Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2024
  4. Haskins v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) - [2024] QIRC 301

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

Haskins v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2024] QIRC 301

Haskins v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2024] QIRC 301

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Haskins v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2024] QIRC 301

PARTIES:

Haskins, Alicia

(Applicant)

v

State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

(Respondent)

CASE NO:

B/2023/52

PROCEEDING:

General powers of the Commission

DELIVERED ON:

19 December 2024

HEARING DATE:

11 December 2023

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDER:

The application is dismissed.

CATCHWORDS:

QUEENSLAND – INDUSTRIAL LAW – APPLICATION SEEKING ENFORCEMENT OF QUEENSLAND HUMAN RIGHTS COMMISSION CONCILIATION AGREEMENT – where applicant claims respondent has breached terms of clause 6(e) of Queensland Human Rights Commission Conciliation Agreement filed with Queensland Industrial Relations Commission pursuant to s 164 of the Anti-Discrimination Act 1991 – where respondent opposes the application – where applicant seeking enforcement of Conciliation Agreement and return to the Project Officer role in the Department – where applicant seeking punishment for contempt for alleged breaches of the agreement – where applicant seeking general damages as compensation for hurt, humiliation and career interruption – whether exercise of jurisdiction of the commission pursuant to s 544 of the Industrial Relations Act 2016 (Qld) – whether applicant agreed to transfer – whether applicant waived right to enforce terms of clause 6(e)(ii) of Conciliation Agreement – whether evidence of a breach of any terms of the Conciliation Agreement – whether compliance with Conciliation Agreement

LEGISLATION:

Anti-Discrimination Act 1991, s 164

Industrial Relations Act 2016, s 544

Public Sector Act 2022, s 161

Uniform Civil Procedure Rules 1999, r 898

CASES:

Arrowsmith v Micallef & Ors [2013] QCA 143

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

Matthews v Australian Securities and Investments Commission [2009] NSWCA 155

APPEARANCES:

Ms A. Haskins represented herself.

Ms A.C. Freeman, Counsel instructed by Crown Law for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Ms Alicia Haskins (the 'Applicant') filed an application in the Industrial Court of Queensland ('the Court') on 27 January 2023 seeking the enforcement of clause 6(e) of a Queensland Human Rights Commission ('QHRC') Conciliation Agreement ('the Agreement').[1]  The Applicant claims the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (as it then was) ('the Respondent') has breached the terms of the relevant clause.
  1. [2]
    The Respondent contends there has been no breach of the terms of the QHRC Agreement and therefore no enforcement action is necessary.

Hearing in the Industrial Court of Queensland

  1. [3]
    At a mention of the matter in the Court on 27 April 2023, his Honour Davis J, President said as follows:

HIS HONOUR:  … [T]he applicant, Alicia Haskins, brings an application to this court to enforce a conciliation agreement, the terms of which are confidential.  However, it is appropriate to simply to note that the parties to the conciliation agreement are Ms Haskins, the State of Queensland, and four individual employees of the state.  Now, it is also appropriate to note that clause 6 is the operative provision, where the state covenants to provide certain things to Ms Haskins.  The other respondents are really only party to confidentiality agreements and releases from liability.  Ms Haskins effectively seeks to enforce clause 6 of the agreement.

As earlier observed, the only party who makes any covenant which Ms Haskins seeks to enforce is the State of Queensland.  Ms Haskins informed me that she does not seek any relief against the other respondents, and therefore it is appropriate to dismiss the application against the second, third, fourth and fifth respondents.  The conciliation agreement is a confidential one, and so I will direct that the document, which has been received by me as exhibit 1, be placed in an envelope and sealed and marked not be to be ordered - not to be opened, except by order of a member of the court, or - given that the matter may be remitted - a Commissioner of the Queensland Industrial Relations Commission.[2]

  1. [4]
    His Honour issued orders on 27 April 2023 dismissing the application against the Second, Third, Fourth and Fifth Respondents and for the Applicant to file and serve affidavits by 18 May 2023 and the Respondent to file and serve affidavits by 8 June 2023.  The matter was listed for further mention in the Court on 9 June 2023.
  1. [5]
    At the mention on 9 June 2023 his Honour issued orders to extend the time for the Respondent to file and serve affidavits in reply until 15 June 2023 and the mention listed on 19 June 2023 was vacated and relisted on 22 June 2023.
  1. [6]
    On 22 June 2023 his Honour Davis J said as follows:

HIS HONOUR: ... The applicant has brought an application seeking relief in relation to the enforcement of an agreement that was reached in conciliation.  The applicant's relief includes findings that the state is in breach and then various relief flowing from that including orders based on a finding of contempt of court.  It seems that this court has jurisdiction to hear and determine the contempt application but it seems to me, that all things flow one way or another from a central issue and that is whether or not the state is in breach of the conciliation agreement.  The most expeditious way of dealing with the matter is to remit to the Queensland Industrial Relations Commission.

