Gilbert v Metro North Hospital Health Service & Ors
[2021] QIRC 255
•27 July 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255 |
PARTIES: | Gilbert, Margaret Mary v Metro North Hospital Health Service Michele Gardner State of Queensland (Queensland Health) Silven Simmons |
CASE NO: | B/2020/11 |
PROCEEDING: | Application for declarations and orders |
DELIVERED ON: | 27 July 2021 |
HEARING DATES: | 10 and 20 February 2020 |
MEMBER: | O'Connor VP |
ORDERS: | 1. The Application is dismissed. 2. I will hear the parties on any further orders to be made. |
| CATCHWORDS: | INDUSTRIAL LAW - QUEENSLAND - WORKPLACE RIGHTS AND RESPONSIBILITIES - GENERAL PROTECTIONS - application for declaratory relief and accessorial liability - where alleged adverse action taken by employer because applicant had exercised a workplace right - where alleged coercion, misrepresentation and discrimination - where applicant employed by the Prince Charles Hospital as a Duty Nurse Manager - where applicant Branch Secretary, Nurses' Professional Association of Queensland Inc - where article published in media which identified applicant making critical comments about nursing graduates and nursing profession generally - where applicant did not seek prior authority or permission to participate in the article in that capacity - where applicant contends memorandum issued misrepresented her rights to be represented by her chosen industrial association - where show cause issued and subsequently withdrawn - where definition of or meaning of 'industrial association' - where definition of or meaning of 'trade union activity' - determined show cause notice was authorised pursuant to s 282(6) of the Industrial Relations Act 2016 - determined Nurses' Professional Association of Queensland Inc is not an industrial association and applicant cannot establish she engaged in industrial activity for or on behalf of one - determined applicant did not have the claimed workplace rights or protections. HUMAN RIGHTS - HUMAN RIGHTS AND DISCRIMINATION LEGISLATION - QUEENSLAND - where declarations sought by applicant - whether respondents acted unlawfully in accordance with s 58(1)(a) and (b) of the Human Rights Act 2019 - whether compatible with applicant's human right to freedom of expression in accordance with s 21 of the Human Rights Act 2019 - whether compatible with applicant's human right to freedom of association in accordance with s 22(2) of the Human Rights Act 2019 - whether a limit on a human right is reasonable and justifiable - where declarations sought have no practical relevance or utility - determined applicant's rights under ss 21 and 22 of the Human Rights Act 2019 have not been breached - determined not to exercise discretion to issue declarations sought. INDUSTRIAL LAW - QUEENSLAND – ANTI‑DISCRIMINATION LEGISLATION - where applicant seeking declarations in accordance with s 463 of the Industrial Relations Act 2016 that respondents discriminated against her for engaging in trade union activity - where applicant alleges delivering show cause notice was discrimination in contravention of s 295 of the Industrial Relations Act 2016 - where alleged adverse action taken because of a prohibited reason - where definition of or meaning of 'discriminates' - where applicant has not established there was comparatively less favourable treatment - determined that issuing show cause notice was not adverse action because it was issued exercising the power in s 187 of the Public Service Act 2008 and therefore authorised pursuant to s 282(6) of the Industrial Relations Act 2016 - determined no unlawful discrimination because the activity was not trade union activity and not the subject of the protected attribute. |
LEGISLATION: CASES: | Acts Interpretation Act 1954 (Qld), s 20(2)(b) Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Antunovic v Dawson & Anor (2010) 30 VR 355 Association of Consulting Surveyors (Queensland) Ltd. [1999] QIC 2; 160 QGIG 80 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 BHP Iron Ore Pty Ltd v Australian Workers’ Union [2000] FCA 430; (2000) 102 FCR 97 Blackwell v Regina (2011) 81 NSWLR 119 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32 Clermont Coal Pty Limited [2015] FCA 1014 Comcare v Banerji [2019] HCA 23 Community & Public Sector Union v Telstra Corporation Ltd [2001], 107 FCR 93 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No.2) [2017] FCA 1046 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462 Hammond v Department of Health & Anor (1983) 6 IR 371 Harrison v P & T Tube Mills (2009) 181 IR 162 Jones v Queensland Tertiary Admissions Centre Ltd (No 2), 186 FCR 22 Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 001 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1988) 195 CLR 1 Police Federation of Australia v Nixon [2008] FCA 467 Slaveski v Smith & Anor [2012] VSCA 25 Stone & Spelta v Brisbane City Council [2015] QCAT 507 |
APPEARANCES: | Mr J.E. Murdoch, QC with Mr T. Spence and Mr J. Ludwig of Counsel instructed by Worker Law, for the Applicant. |
Reasons for Decision
This is an application by Margaret Gilbert (the Applicant) who is employed on a full‑time basis as a Duty Nurse Manager, Hospital Wide Clinical Support Services at The Prince Charles Hospital, Brisbane, Queensland (TPCH), a Hospital service delivered pursuant to the Hospital and Health Boards Act 2011. At the time of filing her application the Applicant was employed by Metro North Hospital and Health Service.
The Hospital and Health Boards Regulation 2012 was amended by the Hospital and Health Boards (Changes to Prescribed Services) Amendment Regulation 2019 as from 15 June 2020 whereby particular health service employees will be employed by the chief executive of the department. As a consequence, the relief sought against the health service will now be sought against the State of Queensland.[1]
[1] TR1-2, LL31-40.
On 11 June 2020 the Queensland Industrial Relations Commission (the Commission) granted the Queensland Nurses and Midwives' Union of Employees (QNMU) the right to be heard by way of making written and oral submissions with an appropriate order to be issued as to the exact nature and extent of any submissions to be made by the QNMU.[2] An order to this effect was issued on 19 June 2020.
[2] Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 084.
It is accepted by the parties that in the event that the Commission determines that a contravention or contraventions have occurred, and compensation or penalties ought to be ordered, that such matters should be reserved subsequent to the Commission determining the question of liability.[3]
[3] Respondents' Outline of Submissions filed 22 June 2020, para 5.3.
On 11 September 2020 Mr Murdoch, QC on behalf of the Applicant, handed up a more reflective form of final orders sought.
Background
The Applicant was appointed Branch Secretary, Nurses' Professional Association of Queensland Inc (NPAQ) about October 2018 and that is a role which has continued more or less the same since then.
On 24 November 2019, the Sunday Mail published an Article entitled "Nurse decline is off the charts" (the Article), which quoted the Applicant, who was identified as "the duty nurse manager at Prince Charles Hospital", as making a number of critical comments about nursing graduates and the nursing profession generally.
The Applicant did not seek authority or permission to participate in the Article in that capacity.
On 8 January 2020, Ms Michelle Gardner, the Executive Director of TPCH (the Second Respondent), in her capacity as delegate for the First Respondent, sent to the Applicant a notice to show cause why she should not be disciplined for making the comments without proper authority (the Show Cause Notice).
The Applicant sought and was granted an extension to respond. Instead of responding to the Show Cause Notice the Applicant filed the application which is the subject of the present proceedings.
General Protections claims under the IR Act
The general protections scheme under the Industrial Relations Act 2016 (the IR Act) protects employees from adverse action taken against them by their employer because they have exercised or not exercised a workplace right or proposes to exercise or not exercise a workplace right.
The Applicant must establish that the action taken was "adverse action" within the scope of s 282 of the IR Act (which substantially mirrors s 342 of the FW Act).[4] Section 282 of the IR Act relevantly provides:
[4] Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341 AT [44]; United Firefighters Union of Australia v Easy [2013] FCA 763, [41].
282 Meaning of adverse action
(1) Adverse action is taken by an employer against an employee if the employer -
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
. . .
(5) Adverse action includes -
(a) threatening to take action covered by subsections (1) to (4); and
(b) organising to take action covered by subsections (1) to (4).
(6) Adverse action does not include action that is authorised under -
(a) this Act or any other law of the State; or
(b) a law of the Commonwealth.
To constitute adverse action, relevantly the incident or event must constitute something that injured Ms Gilbert or altered her position to her detriment.
Section 282(1)(b), requires that the employee be in a worse position in his or her employment after the action than before it.[5] It requires more than embarrassment or upset on the part of the employee. When determining whether an injury has occurred, an objective view must be taken: the employee's subjective view alone is insufficient to make out an injury.[6]
[5] Australian Workers' Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482, [54].
[6] Hammond v Department of Health & Anor (1983) 6 IR 371, 375-6.
Section 282(1)(c), "alters the position of the employee to the employee's prejudice" is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.[7] However, the prejudicial alteration must be real and substantial, rather than merely possible or hypothetical.[8]
[7] Jones v Queensland Tertiary Admissions Centre Ltd (No 2), 186 FCR 22, [64] citing Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1988) 195 CLR 1, the majority at 18.
[8] Community & Public Sector Union v Telstra Corporation Ltd [2001] 107 FCR 93, [18].
In s 282(1)(d), "discriminates" ought to be given its ordinary meaning, drawing on the meaning of the term in anti-discrimination law only to a limited extent, if at all. Intention is required and establishing adverse action of this kind necessarily involves a comparison (and whether there was comparatively less favourable, or at least different, treatment).[9]
[9] Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341, [66]; Construction, Forestry, Mining and Energy Union v Corinthian Industrial (Australia) Pty Ltd [2014] FCA 239, [18]; Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14, [35]-[36].
