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Smith v State of Queensland (Queensland Health)[2025] ICQ 10

Smith v State of Queensland (Queensland Health)[2025] ICQ 10

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Smith v State of Queensland (Queensland Health) & Anor [2025] ICQ 010

PARTIES:

Paul Smith

(Appellant)

v

State of Queensland (Queensland Health)

(First Respondent)

AND

Robert Webb

(Second Respondent)

CASE NO:

C/2024/14

PROCEEDING:

Appeal

DELIVERED ON:

24 June 2025

HEARING DATES:

10 July 2024

2 April 2025

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

The appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – WHEN APPEALS LIES  – where the Appellant filed an appeal against a decision of the Queensland Industrial Relations Commission – where the Commission struck out certain impugned paragraphs of a filed document – whether there is any relevant error of law in the decision of the Queensland Industrial Relations Commission – whether the Commission struck out the paragraphs prematurely – whether the Commission erred in the statutory construction of s 289 of the Industrial Relations Act 2016 (Qld) – whether the Commission erred by providing inadequate reasons – whether the Commission erred by failing to consider the Human Rights Act 2019 (Qld) – the appeal is dismissed

INDUSTRIAL LAW – QUEENSLAND – DEFINITIONS AND INTERPRETATION – OTHER MATTERS – where the Appellant submits that the Queensland Industrial Relations Commission erred in law when construing s 289 of the Industrial Relations Act 2016 (Qld) – whether the Commission misconstrued the legislation

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14A, s 32D

Fair Work Act 2009 (Cth), s 345

Human Rights Act 2019 (Qld), s 15, s 17, s 26, s 37, s 43, s 48

Industrial Relations Act 2016 (Qld), s 3, s 4, s 278, s 279, s 284, s 285, s 287, s 289, s 454, s 541, s 531, s 557

Industrial Relations (Tribunals) Rules 2011 (Qld), r 139

CASES:

Australian Federation of Air Pilots v Regional Express Holdings (No. 2) [2020] FCCA 219

Australian Municipal, Administrative, Clerical and Services Union v Federal Commissioner of Taxation [2022] FCA 1225

Australian Nursing and Midwifery Federation v St Vincent's Private Hospitals Ltd [2025] FCA 18

Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677

DL v The Queen (2018) 266 CLR 1

Greenall v Amaca Pty Ltd (2024) 333 IR 208

Momcilovic v The Queen (2011) 245 CLR 1

Productivity Partners Pty Ltd (t/as Captain Cook College) v Australian Competition and Consumer Commission (2024) 98 ALJR 1021

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507

Retail and Fast Food Workers Union Inc v Tantex Holdings Pty Ltd (2020) 299 IR 56

Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 18

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

APPEARANCES:

Dr S. Sherlock as agent for the Appellant

Mr P. Zielinski of Counsel instructed by McCullough Robertson Lawyers for the First and Second Respondent

Reasons for Decision

Introduction

  1. [1]
    The Appellant, Mr Paul Smith, appeals a decision of the Queensland Industrial Relations Commission ('the Commission').
  1. [2]
    The decision appealed against is a decision striking out allegations of misrepresentation made by Mr Smith that are included in a document titled "Matters in Issue Raised by the Applicant" filed 19 September 2023 ('Matters in Issue document').[1] The Commission relevantly issued the following order:

The allegations regarding misrepresentations at paragraphs [30] to [50] and [54] to [57] of the 'Matters in Issue Raised by the Applicant' document filed on 19 September 2023 be struck out.

  1. [3]
    The decision is an interlocutory decision made in the course of Mr Smith's substantive general protections proceedings. The Commission was required to determine whether the relevant paragraphs of the Matters in Issue document be struck out on the basis that they do not amount to allegations relating to misrepresentation within the meaning of s 289 of the Industrial Relations Act 2016 (Qld) ('IR Act'). Specifically, it was contended that the relevant allegations did not involve misrepresentations about Mr Smith's workplace rights, in the terms referred to in s 289 of the IR Act.
  1. [4]
    Mr Smith was represented in the Commission and before this Court by his wife, Dr Sherlock, who was acting as his agent.

