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  4. Hennessy v State of Queensland (Queensland Health) (No 2) - [2023] QIRC 213

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Hennessy v State of Queensland (Queensland Health) (No 2)[2023] QIRC 213

Hennessy v State of Queensland (Queensland Health) (No 2)[2023] QIRC 213

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hennessy v State of Queensland (Queensland Health) (No 2) [2023] QIRC 213

PARTIES:

Hennessy, Gregory Mark

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

B/2021/25

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

27 July 2023

HEARING DATE:

5 October 2021

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDERS:

The application that the Commission dismiss Matter No. B/2021/25 is granted.

CATCHWORDS:

INDUSTRIAL LAW – UNFAIR CONTRACT – APPLICATION TO DISMISS PROCEEDINGS – where the Respondent sought orders dismissing the substantive proceedings under ss 456 or 541 of Industrial Relations Act 2016 (Qld) – whether the application has been previously heard and determined – whether the subject of the application has been dealt with in another proceeding – whether further proceedings would be in the public interest – application dismissed

LEGISLATION AND

INSTRUMENTS:

Industrial Relations Act 2016 (Qld) ss 456, 471, 541

Industrial Relations Act 1999 (Qld) s 276

Limitation of Actions Act 1974 (Qld) s 10

Health Practitioners and Dental Officers (Queensland Health) Award – State 2015

Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007

Health Practitioners (Queensland Health) Certified Agreement (No. 2) 2011

Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019

CASES:

Ant Projects Pty Ltd v Broos & Ors [2019] QCA 259

Australian Salaried Medical Officers' Federal Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 059

Blair v Curran (1939) 62 CLR 464

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Campbell v State of Queensland [2019] ICQ 18

Casaubon v Department of Transport and Main Roads [2015] QIRC 141

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502

Clayton v Bant (2020) 95 ALJR 34

Commonwealth of Australia v Snell (2019) 269 FCR 18

Ebet Limited v Gibbons (Department of Justice and Attorney-General) [2014] QIRC 017

Foster v Readymix Holdings Pty Ltd (2006) 186 QGIG 519

Foster v Rinker Australia Pty Ltd (2007) 186 QGIG 649

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 81

Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200

Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537

Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290

Jackson v Goldsmith (1950) 81 CLR 446

Johnson v Gore Wood and Co [2002] 2 AC 1

Kuligowski v Metrous (2004) 220 CLR 363  

Ling v Commonwealth (1996) 68 FCR 180

Naggs v State of Queensland (Department of Health) No. 2 [2015] QIRC 026

Newmont Pajingo Pty Ltd v Tomac Enterprises Pty Ltd (2005) 178 QGIG 404

O'Sullivan v Farrer (1989) 168 CLR 210

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Rogers v R (1994) 181 CLR 251

Scott v State of Queensland (Queensland Health) [2015] QIRC 164

State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) [2013] ICQ 3

State of Queensland v Lockhart [2014] ICQ 6

Thiering v Daly (2011) 83 NSWLR 498

Thoday v Thoday [1964] P 181

Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health) [015] QIRC 005

Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507

Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581

APPEARANCES:

D W Marks KC and T O'Brien of Counsel instructed by Robert Bax Solicitors for the Applicant

C J Murdoch KC of Counsel instructed by McCullough Robertson Lawyers for the Respondent

Reasons for Decision

  1. [1]
    This is an application in existing proceedings seeking orders dismissing the substantive proceedings under ss 456 or 541 of the Industrial Relations Act 2016 (Qld) ('the Act'). The application is brought by the respondent (in the substantive proceedings), the State of Queensland (Queensland Health), against the applicant, Mr Gregory Hennessy.

Background

  1. [2]
    Mr Hennessy is employed by the State of Queensland through Queensland Health within the Gold Coast Hospital and Health Service ('the Service') as a Diagnostic Radiographer. He has been employed by Queensland Health since early 2005.
  2. [3]
    The background to Mr Hennessy's substantive application is lengthy, and his circumstances have already been the subject of three decisions of this Commission and the Industrial Court.[1] It is not necessary to repeat that background at length, other than to reflect the following.
  3. [4]
    On 1 August 2012, Mr Hennessy filed a dispute in this Commission regarding the classification level of his position. Relevantly, at the time of lodging the dispute, Mr Hennessy's position was classified as an HP3 role, but he claimed that he had been performing the duties of an HP4 and ought to be reclassified under the Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 ('the HPEB1').
  4. [5]
    Mr Hennessy's dispute was lodged in the broader context of a change to the certified agreements which covered, inter alia, Mr Hennessy and numerous other allied health professionals within Queensland Health.
  5. [6]
    More than half a decade earlier, the HPEB1 had established a new classification structure for employees of Queensland Health engaged as Health Practitioners. The process for implementing the new classification structure was set out in Clause 18 of the HPEB1. Phase 1 of the process provided for direct translation of employees who met certain criteria. At the time, Mr Hennessy translated from Professional Officer Level 2 (PO2.4) to Health Practitioner Level 3.2 (HP3).
  6. [7]
    Phase 2 provided employees covered by the HPEB1 with an opportunity through detailed processes and reviews, including an employee-initiated application (EIA), to have their roles and responsibilities evaluated against newly established work level statements. This process led to some Health Practitioners being reclassified at a higher level and others remaining at the same classification, depending on the role and responsibilities being undertaken at the time.
  7. [8]
    In 2008 Mr Hennessey was unsuccessful in his attempt to be re-classified at as an HP4. He subsequently filed a Notice of Industrial Dispute on 1 August 2012 challenging his classification level, while working as a Diagnostic Radiographer at Robina Hospital.[2]
  8. [9]
    Several other affected individuals also engaged in reclassification disputes in the same period.
  9. [10]
    Following arbitration of Mr Hennessy's dispute, the Commission determined:

[27]Findings:

(i)   The evidence supports a finding that Mr Hennessy was undertaking the same duties, roles and responsibilities as other relevant HP3 classified employees who were reclassified at HP4 by the WLEP;

(ii) No evidence was led in the proceedings either establishing that Mr Hennessy's duties, role and responsibilities were to be differentiated from other relevant HP3's who were graded HP4 in the classification process, or contesting Mr Hennessy's evidence that no such differentiation could be made;

(iii) The evaluation of Mr Hennessy's duties, roles and responsibilities was erroneously undertaken as at 30 September 2007 rather than as at 30 May 2008;

(iv)  This outcome resulted in the WUP and WLEP stages of the process excluding significant factors from its consideration of Mr Hennessy's WLE.[3]

