Alvarado v State of Queensland (Queensland Health) (No. 2)
[2024] QIRC 246
•10 October 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Alvarado v State of Queensland (Queensland Health) and Anor (No. 2) [2024] QIRC 246 |
| PARTIES: | Alvarado, Jose v State of Queensland (Queensland Health) and Lowry, Chris |
| CASE NO.: | AD/2024/11 |
PROCEEDING: | Application in existing proceedings for the Complainant to be represented by a lawyer |
| DELIVERED ON: | 10 October 2024 |
MEMBER: HEARD AT: | Merrell DP On the papers |
ORDER: | Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Complainant is given leave to be represented by a lawyer at the further conciliation conference to be held on 21 November 2024. |
| CATCHWORDS: | HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER – Complainant performed work for the First Respondent as a Patient Support Officer – Complainant made complaint to the Queensland Human Rights Commission alleging he had been the subject of unlawful discrimination in contravention of the Anti‑Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – complaint the subject of conciliation before the Queensland Industrial Relations Commission – leave given earlier for the Respondents to be represented by a lawyer in further conciliation proceedings before the Queensland Industrial Relations Commission – application in existing proceedings for the Complainant to be represented by a lawyer in further conciliation proceedings before the Queensland Industrial Relations Commission – Complainant's application not opposed by the Respondents – Complainant's application granted having regard to fairness between the Complainant and the Respondents |
LEGISLATION: | Industrial Relations Act 2016, s 530 |
| CASES: | Alvarado v State of Queensland (Queensland Health) and Anor [2024] QIRC 073 |
Reasons for Decision
These reasons assume familiarity with my earlier decision in this matter in Alvarado v State of Queensland (Queensland Health) and Anor ('Alvarado No. 1').[1] The definitions used in Alvarado No. 1 are used in these reasons.
[1] [2024] QIRC 073.
The relevant background to the Complainant's complaint, and the substance of the Complainant's complaint, are set out in Alvarado No. 1.[2]
[2] Ibid [1]-[4].
In Alvarado No. 1, upon their application in existing proceedings, I gave leave to the Respondents to be represented by a lawyer pursuant to s 530(1)(c) of the IR Act in conciliation proceedings before me. Following a further statement of facts and contentions filed by the Complainant on 25 July 2024 and a response filed by the Respondents on 30 August 2024, a further conference has been scheduled for 21 November 2024.
By application in existing proceedings filed on 18 September 2024, the Complainant applied for leave, pursuant to s 530(1)(c) of the IR Act, to be represented by a lawyer at that conciliation conference ('the Complainant's application'). The Respondents have indicated that they do not have any objection to the Complainant's application.
Section 530 of the IR Act relevantly provides:
530 Legal representation
(1A) This section applies in relation to proceedings other than a proceeding for a public service appeal.
(1)A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if –
(a)for proceedings in the court–
(i)all parties consent; or
(ii)the court gives leave; or
(iii) the proceedings are for the prosecution of an offence; or
(b) for proceedings before the full bench–the full bench gives leave; or
(c) for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991–the commission gives leave;
(d) for proceedings before the commission, other than the full bench, relating to an industrial matter involving allegations of sexual harassment or sex or gender-based harassment—the commission gives leave; or
(e) for other proceedings before the commission, other than the full bench–
(i)all parties consent; or
(ii) for a proceeding relating to a matter under a relevant provision–the commission gives leave; or
…
(4) An industrial tribunal may give leave under subsection (1) only if –
(a)it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
(b)it would be unfair not to allow the party or person to be represented because the party or person is unable to represent the party’s or person’s interests in the proceedings; or
(c)it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.
As is apparent, for proceedings before the Commission, other than the Full Bench, under the Anti-Discrimination Act 1991, a party cannot be permitted to be represented by a lawyer where all the parties consent. This can only happen if the Commission gives leave.
The Complainant advances a number of reasons for such leave to be given. However, the obvious reason, in the present circumstances, why my discretion to give such leave is enlivened, is that it would be unfair not to allow the Complainant to be legally represented, having regard to fairness between the Complainant and the Respondents, where the Respondents are legally represented. For this reason, my discretion to give such leave is enlivened.
The Respondents' lack of objection to the Complainant being legally represented at the further conciliation conference points to my discretion being exercised in favour of the Complainant.
Conclusion
For the reasons I have given, I give leave to the Complainant to be represented by a lawyer at the conciliation conference to be held on 21 November 2024.
Order
I make the following order:
Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, the Complainant is given leave to be represented by a lawyer at the further conciliation conference to be held on 21 November 2024.
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