The Appeal to this Court

  1. [5]
    The Application to Appeal filed 9 February 2024 does not state any grounds of appeal as required by r 139 of the Industrial Relations (Tribunals) Rules 2011 (Qld). Rather, Mr Smith attached to his appeal the Respondents' submission filed in the interlocutory application hearing below and submissions written on his behalf in this appeal. Following a mention, the Respondents did not object to the irregularity contained in the Application to Appeal on the basis that Mr Smith's grounds were included in his written submissions, and the Court has proceeded on that basis.
  1. [6]
    At the hearing of the appeal, Dr Sherlock confirmed[2] that the grounds of appeal are as they appear in Mr Smith's amended submission dated 27 March 2024 which are as follows:[3]
  1. The Commissioner erred in law by allowing the strike out of the Appellant's allegations regarding misrepresentations and using discretionary powers under s 541(b)(ii) of the IR Act by not considering s 531, the purpose of the Act ('ground one');
  1. The Commissioner erred by not considering s 454 of the IR Act which prevents the Commission from allowing discrimination when exercising general powers. The statutory interpretation of the IR Act regarding s 289 compared to workers covered by the equivalent federal provision, being s 345 of the Fair Work Act 2009 (Cth) ('FW Act'), allows discrimination between employees with respect to misrepresentations to the Commission and also to Workcover. This contravenes the IR Act's purpose ('ground two');
  1. The Commissioner erred in failing to give adequate reasons for her decision that a Commissioner receiving a misrepresentation by an employer is not considered a "person" under the IR Act when making a decision on the balance of convenience based upon the parties' statements to her ('ground three'); and
  1. The Commissioner erred by not considering the Human Rights Act 2019 (Qld) ('HR Act') (ss 15(2), 15(3) and 15(4)) regarding equality before the law between private sector employee rights and state employee rights regarding misrepresentation made to Workcover ('ground four').
  1. [7]
    Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission a right of appeal to this Court on the grounds of error of law, or excess or want of jurisdiction. Section 557(2) of the IR Act provides that a person aggrieved by a decision of the Commission may appeal, with the Court's leave, on a ground other than those grounds referred to in s 557(1) of the IR Act.
  1. [8]
    Mr Smith has not sought leave to appeal on a ground other than those referred to in s 557(1) of the IR Act.

Relevant Background

  1. [9]
    The proceedings below involve a general protections claim brought by Mr Smith pursuant to ch 8 pt 1 of the IR Act against Mr Smith's employer, Queensland Health and an employee of Queensland Health, Dr Robert Webb. 
  1. [10]
    In the course of those proceedings, Mr Smtih filed the Matters in Issue document which has been taken by the parties and the Commission below to be akin to a Statement of Facts and Contentions.
  1. [11]
    The interlocutory application filed by the Respondents did not seek to strike out all of Mr Smith's claims but only those contained in the impugned paragraphs.

The Impugned Paragraphs in the Matters in Issue Document

  1. [12]
    The interlocutory application sought to strike out paragraphs 30 to 50 and 54 to 57 of the Matters in Issue document.
  1. [13]
    Due to the length of those paragraphs, it is convenient to summarise the allegations contained in those paragraphs as follows:
  1. that Mr Peter Sparrow, Manager Workplace Relations and IR Capability for MNHHS, in a proceeding brought pursuant to s 144 of the Anti-Discrimination Act 1991 (Qld) ('AD Act'), being a separate proceeding, gave false evidence regarding recruitment processes to the Commission, namely his evidence that "to the effect that there were staffing issues in the unit, so patient safety in the unit would be compromised if the recruitment process subject to s 144 proceeding was injuncted";
  1. following Mr Smith lodging a workers compensation claim for a psychological injury with WorkCover, Mr Luke Shorten, Service Director, Critical Care and Clinical Support Services, provided a report to WorkCover that was false insofar as he incorrectly stated the date upon which the injury had been reported;
  1. in various interactions, both by telephone and by email, Mr Troy Bachelder, Rehabilitation Return to Work Coordinator for MNHHS, with both WorkCover and the Workers' Compensation Regulator, allegedly falsely stated that:
  1. Dr Thistlethwaite was not available to respond as he was away at the Commission;
  1. "the QIRC were looking at the WorkCover claim this week"; and
  1. Mr Smith "had no evidence to support his claim" and that "MNHHS could not provide any response whilst the QIRC investigation was underway" and that it was unknown when the Commission investigation would be complete;
  1. That Dr Webb falsely stated in a statement to the Workers' Compensation Regulator that:[4]
  1. Dr Webb did not arrange to meet with "senior executives" regarding Mr Smith on 16 August 2021 until after "Mr Smith had embarrassed the Directors in the morning handover by raising concerns related to safety and cover ups";
  1. "the Directors had continued using the faulty equipment and not warned casual technicians of the malfunction until the engineers arrived on 17 August"; and
  1. "the 'independent safety auditor…' identified safety issues with the Unit noting poor communication, lack of proper testing and information relayed to him by Dr Thistlethwaite which was incorrect".
  1. [14]
    In reliance on the above contentions, Mr Smith further contends that the conduct of Mr Sparrow, Mr Shorten, Mr Bachelder and Dr Webb, when engaging in the alleged conduct, contravened s 289 of the IR Act.
  1. [15]
    In the formation of his argument, Mr Smith argued at first instance that s 289 of the IR Act prohibits misrepresentations to a person who relies upon the statement (or omission) when making a decision.[5]
  1. [16]
    The Respondents contend that the allegations do not allege misrepresentation about Mr Smith's workplace rights or the exercise, or the effect of the exercise, of his workplace rights. Accordingly, the Commission was required to consider the construction of s 289 of the IR Act and its application to the relevant facts for the purpose of determining the interlocutory application.
  1. [17]
    The Commission below determined that the impugned paragraphs did not amount to misrepresentation within the meaning of s 289 of the IR Act.