With each alleged instance, the Applicant must establish that such action taken was "adverse action" within the scope of s 282 of the IR Act (which substantially mirrors s 342 of the FW Act).[10]
[10] Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341 AT [44]; United Firefighters Union of Australia v Easy [2013] FCA 763, [41].
Section 285 of the IR Act defines the nature of the "Protection" as follows:
285 Protection
(1) A person must not take adverse action against another person -
(a) because the other person -
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person's benefit or for the benefit of a class of persons to which the second person belongs.
The prohibition in s 285 of the IR Act is aimed at the protection of workplace rights. The relevant prohibition in s 285(1)(a) is that a person must not take adverse action against another person because the other person has a workplace right or has/has not exercised, or proposes/proposed to exercise or not to exercise, a workplace right.[11]
[11] Respondents' Outline of Submissions filed 22 June 2020, para 2.11.
The Respondents submit that three central concepts arise: "workplace right", "adverse action" and the taking of adverse action "because" of one of the prohibited reasons.
Workplace Right
Section 284(1) of the IR Act defines "workplace right" (in essentially identical terms to s 341 of the FW Act):
284 Meaning of workplace right
(1) A person has a workplace right if the person -
(a)has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
(b)is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
(c) is able to make a complaint or inquiry -
(i)to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
(ii) if the person is an employee - in relation to his or her employment.
Under Schedule 5 to the IR Act, industrial law is defined to mean: (a) this Act; (b) or another Act regulating the relationships between employers and employees.
The purpose of the prohibition in s 291 of the IR Act is to protect a person from adverse action taken because the person is/is not, or was/was not, an officer or member of an "industrial association"; or engages/does not engage or proposes to engage/not engage in "industrial activity" within the relevant meaning of the term.
With respect to each alleged instance of adverse action, the Applicant must establish that:
a) the alleged workplace rights which are relied upon fall within the scope of s 284 of the IR Act (as only workplace rights under s 284 of the IR Act are captured by the general protections regime);[12] and
b) the Applicant exercised the workplace rights relied upon in the way alleged (as the Applicant bears the onus of establishing the factual existence of the circumstances which are alleged to have been the reason for taking the alleged adverse action).[13]
[12] Respondents' Outline of Submissions filed 22 June 2020, para 2.14 (a); Cavar v Nursing Australia [2012] FCA 338, [15].
[13] Respondents' Outline of Submissions filed 22 June 2020, para 2.14 (b); Tattsbet Ltd v Morrow (2015) 233 FCR 46, [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273, [76]; United Firefighters Union of Australia v Easy [2013] FCA 763, [41].
There are two allegations of adverse action allegedly taken because of a workplace right in breach of s 285 or s 291 of the IR Act:
a) issuing the Memo was itself adverse action taken against the Applicant because she was an officer or member of NPAQ;[14] and
b) delivering the Show Cause to the Applicant was adverse action taken because she had engaged in industrial activity on behalf of NPAQ1.[15]
[14] Not referred to in the Application. See Applicant's SFCs, [41]. Not referred to in the Applicant's Outline of Submissions filed 8 June 2020.
[15] See Application, [10]-[13]. See Applicant's SFCs, [43]-[48]; See Applicant's Outline of Submissions filed 8 June 2020, [12], [20], [61].
When adverse action taken 'because' of a prohibited reason
What must be determined is whether the adverse action was taken by the employer against the Applicant "because" she had exercised a workplace right.
Importantly, there needs to be a connection between the reason, or reasons as found and the adverse action which arises from the presence of the word "because" in s 285 of the IR Act.
The term "because" connotes the existence of a particular reason, being an operative and immediate reason, for taking adverse action.[16] It prohibits a person from taking adverse action "because" a person has a "workplace right", or because the person has, or has not, proposes to exercise, or proposes not to exercise, such a right.
[16] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243.
In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd, Jessup J, after considering Board of Bendigo Regional Institute of Technical and Further Education v Barclay (Barclay)[17] and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (BHP Coal),[18] said:
The "connection" which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged. It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer's conduct policy and as participation in industrial activity. As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a "connection" was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee's participation in industrial activity. To see their Honours' reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case. Those statements represent the law after Barclay and BHP Coal.[19]
[17] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32; (2012) 248 CLR 500.
[18] (2014) 253 CLR 243.
[19] (2015) 231 FCR 150, [32].
In BHP Coal, Gageler J said:
… The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.[20]
[20] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, [92].
In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No.2), Wigney J wrote:
The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker's reasons in this matter. BHP Coal concerned an alleged contravention s 346 of the Fair Work Act. While it might be thought to be a very fine and highly nuanced distinction, if Gageler J's distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right. It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right.[21]
[21] [2017] FCA 1046, [307].
Assuming that the reverse onus is engaged, the issue to be determined is whether the evidence is sufficient for the Commission to be satisfied that none of the reasons of the decision maker in respect of the Memorandum or the Show Cause Notice included a proscribed reason.
Onus of Proof
As a matter of general principle, in proceedings before the Commission the legal onus of proof lies with the person who alleges the thing that must be proved. The Applicant accepts that, subject to the application of the reverse onus of proof, she bears the onus of proving the facts alleged in her claim.[22]
[22] Applicant's Closing Submissions dated 19 March 2019, [2.94]-[2.96].
Relevant to this concept is the reverse onus imposed by s 306 of the IR Act:
306 Reason for action to be presumed unless proved otherwise
(1) Subsection (2) applies if -
(a)in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would be a contravention of the provision.
(2)It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(3) Subsection (2) does not apply in relation to orders for an interim injunction.
Before the reverse onus is engaged the Applicant bears the onus of first proving that:
(a) the conduct that she alleges was taken in fact occurred;
(b) the workplace right alleged exists (or she was relevantly protected);
(c) the conduct constitutes adverse action for the purposes of s 282;
(d) the alleged proscribed reason for that conduct is within one or more of the relevant proscribed categories; and
(e) the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose.[23]
[23] Respondents' Outline of Submissions filed 22 June 2020, para 2.23.
The equivalent provision in the FW Act is s 361.
In United Firefighters Union of Australia v Easy, Ross J stated:
. . . [I]t is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent's conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.[24]
[24] [2013] FCA 763, [41].
The High Court considered the effect of s 361 of the Act in Barclay.[25] In that case, the alleged reason for the adverse action was that the employee was an officer or member of an industrial association or engaged or proposed to engage in particular kinds of industrial activity. French CJ and Crennan J said:
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[26] (citations omitted)
[25] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32; (2012) 248 CLR 500.
[26] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32; (2012) 248 CLR 500, [44]-[45].
French CJ and Crennan J adopted the reasons of Mason J (with whom Stephen and Jacobs JJ also agreed) in General Motors-Holden's Pty Ltd v Bowling[27] where their Honours said:
The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons.[28]
[27] (1976) 12 ALR 605; 51 ALJR 235.
[28] (1976) 12 ALR 605, [616]; 51 ALJR 235, [241].
Gummow and Hayne JJ adopted a similar position in Barclay observing:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence [said] to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[29]
Heydon J wrote:
To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.[30]
[29] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647, [127].
[30] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647, [146].
For the Applicant to succeed, the reason for the adverse action must be "a substantial and operative factor". The Commission must consider the conscious reasons and does not require analysis of unconscious or subconscious reasons.
When engaged, the reverse onus necessarily informs the Commission's approach to determining whether adverse action was taken "because" of a prohibited reason.
The authorities indicate that the focus of the general protections is to prevent conscious and deliberate victimisation. If the evidence establishes there was none, the reverse onus will be discharged.
The Applicant's Claim
In her Statement of Facts and Contentions (SFC) filed on 11 March 2020, the Applicant alleged contraventions of the general protections provisions of the IR Act and makes ancillary claims under the Anti-Discrimination Act 1991 (the AD Act) and the Human Rights Act 2019 (the HR Act).
The essence of the Applicant's grievances is that her involvement with an incorporated association, now known as NPAQ was the reason for what she says was adverse action taken against her.
The first allegation of adverse action allegedly taken because of a workplace right is that of issuing the Memorandum by the Respondents against the Applicant because she was an officer or member of NPAQ.[31]
[31] This was pleaded in the Applicant's SFCs; not referred to in the Application or the Applicant's submissions.
The second allegation of adverse action allegedly taken because of a workplace right is that delivering the Show Cause Notice to the Applicant was adverse action taken because she had engaged in industrial activity on behalf of the NPAQ.[32]
[32] Applicant's SFCs, paras 43-48.
The alleged contraventions relate to the Show Cause Notice and are said to also relate to another matter occurring nine months previously, namely the issue of a Memorandum on 13 March 2019 entitled, "Nurses' Professional Association of Queensland Inc (NPAQ)" from Queensland Health (the Third Respondent) to the Hospital and Health Service Chief Executives and others, sent under the signature of Mr Silven Simmons (the Fourth Respondent) in his capacity as Acting Chief Human Resources Officer, Queensland Health.
