ('QTU'), [2] (Martin J, President).

[3] Citing as examples, in support of that proposition, s 113 and s 119 of the Public Service Act 2008.

[4] [2021] QIRC 268.

[5] Ostwald Accommodation Pty Ltd v Western Downs Regional Council [2015] QSC 210; [2015] 2 Qd R 14, [5] (Jackson J).

[6] Greguric (n 1).

[7] Ibid 547-548.

[8] QTU (n 2), [2] (Martin J, President).

[9] [2011] QCA 297; [2012] 2 Qd R 598.

[10] Parliamentary Service Act 1988 s 23(3).

[11] State of Queensland v Roane-Spray [2017] QCA 245; [2018] 2 Qd R 511, [14] (Bowskill J, Fraser JA at [1] and Philippides JA at [2] agreeing).

[12] Borne out by the use, in s 49(1) of the Parliamentary Service Act 1988, of the phrase '… and that Act applies to them accordingly.'

[13] Industrial Relations Act 2016 s 165.

[14] Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 008, [39]‑[40] (Martin J, President).

[15] A lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007: Acts Interpretation Act 1954, sch 1 (definition of 'lawyer').

[16] Industrial Relations Act 2016 s 530(4).

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Editorial Notes

  • Published Case Name:

    Carey v State of Queensland (Parliamentary Service)

  • Shortened Case Name:

    Carey v State of Queensland (Parliamentary Service)

  • MNC:

    [2021] QIRC 358

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    25 Oct 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Greguric v Department of Works [1988] 2 Qd R 545
3 citations
Jump To
Cite 1 - [1988] 2 Qd R 545
Cite 2 - [1988] 2 Qd R 545
Cite 3 - [1988] 2 Qd R 545
Ostwald Accommodation Pty Ltd v Western Downs Regional Council[2016] 2 Qd R 14; [2015] QSC 210
2 citations
Jump To
Cite 1 - [2015] QSC 210
Cite 2 - [2015] QSC 210
Ostwald Accommodation Pty Ltd v Western Downs Regional Council (2015) 2 Qd R 14
2 citations
Jump To
Cite 1 - (2015) 2 Qd R 14
Cite 2 - (2015) 2 Qd R 14
State of Queensland v Heraud[2012] 2 Qd R 598; [2011] QCA 297
4 citations
Jump To
Cite 1 - [2011] QCA 297
Cite 2 - [2011] QCA 297
Cite 3 - [2012] 2 Qd R 598
Cite 4 - [2012] 2 Qd R 598
State of Queensland v Queensland Teachers' Union & Anor [2014] ICQ 12
3 citations
Jump To
Cite 1 - [2014] ICQ 12
Cite 2 - [2014] ICQ 12
Cite 3 - [2014] ICQ 12
State of Queensland v Roane-Spray[2018] 2 Qd R 511; [2017] QCA 245
4 citations
Jump To
Cite 1 - [2017] QCA 245
Cite 2 - [2017] QCA 245
Cite 3 - [2018] 2 Qd R 511
Cite 4 - [2018] 2 Qd R 511
Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 8
2 citations
Jump To
Cite 1 - [2018] ICQ 8
Cite 2 - [2018] ICQ 8
Watton v TAFE Queensland [2021] QIRC 268
2 citations
Jump To
Cite 1 - [2021] QIRC 268
Cite 2 - [2021] QIRC 268

Cases Citing

Case NameFull CitationFrequency
Young v State of Queensland [2025] QDC 1002 citations
1

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