The question as to whether or not the state is in breach of the conciliation agreement - the agreement reached at conciliation as alleged by the applicant, I direct that question be determined separately and I direct that question be remitted to the Queensland Industrial Relations Commission.[3]

  1. [7]
    His Honour subsequently issued the following orders:
  1. The issue as to whether or not the State is in breach of the agreement reached at Conciliation as alleged by the applicant is to be determined separately.
  1. That issue is remitted to the Queensland Industrial Relations Commission.

Hearing in the Queensland Industrial Relations Commission

  1. [8]
    For procedural purposes due to the matter proceeding in the Queensland Industrial Relations Commission ('the Commission'), it was reallocated No B/2023/52.
  1. [9]
    A mention was listed before me in the Commission on 2 August 2023.  Directions were issued on 10 August 2023 and subsequently amended on 22 August 2023 to enable parties to file any further submissions and any supporting affidavit evidence with a hearing scheduled for 11 and 12 December 2023.

Background

  1. [10]
    On 4 April 2021 the Applicant lodged a complaint in the QHRC alleging reprisal action by the Department of Youth Justice and a number of employees following a Public Interest Disclosure ('PID').[4]
  1. [11]
    As a result of mediation, a QHRC Agreement was reached by the parties on 7 March 2022 and filed in the Commission in accordance with s 164(2) of the Anti-Discrimination Act 1991 (Qld) ('AD Act').[5]
  1. [12]
    Section 164 of the AD Act provides the following:

164 Resolution by conciliation

  1. If the complaint is resolved by conciliation, the commissioner must record the terms of the agreement and have the document signed by the complainant and the respondent.
  1. The commissioner must provide a copy of the document to each party and file the document with the tribunal.
  1. The agreement is then enforceable as if it were an order of the tribunal.
  1. [13]
    Within the Agreement, the Applicant agreed to release the Respondent of any and all liability arising from the allegations raised in the complaint and the Respondent agreed to provide the Applicant the matters outlined in clause 6 of the Agreement comprising various financial and non-financial settlement terms.[6]
  1. [14]
    During a period of approved Recreational Leave over the 2022-2023 Christmas and New Year period, the Applicant was transferred from her position as an AO5 Project Officer in Portfolio Management and Youth Justice Policy, Strategy and Legislation ('PMYJPSL') in the Department to a position as an AO5 Program Officer in Court and Regional Operations Practice Support, Regional Operations, Youth Justice Statewide Services Operations and Commissioning within the Department ('CROPS role').[7]
  1. [15]
    The Applicant considered that the new position was not what she had expected, and it also was not an 'attached' role within CROPS.  The Applicant sought to return to her previous position.  However, the Applicant's request could not be agreed to as the project the Applicant had been working on previously had been passed to the Department of State Development, the workgroup was discontinued and there was no opportunity for the Applicant to return to that position.[8]
  1. [16]
    The Applicant contends the Respondent has breached clause 6(e) of the Agreement by creating a 'false pretext' in which to relocate her to another organisational unit during a period of recreational leave, and that she would not have willingly placed herself in circumstances where she would be subject to material relating to domestic violence given her personal circumstances.[9]
  1. [17]
    The Respondent asserts the Applicant was not induced to move positions but rather, the offer to transfer to the CROPS role was made to assist her and provide her with ongoing work and greater stability.  The Applicant willingly agreed to the transfer and therefore waived her right to enforce the terms of clause 6(e)(ii) of the Agreement.[10]  Further, there is not a breach as it was within the usual terms of employment for public service employees.[11]

The Applicant's claim.