  1. [11]
    It seems that although Commissioner Black was not able, on the evidence, to determine whether Mr Hennessy's duties and responsibilities fell within the HP4 classification, he concluded the duties he was performing were not able to be differentiated from other HP3 co-workers who had subsequently been re-classified at the HP4 level.
  2. [12]
    In that context, Commissioner Black ordered Mr Hennessy's position be reclassified as an HP4 position with effect from 1 August 2012, which was the date on which he lodged his dispute.[4] This approach was consistent with other decisions of the Commission at the time where it was determined individual positions ought to be reclassified.[5]
  3. [13]
    Relevantly, prior to Mr Hennessy's dispute being determined, the Industrial Court, on 20 May 2013, made declarations regarding the scope of any back payment or wage increases related to the disputes lodged by Mr Hennessy and the other affected employees in connection with the Health Practitioner re-classification process.[6] The declarations were as follows:
  1. (A)
    That the Queensland Industrial Relations Commission (the Commission) has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of the determination by the Commission of a "reclassification dispute" which is lodged with the Commission under the Health Practitioners (Queensland Health) Certified Agreement 2007 (HPEB1) before the commencement of the Health Practitioners (Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2), so that such wage increase has effect from 1 September 2007;
  1. (B)
    That the Commission has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of determination by the Commission of a "reclassification dispute" which is lodged with the Commission after the commencement of HPEB2, so that such wage increase has effect from 1 September 2007;
  1. (C)
    That a wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner by the Commission in the course of "classification dispute" under HPEB1 and/or HPEB2, is not a "wage increase" for the purposes of clause 18.1(b) of HPEB1 or HPEB2.[7]
  1. [14]
    In the decision, Hall P of the Industrial Court observed:

[25] In my view there is a further issue, viz., whether the Commission is restricted solely to the powers conferred by HPEB1 and for HPEB2, or may have resort to those of its normal statutory powers, which are not inconsistent with HPEB1 and HPEB2, compare Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation at paragraph 25 per Giudice P, Harrsion SDP and Simmonds C. That issue has not been confronted. I accept, the general rule is that legislation upon the matter of industrial arbitration is not to be interpreted as authorising retrospective orders in the absence of express words or necessary implication, see Australian Sugar Producers' Association Ltd v Australian Workers' Union at 65 per Griffith CJ and at 73, per Barton J. That decision has, of course, long since been modified by legislation comparable to s. 125(3)(c) of the current Act, compare Re: Public Service Award - State at 441 per R.H. Matthews P. Section 125(3)(c) of the Act is not here applicable. A comparable power would not authorise a retrospective wage increase antedating reference of the classification dispute to the Commission. However, I cannot comment on power to deal with the gap between lodgement and decision. I know too little of the variety of situations which may arise. Those matters must be resolved on a case by case basis.[8]

  1. [15]
    In the wake of Commissioner Black's decision ('the re-classification decision'), Mr Hennessey continued to press his concerns around 'back-pay and entitlements covering the period 1 September 2007 to 1 August 2012', with his employer.'[9]
  2. [16]
    In mid-2019, more than four years after Commissioner Black released the reclassification decision, Mr Hennessy lodged a further dispute with the QIRC which detailed his concerns in relation to an alleged underpayment arising from the earlier reclassification dispute.
  3. [17]
    The nature of the dispute lodged by Mr Hennessy was helpfully summarised by Industrial Commissioner McLennan in Hennessy v Gold Coast Hospital and Health Service[10] ('Hennessy No 2'):

[57]  The present Industrial Dispute commenced by Notice of Industrial Dispute, filed 31 July 2019. That Notice contains a section titled 'Subject matter of the dispute'. Under that heading, Mr Hennessy wrote:

The dispute is about an industrial matter relating to the refusal and failure of the Gold Coast Hospital and Health Service to correct multiple errors found by the QIRC to have been made in Mr Hennessy's classification level.

See attached correspondence by Mr Hennessy to Mr Langdon and Ms Pierce and the reply from Mr Langdon.

Both Mr Langdon and Ms Pierce have refused to address the issue of the error in the classification level despite previous commitments and comments made by senior representatives of the predecessor entity of the Gold Coast Hospital and Health Service.

It should be noted that Mr Langdon has suggested that the matter is appropriately dealt with by the QIRC and is prepared to accept any direction or order made by the QIRC.

[58] Further in the Notice of Industrial Dispute, Mr Hennessy went on to provide (emphasis added):

The details of the multiple errors made in relation to Mr Hennessy's classification are set out in the decision made by Commissioner Black on 3 December 2014 as is the extensive history of the reclassification exercise.

[59] In a letter attached to his Notice of Industrial Dispute, where Mr Hennessy writes to the Respondent warning of his intentions to commence these proceedings, he states (emphasis added):

I have requested and continue to seek recovery of back-pay and entitlements covering the period from 1st September 2007 to 1st August 2012, as a result of my Health Practitioner’s (HP) outcome.

[60] Mr Hennessy is very clear in that letter that the errors he refers to have already been found by Commissioner Black. In effect, the letter argues that Commissioner Black identified errors in the classification process and that he seeks to be back paid to September 2007.[11]

  1. [18]
    Through that dispute, Mr Hennessy sought several declarations related to his employment, the re-classification of his role and back-pay. However, the Service successfully brought an application before Commissioner McLennan to have the dispute dismissed on the basis that further proceedings were not necessary or desirable in the public interest.[12]
  2. [19]
    The reasons for dismissing the application included:

[139] First, Mr Hennessy has already been afforded an opportunity to have the reclassification controversy heard and decided by this Commission. He was provided a remedy in those proceedings.

...

[143] Fifth, there is a distinct prejudice to be suffered by the Respondent in this proceeding continuing. The Respondent, as with all members of the community, is entitled to rely on the finality of proceedings. To allow this proceeding to continue would invite a decision which conflicts with the decision of Commissioner Black in a key sense; the appropriate remedy arising from the reclassification dispute. It is also relevant that the Respondent will be put to the cost of re-litigating the matter.[13]

  1. [20]
    Mr Hennessy has since filed an Application for Unfair Contract, whereafter Queensland Health has filed an application in existing proceedings seeking orders dismissing the substantive proceedings under ss 456 or 541 of the Act.

The Substantive Application

  1. [21]
    It is helpful to consider the particulars of Mr Hennessy's application in their entirety:
  1. The Contract is a contract of service that is not covered by an industrial instrument or federal industrial instrument.

 Particulars

The Applicant and Respondent were at all times material to this application covered by an industrial instrument.

The Contract was at no time, and cannot by operation of law be, covered by an industrial instrument.

  1. The Applicant's employment by the Respondent was subject to a decision of this Commission, namely Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200 (the Decision).
  2. The Applicant's employment by the Respondent was subject to a reclassification process set out at paragraphs 2 and 3 of the Decision.
  3. In the Decision, the Commission found (at paragraph 27) that:

(a) The evidence supports a finding that Mr Hennessy was undertaking the same duties, roles and responsibilities as other relevant HP3 classified employees who were reclassified at HP4 by the WLEP;

(b) No evidence was led in the proceedings either establishing that Mr Hennessy's duties, role and responsibilities were to be differentiated from the other relevant HP3's who were graded HP4 in the classification process, or contesting Mr Hennessy's evidence that no such differentiation could be made;

(c)  The evaluation of Mr Hennessy's duties, roles and responsibilities was erroneously undertaken as at 30 September 2007 rather than as at 30 May 2008; and

(d)  This outcome resulted in the WUP and WLEP stages of the process excluding significant factors from its consideration of Mr Hennessy's WLE.

