Graafland v State of Queensland (Department of the Premier and Cabinet)
[2024] QIRC 277
•27 November 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Graafland v State of Queensland (Department of the Premier and Cabinet) and Ors [2024] QIRC 277 |
PARTIES: | Bree Graafland v State of Queensland (Department of the Premier and Cabinet) and Denise Spinks and Jim Murphy And Rachel Hunter |
CASE NO.: | AD/2024/54 |
PROCEEDING: | Application in existing proceedings |
| DELIVERED ON: | 27 November 2024 |
MEMBER: HEARD AT: | Merrell DP On the papers |
ORDER: | Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, Ms Katharine Wright, Mr Evan Moorhead and Mr David Stewart are given leave to be represented by a lawyer in respect of the determination of the Complainant's amended application in existing proceedings filed on 19 August 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 an Advisor – Complainant made complaint to the Queensland Human Rights Commission alleging she had been the subject of unlawful sex discrimination and victimisation in contravention of the Anti‑Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission – complaint yet to be the subject of conciliation before the Queensland Industrial Relations Commission – Complainant made amended application in existing proceedings to join certain individuals as respondents to the complaint – proposed respondents made application in existing proceedings for leave to be represented by a lawyer on the basis that such representation would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter, as referred to in s 530(4) of the Industrial Relations Act 2016 – leave given for the proposed respondents to be represented by a lawyer in respect of the Complainant's amended application in existing proceedings |
LEGISLATION: | Industrial Relations Act 2016, s 530 |
Reasons for Decision
Ms Bree Graafland ('the Complainant') was employed by the State of Queensland as an Advisor in the Department of the Premier and Cabinet ('the Department'). The Second, Third and Fourth Respondents were formerly employed by the First Respondent.
On 13 July 2023, the Complainant made a complaint to the Queensland Human Rights Commission ('the QHRC') alleging that she was the subject of unlawful sex discrimination by the Respondents in the work area, and that she was the subject of victimisation, in contravention of the Anti-Discrimination Act 1991 ('the complaint').
On 29 July 2024, the QHRC referred the complaint to this Commission.
The QHRC characterised the complaint as being one of unlawful direct and indirect discrimination in the work area on the basis of the Complainant's sex, and of victimisation. The QHRC also identified, within the complaint, allegations of limitations of the Complainant's right to recognition and equality before the law under the Human Rights Act 2019.
The complaint has been allocated to me for conciliation.
On 7 August 2024, the Complainant made an application in existing proceedings seeking an order that the following persons be joined as additional respondents to her complaint:
·Ms Katharine Wright;
·Ms Evan Moorhead; and
·Mr David Stewart.
On 13 August 2024, the First, Second, Third and Fourth Respondents made an application in existing proceedings, pursuant to s 530(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), for leave to be granted to them to be represented by a lawyer in the proceeding.
During a mention of the complaint on 13 August 2024, I granted leave for the First, Second, Third and Fourth Respondents, pursuant to s 530(1)(c) of the IR Act, to be represented by a lawyer in the conciliation proceedings before me. I gave the following reasons:
Having regard to section 530, subsection (4) of the Act, the Commission’s discretion to grant a party leave to be represented by a lawyer can be triggered in circumstances where it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter. The cases indicate that the matter doesn’t have to be complex, but a member considering an application in this regard just has to consider the complexity of the matter.
I think there is some complexity in the matter, given that there are three natural person respondents, as well as the State of Queensland being a respondent to the complaint made by Ms Graafland. The substance of Ms Graafland’s complaint is, as I understand from the report provided to the Commission by the Human Rights Commission, is that she’s been the subject of unlawful direct or indirect discrimination on the basis of her sex in relation to the remuneration paid to her. That is to say, she contends that she was treated unfavourably on the basis of her sex in respect of the remuneration paid to her compared to other persons, who did not have that attribute, in circumstances that were the same or not materially different. On the alternative, a term was imposed that indirectly discriminated against her in respect of remuneration and that term was not reasonable.
As I say, I think there is some complexity and given that there are three natural person respondents, who are said to be responsible for the loss and damage that Ms Graafland claims, in those circumstances, I think it would enable the proceedings before me, namely the conciliation of the matter, to be dealt with more efficiently, in those circumstances, by the first to fourth respondents being represented by a lawyer.
So, in that regard, my discretion is triggered and indeed I will exercise that discretion in favour of the first to fourth respondents, given Ms Graafland’s indication that she doesn’t have any difficulty with the respondents being represented by a lawyer. [1]
[1] T 1-5, l 42 to T 1-6, l 21.
On 13 August 2024, I also ordered the Complainant to serve a copy of her application in existing proceedings filed on 7 August 2024, on the three persons proposed to be joined as additional respondents ('the proposed respondents), as well ordering the Complainant to file an affidavit of service.
On 19 August 2024, the Complainant amended her application in existing proceedings filed on 7 August 2024 ('the Complainant's amended application').
On 31 October 2024, I issued a Further Directions Order, jointly proposed by the parties, regarding the Complainant's amended application, which, relevantly, ordered the parties and the proposed respondents, to make written submissions in respect of the Complainant's amended application and for that application to be determined on the papers. In my view, the Complainant's amended application needs to be determined before any attempt to deal with the complaint by conciliation may be commenced.
Also, on 31 October 2024, the proposed respondents filed an application for leave to be represented by a lawyer in the proceedings.
The present question for me to determine is whether I should give leave to the proposed respondents to be represented by a lawyer pursuant to s 530(1)(c) of the IR Act.
The effect of s 530(1)(c) of the IR Act is that a party to proceedings or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if, for proceedings before the Commission (other than the Full Bench) under the Anti-Discrimination Act 1991, the Commission gives leave.
Section 530(4) of the IR Act provides:
(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.
By way of summary, the proposed respondents submit:
· the proceedings raise complex questions of law and involve a lengthy and contested factual matrix;
· they are private individuals no longer employed by the First Respondent, and are not capable of representing themselves; and
· having regard to the complexity of the matter, the present and proposed respondents' representation by one lawyer would enable the proceedings to be dealt with more efficiently.
The Complainant has not filed a response to the proposed respondents' application to be represented by a lawyer.
For the reasons that follow, I will give leave to the proposed respondents to be represented by a lawyer pursuant to s 530(1)(c) of the IR Act in respect of the determination of the Complainant's amended application.
First, the Complainant alleges that she has been the subject of unlawful discrimination on the basis of her sex in relation to the remuneration paid to her, and that she has been the subject of victimisation. In the Complainant's amended application, she advances various reasons for the proposed respondents to be joined as respondents. These reasons primarily relate to the positions they formerly held within the Department and the Office of the Premier and, to some extent, their interactions with the Second and Third Respondents. In my view, these circumstances give rise to some complexity in the matter; and, in my opinion, having regard to that complexity, giving leave to the proposed respondents to be represented by a lawyer would enable the Complainant's amended application to be dealt with more efficiently.
For the above reasons, my discretion to give leave to the Respondents to be represented by a lawyer is enlivened.
Secondly, because the Complainant did not file submissions in response to the proposed respondents' application to be represented by a lawyer, there is no reason I should not exercise my discretion in favour of the proposed additional respondents.
Conclusion
For the reasons I have given, I give leave to the proposed respondents to be represented by a lawyer in respect of the determination of the Complainant's amended application.
Order
I make the following order:
Pursuant to s 530(1)(c) of the Industrial Relations Act 2016, Ms Katharine Wright, Mr Evan Moorhead and Mr David Stewart are given leave to be represented by a lawyer in respect of the determination of the Complainant's amended application in existing proceedings filed on 19 August 2024.
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