  1. [18]
    The details of the decision sought by the Applicant are as follows:
  1. I am seeking enforcement of the QHRC Conciliation Agreement Terms of Settlement Clause 6(e), and for the Department of Youth Justice, Employment, Small Business and Training (DYJESBT) to return me to the Project Officer role in Strategic Projects, PMYJPSL organisational unit.
  1. I am seeking an amendment to the QHRC Conciliation Agreement Terms of Settlement Clause 6(e)(iv) to read, 'People and Culture, DYJESBT, will advise the Complainant in writing as soon as an appropriate substantively vacant position is available, for her consideration.  The Complainant will be provided with a period of ten business days to consider the offer'.
  1. I am seeking an order of 'Contempt of Court', for the Respondent's non‑compliance with the QHRC Conciliation Agreement Terms of Settlement Clause 6(e).
  1. I am seeking an order for the Respondent to pay fair and reasonable general damages to the Applicant in the amount of $65,000 within ten business days as compensation for hurt, humiliation and career interruption.
  1. I am seeking an order that each party to the proceeding must bear their own costs for these proceedings.[12]

Jurisdiction of the Commission

  1. [19]
    The Agreement was filed in the Commission pursuant to s 164 of the AD Act.  Hence the Agreement is enforceable as if it were an order of the Commission.  Section 544 of the Industrial Relations Act 2016 ('the IR Act') provides:

544 Decisions of court or commission

  1. In the exercise of its jurisdiction, the court or commission may -
  1. make the decisions it considers necessary -
  1. in the interests of justice in proceedings before it; and
  1. for the execution of another decision of the court or commission; and
  1. enforce its own decisions; and
  1. direct the issue of a writ or process; and
  1. impose and enforce a penalty allowed or prescribed by this Act or another Act in the same way a Supreme Court judgment is enforced.
  1. A decision of the court or commission must be made and enforced in the same way as a judgment or order of the Supreme Court.
  1. For subsection (2), the Uniform Civil Procedures Rules must be complied with to the extent reasonably possible, with the amendments the court or commission approves.
  1. [20]
    Chapter 20 of the Uniform Civil Procedure Rules 1999 deals with enforcement of non‑money orders.  Rule 898 states:

898 Order to perform or abstain from an act

  1. (1)
    This rule applies to an order if –
  1. (a)
    the order is a non-money order and requires a person to perform an act and the act is to be performed within a time specified in the order and the person does not comply with the order within the time; or
  1. (b)
    the order requires a person to abstain from performing an act and the person does not comply with the order
  1. (2)
    An order to which this rule applies may, subject to rule 904, been forced in 1 or more of the following ways -
  1. (a)
    punishment for contempt of the person liable under the order;
  1. (b)
    seizing property of the person liable under the order under rule 917;
  1. (c)
    if the person liable under the order is a corporation, without limiting paragraphs (a) and (b), either or both of the following -
  1. (i)
    punishment for contempt of any officer of the corporation;
  1. (ii)
    seizing property of any officer of the corporation under rule 917.
  1. [21]
    The Respondent submits the Commission's jurisdiction is limited to enforcing the terms of the order and does not include:
  1. making amendments to the Agreement; or
  2. issuing any relief in the form of contempt as only the Industrial Court has jurisdiction to deal with contempt.[13]

Issues to be determined.

  1. [22]
    The issues for determination in this matter are:
  1. what does clause 6(e) of the Agreement require the parties to do;
  1. has clause 6(e) of the Agreement been complied with; and
  1. if a breach is found, how should clause 6(e) be enforced?

What does clause 6(e) of the Agreement require the parties to do?

  1. [23]
    Clause 6(e) sets out the obligations of the Respondent. It confirms that the Applicant is a permanent full-time employee with Youth Justice Policy Strategy and Legislative team with the Department of Children, Youth Justice and Multicultural Affairs (DCYJMA).
  2. [24]
    Clause 6(e)(i) confirms that the Applicant is an 'unattached' officer, permanent appointment, permanent employee.
  1. [25]
    Clause 6(e)(ii) provides that regardless of whether the Applicant's position is 'attached' or 'unattached', she will, subject to the terms of employment as a public service employee, continue in her current employment as a permanent full-time employee with the Youth Justice Policy Strategy and Legislation team.
  1. [26]
    Clause 6(e)(iii) and (iv) of the Agreement provides as follows:
  1. iii
    a recurrent FTE/position will be assigned to the Complainant once an appropriate substantively vacant position is available; and
  1. iv
    the DCYJMA will advise the Complainant as soon as an appropriate substantively vacant position is available, for her consideration.[14]

Has clause 6(e) of the Agreement been complied with?