  1. That is, the Commission found that:

(a)  the Applicant was performing the same duties as other employees of the Respondent from on or around 30 September 2007 until on or around 1 August 2012 (the Relevant Period); and

(b)  the Applicant was being remunerated as a HP3 level and those other employees at a HP4 level during the Relevant Period.

  1. In the premises, the Contract:

(a) Is hard, unconscionable or unfair; and or alternatively

(b) has provided, a total remuneration to the Applicant less than that which the Applicant would receive under an industrial instrument, namely, the Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007.

  1. The Contract is an unfair contract within the meaning of section 471 of the Act.[14]
  1. [22]
    Through his substantive application, Mr Hennessy seeks the following orders:
  1. A determination that Mr Hennessy's Employment Contract with Queensland Health (Gold Coast Health Service) is an unfair contract pursuant to section 471 of the Industrial Relations Act 2016.
  2. That the Respondent pay the Applicant $269,762.00, being the amount the Applicant was underpaid during the Relevant Period, plus interest.
  3. That the Respondent pay the Applicant's costs of and incidental to this Application.[15]
  1. [23]
    The 'Relevant Period' referred to above, is the period 30 September 2007 to 1 August 2012, being the period prior to lodging his dispute in which Mr Hennessy claims he was undertaking the same duties as other employees who were classified at the HP4 (or equivalent) level.

The Application to Dismiss Proceedings

  1. [24]
    The application is made on the following grounds:
  1. (a)
    The issues raised in the substantive application have already been heard and determined;
  2. (b)
    Further hearing of the substantive application is not in the public interest;
  3. (c)
    The substantive application is, in substance, an application for unpaid wages which has been brought out of time;
  4. (d)
    The Commission has no jurisdiction to hear the application because Mr Hennessy's contract of service is covered by an industrial instrument; and
  5. (e)
    Mr Hennessy's complaints of unfairness are, in substance, complaints about the Service's conduct, not his contract of service.

Relevant Principles

  1. [25]
    The Act relevantly provides:

456 Commission may stay or dismiss applications in certain circumstances

  1. (1)
    The commission may stay or dismiss an application or complaint if the act or omission the subject of the application or complaint is being, or has been, dealt with by the commission in another proceeding.
  1. (2)
    This section applies despite a provision of this Act or another Act that requires the commission to deal with the application or complaint.

...

541 Decisions generally

The court or 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. (i)
    the cause is trivial; or
  1. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest;

...

The Service's Submissions

  1. [26]
    The Service contends Mr Hennessy's substantive application attempts to circumvent the earlier decisions of the Commission and the limitation period which would otherwise bar his claim.[16] Further, it submits his reliance on s 471 of the Act is misplaced as the jurisdiction of the Commission has not been enlivened under that provision.[17]
  2. [27]
    The Service maintains the Commission has never made a finding that Mr Hennessy was performing the duties, roles and responsibilities of an HP4, but merely that his duties, roles and responsibilities could not be distinguished from his colleagues who were translated under the HBEP1 and were eventually classified at the HP4 level.[18]
  3. [28]
    Further, it argues Mr Hennessy has not put forward any evidence that he was undertaking the duties, roles and responsibilities of an HP4 during the claim period, being between 30 September 2007 and 1 August 2012.[19]

Mr Hennessy's Submissions

  1. [29]
    Mr Hennessy contends that the power to summarily terminate an action ought to be sparingly employed.[20] He argues the power should not be exercised unless it is a clear case where the Commission can reach a definite and certain conclusion.[21]
  2. [30]
    Great care must be taken, he submits, to ensure that an applicant is not improperly deprived of the opportunity to have their cause heard by the proper tribunal under the guise of achieving expeditious finality of proceedings.[22]

Ground (a) – Already heard and determined

  1. [31]
    The Service contends the substantive application ought to be dismissed under s 456 of the Act because the act or omission which is the subject of the application, being the alleged underpayment, has previously been heard and determined by the Commission.[23] It submits the application is an attempt to obtain a different or further remedy in circumstances where Mr Hennessy has already been awarded a remedy.[24]
  2. [32]
    It argues dismissing the application would be consistent with the principles established in Port of Melbourne Authority v Anshun Pty Ltd ('Anshun'),[25] in circumstances where there is no reason Mr Hennessy could not have pressed an unfair contract claim in earlier proceedings.[26]
  3. [33]
    Mr Hennessy argues it is incorrect to say that the substance of the application has been previously heard and determined by the Commission within the meaning of s 456 of the Act.[27] He submits the earlier proceedings took place under the industrial dispute provisions of the previous and current Act.[28] He contends the Commission has not previously considered the gravamen of the substantive application, being s 471, and to strike it out would be to deny Mr Hennessy and the Commission, the opportunity to contemplate the merits of the argument which have not been ventilated.[29]
  4. [34]
    He argues the application is not founded on the same act or omission as the subject of previous proceedings.[30] Rather, he submits the complaint of mischief is the unfairness of his contract of service which has not previously been put to the Commission.[31] Further, he argues the Commission has, in general terms, found previously that it lacked the jurisdiction or power to consider the conduct of the Service in those proceedings.[32]
  5. [35]
    With respect to the decision in Anshun, Mr Hennessy contends the Service has failed to consider s 451 of the Act and Commonwealth of Australia v Snell ('Snell').[33] To the extent Anshun established a rule of evidence, he submits the Commission is not bound by the rules of evidence.[34] Further, although the Court in Snell determined that a tribunal such as the Commission could apply the rules of evidence, it could only do so to the extent those rules are consistent with the legislation governing the tribunal.[35]
  6. [36]
    In any event, Mr Hennessy argues the Service has failed to discharge the onus of demonstrating not only that the relevant claim could have been made in earlier proceedings, but that it should have been made such that it was unreasonable to have failed to do so.[36]
  7. [37]
    Finally, Mr Hennessy submits the Commission has considered this point, and made it clear that the discretion to strike out proceedings should be exercised sparingly.[37]

Ground (b) – Further hearing not in the public interest

  1. [38]
    Alternatively, the Service contends the Commission ought to exercise its discretion under s 541(b)(ii) of the Act on the basis that further hearing of the matter is not necessary or desirable in the public interest.[38]
  2. [39]
    It submits Mr Hennessy's reclassification dispute has already been heard and determined, and Mr Hennessy was successful in obtaining a remedy within the limitations set by the Industrial Court.[39] It submits Mr Hennessy did not appeal or seek to review any of the previous decisions regarding his reclassification, but instead continues to re-litigate the same controversy, under a different section of the Act, in an effort to subvert the jurisdictional limits of the Commission and obtain further remedies.[40] This, it argues, is entirely inconsistent with the concept of finality in proceedings, undermines the objects of the Act and may amount to an abuse of process.[41]
  3. [40]
    The Service contends it should be entitled to rely upon the finality of proceedings and will suffer considerable prejudice should the proceedings not be dismissed.[42] The prejudice arises by virtue of the cost of relitigating the same issues for what will be the third time, as well as the length of time that has passed since the events that were the subject of the substantive application.[43] In this respect, the Service notes the substantive application was filed 14 years after the date of Mr Hennessy's contract of service, 13 years after the events giving rise to the issue of Mr Hennessy's classification level, and 6 years after Mr Hennessy's role was reclassified.[44]
  4. [41]
    Finally, it argues the other grounds relied upon by the Service also support a conclusion that a further hearing is not necessary or desirable in the public interest.[45]
  5. [42]
    Mr Hennessy submits the substantive application is a claim that he was performing work for the Service for which he has not been paid.[46] In this respect, he argues the Service's submissions that it is not in the public interest to hear the substantive application are curious given:
  1. (a)
    The functions of the Commission include assisting parties to an industrial cause in negotiating or resolving a matter relevant to the cause of action, regardless of whether the matter is within the jurisdiction of the Commission;
  2. (b)
    The Commission must perform its functions in a way that is consistent with the objects of the Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act;
  3. (c)
    The objects of the Act include ensuring equal remuneration for work of equal or comparable value.