The Respondents deny the alleged contraventions of the IR Act or the HR Act and also deny the Applicant is entitled to the relief claimed or indeed any relief.
The Respondents submit the general protections claims under the IR Act cannot succeed as the Applicant did not have the workplace rights or protections claimed and the relevant conduct of the Respondents was not unlawful. The ancillary claims made under the HR Act are variously misconceived or unsustainable.
The following orders are sought by the Respondents:
(a) the application be dismissed;
(b) the Applicant pay the Respondents' costs of and incidental to the application; and
(c) such further or other orders the Commission deems appropriate.
Given the broad scope of the claim and the role of the reverse onus,[33] the Respondents have dealt with each of the aspects of the claim in detail.[34]
[33] IR Act 2016, s 306.
[34] Respondents' Outline of Submissions filed 22.06.20, para 1.13.
Is NPAQ an Industrial Association?
The application is built on the contention that for the purposes of the definition in Schedule 5 and s 279 of the IR Act, the NPAQ is "an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment.[35]
[35] IR Act 2016, s 279(b); Exhibit 3, Affidavit of Jack Henry McGuire affirmed 6 February 2020, [4]-[6].
The above definition has two components:
(a) an association of employees; and
(b) having as a principle purpose the protection and promotion of employees' interests.The Respondents contend that an incorporated association which is not registered under Chapter 12 of the IR Act does not qualify as "an association of employees".
Schedule 5 of the IR Act provides the following definitions of "association" and "industrial association":
association -
(a) generally, means an unincorporated body or entity formed or carried on to protect and promote its members' interests; and
(b) for chapter 11, part 2, division 4, subdivision 10, see section 478.
…
industrial association, for chapter 8, part 1, see section 279.
Section 279 of the IR Act sets out definitions:
In this part -
…industrial association means any of the following -
(a) an employee organisation;
(b) an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment;
(c) an employer organisation;
(d) an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment;
(e) a branch of an industrial association under paragraphs (a) to (d).
Note -
An organisation is a body that is registered as an organisation under chapter 12 - see schedule 5, definition of organisation.Section 290 of the IR Act states:
290 Meaning of engages in industrial activity
A person engages in industrial activity if the person -
(a)becomes or does not become, or remains or stops being, an officer or member of an industrial association; or
(b) does or does not -
(i)become involved in establishing an industrial association; or
(ii)organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii)encourage, or participate in, a lawful activity organised or promoted by an industrial association;
or
(iv)comply with a lawful request made by, or a lawful requirement of, an industrial association; or
(v)represent or advance the views, claims or interests of an industrial association; or
(vi)pay a fee (however described) to an industrial association or to someone instead of an industrial association; or
(vii)seek to be represented by an industrial association; or
Note -
For subparagraph (vii), representation of a person by an industrial association includes a member, delegate or officer of an organisation making representations or advocating on the person's behalf. An organisation is a body that is registered as an organisation under chapter 12 - see schedule 5, definition organisation.
(c)organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
(d)encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e)complies with an unlawful request made by, or an unlawful requirement of, an industrial association; or
(f)takes part in industrial action that is not protected industrial action.
It is submitted by the Respondents that the Applicant is not an officer or member of an "industrial association", nor can she establish that she organised or promoted a lawful activity for or on behalf of one. For the reasons which follow, I agree.
The question to be determined by the Commission is whether the NPAQ is "an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment".
The Respondents submit the NPAQ does not answer the relevant definition of s 279 of the IR Act.
In their submissions,[36] the QNMU argue that NPAQ, as an incorporated association, is not an "industrial association" and, therefore, it cannot engage in industrial activity.
[36] QNMU Submissions filed 26 June 2020, para 97.
The protection offered by s 291 is only for a person who "engages in industrial activity" (or proposes to do so) and for officers or members of an "industrial association".
In response to the Applicant's submission that NPAQ is "an association of employees …", the Respondents submit that rather than being an association of employees, what it is in fact is an incorporated association under the Associations Incorporation Act 1981 (Qld) (the AIA Act).
It is not in contention that the NPAQ is an incorporated body under the AIA Act. Schedule 2 of the AIA Act states:
Schedule 2 - Dictionary
association means an association, society, body or other entity formed, or carried on, for a lawful purpose.
The Respondents submit that the NPAQ is not and cannot be an association within the relevant meaning of the term in the IR Act.
In Association of Consulting Surveyors (Queensland) Ltd. a Full Bench of the Commission (Williams P, Edwards and Swan CC) were called on to consider whether a company incorporated under corporations law as a company limited by guarantee could be registered as an employer association pursuant to the provisions of the Industrial Organisations Act 1977. The Full Bench concluded that the ordinary meaning of "industrial association" does not normally connote a body corporate:
The significance of the term "association" in s 26 of the 1916 Act was considered by the High Court in Re McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1995) 184 CLR 620. Relevantly Brennan CJ, Deane and Dawson JJ said at 639:-
The view taken by the majority on the Federal Court was that the Queensland branch of the ATAEA, being an entity which was distinct from its members, was not capable of registration under the Queensland Act or did not achieve corporate personality upon registration under that Act. That view cannot, in our opinion, be sustained. Although the condition upon which registration of an industrial union could be granted under s. 26(1) of the Queensland Act was that it answered the description of an 'industrial association' or a 'trade union of employees', neither of those terms, by itself, connotes the existence of a legal entity. The terms 'association' or 'union' connote a relationship among persons 'associated' or 'united' for a common purpose or to share a common interest. These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality.[37]
. . .
The meaning to be attributed to the term "association" will often be dependent upon the context in which it is used. There is no doubt that, as pointed out in the passage from McJannet quoted above, ordinarily it connotes a relationship between persons sharing a common interest. Normally it does not connote a body corporate; the definition in the New Shorter Oxford Dictionary refers, inter alia, to "society", but makes no mention of a body corporate. That is not to say that context could never require placing an interpretation on the use of the term which would include a body corporate. But particularly given the reasoning in McJannet, which predates the IO Act, it is difficult to give the term that extended meaning here. That is particularly so in the light of the legislative history; the deletion of the former reference to body corporate in the equivalent sections at least suggests that such an extended meaning should not be imputed here.[38]
[37] Re: McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (McJannet) (1995) CLR 620, 629, cited in Association of Consulting Surveyors (Queensland) Ltd. [1999] QIC 2; 160 QGIG 80.
[38] Association of Consulting Surveyors (Queensland) Ltd. [1999] QIC 2; 160 QGIG 80.
It is submitted that attention must be drawn to the plain words of the statute and definition of "association", which "generally, means an unincorporated body or entity formed or carried on to protect and promote its members interests".[39] Referring to the Macquarie Dictionary's definition of "entity", the Applicant submits that NPAQ, as an incorporated industrial association, is an entity formed or carried on, to protect and promote its members.
[39] IR Act 2016, Schedule 5 (definition of 'association').
The objects of the NPAQ Constitution include, in short "[t]o represent Members of the Association in matters relating to their employment …" and "[t]o secure satisfactory remuneration and working conditions for Members of the Association".[40]
[40] Exhibit 4, Affidavit of Phil Tsingos affirmed 5 May 2020, PT-03 'Association Constitution', [25](2)(3).
The Applicant argues that the evidence before the Commission proves that the NPAQ, by virtue of its objects and its activities, is an industrial association in accordance with s 279 of the IR Act, for the purposes of Chapter 8, "General Protections".
The Applicant submits that "is entirely consistent with the fact that employed nurses have an interest in their professional standard and in professional development … and it does not … change the character of the membership".[41] The Applicant continued to refer to other Objects from two to 12 (pp 26-27) stating this cursory analysis undertaken by the Respondents is a rather shallow analysis without regard for the actual state of objectives of the association.
[41] TR7-26, LL44-46.
The Applicant submitted that, when read with the definition of 'industrial association', in s 279 it "is clear that a principal purpose is the protection and promotion of their interests in matters concerning their employment".[42]
[42] TR7-28, LL4-6.
The Applicant makes reference to Mandep Sarkaria v Workers' Compensation Regulator (Sarkaria), where Martin J said, in considering s 34(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld):
First, there is the general rule of interpretation applied to statutes of this kind. The Act is properly described as being "beneficial" legislation. As such, it should be construed so as to give the fullest relief which the fair meaning of its language will allow.[43]
[43] Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 001, [27].
The Applicant further refers to Waugh v Kippen[44] where it was noted that, where there are two principles of interpretation in conflict, the provision "should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have".
[44] (1986) 160 CLR 156.
The Applicant contends that when reference is made to the above and aligned with s 279 of the IR Act, the principles under Chapter 8 of the IR Act constitute 'beneficial' provisions protecting workplace rights and freedom of association and as such, "should be construed so as to give the fullest relief which the fair meaning of its language will allow".[45]
[45] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622.
However, the approach described by Martin J in Sarkaria is not without constraint. The interpretation adopted "must be restrained within the confines of the actual language employed and what is fairly open on the words used".[46]
[46] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, [29].