  1. [27]
    It is accepted that the Agreement is subject to the ordinary rules of construction.[15]  The Agreement, as an order of the Commission, is the same as a consent order or an undertaking.[16]  It is also not in contention that the task of the Commission is to ascertain what the words of the Agreement mean, read as a whole and given effect on their terms.[17]
  1. [28]
    In Arrowsmith v Micallef & Ors,[18] the Court of Appeal referred to consent orders giving effect to the compromise of a dispute and how the circumstances known to the parties and the statutory context can assist in terms of construction:
  1. [39]
    The submissions made by the parties on this appeal accepted that the Terms of Settlement, as incorporated into the order, were to be construed in the same manner as a written agreement; and that the admissibility of extrinsic evidence is to be determined by reference to what was said by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 352-353.  There is a body of authority supporting the proposition that a consent order is to be construed in this fashion.  While the order of Daubney J is not recorded as a consent order, it reflects a common position adopted on behalf of the parties interested in the distribution of the deceased's estate, and those having potential claims for further and better provision out of it under the Succession Act.  It therefore seems to me that the same principles of construction should apply to it.[19]
  1. [29]
    The Respondent submits the introductory language to the terms of settlement clause 6(e) and subclause (i) are 'simply declarations of the circumstances' applicable at the time of signing the Agreement and are not obligatory upon them.  In the circumstances there cannot be any non-compliance with these clauses by the Respondent.[20]
  1. [30]
    It is not in dispute that the Director-General (the Chief Executive of the relevant Public Sector entity) has the power to transfer a public sector employee to a different role or area within the Department or redeploy the Applicant with the Applicant's consent.[21]
  1. [31]
    Section 161 of the Public Sector Act 2022 expressly provides the Chief Executive (or delegate) with the power to transfer or redeploy a public service officer of the first entity within that entity.  Section 161 provides as follows:

161 Chief executive's power to transfer or redeploy

  1. The chief executive of a public service entity (the first entity) may -
  1. transfer or redeploy a public service officer of the first entity within the first entity; or
  1. with the approval of the chief executive of another entity, transfer or redeploy a public service officer of the other entity to the first entity.
  1. However, a redeployment may be made only with the public service officer's consent.
  1. A transfer or redeployment of a public service officer under this section -
  1. may involve a change in the location where the officer performs duties; and
  1. if the officer is employed on contract - has effect despite anything in the contract.
  1. [32]
    The Applicant alleges her consent to the transfer to the CROPS role was acquired on a 'false pretext' in that she would become an 'attached' officer and the position was a vacant recurrent FTE/position.
  1. [33]
    In respect of the contention that the transfer was made under a 'false pretext' the Applicant submits:

 49 The reassignment, made under a false pretext:

  1. did not align with my ACP and moved me from a project stream to an administrative stream.
  1. returned me to a service delivery position, in which I am required to liaise with the regions and read verdict and judgment records, pre-sentence reports and QPS court briefs.  This has been retraumatising on a daily basis and has been made known to the department.
  1. has caused significant emotional distress, career interruption and detriment to my professional career and reputation.[22]
  1. [34]
    However, in the reply submissions, the Applicant goes further by claiming that the transfer proceeded without consultation and was a decision made by the Department in breach of the Agreement.[23]
  1. [35]
    The assertion by the Applicant appears to be based on the belief that the transfer to the CROPS role would be an 'attached' role.
  1. [36]
    Ms Lisa Pollard, Senior Executive Director, PMYJPSL, DCYJMA in her affidavit affirmed on 5 October 2023 deposed that on 21 December 2022 she called Ms Allison Costa, Project Manager, Detailed Business Case - Infrastructure, PMYJPSL, DCYJMA to confirm that Youth Justice Services would provide funding for the Applicant to be offered the CROPS role and that the Applicant could be permanently transferred to Youth Justice Services as an 'unattached officer' if she was interested.  Ms Pollard requested Ms Costa to call the Applicant.[24]
  1. [37]
    The Applicant had a telephone conversation with Ms Costa on 21 December 2022, when the Applicant accepted a transfer to the CROPS role.
  1. [38]
    In her affidavit sworn on 5 October 2023, Ms Costa confirmed that at no time during her conversation with the Applicant on 21 December 2022 did she advise the Applicant that the CROPS role was a substantively vacant recurrent FTE/position ('unattached' or 'attached') and that the Applicant did not question the nature of the role.[25]
  1. [39]
    The evidence of Ms Costa was:
  1. 46.
    Later on 21 December 2022 (at approximately 5:10pm) I called the Applicant, apologised for disturbing her while on her leave and asked if she was free to talk. The Applicant confirmed she was happy to talk at that time. I then proceeded to advise the Applicant that:
  1. a.
    Youth Justice Services would cover the funding to enable the Applicant to accept the CROPS Role, as there was an opportunity for ongoing work in that role;
  1. b.
    PMYJPSL would be happy to transfer her if the Applicant wanted to continue working in that space;
  1. c.
    flexible working arrangements should be able to be facilitated (which I knew from previous discussions was important to the Applicant), having regard to an email from Ms Harvey to Youth Justice staff dated 20 December 2022;
  1. d.
    I thought this would be a good opportunity for the Applicant because:
  1. i.
    she had enjoyed the work she did for this team previously;
  1. ii.
    the team was very happy with the work she had done;
  1. iii.
    the team manager had advised there was plenty of ongoing work; and
  1. iv.
    the Applicant had written in her ACP that she wanted a role in Youth Justice and stability, and I considered both things were achieved through being transferred into the CROPS Role.
  1. e.
    the Applicant would not have to interview for the CROPS Role, which the Applicant advised was good as she did not like job applications or interviews;
  1. f.
    the Applicant confirmed that she wanted to take the transfer to the CROPS Role;
  1. g.
    I noted that I was excited for the Applicant being able to have greater stability with ongoing work in the team when she would undertake the CROPS Role, as opposed to the uncertain nature of work within the DBC Team; and
  1. h.
    I confirmed that I would advise Ms Pollard and Ms Bird that the Applicant wanted to accept the transfer to the CROPS Role.[26]
  1. [40]
    In cross-examination, the Applicant gave the following evidence in respect of her acceptance of the CROPS role:

MS FREEMAN: And you then confirmed that you wanted to take the transfer to the CROPS role. Do you agree with that?---Correct.

Okay.  And do you recall Ms Costa saying something to the effect that she was excited for you being able to have greater stability with ongoing work in a team - - - ?---Yes, she - - -

- - - or words to that effect, as opposed to the uncertain nature of the work within DBC?---Correct.

Okay.  And then Ms Costa confirmed she would let Ms Pollard and Ms Bird know that you wanted to accept the transfer to the CROPS role.  Do you recall her saying that?---Yes.

Okay.  So it looks like on the 21st of December 2022, then, that you gave the green light for the transfer to CROPS, right?---Yeah. Yeah.

Okay.  All right.  Now, at no time during that conversation did Ms Costa advise you that the CROPS role was a substantively vacant recurrent FTE position, did she?---Well, she said in A that they'd cover funding.

All right?---So they were funding the position.

Okay.  So you take that to mean substantively vacant recurrent FTE position?---Yes.

Okay.  She never said to you it was attached, did she?---Yes, she did.

All right.  And are you inferring that by the use of the word cover the funding or the phrase cover the funding?---Yes, and the use of the words offer greater stability.[27]

  1. [41]
    Further in cross-examination, the following exchange took place:

All right.  And I'd suggest to you that she never suggested to you that this CROPS role would be an attached position with - in a substantively vacant role?--- No, I don't - I don't agree.

Okay.  You think she did say that to you?---Correct.

And when did she say that to you?---So she had said that Loretta and Darren were meeting about funding for the position, so it was going to be a funded position.  And Allison had also said that she'd managed to get Jess a higher position and secured her a higher role and now she was pleased that she could also do the same for me.

Okay.  But she didn't say it was an attached position, did she?---She did say that.  She said that she'd met my ACP and in my ACP it continually talks about wanting to be an attached officer.

All right.  So when you say she did, are you saying she said she thinks it meets your ACP and you assumed that meant attached position?---No, I had asked her specifically.

And she said the words, "This is an attached position"?---Yes, a fully funded position were her words.