Ground (c) – Out of Time

  1. [43]
    The Service contends the substantive application is not an application to amend or declare void a contract, but rather, in substance, an application for unpaid wages brought outside the six-year time limit under the Act.[47] At best, it submits the claim is made more than 8.5 years after the alleged unpaid wages became payable to Mr Hennessy.[48] Consequently, it argues the Commission does not have jurisdiction to hear the application.[49]
  2. [44]
    Alternatively, if the Commission does not accept the substantive application is, in essence, an unpaid wages claim, the Service argues the application is still barred under s 10(1)(a), or alternatively s 10(1)(d), of the Limitation of Actions Act 1974 (Qld).[50] That is, it submits the substantive application has been made after the expiration of six years from the date on which the cause of action arose.[51]

Ground (d) – No jurisdiction to hear the application

  1. [45]
    The Service submits Mr Hennessy's contract of service is covered by industrial instruments, being the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 (and its predecessors) ('the Agreement') and the Health Practitioners and Dental Officers (Queensland Health) Award – State 2015 ('the Award').[52]
  2. [46]
    The Service acknowledges but respectfully disagrees with the decision in Foster v Readymix Holdings Pty Ltd ('Foster')[53] which dealt with s 276 of the previous Act,[54] being the predecessor to s 471 of the Act.[55] There, Hall P determined that the question 'Is the whole of the applicant's contract of service "not covered" by [the relevant Award] within the meaning of s 276 of the [previous Act]' should be answered 'no', and found:[56]

... [I]t seems to me, given the inexactness of the language, that the intention is to prevent review of individual contracts of service to intrude into review of any applicable industrial instrument because the instrument has collided with and displaced contractual terms, because the parties at some time accepted that the industrial instrument rendered contractual arrangements over the same territory to be unnecessary, or because the parties expressly agreed to be contractually bound (in part) by the terms of the industrial instrument.[57]

  1. [47]
    To accept the decision of Hall P without limitation, it submits, would render the qualifying words 'not covered by an industrial instrument or federal industrial instrument' entirely otiose.[58] It argues this would also be inconsistent with the principle of interpretation that all words should serve a purpose.[59]
  2. [48]
    Further, it argues it is unnecessary to construe s 471(1)(a)(i) of the Act as limited to an intersection between that section and an industrial instrument because there can never be such an intersection.[60] That is so, it submits, because an industrial instrument is distinct from, and overrides where less favourable, a contract of service.[61]
  3. [49]
    Alternatively, the Service submits the substantive application seeks to override the provisions of HPEB1 and HPEB2 that dealt with how a re-classification dispute was to be resolved.[62] Therefore, it contends that even if Foster were applied, s 471(1)(a)(i) would still operate to exclude Mr Hennessy's contract of service.[63]
  4. [50]
    For his part, Mr Hennessy submits that in Casaubon v Department of Transport and Main Roads ('Casaubon'),[64] the Commission accepted it had jurisdiction to hear an application under s 276 of the previous Act, notwithstanding the fact that the applicant was employed pursuant to a common law contract and was also covered by a certified agreement and award.[65]
  5. [51]
    He rejects the Service's submissions regarding Foster and submits that decision makes it clear that s 471 applies to employees in Mr Hennessy's position.[66] He argues the Service has failed to articulate any compelling reason to depart from Foster,[67] and that rather than rendering the qualifying words otiose, Hall P clearly set out the work those words do in finding:[68]

Rather, it seems to me, given the inexactness of the language, that the intention is to prevent review of individual contracts of service to intrude into review of any applicable industrial instrument.[69]

  1. [52]
    Finally, he notes the previous Act was subject to an extensive review in 2016, which resulted in the current Act.[70] He submits Parliament had the opportunity to amend then s 276 but did not do so, and argues the Commission can comfortably find Parliament's intention was therefore consistent with Foster.[71]

Ground (e) – Unfairness of conduct not unfairness of contract

  1. [53]
    The Service contends Mr Hennessy's complaint is not against the unfairness of his contract of service, but rather the Service's conduct in how it undertook the reclassification process in relation to Mr Hennessy's position.[72] The unfairness complained of, it submits, is the Service's actions in classifying Mr Hennessy's position as an HP3 as opposed to an HP4 position, and not back paying him the amount to which he claims he is entitled.[73]
  2. [54]
    It argues s 471 of the Act does not provide a remedy for unfair conduct, and consequently, the Commission does not have the power to afford Mr Hennessy a remedy under that section.[74]
  3. [55]
    Mr Hennessy accepts that his complaint is not that a term of the contract itself is unfair, but rather that it is the way in which it has been enforced, or the conduct of the Service pursuant to the contract, that is unfair.[75] In this sense, he argues the contract is unfair in that it does not prohibit unfair conduct.[76]
  4. [56]
    He submits such circumstances were considered by the Court in Newmont Pajingo Pty Ltd v Tomac Enterprises Pty Ltd ('Newmont')[77] and Foster v Rinker Australia Pty Ltd ('Rinker').[78] Both of those decisions, he argues, make it clear s 471 does not require a term of the contract itself to be unfair, but rather the absence of a term proscribing unfair conduct is sufficient.[79]

Should Mr Hennessy's application be dismissed pursuant to s 456 of the IR Act on the basis that it has previously been heard and determined?

