Liao v Metro South Hospital and Health Service
[2025] QIRC 260
•30 September 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Liao v Metro South Hospital and Health Service [2025] QIRC 260 |
PARTIES: | Liao, Jannie v Metro South Hospital and Health Service |
CASE NO: | D/2024/105 |
PROCEEDING: | Notice of Industrial Dispute |
DELIVERED ON: | 30 September 2025 |
MEMBER: HEARD AT: | Dwyer IC Brisbane |
ORDER: | Pursuant to s 541 of the Industrial Relations Act 2016 (Qld) matter D/2024/105 is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – OTHER MATTERS – notification of industrial dispute – conciliation unsuccessful – complaint misconceived – opportunity to make submission on whether matter ought to be dismissed – no public interest in arbitration – matter dismissed. |
LEGISLATION: CASES: | Industrial Relations Act 2016 (Qld) s 261, 541 Adams v State of Queensland (Queensland Police Service) [2020] QIRC 110 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 State of Queensland v Lockhart [2014] ICQ 006 |
Reasons for Decision
Introduction
Ms Jannie Liao is employed as an interpreter with Metro South Hospital and Health Service (MSHHS). Ms Liao is employed pursuant to the terms of the Hospital and Health Service General Employees (Queensland Health) Award – State 2015 (‘the Award’). Ms Liao’s role is classified as ‘Administrative Officer Level 3’ (AO3) pursuant to the classification system in the Award.
Clause 12 of the Award sets out the classification structure and defines the four ‘streams’ under which employees covered by the Award will be covered. Clause 12.1 of the Award provides that employees covered by the Award will be classified into one of four streams, namely:[1]
(a)Administrative
(b)Professional
(c)Technical
(d)Operational
[1] A more complete extract of the streams prescribed in the Award will be set out later in these reasons.
The essence of this dispute is that Ms Liao contends that her role is misclassified. Ms Liao contends that her role ought to more properly be classified under the Professional stream.
Notifier of dispute
On 11 November 2024 Ms Liao notified a dispute pursuant to s 261 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) by filing a Form 10 (‘the notice’). The notice nominates Ms Liao and ‘Ali Nadir Shah’ as notifiers. The notice is signed with two signatures, one of which appears to be Ms Liao’s and another which appears to be that of ‘Ali Nadir Shah’.
There have been four listings of this matter requiring participation by the parties. Mr Shah has never been present in any capacity, nor has he ever communicated directly with the Commission about this matter or at all.
On 4 April 2025 Ms Liao filed a Form 33 – Notice of appointment of agent appointing Mr Peter Wong as her agent in the proceedings. The appointment of agent form does not mention Mr Shah or any other employee.
To the extent it is necessary to say so, I do not consider that Mr Shah is a genuine notifier to the dispute. He has not engaged with the process at any time, including the conciliation conferences where the merit of this dispute was explained multiple times to Ms Liao and Mr Wong. In the circumstances I cannot be satisfied Mr Shah has had the benefit of considering the Commission’s observations about the misconceived nature of Ms Liao’s arguments or even that he is aware these proceedings have reached this point.
Notwithstanding this, the subject matter of the dispute and the conclusions I have reached about them will have universal application to interpreters employed by MSHHS and any other health services employing interpreters under the Award. While I consider that the arguments advanced by Ms Liao are predominately her contentions, the consequences of my findings will likely apply to all of her colleagues.
Nature of proceedings
Ms Liao commenced these proceedings by way of the notice. Upon allocation of the file to me, the matter was listed for conciliation on 28 November 2024 (‘the first conference’). Discussions at the first conference revealed that, in essence, Ms Liao’s contention was that she ought to be classified in the Professional stream.[2]
[2] T 1-8 to T 1-10.
Notwithstanding that the details of the dispute were still revealing themselves, there was enough substance available to me at the first conference that I considered it prudent even then to raise with Ms Liao that a change of streams under the Award was an unlikely outcome.[3]
[3] T 1-13, ll 15-35.
A resolution could not be reached at the first conference in respect of the substantive dispute however the parties agreed to an adjournment of the dispute. The basis for adjournment was an agreement to include Ms Liao’s role in an independent classification review of other roles that was already underway. The matter was adjourned pending a report back from the parties as to the outcome of the review.
The independent classification review ultimately concluded that Ms Liao’s role remained appropriately classified at the AO3 level. At a further conference on 17 March 2025 it became apparent that MSHHS had (incredibly) informed Ms Liao of the result but had failed to share the methodology of the independent review with her and so, understandably, she did not accept the findings. Consequently, the second conference had to be adjourned to allow Ms Liao to consider the methodology of the independent review conclusions.