The Commission's Decision

  1. [18]
    The Commission approached the determination of the matter by considering the construction of s 289 of the IR Act.[6] The construction of s 289 of the IR Act is a matter which remains in contention on appeal and regard will be had to the construction of that provision further below.
  1. [19]
    Following, the process of construing the relevant statutory provision, the Commission then considered the relevant conduct which was said to amount to a contravention of s 289 of the IR Act.[7]
  1. [20]
    With respect to the alleged misleading representation involving Mr Sparrow, the Commission determined that:[8]
  1. [59]
    Mr Smith had a right to seek an order under s 144 of the AD Act. Mr Smith exercised this right by making an application. Mr Sparrow's evidence was not with regard to Mr Smith's capacity to seek orders under s 144 of the AD Act or his exercise of this right by making an application. At the time Mr Sparrow gave evidence, Mr Smith had exercised this right.  Mr Sparrow's evidence addressed the effect of such an injunction on safety at the hospital. Mr Smith may disagree with Mr Sparrow's evidence. Mr Sparrow's evidence may affect a decision made by the Commission regarding Mr Smith's application. However, Mr Sparrow's evidence about the impact of an injunction on circumstances at MNHHS is not evidence about a workplace right Mr Smith has. It is for those reasons that I find Mr Sparrow's evidence does not fall within s 289 of the IR Act.
  1. [60]
    Having determined that Mr Sparrow's evidence before the Commission was not about a workplace right or the exercise of a workplace right, I am not required to address whether Mr Sparrow's evidence also fails to fall withins 289 of the IR Act on the basis that it was not made 'to a person'.  However, for completeness, I have considered the submissions of the parties on this point.
  1. [61]
    The Acts Interpretation Act 1954 (Qld) provides that in an Act, a reference to a person generally includes a reference to a corporation as well as an individual. The QIRC is not a corporation. The evidence was heard by a Commissioner sitting as 'the Tribunal' for the purposes of the AD Act. The Commission or Tribunal is established under statute and the power exercised is statutory power. The Commissioner hearing a matter is exercising the power of the Commission or Tribunal and therefore is receiving such evidence as the Commission or Tribunal rather than as 'a person'. As the Applicant submits, Commissioner Power is a human being. However, when hearing evidence regarding a matter under the AD Act, Commissioner Power is acting in the capacity of 'the Tribunal' rather than 'a person'.
  1. [21]
    Regarding the allegations made with respect to Mr Shorten, the Commission determined as follows:[9]
  1. [67]
    The workplace right Mr Smith had was to lodge a WorkCover claim. The representations attributed to Mr Shorten do not demonstrate that he informed Mr Smith that he could not lodge a claim. Rather, it appears that Mr Smith did lodge a claim. The exercise of the workplace right occurred when Mr Smith made the application for compensation.
  1. [68]
    Following the exercise of the workplace right, it was a matter for WorkCover to consider the claim based on the information available and provided by Mr Smith and by the employer. If Mr Smith is of the view that information provided to WorkCover by the Respondents is not correct, it is a matter for him to raise that with WorkCover. If the claim is rejected, there is a process for seeking review and eventually bringing an appeal to this Commission.
  1. [69]
    The provision of information to WorkCover in support of the Respondents' position regarding the date of injury is not a representation about a workplace right or the exercise of a workplace right. A representation about a workplace right would occur in circumstances where, for example, Mr Shorten had told Mr Smith that he did not have a right to make a claim for workers' compensation or that he was unable to exercise such a right. There is no evidence before me that this is what occurred. As I have discussed above, the submissions indicate that Mr Smith made a claim for workers' compensation.
  1. [70]
    I do not accept that information provided to WorkCover, albeit information which may have a negative impact on the outcome of Mr Smith's claim, is a representation about a workplace right or the exercise of a workplace right.
  1. [22]
    The Commission's determination with respect to the allegations made against Mr Bachelder were as follows:[10]
  1. [80]
    Mr Bachelder's representation to WorkCover that Dr Thistlethwaite was unavailable to provide a statement was not a representation about Mr Smith's workplace right or the exercise thereof. The non-provision of a statement from Dr Thistlethwaite at that time did not preclude Mr Smith from exercising his workplace right to make an application for WorkCover.
  1. [81]
    Likewise, I find that any statement Mr Bachelder made to WorkCover regarding matters that may or may not be pending in the QIRC or the quality of the evidence that Mr Smith may be able to produce to support his claim was not a statement about Mr Smith's workplace right to lodge a WorkCover claim or his exercise of that right by making the claim. The WorkCover process requires an employer to provide information to WorkCover or, in the case of review, the Workers' Compensation Regulator. It is not the case that all information provided to WorkCover by an employer falls within s 289 of the IR Act.  Information provided to WorkCover may have an impact on the outcome arrived at by the decision-maker, following the exercise of a workplace right, but it is not about that workplace right.
  1. [82]
    If Mr Smith is of the view that WorkCover or the Workers' Compensation Regulator have made an error or that a decision has been made based on information which is not correct or which Mr Smith disagrees with, there is a review and appeals process available. 
  1. [83]
    It would be an unworkable situation if a person were able to make a general protections application each time they disagreed with information provided by their employer to WorkCover. There is a scheme to deal with such situations via the Workers' Compensation and Rehabilitation Act 2003 (Qld).
  1. [23]
    Finally, with respect to the allegations made in relation to Dr Webb, the Commission determined as follows:[11]
  1. [91]
    For the reasons given above, I do not accept that statements made by the Respondents to either WorkCover or the Workers' Compensation Regulator are about the workplace right to make a claim for Workers' Compensation or are about the exercise of that right.
  1. [92]
    If there is information that Mr Smith feels should be considered by the decision-maker in relation to a workers' compensation claim, review or appeal, it is a matter for Mr Smith to furnish the decision-maker with this information, or draw attention to the fact that it is missing.
  1. [93]
    If Mr Smith disagrees with information provided by the Respondents relating to his workers' compensation claim and thinks that the decision has been affected by that information, it is a matter for him to seek a review or lodge an appeal to have the matter considered by the Workers' Compensation Regulator or the Commission.
  1. [94]
    Mr Smith has a right to lodge a claim for workers' compensation, he has right to seek a review of a decision made to reject his claim and he has a right to appeal a decision of the Workers' Compensation Regulator to the QIRC. The workplace right to claim workers' compensation does not give rise to a workplace right that the employer will only provide WorkCover information favourable to one's claim.
  1. [95]
    I am not satisfied that Dr Webb's statement provided to WorkCover falls within s 289 of the IR Act.  Further, that Dr Webb's statement did not contain information Mr Smith thought it should have contained does not fall within s 289. 
  1. [24]
    Consequently, the Commission concluded that the relevant paragraphs be struck out on the basis that they did not constitute misrepresentations for the purpose of s 289 of the IR Act.