In IW v City of Perth, Brennan CJ and McHugh J expressed the approach to construction of beneficial legislation in the following terms:
… [B]eneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.[47] (citations omitted)
[47] (1997) 191 CLR 1, [12].
The QNMU submit that the legislative intention was to limit the expression "industrial association" to registered organisations but to also extend the definition to groups of individual employees with similar purposes.
The argument advanced by the QNMU is that within subsection (a) of s 279 of the IR Act 'employee organisation' is included in the definition. 'Organisation' as defined comprises a registered organisation. It is argued that the express inclusion of registered organisations makes it clear that the legislature did not intend to include unregistered organisations. It would follow that if the legislature had intended that the expression 'an association of employees' was to include unregistered organisations then it would make the deliberate and explicit inclusion of registered organisations in limb (a) pointless.
The QNMU argue that its interpretation of the legislative purpose is bolstered when regard is had to s 602 of the IR Act. That section provides:
602 Who may apply
(1) An association may apply for registration as an employee organisation or employer organisation.
(2) A corporation may only apply for registration as an employer organisation.
Section 602(1) provides that an 'association' may apply for registration as an employee organisation or employer organisation. In light of that limitation it is contended that the purpose in s 279 of the IR Act becomes apparent. Organisations registered under the Act are protected and groups of workers who go on to obtain registration are also protected.
Mr Freeburn QC for the QNMU made reference to the definition of industrial association in Schedule 5 of the IR Act as "a body registered under chapter 12 as an organisation".[48]
[48] The 'note' at the end of s 279 of the IR Act refers to this definition of 'organisation' in Schedule 5.
Chapter 12 of the IR Act provides the mechanism by which employees and employers who wish to be collectively represented may obtain registration for their respective organisations. Upon the obtaining of registration, an organisation can, for example, be a party to a modern award or certified agreement, seek to recover unpaid wages, or file dispute applications, general protections disputes or unfair dismissal applications. The IR Act imposes rights and obligations on a registered organisation. Further the IR Act does not recognise any other entity other than a registered organisation for the collective representation of employees or employers.
The QNMU submits that the NPAQ is not an "employee focused organisation". In support of that submission, the QNMU drew the Commission's attention to the NPAQ's Constitution;[49] and, in particular, who is entitled to become a member of the NPAQ.
[49] TR7-22, LL23-28; Exhibit 3, Affidavit Phil Tsingos affirmed 5 May 2020, PT03.
Under the NPAQ's Constitution, there are a number of classes of membership, none of which have as a requirement the need to be an employee.
The first category is Ordinary Membership which is set out in the Schedule to the Constitution.[50]
[50] TR7-22, L33 - TR7-23, L13.
The "conditions of entry" of an Ordinary Member are set out in Clause 3 of the Schedule. Clause 3 provides as follows:
3. Classes of Membership and Conditions of Entry
The classes of Members of the Association shall be -
(1) Ordinary Members who are -
(a) Registered Nurses in Queensland; and
(b) Enrolled Nurses in Queensland.
The number of Members of this class is unlimited
(2)Inaugural Members who may be other people. The number of Members of this class is limited to 15 and membership can only be accepted up until the date of the first AGM.
What is immediately apparent is that it is not necessary as a condition of entry into membership to be employed. Membership is open to Registered and Enrolled Nurses in Queensland irrespective of whether they are employed or not.
The Association's committee can, by resolution, create a new class of members. Clause 4 provides for what is described as affiliate memberships. This category of membership can, from time to time, be determined by the Association or a specific Branch.
However, the Applicant argues that the membership clause needs to be read together with the objects. It was contended that the ordinary membership categories are consistent with the callings expected in an association with a principal purpose being, the representation of employment matters.[51]
[51] TR7-28, LL4-15.
The QNMU referred the Commission to Australian Education Union v Lawler (Lawler)[52] which illustrates the problem where the rules permitted both employees and non‑employees. In this case, unlike Lawler, the rules do not mention employees as a required qualification and there is no purging rule.[53]
[52] [2008] FCAFC 135.
[53] TR7-25, LL4-6.
The QNMU submitted that the NPAQ does not appear to see itself as exclusively an employee organisation. To apply the proper rules of statutory interpretation, such incorporated body is not an association of employees, because the word "association" has a defined meaning. If the statutory interpretation is ignored and the wider meaning to the phrase "association of employees" is accepted, then this is not an association that is employee focussed to protect employees. It is designed to protect its members who may or may not be employees.[54]
[54] TR7-25, LL9-16.
It is contended that the use of the expression "an association of employees" make it plain that the legislature is contemplating a group of individual employees rather than a single corporate or similar entity.[55] I agree.
[55] QNMU's Submissions dated 26 June, [82].
The argument against the Applicant is that the NPAQ's Constitution establishes something other than an organisation of employees. What is established is not, in my view, an association of employees. What is created is an incorporated body under the AIA Act. The NPAQ has a legal status independent of its members.
I accept that on a proper interpretation of the IR Act, NPAQ is not an "industrial association" and, as a result, the Applicant cannot establish that she "[engaged] in industrial activity" for or on behalf of one.
Is NPAQ a Trade Union?
The Applicant contends that the NPAQ, "although not registered" as an employee organisation under the IR Act, is "in fact an organisation in the nature of a trade union".[56]
[56] The Queen v Rockhampton Fire Brigade Board [1974] QSCFC 25,1.
The IR Act does not provide a definition of "trade union activity" however, it is submitted that in considering the Applicant's activities, inter alia, representing and advocating on behalf of NPAQ members, the Commission should determine that this was trade union activity for the purposes of the IR Act.
The Applicant submits that absent a definition of "trade union" in the IR Act then the words should not be construed according to their ordinary natural meaning.
In support of the above submission, the Applicant relies on a decision of the Supreme Court of Queensland in The Queen v Rockhampton Fire Brigade Board.[57] In giving the decision of the Full Court, Lucas J said that the United Firefighters' Union, Queensland Branch, "although not registered" as an employee organisation industrial union under the IR Act, is "in fact an organisation in the nature of a trade union".
[57] [1974] QSCFC 25.
[100]Rockhampton Fire Brigade Board[58] is a case which involved a very different factual and statutory context. It is distinguishable on those two grounds alone. Moreover, there have been a number of other authorities which have more relevant and recent application.
[58] The Queen v Rockhampton Fire Brigade Board [1974] QSCFC 25.
[101]Norseman Amalgamated Distress and Injustices Fund v the Commissioner of Taxation of the Commonwealth of Australia (Norseman)[59] involved an "appeal" under the Taxation Administration Act1953 against a decision of the Commissioner. The principal ground of objection, and the issue raised on the appeal, was whether the income in respect of which the assessment issued was income of a trade union and, therefore, exempt from income tax under the Income Tax Assessment Act1936.
[59] [1995] FCA 1159.
[102]Norseman was an unincorporated association formed and conducted pursuant to a written constitution. It was not registered under any act of the Commonwealth or of the State of Western Australia relating to the settlement of industrial disputes. Lee J held:
As the dictionaries confirm, it is still an essential part of the ordinary use of the term "trade union" that an organisation so described be one formed by workers to further the interests of the workers in their employment and although part of the meaning of the term may include an organization formed to provide financial aid to union members suffering adversity, the latter meaning is ancillary to, and dependent upon, the principal meaning described.
. . .
Whether the term "trade union" has a special and expanded meaning for persons in the industrial arena is unnecessary to decide for I remain persuaded, as was Kitto J in Victorian Employers Federation (at 393-395), that popular use of the expression "trade union" conforms to the dictionary definition set out in the Oxford Dictionary and that the term is used in that sense in para.23(f) of the Act.[60]
[60] Norseman Amalgamated Distress and Injustices Fund v the Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1159, [19]-[21].
[103]It will be recalled that the High Court considered that "trade union" in this common or natural sense is a voluntary, unincorporated association. In McJannet the Court said:
Although the condition upon which registration of an industrial union could be granted under s 26(1) of the Queensland Act was that it answer the description of an 'industrial association' or a 'trade union of employees', neither of those terms, by itself, connotes the existence of a legal entity. The terms 'association' or 'union' connote a relationship among persons 'associated' or 'united' for a common purpose or to share a common interest. These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality.[61]
[61] Re: McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland) (1995) CLR 620, 639-640.
[104]I accept that the term "trade union" does not mean an entity with some distinct corporate personality from that of its individual members.
[105]Mr Tsingos, President of QNurses First Inc. (known as the NPAQ) agreed that the objects of the Association as set out in the Constitution do not include any intention to form a trade union or any intention to negotiate and enter into enterprise agreements. He agreed that the objects contain no intention or plan to operate as an industrial association or to seek and maintain registration as an industrial association under the IR Act or any legislation.[62]
[62] TR4-26, LL9-15.
[106]Those concessions are, in the Respondents' submissions, consistent with the argument that NPAQ is not, in any relevant sense, a "trade union".[63]
[63] See Respondents' Outline of Submissions filed 22 June 2020, section 2E(i), p 51.