A further conference was convened on 7 April 2025. By this time Ms Liao had appointed Mr Wong as her agent. Private discussions revealed poor prospects of the matter resolving by agreement between the parties.
Before adjourning, I made some observations on the record. Relevantly, I informed Ms Liao and Mr Wong, in plain terms, that the language of Cl. 12 of the Award absolutely excludes the inclusion of interpreters from the professional stream.[4] Additionally I observed (in more speculative terms) that subject to further information being available, it was possible that interpreters might be covered by the Technical stream.
[4] T 1-4, ll 15-25.
Ms Liao and Mr Wong were given time to consider their positions and advise whether they wished to proceed to arbitration. If there was an intention to proceed, I directed the parties to confer on an agreed question for arbitration.
Over the following weeks I received emails from the parties that indicated that Ms Liao wished to proceed to arbitration but also, that the parties could not agree on a question for arbitration. Consequently, I listed the matter for mention on 16 June 2025.
Mr Wong appeared on behalf of Ms Liao at the mention on 16 June 2025. Ms Liao was not in attendance in any capacity. In light of the dispute about an agreed arbitration question that was evident from the emails of the parties, I took the opportunity to consider the matter further. Having done so, it was apparent that any argument to the effect that interpreters might fall within the professional stream was futile. In the circumstances I informed Mr Wong of this.
At the mention on 16 June 2025, I put Mr Wong on notice that if he intended to argue at arbitration that Ms Liao’s role ought to be reclassified as being in the Professional stream, then I would require he provide submissions as to why it was in the public interest for such a misconceived argument to draw upon the Commission’s resources. I additionally foreshadowed similar difficulties (subject to further information) with any argument that Ms Liao’s role might alternatively be better contained within the Technical stream.[5]
[5] T 1-3 to T 1-6.
Despite having the advantage of the clear and unambiguous views of the Commission as to the folly of the argument, by email dated 27 June 2025 Mr Wong indicated it was Ms Liao’s desire to press for an arbitrated outcome of her contention that she be included in the Professional stream.
Consequently, I issued Directions to the parties on 30 June 2025 to file submissions as to why, pursuant to s 541 of the IR Act, it was in the public interest to continue dealing with the dispute.
Ms Liao filed her submissions on 25 July 2025. MSHHS filed their submissions on 22 August 2025. These reasons deal with the question of dismissing the proceedings pursuant to the discretion conferred by s 541 of the IR Act.
The discretion to dismiss proceedings
The Commission has a broad discretion pursuant to s 541 of the IR Act to dismiss proceedings where it considers further proceedings are not necessary in the public interest. Section 541(2) of the IR Act relevantly provides:
541 Decisions generally
The court or commission may, in an industrial cause do any of the following—
(a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
(i) the cause is trivial; or
(ii) further proceedings by the court or commission are not necessary or desirable in the public interest;
In Campbell v State of Queensland (Department of Justice and Attorney-General)[6] Martin J in dealing with the application pursuant to s 541 of the IR Act wrote:
[6] [2019] ICQ 18, [27] – [30].
[27] Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows:
"3 Main purpose of Act
The main purpose of this Act is to provide for a framework for cooperative industrial relations that -
(a) is fair and balanced; and
(b) supports the delivery of high quality services, economic prosperity and social justice for Queenslanders."
[28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.
[29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case.
[30] In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission …
(Emphasis added)
Section 541 of the IR Act is indistinguishable from its predecessor, namely s 331 of the Industrial Relations Act 1999 (Qld). Section 331 relevantly provided:
The court or commission may, in an industrial cause -
…(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
(i) the cause is trivial; or
(ii)further proceedings by the court or commission are not necessary or desirable in the public interest.
In State of Queensland v Lockhart,[7] the then Deputy President O’Connor summarised the meaning of 'public interest' in relation to the exercise of discretion under s 331 in the following terms:
[7] [2014] ICQ 006, [21] – [22].
[21] In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'. Their Honours wrote:
'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment 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'.'
[22] In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote:
'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.' (citations omitted)
(Emphasis added)
The public interest test involves a balancing of the respective interests of each party and, more broadly, the public.[8]
[8] Keating v State of Queensland (Queensland Health) [2024] QIRC 058.