Statutory Construction of s 289 of the IR Act

  1. [25]
    The grounds of appeal are premised on the view Mr Smith has with respect to the statutory construction of s 289 of the IR Act. For that reason, it is convenient to consider the statutory construction of s 289 of the IR Act at this juncture.
  1. [26]
    The relevant principles with respect to statutory construction were considered and summarised in R v A2; R v Magennis; R v Vaziri,[12] as follows:[13]
  1. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  1. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  1. This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
  1. The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
  1. These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
  1. None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

…

  1. [27]
    In SZTAL v Minister for Immigration and Border Protection,[14] the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:[15]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

…

  1. [28]
    Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.
  1. [29]
    Section 289 of the IR Act falls within ch 8 pt 1 of the IR Act.
  1. [30]
    Chapter 8 is entitled "Rights and responsibilities of employees, employers, organisations etc". Part 1 is entitled "General protections".
  1. [31]
    In terms of the historical context, the general protections provisions were contained in the suite of changes introduced by the IR Act in 2016. 
  1. [32]
    The Explanatory Notes to the Industrial Relations Bill 2016 ('the IR Bill') provides that the IR Bill introduces new protections for workers to, inter alia, "establish a general protections jurisdiction to protect workers against adverse action during employment or dismissal from employment; and workplace bullying remedies for state and local government employees similar to those available to private sector workers under the FW Act".
  1. [33]
    Whilst the Queensland jurisdiction has had, at earlier points in its legislative history, enactments providing for freedom of association in various forms,[16] the purpose of the introduction of the 2016 provisions was to establish a general protections jurisdiction in Queensland which would ensure access to adverse action remedies for state and local government employees that was similar to that provided to national system employers and employees under the FW Act.
  1. [34]
    The general protections provisions in the IR Act largely mirror those contained in ch 3 pt 3-1 of the FW Act.
  1. [35]
    The statutory context of ch 8 pt 1 can be drawn from the whole of the IR Act including ss 3 and 4. Section 3 of the IR Act provides for the main purpose of the IR Act as follows:
  1. 3
    Main purpose of Act
  1. The main purpose of this Act is to provide for a framework for cooperative industrial relations that—
  1. (a)
    is fair and balanced; and
  1. (b)
    supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.
  1. [36]
    Section 4 sets out how the main purpose of the IR Act is primarily achieved, relevantly, as follows:
  1. 4
    How main purpose is primarily achieved
  1. The main purpose of this Act is to be achieved primarily by—
  1. …
  1. (m)
    encouraging fairness and representation at work, and the prevention of discrimination, by recognising the right to freedom of association, the right to organise and the right to be represented; and
  1. …
  1. (q)
    establishing an independent court and tribunal to facilitate fair, balanced and productive industrial relations; …
  1. [37]
    The purpose of ch 8 pt 1 is set out in s 278 of the IR Act which states:
  1. 278
    Purposes of part
  1. (1)
    The purposes of this part are as follows—
  1. (a)
    to protect workplace rights;
  1. (b)
    to protect freedom of association by ensuring that persons are—
  1. (i)
    free to become, or not become, members of industrial organisations; and
  1. (ii)
    free to be represented, or not represented, by industrial organisations; and
  1. (iii)
    free to participate, or not participate, in lawful industrial activities;
  1. (c)
    to provide protection from workplace discrimination;
  1. (d)
    to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.
  1. (2)
    The protections contained in subsection (1) are provided to a person (whether an employee, an employer or otherwise).
  1. [38]
    It is clear that the purpose of the part is to provide protections that fall into three categories, being:
  1. the protection of workplace rights;
  1. the protection of freedom of association; and
  1. the protection from workplace discrimination.
  1. [39]
    Relevantly, the protection of workplace rights provided for under this part is intended to be achieved by the prohibitions set out in, inter alia, ss 285, 287 and 289 of the IR Act.
  1. [40]
    The purpose of the part appears to be consistent with, and assists in the achievement of, the main purpose of the IR Act and how that is primarily achieved, relevantly, by the matters contained in ss 4(m) and 4(q) of the IR Act.
  1. [41]
    The definitions to the part are provided for in s 279 of the IR Act and includes the definition of "action" and "workplace right".
  1. [42]
    "Action" is defined to "include omission", whereas "workplace right" is defined by reference to s 284 of the IR Act which is considered further below.
  1. [43]
    By way of further context within the statute, and as noted above, the general protections provisions protect a person from certain action being taken against them because they have or have not exercised a workplace right or propose to exercise or not exercise a workplace right.