  1. [57]
    Section 456 of the Act provides the Commission with the power to stay or dismiss an application or complaint if the act or omission, the subject of the application or complaint is being, or has been dealt with, by the Commission in another proceeding. The section applies notwithstanding a provision of the Act, or another Act, which requires the Commission to deal with the application or complaint.[80]
  2. [58]
    The Service maintains Mr Hennessy's application is an attempt to obtain a different or further remedy for the same reclassification dispute that was determined in an earlier re-classification dispute.[81]
  3. [59]
    Conversely, Mr Hennessy contends the Commission has not previously considered the gravamen of the substantive application, being s 471. Moreover, the application is not founded on the same act or omission the subject of previous proceedings,[82] but instead the unfairness of his contract of service which has not previously been put to the Commission.[83]
  4. [60]
    I am unable to accept Mr Hennessey's submissions for several reasons.
  5. [61]
    First, in earlier dispute proceedings before Commissioner Black, Mr Hennessy sought to be re-classified from an HP3 to an HP4 on the basis that he had been erroneously classified as an HP3 during an evaluation of his role and responsibilities by a Work Level Evaluation Panel (WLEP).[84]
  6. [62]
    Commissioner Black ordered Mr Hennessy be re-classified at the HP4 level from the date the Industrial Registrar was notified of the dispute.
  7. [63]
    The decision led to Mr Hennessy being re-classified at the higher level from 1 August 2012, which created some capacity for back-payment, albeit limited, in circumstances where Commissioner Black's decision was released on 3 December 2014 but where earlier declarations of the Industrial Court restricted the Commission from ordering retrospective wage increases that arose in the course of determining a reclassification dispute.
  8. [64]
    Relevantly, Mr Hennessey did not appeal the decision of Commissioner Black and in fact, relies on the decision and other materials filed at the time the dispute was initially arbitrated[85] as the basis for asserting his employment contract with Queensland Health is unfair.
  9. [65]
    Seven years after filing his first dispute, Mr Hennessy filed a further Notice of Industrial Dispute with the Industrial Registry asserting the Service had failed to 'correct multiple errors found by the QIRC to have been made in Mr Hennessy's classification level'.[86]
  10. [66]
    In support of that dispute, Mr Hennessy provided the Commission with correspondence he had sent earlier to the Service where he stated:

As this stage neither you nor any other (Respondent) representatives has attempted to explain or justify why, despite the significant financial costs and the detriment experienced by me …, why (sic) (the Respondent) has refused to accept responsibility for the errors and the detriment and agree to backdate my classification to HP4 to September 2007.[87]

  1. [67]
    In proceedings before Commissioner McLennan, Mr Hennessy sought declarations to address the evaluation errors identified in Commissioner Black's decision.
  2. [68]
    Commissioner McLennan dismissed the dispute on the basis the proceedings were not necessary or desirable in the public interest, observing:

[139] First, Mr Hennessy has already been afforded an opportunity to have the reclassification controversy heard and decided by this Commission. He was provided a remedy in those proceedings.[88]

  1. [69]
    Mr Hennessy did not appeal Commissioner McLennan's decision.
  2. [70]
    Having regard to the history set out above, I am satisfied Mr Hennessy has previously been afforded an opportunity to have the subject of his current application heard and determined by the Commission.
  3. [71]
    Specifically, the act or omission complained of within the Unfair Contract Application (the failure to properly assess, classify and pay Mr Hennessy as an HP4), is in substance, the same act or omission pursued during the dispute proceedings before Commissioner McLennan, if not the earlier proceedings before Commissioner Black who, although somewhat confined in the remedy he was able to award, ordered that Mr Hennessy be reclassified at an HP4 level from the date of his dispute.    

Does Mr Hennessy's application for Unfair Contract give rise to the Anshun principle?

  1. [72]
    In Tomlinson v Ramsey Food Processing Pty Limited,[89] French CJ, Bell, Gageler and Keane JJ summarised the Anshun principle, observing:

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". … The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.[90]

  1. [73]
    In Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health),[91] Deputy President Merrell helpfully set out the conclusions of the majority in Anshun, namely:

[117] In coming to this conclusion, the majority held that:

  • there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it;
  • generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim and its subject matter, it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding;
  • there are a variety of circumstances why a party may justifiably refrain from litigating an issue in one proceeding, yet wish to litigate the issue in another proceeding, for example, expense, importance of the particular issue and motives extraneous to the actual litigation; and
  • it has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment; and conflicting judgments includes judgments which are contradictory though they may not be pronounced on the same cause of action and it is enough that they appear to declare rights which are inconsistent in respect of the same transaction.[92]
  1. [74]
    In its written submissions, the Service maintains that dismissing the application would be consistent with the principles established in Port of Melbourne Authority v Anshun Pty Ltd ('Anshun').[93] That is, there is no reason why the unfair contract application could not have been pressed during the earlier two proceedings.
  2. [75]
    Mr Hennessy submits it is not sufficient for the Service to rely on Anshun without demonstrating to the Commission, not only that the relevant claim could have been made in the first proceeding but, also that it should have been made.[94]
  3. [76]
    Having considered the history of this matter, the earlier reclassification decision of Commissioner Black and the dispute decision of Commissioner McLennan, I am satisfied the elements giving rise to an Anshun estoppel are present in this case.
  4. [77]
    First, the subject matter in the re-classification decision, the dispute decision and in Mr Hennessy's Unfair Contract Application are connected, namely a grievance about the correct assessment, classification and remuneration for Mr Hennessy's role and responsibilities.
  5. [78]
    In an affidavit prepared by Mr Hennessy for the dispute proceedings before Commissioner Black, he stated:

[17] My HP outcome is unique at Robina Hospital whereby despite reaching all comparable professional milestones before the cut-off date of May 2008…my outcome resulted in significant detriment to me in both financial and career outcomes.

…

[29] This entire process and the way it has been managed has, in my case, been grossly unfair and has left me in particularly feeling devalued and under recognised.[95]

  1. [79]
    As touched on earlier, Mr Hennessy was awarded a remedy at the conclusion of those proceedings, namely his position was re-classified at the higher HP4 classification level.
  2. [80]
    Similarly, in the proceedings before Commissioner McLennan in 2019, Mr Hennessy raised concerns in relation to the conduct of the Service and his unfair treatment:

[65] That submission is a significant shift in the scope of the Industrial Dispute. He then states:

The nature and scope of the matters in dispute are summarised in the Notice of Dispute lodged with the QIRC in July 2019 by the Applicant.

 …

The essence of Mr. Hennessy’s complaint is that he continues to be treated unfairly and unjustly or alternatively in a way which is not fair or just due to the ongoing refusal to by (sic) the Respondents to address, correct or remedy the identified errors, the career and financial detriment and general disadvantage and unfair treatment disadvantage (sic) suffered by Mr. Hennessy in relation to his employment arising from the multiple uncorrected errors made by the (Respondent) and its predecessors in relation to Mr. Hennessy’s classification throughout the initial proposal evaluation and appeal stages … This is in direct conflict with the unequivocal findings of Commissioner Black in his decision of 3 December 2014.

[66] Mr Hennessy goes on to say:

The Remedies that the Applicant seeks are a range of declarations from the Commission as currently constituted consistent with the following parameters or wording:

(i) the repeated and multiple refusals and failures of the Respondents to correct the financial, career and other detriment to Mr Hennessy that resulted from the submission of incorrect information and other errors identified by Commissioner Black in his decision of  3 December 2014 Hennessy v State of Queensland (Queensland Health 2014 QIRC 200 HP 2013/28 are not fair and just.  Mr Hennessy is entitled to compensation and payment by the Respondents of an amount at least equivalent to the updated value of the  original Ryalls 2016 Departmental estimate of $180000 for lost earnings resulting from the submission of incorrect information and the wrong cutoff date concerning Mr Hennessy’s qualifications duties and correct classification level for the period 1 September 2007 to  1 August 2012

(ii)  the refusal of the Respondents to correct the incorrect classification of Mr Hennessy to a date earlier than 1 August 2012 is not fair and just and Mr Hennessy should have been entitled to both accelerated incremental advancement and ongoing payment at the HP 4.4 increment point at 1 August 2012 and any consequential adjustments with effect from that date.