[107]Despite being President, Mr Tsingos provided little helpful evidence in respect of the ownership of the "NPAQ" business name, to whom the "Service Provider Fees" mentioned in the annual returns were paid; or any details of apparent loans to Queensland Association Services Group Proprietary Limited and the 'NPAA'.[64]
[64] TR4-25, L1 - TR4-31, L38; Exhibit 5.
[108]Mr McGuire, Assistant General Secretary, NPAQ was cross-examined about the following paragraph in his affidavit:
The NPAQ's purposes, as described in its Constitution, is advancing the interests of nurses in Queensland including, as its primary purpose:
"The Nurses' Professional Association of Queensland is an employee union which fights to protect you, not promote a political party. Run by practising nurses for nurses. Every membership dollar supports you, your workplace issues, provides professional indemnity insurance and legal backup for you".[65]
[65] Exhibit 3, Affidavit Jack McGuire affirmed 6 February 2020, [5].
[109]It was put to Mr McGuire that the Constitution did not in fact contain those words, nor did it accurately describe NPAQ's actual purposes as set out in its Constitution. Though Mr McGuire made some concessions under cross-examination,[66] he did not accept that in using this paragraph, he had sought to create the impression that what he had included was a quote from NPAQ's Constitution.[67]
[66] TR4-16, L13 - TR4-18, L46.
[67] TR4-18, LL43-46.
[110]During cross-examination, Mr McGuire accepted the proposition that "nowhere in the Constitution is it stated that the association is or wants to be a union … or wants to be a trade union?".[68]
[68] TR4-17, LL35-44.
[111]The Respondents submit in referring to the commercial structure and transactions of NPAQ and considering the evidence and the Constitution of NPAQ, it does not fit the traditional idea of a trade union. I agree.
[112]NPAQ is an incorporated association, with a distinct legal personality. So much is apparent on the evidence filed by the Applicant.[69] NPAQ's personality and corporate status is further clarified by the evidence of Theresa Hodges.[70]
[69] Exhibit 4, Affidavit Phil Tsingos affirmed 5 May 2020, paras [17]-[18].
[70] Exhibit 14, Affidavit Theresa Hodges sworn 19 May 2020, [12]-[19].
[113]The minutes of the founding meeting of the State Nurses' Professional Association of Queensland on 6 November and annexed to the Affidavit of Mr Tsingos do not sit comfortably with what Lee J described in Norseman[71] as the ordinary use of the term "trade union" being an organisation "formed by workers to further the interests of the workers in their employment".
[71] [1995] FCA 1159.
[114]Mr McGuire in his affidavit deposes that he is the Assistant General Secretary of QNurses First Inc ABN 86 313 257 505 which has the exclusive license to use and exploit trademark 1989061 and the initials NPAQ as well as the words "Nurses Professional Association of Queensland".[72]
[72] Exhibit 3, Affidavit Jack McGuire affirmed 6 February 2020, [1].
[115]NPAQ's legal personality and corporate status are, in my view, inconsistent with that of a typical "trade union" and its history is not in any sense typical of a "trade union". The Business names, "Nurses' Professional Association of Queensland" and "NPAQ" were only transferred to NPAQ after the events, the subject of these proceedings.
[116]I cannot accept the Applicant's submission that the NPAQ is a 'trade union'. It must follow therefore that the Applicant could not have engaged in "trade union activity" on NPAQ's behalf within the meaning of the term in s 295 of the IR Act.
The Memorandum
[117]On 13 March 2019, the Memorandum was signed off and distributed by Mr Silven Simmons, Acting Chief Human Resources Officer for the Department of Health.
[118]The Memorandum expressed the following:
a. NPAQ was not entitled to be a party to an award or certified agreement made between Queensland Health and employee organisations;
b. NPAQ was not able to represent the industrial interests of employees who are covered by the Nurses and Midwives (Queensland Health) Award - State 2015 and the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB-10) 2018;
c. NPAQ did not have standing to be a union party in any grievance/dispute resolution process;
d. NPAQ was not permitted to display material in the workplace that implied it is entitled to represent the industrial interests of employees; and
e. NPAQ could not represent or advocate on behalf of an employee in relation to employment matters.[73]
[73] Applicant's Outline of Submissions filed 8 June 2020, para 6.
[119]In the Applicant's Statement of Facts and Contentions (SFC's) it is pleaded that:
41.(a) The First Respondent took adverse action against the Applicant by causing the delivery of the Memorandum to her and thereby rendering her liable to disciplinary actions should she fail to comply with its terms as to union representations.
(b)Contrary to s 291 of the IR Act the adverse action was taken against the Applicant because she was an officer or member of the NPAQ.
(c)Contrary to s 291 of the IR Act the adverse action was taken against the Applicant because she engaged in industrial activity, within the meaning of s 290 (a) and (b) (iii) of the IR Act.
[120]The Applicant submits that the Memorandum was:
a. a "health employment directive" within the meaning of s 57A of the Hospital and Health Boards Act 2011;
b. a policy of the Third Respondent intended to be binding on employees; and
c. a statutory instrument in accordance with s 7 of the Statutory Instruments Act 1992.
[121]A hard copy of the Memorandum was provided directly to the Applicant by Ms Linda Briggs, as instructed by Ms Cherie Franks, who informed the Applicant that in accordance with the Memorandum, NPAQ should not be promoted as an organisation that could represent the industrial interests of nurses and the Applicant should ensure that advertising did not breach her obligations to TPCH.
[122]The Applicant contends that the evidence supports a conclusion that by issuing the Memorandum of 13 March 2019, the First and the Third Respondents knowingly or recklessly misrepresented the Applicant's rights for her to be represented by her chosen industrial association, the NPAQ in contravention of s 289(1) of the IR Act.[74]
[74] Applicant's Outline of Submissions filed 8 June 2020, para 4.
[123]It is further contended by the Applicant that the evidence demonstrates that the First Respondent contravened s 291 of the IR Act by delivery of the Memorandum, thereby rendering the Applicant liable to disciplinary action should she fail to comply with its terms regarding the status of the NPAQ.
[124]Section 291 of the IR Act states:
291 Protection
A person must not take adverse action against another person because the other person –
(a)is or is not, or was or was not, an officer or member of an industrial association; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of section 290(a) or (b); or
(c)does not engage or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of section 290(c) to (f).
Note - This subsection is a civil penalty provision.
[125]The Applicant submits the evidence adduced at the hearing established that the First Respondent took adverse action against the Applicant by issuing the Memorandum of 13 March 2019 and putting the Applicant on a Notice to Show Cause.
[126]Much of the Applicant's cross-examination of Mr Simmons, who approved the Memorandum, focussed on the sentence, "[t]he NPAQ cannot represent or advocate on behalf of an employee in relation to an employment matter". Mr Simmons' evidence shows that particular sentence, when read with the rest of the Memorandum in the context in which it was issued, was not such as to reasonably cause confusion. The Applicant took the Memorandum out of context.[75]
[75] TR4-72, LL29-35; TR5-41, LL18-31.
[127]The Respondents conceded in their submissions that the above sentence can reasonably be criticised, when viewed in isolation.[76] However, it was submitted that, in context, the sentence referred to the fact that in the industrial relations context, NPAQ could not represent its members before the Commission.[77] This was further clarified by Ms Garrahy's evidence.[78]
[76] See Respondents' Outline of Submissions filed 22 June 2020, section 2D(ii).
[77] To the extent that there was any room for confusion, this was clarified again by the subsequent comment provided by the Third Respondent to the Courier Mail on 26 March 2019 in response to a request for comment.
[78] TR4-43, LL36-45; TR4-49; TR4-55, LL36-39; TR4-56, LL6-8; TR4-56, LL25-30; TR4-59, LL43-46; TR4-65, LL39-41.
[128]The direct evidence of Mr Simmons for issuing the Memorandum was:
7. I approved the Memorandum because I was satisfied that the Memorandum was informed by the provisions of the Industrial Relations Act 2016 (IR Act) and was an accurate reflection of the law at the time. I was satisfied that the contents of the Memorandum had been properly considered and reviewed by the appropriate people before coming to me for my review.
8. I believe the statements that are made in the Memorandum about the Nurses Professional Association of Queensland Inc (NPAQ) were made because NPAQ is not an employee organisation registered under the IR Act. It is an incorporated association under the Associations Incorporation Act 1981. Accordingly, it is not a registered employee organisation pursuant to the IR Act.
9. I was also aware that NPAQ was not a party to the Nurses and Midwives (Queensland Health) Award 2015 (the Award) or the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018 and therefore NPAQ did not have standing and could not represent and advocate on behalf of employees in the context of the industrial activity set out in the Memorandum. The purpose of the Memorandum was to clarify NPAQ's status under the IR Act.[79]
[79] Exhibit 9, Affidavit of Silven Simmons sworn 19 May 2020.
[129]As to the allegation of adverse action, Mr Simmons's evidence was:
30. I deny that I took adverse action against the Applicant at all. The Memorandum was not addressed to the Applicant. I had no intention that it be sent to her and did not cause it to be sent to her.