  1. [44]
    Section 285 of the IR Act provides the protection with respect to workplace rights by prohibiting a person from taking adverse action against another person because the other person has a workplace right or has or has not exercised the workplace right or proposes or proposed to exercise or not exercise a workplace right.
  1. [45]
    "Workplace right" is defined in s 284 of the IR Act as follows:
  1. 284
    Meaning of workplace right
  1. (1)
    A person has a workplace right if the person—
  1. (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
  1. (b)
    is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  1. (c)
    is able to make a complaint or inquiry—
  1. (i)
    to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
  1. (ii)
    if the person is an employee—in relation to the person's employment.
  1. (2)
    In this section—
  1. industrial body means—
  1. (a)
    the commission; or
  1. (b)
    the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers.
  1. [46]
    Section 287 of the IR Act prohibits a person from coercing another person.
  1. [47]
    Relevantly, s 289 of the IR Act prohibits a person from misrepresenting a workplace right as follows:
  1. 289
    Misrepresentations
  1. (1)
    A person must not knowingly or recklessly make a false or misleading representation to another person about—
  1. (a)
    the workplace rights of the other person or a third person; or
  1. (b)
    the exercise, or the effect of the exercise, of a workplace right by the other person or a third person.
  1. Note—
  1. This subsection is a civil penalty provision.
  1. (2)
    Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
  1. [48]
    The IR Act does not define the term "person" however, it is defined by s 32D of the Acts Interpretation Act 1954 (Qld) to include the following:
  1. 32D
    References to persons generally
  1. (1)
    In an Act, a reference to a person generally includes a reference to a corporation as well as an individual.
  1. …
  1. [49]
    Accordingly, the use of the word "person" in the context of the provision requires there to be identification of the relevant person who is it is alleged made the false or misleading representation.
  1. [50]
    There is also a requirement to identify the person to whom the false or misleading representation was made.[17] Further, there is a requirement to identify the person who has the relevant workplace right.
  1. [51]
    In order to enliven the provision, the false or misleading representations must have been made knowingly or recklessly. The phrase has been considered in the federal jurisdiction with respect to s 345 of the FW Act which is in near identical terms to s 289 of the IR Act.
  1. [52]
    The false or misleading representation must be "about" the workplace rights of the other person, or, "about" the exercise, or the effect of the exercise, of a workplace right by the other person or a third person.
  1. [53]
    In Australian Municipal, Administrative, Clerical and Services Union v Federal Commissioner of Taxation,[18] Jagot J identifies principles applicable to the construction of s 345 of the FW Act. Those principles have been further summarised as follows:[19]
  1. section 345 is intended to protect the rights given to workers by the FW Act and ensure that neither an employer nor any other person misleads workers about their rights under that Act;
  1. the particular group to whom the representations are alleged to be directed must be identified;
  1. in order to be about a workplace right, there must be some connection or relationship between the representation and the workplace right or its exercise;
  1. a representation is misleading if it has a tendency to lead a person into error, as opposed to a tendency to create mere confusion;
  1. the state of mind required by s 345 attaches to the false or misleading quality of the representation, and not the act of making the representation;
  1. a false or misleading representation is made knowingly where the maker of the representation does so purposely or deliberately or intentionally while knowing that the representation is untrue; and
  1. a representation is made recklessly when the maker of the representation either closes their eyes to the obvious as to truth of the representation, or, knowing that it is likely that the representation is not correct, chooses to make it, not caring whether or not it is correct.
  1. [54]
    In Retail and Fast Food Workers Union Inc v Tantex Holdings Pty Ltd,[20] Logan J considered the meaning to be attributed to terms "knowingly" and "reckless" as follows:[21]

Subject to anything in other authorities referred to by Wheelahan J in AEU v RMIT, it seems to me that "knowingly" in s 345 of the FWA ought to be construed as meaning "purposely or deliberately or intentionally untrue" and the alternative "recklessly" ought to be construed as sufficiently proved only if the author of the representation has closed his eyes to the obvious as to the truth of the representation or made it knowing that it was likely that it was not correct or misleading and not caring whether it was correct or misleading, what one might term wilful blindness. That they are alternatives might be thought to suggest that the pleading in the statement of claim that the representations alleged were made "knowing they were false, or reckless as to their truth" was rolled up and duplicitous. However, no such point was taken for Tantex and it is possible to read the pleading as alleging contraventions in the alternative.