…

…

(vi) the ongoing considered and deliberate efforts by the certain officers of the Respondents including Mr Ryalls, Ms Pierce and Mr Langdon to not disclose their knowledge of Mr Hennessy’s detriment and their refusal to intervene or correct the detriment and disadvantage inflicted on Mr Hennessy is not fair and just and all of them should be referred for appropriate conduct and disciplinary investigations. They have all gone out of their way to prolong the disadvantage and detriment experienced by Mr Hennessy.

The actual wording of the determinations is of course a matter for comment and determination by the Commission.[96]

  1. [81]
    Similarly, in his Unfair Contract application, Mr Hennessy contends that in circumstances where he was performing the same duties as other employees of the Service from 30 September 2007 until 1 August 2012 and where those employees were being remunerated at an HP4 level, his Contract is unfair. Mr Hennessy is seeking $269,762.00, being an amount he asserts was underpaid during the relevant period.[97]
  2. [82]
    The common complaint across all three applications concerns the conduct of the Service towards Mr Hennessy in respect of the re-classification process and its failure to assess, classify and remunerate him at the appropriate HP4 level.
  3. [83]
    Given the substance of the claims and the remedies sought in both the re-classification decision and the dispute decision, it is reasonable to conclude that Mr Hennessy should have pressed his unfair contract claim at the time of his dispute before Commissioner McLennan, if not during the period his re-classification dispute was determined by Commissioner Black.
  4. [84]
    Secondly, it is clear that any decision the Commission makes in respect of the Unfair Contract Application could be inconsistent with other decisions the Commission has made in respect of the earlier claims raised by Mr Hennessy.
  5. [85]
    Relevantly, in Rogers v R,[98] Mason CJ observed:

From earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against 'the scandal of conflicting decisions'. Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind.[99]

  1. [86]
    Were this matter to proceed, not only is it likely any decision would be inconsistent with the decision of Commissioner McLennan and Commissioner Black, but it could well be inconsistent with earlier declarations made by the Industrial Court.
  2. [87]
    Thirdly, while I am deeply cognisant of Mr Hennessy's submissions in respect of fairness and the object of the IR Act, it is also relevant to consider the period over which Mr Hennessy's successive claims have been pursued and the impact of the litigation not just in respect of Mr Hennessy, but also the Service.
  3. [88]
    In Johnson v Gore Wood and Co,[100] Lords Bingham, Goff, Cooke, Hutton and Millett considered:

The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

  1. [89]
    The translation of Health Practitioners from Professional classifications commenced following the ratification of HPEB1 in 2007. Mr Hennessy filed a dispute in relation to the classification of his role in 2012.[101]
  2. [90]
    On 20 May 2013, the Industrial Court of Queensland issued declarations which limited the scope of any pay increases or the awarding of any back pay associated with the determination of a re-classification dispute.[102]    
  3. [91]
    The second dispute determined by Commissioner McLennan, was filed by Mr Hennessy in 2019, approximately four and a half years after Commissioner Black released his decision.
  4. [92]
    Neither decision was appealed by Mr Hennessy.
  5. [93]
    Mr Hennessy has since filed an Unfair Contracts Application which again raises the same claims in respect of reclassification and back pay, arising out of a process that commenced more than a decade ago.
  6. [94]
    It is not clear in the materials before the Commission as to why Mr Hennessy refrained from pursuing the Unfair Contract Application until he did. However, in the event Mr Hennessy is able to pursue the most recent application, it would be necessary for the Service to respond to a second and potentially a third claim about the same issue he has pursued through the Commission, albeit under the pretext of an Unfair Contract Application, for more than a decade.
  7. [95]
    For these reasons, I am of the view the Anshun principle is relevant in the context of determining whether I should exercise its discretion to dismiss the application pursuant to s 456 of the Act.

Conclusion

  1. [96]
    The onus was on the Service to persuade the Commission as to why it should exercise its discretion pursuant to s 456 of the Act to dismiss Mr Hennessy's Unfair Contract Application.
  2. [97]
    After considering the history of the matter, the earlier re-classification and dispute decisions, and the submissions of the parties and the relevant authorities, I am persuaded I should exercise my discretion and dismiss the substantive application on the basis that the act or omission which is the subject of the application has previously been dealt with by the Commission in another proceeding, specifically:
  • Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200; and
  • Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 081.

Should Mr Hennessy's Unfair Contract Application be dismissed or not heard because further proceedings are not necessary or desirable in the public interest?

  1. [98]
    Even if I were to be wrong in respect of the conclusions reached above, I am satisfied the further hearing of Mr Hennessy's application is not necessary or desirable in the public interest.
  2. [99]
    Section 541(b)(ii) of the Act provides that the Commission may, in an industrial cause, dismiss the cause, or refrain from hearing, further hearing, or deciding the cause if the Commission considers further proceedings are not necessary or desirable in the public interest.[103]
  3. [100]
    The provision recognises that in some circumstances, the public interest may displace a litigant's normal right to have a case heard and determined.[104]
  4. [101]
    In this Commission,[105] it has been accepted that O'Sullivan v Farrer[106] is an authority for the proposition that the expression 'public interest':

… when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view."

  1. [102]
    Essentially, the application of s 541(b)(ii) comprises an expansive discretionary assessment informed by the facts of the matter and the objects of the Act.
  2. [103]
    Relevantly, the main purpose of the Act is to provide a framework for co-operative industrial relations that is fair and balanced and supports the delivery of high-quality services, economic prosperity and social justice for Queenslanders.[107] Section 4 sets out how the main purpose of the Act is to be primarily achieved, including:
  1. (d)
    providing for a fair and equitable framework of employment standards, awards, determinations, orders and agreements; and

...

  1. (f)
    providing for a guaranteed safety net of fair, relevant and enforceable minimum employment conditions through the Queensland Employment Standards; and

...

  1. (j)
    ensuring equal remuneration for work of equal or comparable value; and

...

(p) providing for effective, responsive and accessible mechanisms to support negotiations and resolve industrial disputes; and

(q) establishing an independent court and tribunal to facilitate fair, balanced and productive industrial relations;[108]

  1. [104]
    In this matter, when balancing the public interest of finality in litigation against Mr Hennessy's pursuit of back-pay arising out of a re-classification process which commenced more than 16 years ago, I have concluded the greater public interest lies with the former, for several reasons.
  2. [105]
    Firstly, Mr Hennessy has been afforded the opportunity to have his dispute in relation to the reclassification of his role resolved by the Commission. He succeeded in having his classification level increased to an HP4 level after the Commission had regard to the processes set out in HPEB1.[109]
  3. [106]
    Secondly, Mr Hennessy's subsequent attempts to pursue backpay and other declarations in an earlier dispute have already been rejected by this Commission on the basis that it was not necessary or desirable in the public interest.[110]
  4. [107]
    Thirdly, Mr Hennessy did not appeal or seek a review of the re-classification decision or the dispute decision which dismissed his earlier matter.
  5. [108]
    Fourthly, there has been a significant delay in the bringing of the Unfair Contract Application, the substance of which largely mirrors earlier claims, which only exacerbates the unfairness and prejudice to the Service, who is entitled to rely on the finality of proceedings.
  6. [109]
    Fifthly, should the proceeding continue, it is possible a future decision will be inconsistent with the decisions of Commissioner Black and Commissioner McLennan.
  7. [110]
    Sixthly, I hold grave concerns about the merits of the substantive application, in circumstances where the action pursued, and the remedy sought is arguably unavailable given:
  • The Unfair Contract Application seeks to displace the provisions and processes within HPEB1 and subsequent declarations of the Queensland Industrial Court, which have previously dealt with the resolution of re-classification disputes and relevantly, the issue of pay increases or back-payment arising out of such disputes; and
  • Mr Hennessy's complaint, in substance, concerns the conduct of the Service and its failure to accede his request to backpay him for the relevant period, rather than the fairness of his employment contract.