There is, in my view, an obligation for the Commission to be stringent in its approach to the litigation it oversees. The Commission resources are public resources. While the exercise of the discretion conferred by s 541 of the IR Act calls for a judicious approach, the Commission must equally and actively guard against the squandering of public resources that will occur if it entertains demonstrably futile arguments.
Relevant Award provision
The relevant provisions of the Award are found at Clause 12:
Classifications and minimum salary levels
12.1 Classification structure
Employees covered by this Award are to be classified into one of four streams as follows:
(a) Administrative stream
(i) The administrative stream comprises those roles, the duties of which apply to the functional areas identified in clause 12.1(a)(ii), the incumbents of which are required to possess a range of skills appropriate to the stream.
(ii) The functional areas include administration, human resource management, finance, customer service, development and implementation of policy, information and advisory services.
(b) Professional stream
The professional stream comprises roles:
(i) to which are attached a mandatory degree qualification or agreed equivalent as determined by the chief executive; and
(ii) the duties of which reflect:
(A) a combination of practitioner and/or specialist responsibilities; or
(B) an identifiable specialisation/management in a profession.
(c) Technical stream
The technical stream comprises roles:
(i) to which are attached a mandatory diploma, advanced diploma or agreed equivalent as determined by the chief executive; and
(ii) the duties of which reflect:
(A) a combination of practitioner and/or specialist responsibilities providing direct assistance to, but on occasion acting in isolation from, other employees; and/or
(B) supervision of employees.
(d) Operational stream
The operational stream comprises those roles, the duties of which apply to various functional areas, the incumbents of which are required to possess a range of skills appropriate to this stream.
(Emphasis added)
There is no dispute between the parties that the Professional stream includes a mandatory degree qualification, and that the Technical stream requires a mandatory diploma or advanced diploma.
To the extent that these requirements can be varied or even waived, the language of the Award plainly confers a discretion on the chief executive to do this. This discretion represents the quintessential management prerogative and is not an outcome that can be imposed on MSHHS by the Commission.[9]
[9] Adams v State of Queensland (Queensland Police Service) [2020] QIRC 110 at [66].
In the absence of any consent by the chief executive to vary these requirements, it is for Ms Liao to demonstrate how she can successfully argue for a construction of Cl 12 of the Award that would allow for the Commission to order her classification to be altered to the Professional stream.
Further, at the mention of these proceedings on 16 June 2025, I raised with Mr Wong the prospect that while I was now convinced there was no argument open to Ms Liao for inclusion under the Professional stream, there may be some argument for inclusion under the Technical stream. I was, at that time, unable to be unequivocal in my view because I was not fully appraised of the requirements of MSHHS with respect to engaging interpreters.
I outlined to the parties the two questions I required answers to in order to form a clear view on this point.[10] In particular I required information as to the basic qualification requirements of MSHHS for persons employed as interpreters. The parties responded by email with answers on 27 June 2025.
[10] T 1-11.
Qualification requirements for interpreters
In their response email on 27 June 2025 MSHHS confirmed that their interpreters must hold a certificate of ‘Certified Provisional Interpreter’ issued by the National Accreditation Authority for Translators and Interpreters (‘NAATI’).
Importantly, certification of this type can be obtained from NAATI via different pathways. Some of those pathways include the recognition of tertiary qualifications. Other pathways to certification include completion of units of study via the Australian Qualifications Framework (‘AQF’). Relevantly, the completion of AQF units to the requisite level for certification is not a diploma qualification or higher.
At the mention of these proceedings on 16 June 2025, while I was aware that MSHHS required interpreters to have the NAATI certification, I was unclear whether the NAATI certification process required or equated to diploma or advance diploma level qualifications. Had it done so, I was contemplating whether the requirement to hold NAATI certification was, for all intents and purposes, a mandatory (but indirect) requirement of a diploma or higher level qualification and thus, the prerequisite for the Technical stream.
In his response email of 27 June 2025 regarding the two questions raised at the mention on 16 June 2025, Mr Wong sought to qualify the clearly outlined information provided by MSHHS regarding the basis for NAATI certification. While he correctly points out that two of the four pathways to certification require diploma or higher qualifications, his response failed to demonstrate how such qualifications were a direct requirement for the fourth pathway.
While I accept that many interpreters will hold tertiary qualifications with respect to their language skills, and that such qualifications enhance their skills, the MSHHS requirement for a NAATI certificate of Certified Provisional Interpreter is the only requirement for employment as an interpreter, and that certification can be obtained without the employee holding any tertiary qualifications.