31. With regard to the suggestion that the Applicant would be 'liable to disciplinary actions should she fail to comply' in relation to the Memorandum, any disciplinary process was entirely separate to the Memorandum and a matter for Metro North Hospital and Health Service and their dealings with their employees.
32. I did not cause the Memorandum to be sent because the Applicant 'engaged in industrial activity'. I was not aware as at the date of the Memorandum that the Applicant was an officer or member of the NPAQ. I did not seek to make the Applicant 'liable to disciplinary actions' for this reason or at all.
33. I did not cause the Memorandum to be sent because the Applicant 'engaged in industrial activity'. I was not aware as at the date of the Memorandum that the Applicant had engaged in any industrial activity. I did not seek to make the Applicant 'liable to disciplinary actions' for this reason or at all'.[80]
[80] Ibid.
[130]Ms Garrahy did not accept that the Memorandum was likely to influence the attitude of frontline nurses to representation in employment matters.[81]
[81] TR4-59, LL3-9.
[131]The Applicant referred to the following email sent to Ms Garrahy by Mr Daniel Rautio providing feedback on an early draft:
I've removed the more detailed information as I thought his level of detail was unnecessary OR could discourage employees (our indirect audience) from engaging with the material.[82]
[82] Exhibit 6, document 4.
[132]Ms Garrahy's evidence clarified that Mr Rautio's comment was unremarkable and did not reveal any ulterior agenda.[83]
[83] TR4-46, L41 - TR4-47, L27; TR4-48, LL20-22.
[133]In her evidence Ms Garrahy denied any malign or unlawful intent behind the Memorandum.[84]
[84] TR4-64, LL19-26 and LL18-25.
[134]Even if the Applicant can overcome the hurdles of the status of the NPAQ as an "industrial association" or a "trade union" and the reverse onus is engaged, I accept, as the evidence has unfolded that there were no unlawful reasons for issuing the Memorandum.
Notice to Show Cause
[135]On 24 November 2019, the Sunday Mail published an Article titled 'Nurse decline is off the charts'. The Article relevantly identified the Applicant as 'the duty nurse manager at Prince Charles Hospital'. Moreover, the Article made a number of critical comments about the standard of nursing graduates and the nursing profession more generally. The Applicant did not seek nor was any authority given for her to participate in the Sunday Mail Article.
[136]On 8 January 2020, the Second Respondent issued the Applicant with a Show Cause, which she received on 13 January 2020. The Show Cause made seven allegations regarding the Applicant's conduct and listed relevant particulars with possible grounds for discipline under the Public Service Act 2008 (PS Act).[85]
[85] Exhibit 1, Affidavit of Margaret Gilbert affirmed 6 February 2020, MG-04.
[137]The Applicant submits the Show Cause was defective because the First Respondent failed to comply with s 12H of the Public Sector Ethics Act 1994 (Qld) (PSE Act) and the "code of conduct for public service agencies".
[138]Moreover, the Applicant alleges the First Respondent has contravened ss 285 and 291 of the IR Act in that they have taken adverse action against the Applicant for exercising a workplace right and/or taking part in an industrial activity, and/or engaging in trade union activity.
[139]It is contended by the Applicant that the evidence reveals that the Show Cause process was commenced because the Applicant engaged in the alleged industrial activities.
[140]The Applicant's SFCs plead the allegations as follows:
43.The action of sending the Show Cause to the Applicant was adverse action against the Applicant because the action:
(a)altered the position of the Applicant and was thereby adverse action within the meaning of s 282 of the IR Act;
(b)injured the Applicant in her employment and was thereby an adverse action within the meaning of s 282 of the IR Act;
(c)discriminated between the Applicant and other employees of the First Respondent and was thereby adverse action within the meaning of s 282 of the IR Act; and
(d)constituted a threat to take action covered by ss(1)(b)(c) and (d) of s 282 of the IR Act and was thereby adverse action within the meaning of ss(5)(a) of s 282 of the IR Act.
44. Prior to the issue of the Show Cause on 8 January 2020, the Applicant had:
(a)become a member of the NPAQ;
(b)was a delegate of the NPAQ;
(c)advocated on behalf of the NPAQ;
(d)represented the interests of the NPAQ;
(e)expressed views on the standard of tertiary education of nurses on behalf of the NPAQ;
(f)participated in an interview with a Sunday Mail journalist on behalf of the NPAQ; and
(g)allowed her image, name and views to be published in the Sunday Mail newspaper of 24 November 2019 in order to advance the views of the NPAQ.
45.The Show Cause was issued to the Applicant by the First and Second Respondents because the Applicant had exercised her right to engage in, and had engaged in the activities set out in paragraph 41 above.
46.In the premises, the First Respondent contravened the provisions of Chapter 8 Part 1 of the IR Act when it took adverse action against the Applicant because the Applicant:
(a)exercised a workplace right (contravention of s 295(1)(b)(i) of the IR Act; and
(b)engaged in industrial activity as defined in s290 of the IR Act (contravention of s291(b) if the IR Act).
47.The Second Respondent as a person who aided and abetted the contraventions aforesaid by authoring, signing and sending the Show Cause to the Applicant, was pursuant to s571 of the IR Act involved in the contraventions and is taken to have contravened the said provisions.
48.The action of the First Respondent of discriminating against the Applicant because she engaged in trade union activity was an action which, for the purposes of s295(2)(a) of the IR Act was an unlawful action under the AD Act.
[141]It is contended by the Applicant that the Show Cause process was commenced because she engaged in industrial activities.
[142]The Respondents submits that the allegations concerning the issuing of the Show Cause Notice has a number of different aspects, none of which can succeed:
(a) the Applicant cannot establish that she had the workplace rights and protections upon which she relies;
(b) even if she could, the issuing of the Show Cause Notice was not "adverse action" because it was relevantly "authorised"; and
(c) even if (a) and (b) are surmounted, and the reverse onus engaged, the relevant decision maker (the Second Respondent) has given direct evidence of her reasons for delivering the Show Cause Notice, which were not unlawful and which ought to be accepted.[86]
[86] Respondents' Outline of Submissions filed 22 June 2020, para 2.95.
[143]Section 282(1) of the IR Act includes the following meaning of adverse action:
(1) Adverse action is taken by an employer against an employee if the employer -
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
[144]The Applicant submits that Dwyer IC in Angela Banovic v State of Queensland, Department of Education,[87] identified that the term "injure" has been given a wide definition for the purposes of s 282(1) of the IR Act. In his decision, Dwyer IC stated:
[87] [2019] QIRC 132.
The respondent says that the applicant has "merely" been asked to show cause. This submission, with respect, fails to understand the meaning of the terms "injures the employee" or "alters the position of the employee" as they appear in s 282[1](b) and (c) (respectively) of the Act.[88]
[88] Ibid [47].
In a similar provision contained in s 298K of the Workplace Relations Act 1996, the High Court held that the term "injure" has a wide meaning and covers every compensable injury.[89]
[89] Ibid [48]; Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) 1998 195 LCR 1, [4].
In Squires v Flight Stewards Assn of Australia, Ellicot J held:
"The words 'injure in his employment' are … words of wide import … They are … application to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial."[90]
[90] Angela Banovic v State of Queensland, Department of Education [2019] QIRC 132, [49]; (1982) 2 IR155, [164].
In Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 a "show cause" process has been found to constitute an "alteration of an employee's position" for the purposes of the definition of adverse action contained at s 342 of the Fair Work Act 2009.[91]
[91] Angela Banovic v State of Queensland, Department of Education [2019] QIRC 132, [50].
[429]At the highest, the evidence of the Applicant in respect of receiving the Memorandum was as follows:
19. I was provided with the memo on or about 13 March 2019 by Linda Briggs Acting Nursing Director, while I was swiping into my office during the day.
20. This memo made me feel that my voice was being silenced. I was afraid that I would no longer be able to act on behalf of the NPAQ and raise issues related to the workplace.
21. This feeling of being silenced, restrained, and limited in my capacity to act as a delegate for the NPAQ made me consider the need to speak with the media so as to be heard with respect to workplace issues.[309]
[309] Exhibit 1, Affidavit of Margaret Gilbert affirmed 6 February 2020, paras 19-21.
[430]In respect of the Show Cause Notice, the Applicant deposed as follows:
34. The show cause, in addition to the memo, made me feel punished for acting on behalf of the NPAQ and more restrained from acting as a delegate of the NPAQ in the future.
…
37. A reprimand being placed on my file, or the alteration of my employment, may make my employment less secure and injure my employment.
38. Any of the actions that may result from the show cause would be adverse to my employment.[310]
[310] Exhibit 1, Affidavit of Margaret Gilbert affirmed 6 February 2020, paras 34, 37, 38.
[431]When determining whether an injury has occurred, an objective view must be taken: the employee's subjective view alone is insufficient to make out an injury.[311]
[311] Hammond v Department of Health & Anor (1983) 6 IR 371, 375-6.
[432]Moreover, the prejudicial alteration must be real and substantial, rather than merely possible or hypothetical.[312]
[312] Community & Public Sector Union v Telstra Corporation Ltd [2001], 107 FCR 93, [18].