Conclusion

  1. [111]
    In balancing the public interest considerations raised by both parties, I am satisfied this is a case where the public interest sits with the Service and its prerogative to rely on the finality of proceedings.
  2. [112]
    I am persuaded, having regard to the submissions before the Commission, that I should exercise my discretion and dismiss Mr Hennessy's Unfair Contract Application on the basis that the further hearing of the Unfair Contract application is not necessary or desirable in the public interest.

Orders

  1. [113]
    I make the following orders:

The application that the Commission dismiss Matter No. B/2021/25 is granted.

Footnotes

[1] State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) [2013] ICQ 3 ('the Court Decision'); Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200 ('Hennessy No 1'); Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 81 ('Hennessy No 2').

[2] Hennessy No 1 (n 1).

[3] Ibid [27].

[4] The Court Decision (n 1).

[5] Naggs v State of Queensland (Department of Health) No. 2 [2015] QIRC 026; Together Queensland, Industrial Union of Employees (for Harold Figueroa) v State of Queensland (Queensland Health) [015] QIRC 005; Scott v State of Queensland (Queensland Health) [2015] QIRC 164.

[6] The Court Decision (n 1).

[7] Ibid [26].

[8] The Court Decision (n 1) [25].

[9] Hennessy No 2 (n 1) [59].

[10] [2020] QIRC 81.

[11] Hennessy No 2 (n 1) [57] – [60].

[12] Ibid.

[13] Ibid [139], [143].

[14] Mr Hennessy's Application filed on 24 March 2021, Statement of Claim.

[15] Ibid.

[16] The Service's submissions filed 10 August 2021 [3].

[17] Ibid.

[18] Ibid [5].

[19] Ibid [9].

[20] Mr Hennessy's submissions filed 7 September 2021 [3], citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 129, 130; Ebet Limited v Gibbons (Department of Justice and Attorney-General) [2014] QIRC 017 [14].

[21] Mr Hennessy's submissions filed 7 September 2021 [4].

[22] Ibid [7].

[23] The Service's submissions filed 10 August 2021 [10], [13].

[24] Ibid [11].

[25] (1981) 147 CLR 589 ('Anshun').

[26] The Service's submissions filed 10 August 2021, [14], citing Anshun (n 25) 598.

[27] Mr Hennessy's submissions filed 7 September 2021 [22].

[28] Ibid [22].

[29] Ibid [23].

[30] Ibid [24].

[31] Ibid [24].

[32] Ibid [25].

[33] (2019) 269 FCR 18; Mr Hennessy's submissions filed 7 September 2021 [26].

[34] Mr Hennessy's submissions filed 7 September 2021 [28], citing Industrial Relations Act 2016 (Qld) s 451.

[35] Ibid [27].

[36] Ibid [29]-[30], citing Clayton v Bant (2020) 95 ALJR 34.

[37] Ibid [31]-[32], citing Australian Salaried Medical Officers' Federal Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 059.

[38] The Service's submissions filed 10 August 2021 [15], [23].

[39] Ibid [17], referring to the Court Decision (n 1).

[40] The Service's submissions filed 10 August 2021 [18].

[41] Ibid [18], citing Hennessy No 2 (n 1), [39], [42]-[46], [81]-[84]; Johnson v Gore Wood and Co [2002] 2 AC 1 31 (Lord Bingham); Ant Projects Pty Ltd v Broos & Ors [2019] QCA 259 [69]-[70].

[42] The Service's submissions filed 10 August 2021 [22].

[43] Ibid [22].

[44] Ibid [22].

[45] Ibid [21].

[46] Mr Hennessy's submissions filed 7 September 2021 [33].

[47] The Service's submissions filed 10 August 2021 [24].

[48] Ibid [25].

[49] Ibid [25].

[50] Ibid [26].

[51] Ibid [26].

[52] Ibid [29].

[53] (2006) 186 QGIG 519 ('Foster').

[54] Industrial Relations Act 1999 (Qld).

[55] The Service's submissions filed 10 August 2021 [30].

[56] Ibid [30].

[57] Foster (n 53) 521.

[58] The Service's submissions filed 10 August 2021 [31].

[59] Ibid [34], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [71].

[60] The Service's submissions filed 10 August 2021 [32].

[61] Ibid [32], citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 418-422.

[62] The Service's submissions filed 10 August 2021 [36].

[63] Ibid [36].

[64] [2015] QIRC 141.

[65] Mr Hennessy's submissions filed 7 September 2021 [13].

[66] Ibid [12].

[67] Ibid [11]-[12].

[68] Ibid [15]-[16].

[69] Foster (n 53) 521.

[70] Mr Hennessy's submissions filed 7 September 2021 [14].

[71] Ibid [14].

[72] The Service's submissions filed 10 August 2021 [37].

[73] Ibid [37].

[74] Ibid [37].

[75] Mr Hennessy's submissions filed 7 September 2021 [18].

[76] Ibid [18].

[77] (2005) 178 QGIG 404.

[78] (2007) 186 QGIG 649.

[79] Mr Hennessy's submissions filed 7 September 2021 [20].

[80] Industrial Relations Act 2016 (Qld) s 456.

[81] The Service's submissions filed 10 August 2021 [11].

[82] Mr Hennessy's submissions filed 7 September 2021 [24].

[83] Ibid [24].

[84] Hennessy No 1 (n 1) [27]-[30].

[85] Affidavit of Gregory Mark Hennessy filed 24 March 2021, Attachment GHM-2.

[86] Hennessy No 2 (n 1) [57].

[87] Ibid [60].

[88] Ibid [139].

[89] (2015) 256 CLR 507.

[90] Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507, citing Thoday v Thoday [1964] P 181; Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537; Blair v Curran (1939) 62 CLR 464; Jackson v Goldsmith (1950) 81 CLR 446; Kuligowski v Metrous (2004) 220 CLR 363;  Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287; Ling v Commonwealth (1996) 68 FCR 180; Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; Rogers v R (1994) 181 CLR 251; Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502.

[91] [2021] QIRC 59.

[92] Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 59 [117], citing Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

[93] (1981) 147 CLR 589 ('Anshun').

[94] Mr Hennessy's submissions filed 7 September 2021 [29].