Sorry.  Now, I just want to be clear.  Did she say this is an attached position or did she say fully funded?---She said both on separate occasions.[28]

  1. [42]
    Whilst the evidence suggests that the Applicant had a conversation in respect of 'funding' of the position to which she accepted a transfer, I do not accept that the Applicant was told that the role was an 'attached' role or an appropriate substantively vacant recurrent FTE/position.  In my view, the Applicant has assumed from Ms Costa's use of the words to the effect that 'Youth Justice Services would cover the funding to enable you to accept the role' that the role was an 'attached' role or an appropriate substantively vacant recurrent FTE/position.
  1. [43]
    Ms Pollard's evidence was that she was not aware of the Applicant being offered a substantively vacant recurrent FTE role in the CROPS role or the circumstances preventing the Applicant being offered or assigned to a recurrent FTE/position once an appropriate substantive vacant position is available.
  1. [44]
    Ms Pollard deposes in her affidavit of 5 October 2023:

I am not aware of the Applicant being offered a substantively vacant recurrent FTE role in the CROPS Role, nor am I aware of any representation to this effect being made as this was not a possibility.  Rather, I understood that the Applicant wanted (and ultimately accepted) the CROPS Role as she had expressed that she enjoyed doing DV related work.[29]

  1. [45]
    The evidence of Ms Costa, which I accept was as follows:

I have been shown the Applicant's affidavit affirmed on 15 May 2023 and confirm that I did have a conversation with the applicant via TEAMS on 14 December 2022.  I confirm that the purpose of this meeting was to check in with the Applicant and provide an update in respect of the DBC Team.  I confirm that during this conversation I made no representations that the CROPS Role was an 'attached' role or an appropriate substantively vacant recurrent FTE/position.  I note that the Applicant did not advise me that the conversation was being recorded, nor did I consent to it being recorded.[30]

  1. [46]
    Ms Costa's evidence was that in accepting the CROPS Role, the Applicant was permanently transferred to Youth Justice Statewide Services, rather than it being with PMYJPSL.  Accordingly, the Applicant's position would remain 'unattached', but assigned to the CROPS team.[31]
  1. [47]
    The reference to 'unattached' has no bearing on the Applicant's employment security as she is a permanent full-time employee of DCYJMA.  Ms Pollard understands that being 'attached' or 'unattached' is largely for reporting/payroll purposes.[32]
  1. [48]
    The Respondent submits that despite the Applicant's knowledge of the Departmental unit, she agreed to the transfer and therefore has waived her right to enforce the terms of clause 6(e)(ii) of the Agreement which imposed an obligation upon the Respondent to keep the Applicant in the Youth Justice Strategy and Legislation team.[33]
  1. [49]
    In oral submissions before the Commission, the Respondent said:

Certainly, she still retains her permanency.  She's a permanent AO5 employee.  It was a transfer at level.  There's been no detriment to Ms Haskins, in my submission, in terms of her pay or her level or her career progression.  She was in a team that was very uncertain, that had lost its work, and her boss, her manager, in my submission, went out of her way to try and find her something a bit more stable in accordance with her career objectives, and that's what's occurred.

HIS HONOUR: In the sub 2 of 6E - - -

MS FREEMAN: Yes.

HIS HONOUR: - - - it leads in with:

…regardless of whether the position is classified as attached or unattached.

MS FREEMAN:  Yes.  Yes.  So even if it was unattached, it's not a breach.[34]

  1. [50]
    Whilst the Applicant contended that her acceptance of the transfer was obtained on a 'false pretext', the evidence before the Commission does not support that contention.
  1. [51]
    I accept that Ms Costa and Ms Pollard did not make a representation to the Applicant that the role with CROPS would be an 'attached' position.  The covert recordings relied upon by the Applicant do not provide any support for her contention.  Irrespective, clause 6(e)(ii) provides that regardless of whether her position is classified as 'attached' or 'unattached', the Applicant would, subject to the usual terms of employment as a public service employee, continue in her current employment as a permanent full-time employee with the Youth Justice Policy Strategy and Legislative team.[35]
  1. [52]
    The Applicant made an assumption that by the use of the word 'funding' by Ms Costa that the position to which she was transferred was an attached or a substantively vacant role.
  1. [53]
    The Applicant did not seek any clarification about the role with Ms Costa.
  1. [54]
    The Applicant accepted a transfer to the CROPS role, which, whilst in the same Department was located within another unit.  The transfer was at the same AO5 level and her status as a full-time employee within the Department remained unchanged.
  1. [55]
    During cross-examination, the Applicant was asked:

MS FREEMAN:  Now, since you've moved to CROPS you're still a permanent public servant, aren't you?‑‑‑Yes.