  1. [55]
    There was a dispute between the parties below regarding the meaning of the word "about" in the context of the provision. The ordinary meaning of the word "about" includes:[22]

preposition

1.

of; concerning; in regard to: to talk about secrets.

2.

connected with: instructions about the work.

…

  1. [56]
    Accordingly, the misrepresentation must be "about", or "of", or "connected to" the relevant workplace right. This requires a connection between the relevant representation and the relevant workplace right or the exercise, or the effect of the exercise, of a workplace right. The "workplace right" must be identified and must be one which falls within the meaning of that term in s 284 of the IR Act.
  1. [57]
    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation,[23] Mortimer J (as her Honour then was) identified the nature of the connection between the representation and the workplace right as follows:[24]

In this context, the word "about" in s 345 means "in relation to" or "concerning": that is, it contemplates some degree of connection or relationship between the representation and (relevantly) the exercise of a workplace right…The connection must be sufficient for the operative false or misleading conduct to occur. That is not to say there must be a causal connection: rather it is to recognise that the core purpose of the prohibition is to protect the exercise of the identified workplace rights in the FW Act from conduct which could undermine, frustrate or otherwise adversely affect the exercise of those rights.

  1. [58]
    A further issue in dispute in this matter is the meaning to be attributed to the words "the exercise or the effect of the exercise".
  1. [59]
    Determining whether a person has exercised a workplace right requires firstly, identifying the relevant workplace right and then determining if a person had exercised that workplace right.
  1. [60]
    The real controversy in this matter is with respect to the construction of "the effect of the workplace right".
  1. [61]
    The term "effect" takes its ordinary meaning which includes, "that which is produced by some agency or cause; a result; a consequence…".[25]
  1. [62]
    Accordingly, a false or misleading representation about the effect of the exercise of a workplace right amounts to a false or misleading representation about the result or consequence of the effect of exercising the workplace right.
  1. [63]
    This must be distinguished from a false or misleading representation that is said to affect the exercise of a workplace right.
  1. [64]
    This approach to the construction of s 289 of the IR Act is consistent with the approach adopted in the federal jurisdiction.[26]
  1. [65]
    Further, the proper construction of s 289 of the IR Act, accords with the approach undertaken by the Commission below.[27] That approach includes identification of the relevant persons, identification and consideration of the relevant misleading representation (in the context of considering whether the representation was knowingly or recklessly false or misleading), identification of the relevant workplace right and consideration of whether the relevant false or misleading representation was because the person has a workplace right or about the exercise, or the effect of the exercise, of a workplace right.