[95] Affidavit of Gregory Mark Hennessy filed 24 March 2021, Attachment GHM-2 [17], [29].

[96] Hennessy No 2 (n 1) [65]-[66].

[97] Mr Hennessy's Application filed on 24 March 2021.

[98] (1994) 181 CLR 251.

[99] Ibid 273-274.

[100] [2002] 2 AC 1.

[101] Hennessy No 1 (n 1).

[102] State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) [2013] ICQ 3.

[103] Industrial Relations Act 2016 (Qld) s 541(b)(ii).

[104] Thiering v Daly (2011) 83 NSWLR 498 [7](5)(b).

[105] State of Queensland v Lockhart [2014] ICQ 6; Campbell v State of Queensland [2019] ICQ 18 [24].

[106] O'Sullivan v Farrer (1989) 168 CLR 210.

[107] Industrial Relations Act 2016 (Qld) s 3.

[108] Ibid s 4(d), (f), (j), (p), (q).

[109] Hennessy No 1 (n 1).

[110] Hennessy No 2 (n 1).

Close

Editorial Notes

  • Published Case Name:

    Hennessy v State of Queensland (Queensland Health) (No 2)

  • Shortened Case Name:

    Hennessy v State of Queensland (Queensland Health) (No 2)

  • MNC:

    [2023] QIRC 213

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    27 Jul 2023

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
Ant Projects Pty Ltd v Brooks [2019] QCA 259
2 citations
Jump To
Cite 1 - [2019] QCA 259
Cite 2 - [2019] QCA 259
Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 59
4 citations
Jump To
Cite 1 - [2021] QIRC 59
Cite 2 - [2021] QIRC 59
Cite 3 - [2021] QIRC 59
Cite 4 - [2021] QIRC 59
Blair v Curran (1939) 62 C.L.R., 464
2 citations
Jump To
Cite 1 - (1939) 62 C.L.R., 464
Cite 2 - (1939) 62 C.L.R., 464
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
2 citations
Jump To
Cite 1 - (1995) 57 FCR 287
Cite 2 - (1995) 57 FCR 287
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
2 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Casaubon v Department of Transport and Main Roads [2015] QIRC 141
2 citations
Jump To
Cite 1 - [2015] QIRC 141
Cite 2 - [2015] QIRC 141
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
2 citations
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Cite 1 - (1988) 164 CLR 502
Cite 2 - (1988) 164 CLR 502
Clayton v Bant (2020) 95 ALJR 34
2 citations
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Cite 1 - (2020) 95 ALJR 34
Cite 2 - (2020) 95 ALJR 34
Commonwealth of Australia v Snell (2019) 269 FCR 18
2 citations
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Cite 1 - (2019) 269 FCR 18
Cite 2 - (2019) 269 FCR 18
Ebet Limited v Gibbons (Department of Justice and Attorney General) [2014] QIRC 17
2 citations
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Cite 1 - [2014] QIRC 17
Cite 2 - [2014] QIRC 17
Foster v Readymix Holdings Pty Ltd (2006) 186 QGIG 519
2 citations
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Cite 1 - (2006) 186 QGIG 519
Cite 2 - (2006) 186 QGIG 519
Foster v Rinker Australia Pty Ltd (2007) 186 QGIG 649
2 citations
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Cite 1 - (2007) 186 QGIG 649
Cite 2 - (2007) 186 QGIG 649
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
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Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Gregory Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 81
4 citations
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Cite 1 - [2020] QIRC 81
Cite 2 - [2020] QIRC 81
Cite 3 - [2020] QIRC 81
Cite 4 - [2020] QIRC 81
Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200
4 citations
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Cite 1 - [2014] QIRC 200
Cite 2 - [2014] QIRC 200
Cite 3 - [2014] QIRC 200
Cite 4 - [2014] QIRC 200
Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290
2 citations
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Cite 1 - (1925) 37 CLR 290
Cite 2 - (1925) 37 CLR 290
Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537
2 citations
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Cite 1 - (1921) 29 CLR 537
Cite 2 - (1921) 29 CLR 537
Jackson v Goldsmith (1950) 81 CLR 446
2 citations
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Cite 1 - (1950) 81 CLR 446
Cite 2 - (1950) 81 CLR 446
Johnson v Gore Wood & Co (2002) 2 AC 1
3 citations
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Cite 1 - (2002) 2 AC 1
Cite 2 - (2002) 2 AC 1
Cite 3 - (2002) 2 AC 1
Kuligowski v Metrobus (2004) 220 CLR 363
2 citations
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Cite 1 - (2004) 220 CLR 363
Cite 2 - (2004) 220 CLR 363
Ling v Commonwealth (1996) 68 FCR 180
2 citations
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Cite 1 - (1996) 68 FCR 180
Cite 2 - (1996) 68 FCR 180
Naggs v State of Queensland (Department of Health) (No 2) [2015] QIRC 26
2 citations
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Cite 1 - [2015] QIRC 26
Cite 2 - [2015] QIRC 26
Newmont Pajingo Pty Ltd v Tomac Enterprises Pty Ltd (2005) 178 QGIG 404
2 citations
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Cite 1 - (2005) 178 QGIG 404
Cite 2 - (2005) 178 QGIG 404
O'Sullivan v Farrer (1989) 168 CLR 210
2 citations
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Cite 1 - (1989) 168 CLR 210
Cite 2 - (1989) 168 CLR 210
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
5 citations
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Cite 1 - (1981) 147 CLR 589
Cite 2 - (1981) 147 CLR 589
Cite 3 - (1981) 147 CLR 589
Cite 4 - (1981) 147 CLR 589
Cite 5 - (1981) 147 CLR 589
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
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Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Rogers v The Queen (1994) 181 CLR 251
3 citations
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Cite 1 - (1994) 181 CLR 251
Cite 2 - (1994) 181 CLR 251
Cite 3 - (1994) 181 CLR 251
Scott v State of Queensland (Queensland Health) [2015] QIRC 164
2 citations
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Cite 1 - [2015] QIRC 164
Cite 2 - [2015] QIRC 164
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) [2013] ICQ 3
3 citations
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Cite 1 - [2013] ICQ 3
Cite 2 - [2013] ICQ 3
Cite 3 - [2013] ICQ 3
State of Queensland v Lockhart [2014] ICQ 6
2 citations
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Cite 1 - [2014] ICQ 6
Cite 2 - [2014] ICQ 6
Thiering v Daly (2011) 83 NSWLR 498
2 citations
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Cite 1 - (2011) 83 NSWLR 498
Cite 2 - (2011) 83 NSWLR 498
Thoday v Thoday [1964] P 181
2 citations
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Cite 1 - [1964] P 181
Cite 2 - [1964] P 181
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
3 citations
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Cite 1 - (2015) 256 CLR 507
Cite 2 - (2015) 256 CLR 507
Cite 3 - (2015) 256 CLR 507
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd (1975) AC 581
2 citations
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Cite 1 - (1975) AC 581
Cite 2 - (1975) AC 581

Cases Citing

Case NameFull CitationFrequency
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) [2013] ICQ 31 citation
1

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