Robertson v McDonald's Australia Limited
[2022] ICQ 25
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- Unreported Judgment
- Robertson v McDonald's Australia Limited[2022] ICQ 25
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Robertson v McDonald's Australia Limited[2022] ICQ 25
Robertson v McDonald's Australia Limited[2022] ICQ 25
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Robertson v McDonald's Australia Limited [2022] ICQ 25 |
PARTIES: | Robertson, B (Complainant) v McDonald's Australia Limited (Respondent) |
CASE NO.: | AD/2021/7 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 27 July 2022 |
HEARING DATE: | 27 July 2022 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
ORDER: | The Complainant's application in existing proceedings filed on 3 June 2022 is dismissed. |
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON THE BASIS OF AGE – Complainant alleged age discrimination and the asking of unnecessary questions against the Respondent – stay of complaint – appeal against stay – appeal successful in part – subsequent application in existing proceedings to the Court for an order that the Respondent comply with the Privacy Act 1988(Cth) – application in existing proceedings misconceived – no power of the Court to make such an order – application in existing proceedings dismissed |
LEGISLATION: | Industrial Relations Act 2016, s 412, s 424 and s 454 |
APPEARANCES: | The Complainant on his own behalf. Ms L. Dearlove of Colins Biggers & Paisley for the Respondent with Ms N. Longhurst of the Respondent. |
Reasons for Decision (ex tempore)
Introduction
- [1]Mr B. Robertson is a Complainant in a complaint that was made to the Queensland Human Rights Commission against McDonald’s Australia Limited ('McDonald's). As I best understand the circumstances, the complaint concerned allegations of age discrimination and unnecessary questions, contrary to the provisions of the Anti‑Discrimination Act 1991. That complaint has been referred to the Queensland Industrial Relations Commission. However, after hearing from Mr Robertson today, he indicates that his complaint against McDonald’s is broader than age discrimination and unnecessary questions.
- [2]By decision dated 8 October 2021, Industrial Commissioner Dwyer stayed that complaint until further order. On appeal of that decision to this Court by Mr Robertson, by decision dated 29 April 2022, Davis J, President of the Court:
- (a)allowed Mr Robertson’s appeal;
- (b)set aside the orders made by Industrial Commissioner Dwyer;
- (c)ordered that Mr Robertson’s complaint be stayed until he (Mr Robertson) had filed a notice of facts and contentions which put McDonald’s on notice of the case that it had to meet; and
- (d)made other orders not presently relevant.
- [3]By application in existing proceedings filed on 3 June 2022, Mr Robertson made application to this Court pursuant to s 412(2)(a) of the Industrial Relations Act 2016 ('the IR Act'), seeking the following decision:
That there be a determination, as to if and on which basis the respondents are to comply with the federal privacy act 1988, specifically but not limited to the Australian Privacy Principles (A.A.P). That the President, issues directions to the respondents, in line with the requirement s [sic] as to enage [sic] and provide equally to the applicant such replies, as would be due other individuals. Note the respondents, and council [sic] refuse to engage, or communicate, as to what is held to be a mandated option as to pursue the policies and actions related to privacy, data and the like.
- [4]Section 412 of the IR Act is headed 'Functions of the President', where, in that regard, 'President' means the President of the Industrial Court of Queensland. Subsections (1) and (2) of s 412 of the IR Act provide:
- (1)The president has the functions given to the president under this Act or another Act.
- (2)The functions of the president include-
- (a)managing and administering the court, including deciding who constitutes the court for a proceeding;
- [5]The jurisdiction of the Court is set out in s 424 of the IR Act. That section is headed 'Jurisdiction and powers' and provides:
- (1)The court may-
- (a)perform all functions and exercise all powers given to the court under this Act or another Act; and
- (b)hear and decide, and give its opinion on, a matter referred to it by the commission; and
- (c)hear and decide an offence against this Act, unless this Act provides otherwise; and
- (d)hear and decide appeals from an industrial magistrate’s decision in proceedings for-
- (i)an offence against this Act; or
- (ii)recovery of damages, or other amounts, under this Act; and
- (e)if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process-
- (i)the commission and magistrates exercise their jurisdictions according to law; and
- (ii)the commission and magistrates do not exceed their jurisdictions.
- (2)In proceedings, the court may-
- (a)make the decisions it considers appropriate, irrespective of specific relief sought by a party; and
- (b)give directions about the hearing of a matter.
- (3)The court’s jurisdiction is not limited, by implication, by a provision of this Act or another Act.
- (4)The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.
- [6]In my opinion, Mr Robertson’s application, filed on 3 June 2022, is misconceived. There are three reasons for this.
- [7]First, Mr Robertson has no existing proceedings in this Court against McDonald’s. As indicated earlier, there was an appeal against a decision of the Commission, but that appeal has been heard and determined and orders made.
- [8]Secondly, s 412(2)(a) of the IR Act does not confer power on the President of the Court to make any order of the kind sought by Mr Robertson. That section confers on the President the functions of managing and administering the Court, including deciding who constitutes the Court for a proceeding.
- [9]Thirdly, Mr Robertson’s application, as best as I can make out, seeks an order from this Court that McDonald’s responds to certain questions or requests made by him about McDonald’s complying with the Privacy Act 1988 (Cth). Not only does s 412(2)(a) of the IR Act not empower the Court to make an order of the kind sought by Mr Robertson, having regard to s 424 of the IR Act, which sets out the Court’s jurisdictions and powers, it seems to me that the Court has no power to make any order of the kind sought by Mr Robertson, namely, one that compels McDonald’s to answer questions or enquiries Mr Robertson has about McDonald’s compliance with the Privacy Act 1988 (Cth).
- [10]In submissions today, Mr Robertson indicated that an alternative source of power for the Court to make an order of the kind that he sought was s 454 of the IR Act. That section, which is headed 'Commission to Prevent Discrimination in Employment', provides:
In exercising a power, the commission must not allow discrimination in employment.
- [11]However, whatever the extent of that power is, and whatever the circumstances are where the Commission must observe that statutory command, it is a command placed on the Queensland Industrial Relations Commission and not on the Industrial Court of Queensland.
- [12]In any event, even if Mr Robertson’s application in existing proceedings was before the Commission, that power, s 454 of the IR Act, would not confer power on the Commission to make the order sought by Mr Robertson or to make an order of the kind sought by Mr Robertson. Mr Robertson did submit that there were other sections of the IR Act upon which the Court could exercise power to make an order of the kind that he sought, however, he was not able to particularise any such section.
- [13]For these reasons, I dismiss Mr Robertson’s application in existing proceedings filed on 3 June 2022.
Order
- [14]I make the following order:
The Complainant's Application in existing proceedings filed on 3 June 2022 is dismissed.