Yep.  And you're still full time? - Yes. 

You're still an AO5? -Yes.

You're still paid the same? - Yes.

All right.  And since joining the CROPS team you've undertaken the same substantive role; is that right? - Yes.

Yep.  And Al Brooks has remained your line manager? -Yes.

And you have been employed at the same level as prior to your transfer to CROPS? -Yes.[36]

  1. [56]
    The qualification to clause 6(e)(ii) being that the term was subject to 'the usual terms of employment as a public service employee' should be interpreted as including the terms of employment pursuant to the Public Sector Act 2022 (Qld)[37] which provides the Respondent (acting through the Chief Executive of the relevant public sector entity) with the power to transfer the Applicant to a different role or area within the Department or redeploy the Applicant with her consent.[38]
  1. [57]
    I accept that as the Applicant agreed to a transfer to another role at the same level within a different unit of the Department in accordance with the terms of employment as a public sector employee, there cannot be a breach of the Agreement.[39]
  1. [58]
    The Applicant claimed that in May 2023 a position was advertised for a 'Program Officer'.  However, as the evidence demonstrates, the position was a temporary fixed term position.  It was not a recurrent FTE/position that was substantially vacant.  However, whilst the Applicant was entitled to apply for the position, she failed to do so.[40]
  1. [59]
    In the submissions of the Respondent there is evidence before the Commission 'that steps have been taken and continue to be taken to try and find Ms Haskins a permanent attached position, including the organisation of a vocational assessment …'.[41]
  1. [60]
    The Respondent submits their evidence reveals that no such positions have been available[42] despite efforts to locate such a position.[43]
  1. [61]
    The obligation imposed on the Respondent under the Agreement was to assign to the Applicant an FTE/position once a substantially vacant position becomes available.
  1. [62]
    There is no evidence before the Commission to support the assertion that there was, in the Department, any position which would fit the position description in clause 6(e)(iii).
  1. [63]
    In circumstances where there have been no positions that fall within clause 6(e)(iii) and (iv) available since the signing of the Agreement, no breach can be established.[44]

 If a breach is found, how should clause 6(e) be enforced?

  1. [64]
    Even if I concluded that the Respondents had breached the agreement, I would not have been inclined to grant the orders sought by the Applicant.
  1. [65]
    In oral submissions, the Respondent said there are no specific powers available for the Commission to award compensation.[45]  In addition, there is no evidence before the Commission to support any loss as the Applicant is still a permanent full-time AO5 employee doing administrative tasks in the administrative stream of the public service and the Department is actively trying to find her an appropriate substantive vacant position.[46]
  1. [66]
    Moreover, even if the Commission had the power, the claim for hurt, humiliation and career interruption lacks any particularity and certainly no evidence has been adduced to support such a claim.
  1. [67]
    The Applicant seeks an order that she be returned to the Project Officer role in Strategic Projects, PMYJPSL organisational unit.
  1. [68]
    Ms Pollard said that the structure and formation of PMYJPSL changes frequently due to different departmental priorities and the government of the day.  As a result, project teams are created and disbanded.[47]
  1. [69]
    The leadership team comprising the Detailed Business Case - Infrastructure and PGB Secretariat Portfolio Management ('DBC') where the Applicant was prior to the CROPS role, has been discontinued and the lead responsibilities passed to the Department of State Development.  Therefore, there is no ability for the Applicant to return to the DBC.[48]
  1. [70]
    The Respondent submits that the terms of the Agreement cannot be amended without the consent of the parties, however the Respondent is prepared to agree to the amendment, as proposed by the Applicant to clause 6(e)(iv), by insertion of the term 'Human Resources, Corporate Services, Department of Youth Justice, Employment, Small Business and Training'.  This is the unit responsible for locating, identifying and offering the Applicant an appropriate vacant position.[49]  This is not the forum to attempt to renegotiate the agreement which was entered into between the parties consequent upon a conciliation in the QHRC.

Conclusion

  1. [71]
    As set out above, there is no evidence of a breach of any of the terms of the QHRC Conciliation Agreement.  Further, there is no evidence to support the request for non‑financial or financial remedies.
  1. [72]
    I make the following order:

Order

  1. The application is dismissed.

Footnotes

[1] C/2023/5 - General Application to Industrial Court of Queensland.