Ground One – Issue of Striking out Prematurely

  1. [66]
    Mr Smith contends that the Commissioner erred in law by allowing the strike out of Mr Smith's allegations regarding misrepresentations and using discretionary powers under s 541(b)(ii) of the IR Act by not considering the purpose of the Act as required in s 531 of the IR Act.
  1. [67]
    Mr Smith argues that because the Commissioner dismissed the allegations, the Commission denied the Appellant a "fair process to argue a point of statutory interpretation…" and where it is in the public interest that such arguments are heard.[28]
  1. [68]
    Whilst ground one does not particularise, by reference to any passages in the Primary Decision, an error in the Commission's findings, it can be inferred from his submission that Mr Smith contends the Commission erred in determining the matter at a preliminary stage with respect to her findings that the impugned paragraphs did not establish a contravention of s 289 of the IR Act.
  1. [69]
    Section 541 of the IR Act provides the Court or Commission with certain powers when making decisions. Section 541 of the IR Act relevantly states:
  1. 541
    Decisions generally
  1. The court or commission may, in an industrial cause do any of the following—
  1. (a)
    make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
  1. (i)
    the cause is trivial; or
  1. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest;
  1. (c)
    order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
  1. [70]
    Mr Smith argues that in dismissing the allegations the Commissioner failed to have regard to s 531 of the IR Act and in particular failed to have regard to the public interest which is found in s 531(5) of the IR Act. Section 531(5) of the IR Act relevantly states:
  1. 531
    Decisions of the commission and magistrates
  1. …
  1. (5)
    In making a decision, other than a decision made under chapter 4, part 3, division 2, the commission must consider the public interest, and in doing so must consider—
  1. (a)
    the main purpose of this Act; and
  1. (b)
    the likely effects of the commission's decision on the community, economy, industry, the particular industry concerned and industry generally.
  1. [71]
    Further, Mr Smith argues that the discretion should not have been exercised when there are "complex facts and legal arguments for consideration"[29] and prior to disclosure taking place.
  1. [72]
    Mr Smith's submissions are premised on an assumption that the relevant allegations contained in the impugned paragraphs were meritorious.
  1. [73]
    The ascertainment of where the public interest lies often depends on the balancing of interests, including public interest, and is very much a question of fact and degree.[30]
  1. [74]
    In making a decision, the Commission must consider the public interest and in doing so must consider the purpose of the IR Act and the likely effect on the community, economy and, inter alia, industry.
  1. [75]
    As noted above, s 3 of the IR Act provides that the main purpose of the Act is to provide for a framework for cooperative industrial relations that is fair and balanced and supports the delivery of high-quality services, economic prosperity and social justice for Queenslanders.
  1. [76]
    Section 4 of the IR Act sets out how the main purpose is primarily achieved including by, establishing an independent court and tribunal to facilitate fair, balanced and productive industrial relations.[31]
  1. [77]
    Consistent with this, is that proceedings before the independent court and tribunal be dealt with fairly, efficiently and in accordance with the law.
  1. [78]
    It would not be in the interests of justice for unmeritorious proceedings to proceed and to unfairly place a burden on the resources of the Court or Commission or the opposing party.
  1. [79]
    The power given to the Commission by s 541 of the IR Act, including by preventing a party from pursuing a cause of action or seeking certain types of relief, should be exercised with due circumspection,[32] however, equally that power should also be exercised in a manner which accords with the purpose of the IR Act. Depending on the facts and circumstances of the matter, this may include exercising the power to ensure that the Commission refrains from hearing an industrial cause or part of an industrial cause that is unmeritorious.
  1. [80]
    In this matter, the Commissioner determined that the relevant impugned paragraphs that alleged contraventions of s 289 of the IR Act did not have merit.[33]
  1. [81]
    Accordingly, it was not in the public interest to permit those allegations to stand pending the final hearing of the proceedings.
  1. [82]
    Engaging in a discovery process or permitting the allegations to proceed to hearing would not have been of any utility in circumstances in which s 289 of the IR Act had not been enlivened.
  1. [83]
    Ground one of the appeal does not identify any appellable error.