[433]On the evidence before the Commission it cannot be said that the Applicant is worse off in her employment as a consequence of her employer's alleged acts. There must be a nexus between the effect and an advantage enjoyed by the person which that effect has prejudicially altered. The advantage affected must be an advantage enjoyed in the person's employment. The word "in" connotes that the advantage must derive from the employment.[313]
[313] Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154, [59].
[434]It would appear from the evidence, in particular, Mr McGuire's evidence and from his perspective, the Applicant's activities as branch secretary had continued, notwithstanding the issue of the Memorandum and the Show Cause Notice.[314] Indeed, the Applicant's own evidence in this regard was to the effect that her activities as branch secretary had continued, in more or less the same way, to the present day.[315]
[314] TR4-19, LL1-10.
[315] TR4-5, LL14-24.
[435]In my view, the Applicant has failed to demonstrate how each alleged matter altered her position to her detriment.
[436]Based on the authorities, the issue is whether the Respondent has satisfied me that none of the reasons for the issuing of the Show Cause Notice or Memorandum included a proscribed reason.
[437]The Applicant advanced the argument that there were multiple decision makers in respect of the decision to issue the Show Cause Notice. In her submissions, the Applicant alleged Alana Geary, Judyann Stevens, Cherie Franks and Brett Bourke as persons who were relevantly involved. The Applicant did not plead nor particularise any of them as decisions makers in her SFCs. This is not the case the Respondents foreshadowed or were expected to meet.
[438]As was observed in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,[316] the Full Court of the Federal Court held that an applicant must plead or particularise the identity of the officials whose state of mind is relied upon. The Applicant did not do so.
[316] [2017] FCAFC 50, [62].
[439]In respect to the issuing of the Memorandum and Show Cause Notice, Mr Simmons and Ms Gardner gave evidence and were cross‑examined as to their reasoning.
[440]Even if the reverse onus was engaged, the following evidence of Mr Simmons demonstrates, in my view, the reasons for issuing the Memorandum did not include any unlawful reasons:
7. I approved the Memorandum because I was satisfied that the Memorandum was informed by the provisions of the Industrial Relations Act 2016 (IR Act) and was an accurate reflection of the law at the time. I was satisfied that the contents of the Memorandum had been properly considered and reviewed by the appropriate people before coming to me for my review.[317]
[317] Exhibit 9, Affidavit Silven Simmons sworn 19 May 2020.
[441]Equally, in respect of the issuing of the Show Cause Notice, Ms Gardner's evidence was consistent, "the reason I did it was, she was representing the Hospital, and speaking on behalf of the Hospital … if she had just said these things in her own personal capacity, or if she had said them on behalf of the NPAQ it wouldn't have been a problem".[318]
[318] TR7-19, LL6-9.
[442]In respect of the Show Cause Notice I accept that pursuant to s 282(6) of the IR Act, the issuing of the Show Cause by the Second Respondent in reliance on s 187 of the PS Act was "authorised" under the law of the State.[319] The effect of s 282(6) of the IR Act is that even if the alleged conduct falls within the meaning of "adverse action" as defined in s 282(1), s 282(6) provides that such action is not adverse action if the action "is authorised under" the Act.
[319] Respondent's Outline of Submissions filed 22 June 2020, paras 2.111-2.125.
[443]The Applicant alleges the First Respondent was involved in the Third Respondent's contravention of ss 287, 289 and 295 of the IR Act because it caused the Memorandum of 13 March 2019 to be personally delivered to the Applicant.[320] It is alleged against the Second Respondent that she was involved in the First Respondent's contravention of ss 285, 287, 291 and 295 of the IR Act, by issuing the Show Cause on 8 January 2020. Finally, it is alleged against the Fourth Respondent that he was involved in the Third Respondent's contravention of ss 287, 289 and 295 of the IR Act, because he caused the Memorandum of 13 March 2019 to be issued.
[320] Applicant's SFCs, [40]; Applicant's Outline of Submissions filed 8 June 2020, [102].
[444]In order to establish accessorial liability, the Applicant must establish actual knowledge on behalf of the alleged accessory of each of the essential elements of the offence. The Applicant must show that the relevant Respondents knew of the proscribed intention.
[445]Absent clear evidence of knowledge on behalf of the alleged accessories, the Applicant cannot succeed in attributing liability for the purposes of s 571 of the IR Act.
[446]The Applicant has adduced no evidence or argument as to the treatment of a relevant comparator and no evidence or argument sufficient to support a finding of less favourable or different treatment. The evidence does not support any conclusion that sending the Memorandum constituted adverse action.
[447]The Applicant submits that Ms Gardner's explanation of her reasons for putting the Applicant on a Show Cause is contrary to the evidence in this matter and fails to rebut the presumption in accordance with s 306 of the IR Act and it was the Applicant's industrial activity that was the "substantial or operative factor" influencing the adverse action, or alternatively, that it was an "operative or immediate" reason for acting.[321]
[321] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445; [2012] HCA 32, [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ, [140] per Heydon J.
[448]The Applicant submits for the reasons set out, the First Respondent contravened s 291 of the IR Act by taking adverse action against her for engaging in industrial activity as a representative of the NPAQ and on behalf of NPAQ members.[322]
[322] Applicant's Closing Submissions filed on 7 September 2020, para 208.
[449]The Applicant's cross-examination of Ms Gardner included questioning in respect of the Show Cause Notice.[323] This cross-examination appears to suggest that because Ms Gardner had matters to do with the Applicant's involvement with NPAQ "in her mind" when issuing the Show Cause Notice, they were a substantial and operative reason for the action she took. However, as was illustrated in Barclay[324] and BHP Coal[325] it is not necessary to entirely dissociate the adverse action from the protected attribute.
[323] TR6-33, LL19-29; TR6-41, LL30-35; TR6-49, LL13-20.
[324] (2012) 248 CLR 500, [62] per French CJ and Crennan J.
[325] (2014) 253 CLR 243, [22], per French CJ and Kiefel J.
[450]The task of the Commission is to determine whose mind or minds were the operative mind in making the decision, based on the whole of the evidence and consider the reasoning of each party.[326]
[326] National Tertiary Education Union v Royal Melbourne Institute of Technology (NTEU) (2013) 234 IR 139, [29]; Clermont, [122].
[451]The Applicant has made allegations of misrepresentation against the First and Third Respondents in breach of s 289 of the IR Act. In order to engage s 289 of the IR Act it must be shown that the false or misleading representation was made "knowingly or recklessly". The state of mind required by s 289(1) of the IR Act attaches to the false or misleading quality of the representation, not the act of the making of the representation. What the Applicant is required to establish is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth.
[452]The evidence before the Commission does not, in my view, establish that either the First Respondent or the Third Respondent have made false representations regarding the status of the NPAQ and that these were made recklessly.
[453]The Applicant has further sought to bring a claim against the First Respondent that by issuing the Show Cause Notice, the Applicant was coerced into not exercising a workplace right; namely to engage in industrial activity in contravention of s 287 of the IR Act. In respect of the Third Respondent it was alleged that issuing and distributing the Memorandum was done so with the intent to coerce the Applicant in contravention of s 287 of the IR Act. I can only assume that the Applicant contends that the coercion alleged relates to the exercising of a workplace right.
[454]In order to establish coercion, the Applicant must establish conduct that is compulsive in the sense that the pressure brought to bear, in a practical sense, negates choice; and is unlawful, illegitimate, or unconscionable.[327]
[327] Finance Sector Union of Australia v Commonwealth Bank of Australia FCR (2000) 106 16, 23-28, [18]-[38].
[455]I do not accept that the evidence before the Commission supports a conclusion that the issuing of the Memorandum by the First Respondent or the Show Cause Notice by the Third Respondent was made with intent to negate the Applicant's choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable. Moreover, I cannot accept that the evidence supports a conclusion that they had actual knowledge of the circumstances that made their conduct coercive.
[456]The Applicant alleged that delivering the Show Cause Notice to her was discrimination in contravention of s 295 of the IR Act.[328] For the reasons advanced elsewhere it was not. The Applicant has not established that the activity in which she engaged was "trade union activity" and therefore could not be the subject of the protected attribute; the Applicant has not established the Second Respondent would not have sent the Show Cause Notice to an employee without the attribute; and the purported "trade union activity" was not a substantial or operative reason for the issue of the Show Cause Notice.
[328] Applicant's SFCs, [46]-[48].
[457]The Applicant relies, in her closing submissions,[329] on her submissions in reply[330] to demonstrate that the Respondents failed to comply with the mandatory requirements of HR Policy E10[331] and this invalidated the Show Cause process.[332] It did not.
[329] Applicant's Closing Submissions filed 7 September 2020, para 251.
[330] Applicant's Outline of Submissions in Reply filed 25 June 2020, [33]-[41].
[331] Affidavit Michele Gardner sworn on 19 May 2020, MG-6, pp 130-137.
[332] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39.