[2] TR1-24, LL3-21, (C/2023/5)

[3] TR1-8, LL25-38, (C/2023/5).

[4] Respondent's outline of submissions filed 9 October 2023, [4].

[5] Applicant's written submissions filed 30 August 2023, [2].

[6] Respondent's outline of submissions filed 9 October 2023, [6].

[7] Applicant's written submissions filed 30 August 2023, [3];  Respondent's outline of submissions filed 9 October 2023, [7].

[8] Respondent's outline of submissions filed 9 October 2023, [8].

[9] Ibid, [9].

[10] Ibid, [10].

[11] TR1-54, LL33-36.

[12] Applicant's written submissions filed 30 August 2023, [51]-[55].

[13] Industrial Relations Act 2016, s 428.

[14] Respondent's outline of submissions filed 9 October 2023, [32].

[15] See Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, [19].

[16] Respondent's outline of submissions filed 9 October 2023, [17].

[17] See Matthews v Australian Securities and Investments Commission [2009] NSWCA 155, [100].

[18] [2013] QCA 143.

[19] Ibid.

[20] Respondent's outline of submissions filed 9 October 2023, [19].

[21] Ibid, [24].

[22] Applicant's written submissions filed 30 August 2023, [49].

[23] Applicant's submissions in reply filed 3 November 2023, [11].

[24] Exhibit 6 - Affidavit of Ms Lisa Pollard, affirmed 5 October 2023, [23](e).

[25] Exhibit 4 - Affidavit of Ms Allison Costa, sworn 5 October 2023, p 8, [2], (between [46] and [47]).

[26] Exhibit 4 - Affidavit of Allison Costa sworn 5 October 2023, [46].

[27] TR1-39, LL21-49.

[28] TR1-34, L33-TR1-35, L7.

[29] Exhibit 6 - Affidavit of Ms Lisa Pollard, affirmed 5 October 2023, [23](f).

[30] Exhibit 4 - Affidavit of Ms Allison Costa sworn 5 October 2023, [41].

[31] Exhibit 4 - Affidavit of Ms Allison Costa sworn 5 October 2023, [47].

[32] Exhibit 6 - Affidavit of Ms Lisa Pollard, affirmed 5 October 2023, [23](f)-[25].

[33] Respondent's outline of submissions filed 9 October 2023, [23].

[34] TR1-55, LL15-31.

[35] Respondent's outline of submissions filed 9 October 2023, [20].

[36] TR1-48, LL7-22.

[37] The Public Sector Act 2022 was enacted on 12 December 2022.

[38] Respondent's outline of submissions filed 9 October 2023, [24].

[39] Ibid, [25].

[40] Respondent's outline of submissions filed 9 October 2023, [37];  Exhibit 5 - Affidavit of Ms Loretta Crombie sworn 6 October 2023, [17]-[23].

[41] TR1-58, LL11-13.

[42] Exhibit 6 - Affidavit of Ms Lisa Pollard affirmed 5 October 2023, [16]-[22], [23](a),(b), [35].

[43] Ibid, [33].

[44] Respondent's outline of submissions filed 9 October 2023, [38].

[45] TR1-57, LL8-9.

[46] TR1-57, LL24-27.

[47] Exhibit 6 - Affidavit of Ms Lisa Pollard affirmed 5 October 2023, [27].

[48] Ibid, [26].

[49] Respondent's outline of submissions filed 9 October 2023, [40].

Close

Editorial Notes

  • Published Case Name:

    Haskins v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • Shortened Case Name:

    Haskins v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • MNC:

    [2024] QIRC 301

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    19 Dec 2024

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
Arrowsmith v Micallef[2015] 2 Qd R 208; [2013] QCA 143
2 citations
Jump To
Cite 1 - [2013] QCA 143
Cite 2 - [2013] QCA 143
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
2 citations
Jump To
Cite 1 - (1965) 112 CLR 483
Cite 2 - (1965) 112 CLR 483
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
1 citation
Jump To
Cite 1 - (1982) 149 C.L R. 337
Matthews v ASIC [2009] NSWCA 155
2 citations
Jump To
Cite 1 - [2009] NSWCA 155
Cite 2 - [2009] NSWCA 155

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.