In those circumstances, as I foreshadowed with Mr Wong on 16 June 2025, any argument that Ms Liao might be more properly be classified in the Technical stream is equally doomed to fail.
Submissions
The parties filed submissions in accordance with my directions. I do not intend to reproduce those submissions in these reasons. I will refer to salient portions in my consideration that follows.
It is worth noting that the submissions filed by Ms Liao continue in the theme of the grossly misconceived submissions that she and Mr Wong have made from the outset of these proceedings. The opening paragraph restates the flawed assertion that Ms Liao’s role has been ‘misclassified’ and invites the Commission to ‘continue addressing’ this dispute. The submissions read as if the previous mentions of this matter (where I have carefully and repeatedly explained to Mr Wong and Ms Liao why their argument was misconceived) never happened.
The submissions thereafter descend into policy style arguments, that are predominately opinion based, and of little to no substance. They outline why the work of interpreters is unrecognised for the skills involved, but not once do the submissions address the fundamental barrier confronting Ms Liao in the Award. Indeed, the submissions make no reference to the Award at all.
The submissions filed by Ms Liao entirely fail to answer the matters I have repeatedly raised with her and Mr Wong regarding the operation of the Award. They offer no new facts, no new arguments, and no legal authority that could persuade me from the view I have already expressed to them.
Consideration
It is plain to see that Ms Liao considers that her role as an interpreter is worthy of professional status. No doubt this view is founded in the significant amount of time and effort she has invested in the course of study she has undertaken to achieve her expertise as an interpreter.
At the first conference held in November 2024 Ms Liao expressed dismay that unqualified persons performing far less skilled roles are also classified within the Administrative stream.[11] It would appear the source of Ms Liao’s dissatisfaction is, at least partly, founded in the folly of comparison with others. That is to say, I suspect Ms Liao regards herself as more qualified and skilled than certain other employees and yet finds herself frustrated to be within the same classification system as them.
[11] T 1-9, ll 35-45 to T 1-10, ll 1-10.
Notwithstanding she has been taken to other examples of callings within her classification, Ms Liao fails to appreciate the broader coverage of the Administrative stream. Schedule 2 of the Award contains a list of indicative disciplines included in Administrative stream that includes accountants and finance officers, each of which undoubtedly would include persons who hold some form of (non-mandatory) tertiary qualification.
Having had the opportunity to consider the dispute raised by Ms Liao at length I am entirely unable to see any basis upon which she might be reclassified under either the Professional or Technical stream. The threshold characteristic for employees covered by those streams is the mandatory requirement for degree qualification in the case of the former, or diploma qualification in the case of the latter.
In circumstances where neither such qualification is mandatory for interpreters, Ms Liao and her colleagues are (without question) properly classified under the Administrative scheme. In the absence of any cogent or compelling arguments from Ms Liao, there is nothing to be arbitrated. It is not in the public interest to allow such matters to proceed. The proceedings ought to be dismissed.
For completeness I note that the Cl 12.1(b) and (c) of the Award each contain a discretion for the chief executive to effectively determine that the NAATI certificate is a qualification equivalent to the mandatory qualifications prescribed by those clauses. I am unaware what, if any, efforts have been made by Ms Liao to appeal to the chief executive for such recognition but in any event, I am unable to see any basis upon which the chief executive could be criticised for declining to exercise the discretion.
As I previously noted, the exercise (or not) of that discretion is a matter of management prerogative and not within the jurisdiction of the Commission to interfere with at arbitration. It is worth noting here the comments of Merrell DP in Adams:[12]
[65] The approach of industrial relations tribunals in Australia in respect of the arbitration of industrial disputes involving the exercise of managerial prerogative is settled.
[66] If an employer's exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal, acting as an arbitrator of a dispute, in interfering with what would otherwise be a lawful exercise of managerial prerogative, is for the tribunal to examine all the facts and not to interfere with the right of an employer to manage its own business unless the employer is seeking from the employees something which is unjust or unreasonable.
(Emphasis added)
[12] [2020] QIRC 110 at [65]-[66].
There is no submission from Ms Liao that reveals a failure of the chief executive to exercise such a discretion is objectively unjust or unreasonable. While Ms Liao might subjectively consider it unfair, that is not the test for whether the Commission ought to interfere.
I consider this matter is wholly devoid of merit, is misconceived and ought to be dismissed.
Order
In all of the circumstances I make the following Order:
Pursuant to s 541 of the Industrial Relations Act 2016 (Qld) matter D/2024/105 is dismissed.
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