[458]Much of the Applicant's cross-examination of the Respondents' witnesses went to issues of procedural fairness.[333]
[333] TR5-14 - TR5-18; TR5-21 - TR5-22 (Franks); TR5-66 - TR5-67; TR5-78 (Stevens); TR6-9 - TR6-13 (Gardner); TR5-58, TR5-61 - TR5-62, TR5-65 - TR5-67 (Stevens); TR6-30 - TR6-31 (Gardner).
[459]However, the implied procedural fairness criticisms are not relevant to the application and are not shown in the Applicant's SFCs. It is not alleged that any procedural fairness shortcoming was adverse action taken for a prohibited reason or that any procedural fairness shortcoming breached the AD Act or the HR Act.
[460]The witnesses provided answers in the face of these implied procedural fairness criticisms. Management action was considered, but a Show Cause process deemed more appropriate.[334] The employer was reasonably satisfied that the relevant conduct had occurred and was worth putting the allegations to the Applicant for her response.[335]
[334] TR6-9, LL10-25.
[335] TR5-65, LL12-20.
[461]This is not a complex factual situation. The allegation against the Applicant, at its simplest is that the Code of Conduct places an obligation on public servants when commenting to the media. In particular, Clause 1.4 serves to clarify that, "workplace representatives or officials of a trade union … are not required to seek permission from [the employer] before speaking publicly in that capacity" but that when they do, they "will make it clear that [the] comments are made only on behalf of that organisation". What is alleged against the Applicant is that she was in breach of that clause by giving the Sunday Mail interview. On the face of the Article, the Applicant was identified and commented as a senior nurse who works for TPCH.
[462]As the evidence indicates, an assessment phase did take place in which the question of whether the Applicant may have breached s 187 of the PS Act was addressed.
[463]In applying HR Policy E10, the obligation rests on the delegate. The evidence of Ms Gardner was clear. Ms Gardner refreshed herself on the relevant policy; she considered whether management action should be taken but decided against it; she made inquiries of Ms Horbury, the Applicant's normal line manager, regarding whether the Applicant had sought authorisation prior to the Sunday Mail publication, she had not. The inquiries were undertaken by Ms Gardner in the days following the publication but before she made the determination to commence the Show Cause process.
[464]The Applicant contends, in reliance on Wirth[336] that she was denied natural justice in the antecedent steps taken by the Respondents; namely, the Show Cause Notice. However, the antecedent decision referred to by Bond J in Wirth was what his Honour described as the "the disciplinary findings decision" that is the decision which was antecedent to the s188 process of deciding what particular disciplinary action to impose. The first decision is whether the allegation that the employee breached s 187 of the PS Act has been proven.
[336] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39.
[465]It is the Show Cause Notice which commences the disciplinary process. This is reflected in HR Policy E10 which provides, "[t]he principles of natural justice must be applied when undertaking the disciplinary process. Natural justice must be afforded before making a decision on an allegation and any disciplinary action". The schedule to HR Policy E10 contemplates a show cause process in which allegations are put to the employee in the form of a Show Cause Notice. It treats separately the question of the decision whether allegations have been established and the decision as to the disciplinary action which should occur.[337]
[337] Ibid, [33].
[466]From what can be ascertained from the SFCs and the final relief sought, the Applicant seeks to pursue a claim under the HR Act in respect of her rights to freedom of expression (s 21 of the HR Act) and freedom of association (s 22 of the HR Act).[338] However, it does not appear that the Applicant continues with a claim under s 15 of the HR Act.[339]
[338] Applicant's SFCs, [73], [77], [80], [83], [84]; Applicant's Outline of Submissions filed 8 June 2020, para [130], [131], [132]-[142]; Applicant's Application, [5], [6], [8].
[339] See for example Applicant's SFCs [73], [77], [80], [81]-[83]; Applicant's Outline of Submissions filed 8 June 2020, [129].
[467]The question that the Commission needs to consider is whether '…the act or decision of a public authority places limitations or restrictions on, or interferes with, the human rights of a person'.[340] For the reasons advanced above, I do not consider that the Applicant's rights under either ss 21 or 22 of the HR Act have been breached.
[340] PJB v Melbourne Health & Anor (2011) 39 VR 373, [36].
[468]Human rights are engaged when a public authority makes a decision affecting or acts towards a person in a way which apparently limits their human rights.[341] If a human right is engaged, the question whether the decision or conduct is compatible with human rights will depend on whether any limitation is demonstrably justified according to the general limitations provision.[342]
[341] Kracke v Mental Health Review Board [2009] VCAT 646, [67].
[342] Antunovic v Dawson & Anor (2010) 30 VR 355, [70].
[469]It needs to be borne in mind that s 13 of the HR Act articulates a proportionality principle by which a human right may be subject under law to "reasonable limits that can be demonstrably justified in a free and democratic society".[343] Whether a limit on a human right is reasonable and justifiable may involve, pursuant to s 13(2), balancing "the importance of the purpose of the limitation" and "the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right".[344]
[343] Certain Children v Minister for Families and Children & Ors (No 2) (2017) 266 A Crim R 152, 209.
[344] HR Act s 13(2)(e)-(g).
[470]Equally, the purpose of protecting and promoting freedom of association is balanced against: (a) an employer's right to regulate the conduct of their employees in relation to each other, and (b) an employer's duty to do so under the general law.[345]
[345] See, Harrison v P & T Tube Mills (2009) 181 IR 162, 232 [282]; McManus v Scott-Charleton (1996) 70 FCR 16, 28-29; Koehler v Cerebos (Australia) (2005) 222 CLR 44, 53 [19]; Nationwide News v Naidu (2007) 71 NSWLR 471, 478 [23], [ 27].
[471]In respect of freedom of expression, Ms Gardner's evidence, which I accept, points out that the Show Cause Notice was issued not to limit the Applicant's freedom of expression but was in her view a proper and appropriate step for her to take to deal with the Applicant's alleged conduct.
[472]The Show Cause Notice issued to the Applicant relevantly refers to clauses 1.2 (Manage conflicts of interest); 1.3 (Contribute to public discussion in an appropriate manner); and 1.5 (Demonstrate a high standard of workplace behaviour and personal conduct) of the Code of Conduct. The code is made pursuant to the PSE Act. The purpose and nature of the codes is expressed in s 10 of the PSE Act in the following terms:
10 Nature and purpose of codes
(1) In recognition of the ethics principles and values for public service agencies, public sector entities and public officials, codes of conduct are to apply to those agencies, entities and officials in performing their official functions.
(2) The purpose of a code is to provide standards of conduct for public service agencies, public sector entities and public officials consistent with the ethics principles and values.
[473]The Code of Conduct serves a legitimate and proper purpose. To use the words of the High Court in Banerji the purpose is '…the maintenance and protection of an apolitical and professional public service'.[346]
[346] [2019] HCA 23, [31].
[474]Notwithstanding the above view, I am disinclined to exercise the discretion to issue the declarations sought by the Applicant. I am of the view that the declarations sought in reliance on the HR Act would have no practical relevance or utility.[347]The jurisdiction to give declaratory judgments is limited to declaring the existence of legally enforceable rights or liabilities.[348]
[347] Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564.
[348] Anisminic Ltd v Foreign Compensation Commission & Anor [1968] 2 QB 862, 910.
[475]The Respondent argues that the Applicant has attempted to impermissibly expand its case beyond that which is contained in the application and the SFCs filed in the Commission.
[476]It is misconceived for the Applicant to submit, in apparent reliance on s 447(2) of the IR Act, that the Commission is not bound by technicality or form and 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.
[477]It must be accepted that where the Commission orders the filing of SFCs they serve to alert the other party to the case it will have to deal with and it identifies the issues which exist and, in turn, allows for a confinement of the matters in dispute. Subject always to the Commission's power to allow appropriate amendments, a party will be bound by its SFCs and may not lead evidence or make submissions which are not relevant to the identified issues.
[478]Whilst it is to be appreciated that in the Commission a SFC is not attended with the same level of formality as pleadings are, in the traditional sense. In this matter, the Commission has, consistent with the provisions of s 531 of the IR Act, required the parties to provide an outline of their respective cases.[349]
[349] Yousif v Workers’ Compensation Regulator [2017] ICQ 004, [13].
[479]As was observed by Martin J in Carlton v Blackwood (Carlton):
An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.[350]
[350] Carlton v Blackwood [2017] ICQ 001, [18].
[480]It is consistent with the requirements of s 531 of the IR Act for a party in a proceeding under the IR Act to set out its case by way of a SFC. As was expressed by Martin J in Carlton, the SFC serves to alert the other party to the case it will have to deal with and identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. It serves also to assist the Commission in knowing the nature and extent of the matter it is being called upon to adjudicate.
Disposition
[481]For the reasons set out above, I have formed the view that the general protections claimed pursuant to the IR Act must fail. Critically, the Applicant did not have the claimed workplace rights or protections. Irrespective, the evidence does not support a conclusion that the relevant conduct of the Respondents relied upon by the Applicant was unlawful. Finally, the claim based in reliance on the HR Act must equally fail.
[482]It follows therefore that the application should be dismissed.
Orders
[483]I make the following orders:
1. The Application is dismissed.
2. I will hear the parties on any further orders to be made.
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