Ground Two – Statutory Construction

  1. [84]
    Mr Smith further contends that the Commissioner erred by not considering s 454 of the IR Act which prevents the Commission from allowing discrimination when exercising general powers. Mr Smith argues that the statutory interpretation of s 289 of the IR Act when compared to s 345 of the FW Act allows discrimination between how workers who fall within the state jurisdiction and those who fall within the federal jurisdiction are treated with respect to misrepresentations made to the Commission and to WorkCover. Mr Smith contends these matters contravenes the purpose of the IR Act.
  1. [85]
    In support of these contentions, Mr Smith argued that:[34]
  1. … the Commissioner conceded that misrepresentations to Workcover are captured by the FWA however she determined that misrepresentations under the IR act are not captured; this allows discrimination between the protections extended to Queensland workers in exercising the right to have a fair process when lodging a Workers compensation claim. This discrepancy was one she did not feel she was bound to resolve. Using her discretionary power to determine that misrepresentations to Workcover under IR law are not captured whilst acknowledging that previous rulings specifically dealing with misrepresentations to Workcover under the Fair Work Act were captured creates tensions between the rights of employees in Queensland.
  1. If the Commissioner Pidgeon's interpretation is allowed to stand without benefit of argument in a hearing, this introduces discrimination between those employed by the State (where the IR act applies) and those contracted to the State (where the FWA applies) when considering if a misrepresentation to Workcover the Regulator or the QIRC which affects the workers exercise of his right is being considered. In effect, it causes discrimination between workers, which is the very thing the IR act was intended to prevent. The discretionary decision is not permissible under s 454 of the IR act.
  1. [86]
    Section 454 of the IR Act falls within ch 11 "Industrial tribunals and registry", pt 2 "Industrial relations commission", div 3 "The commission", sub-div 3 "Powers". Section 454 of the IR Act provides that in exercising its power, the Commission must not allow discrimination in employment.
  1. [87]
    Section 451 of the IR Act sets out the Commission's general powers in proceedings which include, inter alia, making a decision it considers appropriate. Consequently, it is arguable that s 454 of the IR Act applies to the making of a decision by the Commission in a proceeding.
  1. [88]
    Mr Smith contends that it has been accepted within the federal jurisdiction that a representation made to WorkCover by an employer was said to be made "in respect of the exercise of a workplace right of the relevant employee for the purpose of s 345 of the FW Act".[35]
  1. [89]
    Mr Smith argues that the Commissioner "conceded" misrepresentations to WorkCover are captured by the FW Act, however, that the Commissioner determined that misrepresentations under the IR Act are not captured which in turn allows discrimination between the protections extended to Queensland workers who exercise the right to have a fair process when lodging a workers' compensation claim.
  1. [90]
    In support of his position, Mr Smith relies on the decision of Corke-Cox v Crocker Builders Pty Ltd[36] which was a decision of the then Federal Magistrates Court of Australia.
  1. [91]
    Mr Smith's submissions that the Commissioner "conceded" that misrepresentations to WorkCover are captured by the FW Act but not the IR Act mischaracterises the Commissioner's findings. Indeed, the Commission made no such finding. 
  1. [92]
    Rather, the Commission considered the Applicant's submission with respect to Corke-Cox, together with more recent higher court authorities. Relevantly, the Commission considered the approach taken in each of the decisions as follows:[37]
  1. [28]
    The Applicant submits that as the Court in Crocker Builders decided that a misrepresentation made to WorkCover was a clear breach of the FWA, 'there is no need to dwell on a redundant examination of the words 'in respect of''. I disagree.  Firstly, the QIRC is not bound by a decision of the Federal Magistrates Court.  Secondly, that decision turned on its own facts and must be considered in the context of more recent decisions from higher courts. While I am otherwise unpersuaded by this argument, it is worth noting that bench books from other jurisdictions may be persuasive but are not binding on this Commission.
  1. [29]
    The Applicant says that the interpretation of s 289 requires consideration of not just the emphasis of the words 'about workplace rights' but consideration of the clause 'or their exercise'. The Applicant says that if the term 'or their exercise' was not meant to be considered, the legislators would not have added the 'or'. The Applicant submits that the undue emphasis of the Respondents on the word 'about' rather than the verb 'exercise' 'fatally flaws their argument'. 
  1. [30]
    In REX, it was relevantly said:
  1. [98]
    There are a number of elements that must be satisfied in order for a court to form the view that section 345 of the Act has been contravened. Among other things, the representation must be either false or misleading. It must also be 'about' one of the matters specified in subsection (1)(a) or (1)(b) of section 345 of the Act.
  1. [99]
    The principles relating to whether a representation is false or misleading in the context of section 345 of the Act were canvassed by a Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 ('BHP Coal') at [156] to [162]. I do not repeat here all of the observations of the Full Court, but rely on them.
  1. [100]
    I find that the Letter does not convey representations that are either false or misleading. My reasons for so finding are as follows.
  1. [101]
    Firstly, regard must be had to the terms of the Letter. The Letter does not refer to the relevant clauses in the 2011 Agreement. It does not refer to a workplace right. As the Letter says nothing about the clauses in the 2011 Agreement, it says nothing about the effect of those clauses.
  1. [102]
    Second, to the extent it might be said that the example given in the Letter is inconsistent with any workplace right, that of itself does not make the representation about a workplace right. In BHP Coal, the union published its own policy about overtime. The statement in the union policy was inconsistent with BHP's workplace rights. The fact that there was an inconsistency between the union policy and BHP's workplace rights did not produce the result that the union statement was 'about' workplace rights.
  1. [31]
    In BHP Coal, the Court stated, 'the fact that a representation may be inconsistent with a workplace right does not make it a representation about a workplace right'. 
  1. …
  1. [33]
    At [138] of Crockers-Builders, the Magistrate acknowledges that a number of the alleged representations which were made by the employer in that matter did not 'address' the relevant right, that is whether the applicant had a right to claim workers' compensation.  However, while the statement the Magistrate determined did fall within s 345 of the FW Act was also not about whether the applicant had a right to claim workers' compensation, the Magistrate determined that the statement 'was one in respect of the workplace rights of the applicant and/or the exercise of the workplace right'.
  1. [34]
    I am of the view that in the context of the later decisions of BHP and REX, for a representation or a misrepresentation to fall within s 289(1) of the IR Act, it must be about the workplace right or the exercise of the workplace right rather than in some other way related to it or 'in respect of it'. On the basis of BHP and REX, and in the context of the illustrative examples set out in the Explanatory Memorandum of the Fair Work Bill, I find that the word 'about' requires a directness between the statement and the workplace right.
  1. [35]
    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation, Mortimer J (as her Honour then was) stated that the 'FW Act is, through s 345, intending to protect the rights the FW Act itself gives to workers, and ensure that no person (whether employer or anyone else) misleads workers about what rights they have under the FW Act'.
  1. [36]
    The purpose of s 289 of the IR Act is to prevent a person from making a misrepresentation about a workplace right or the exercise of a workplace right.  If, as in Crocker Builders, the test was that a statement was 'in respect of' the workplace right, this would significantly broaden the types of matters which could be seen to be misrepresentations. I do not think the intent of the legislature in enacting s 289 was that it extend to all things that may be written or said in respect of that workplace right. 
  1. [37]
    In this current case, the workplace right is to make a claim for workers' compensation and to exercise that right by making a claim. Further, the workplace right also involves a right to seek a review of a WorkCover decision and to appeal a review decision made by the Workers' Compensation Regulator. The exercise of those rights occurs when the review is sought or an appeal is lodged. I also note that a different workplace right is pleaded for the purposes of the alleged misrepresentations made by Mr Peter Sparrow, Manager Workplace Relations & IR Capability for MNHHS, in the context of an application under the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
  1. [38]
    For alleged misrepresentations to fall within s 289 of the IR Act, in my view, they must mislead a worker or another person about workplace rights that worker has, and/or their right to exercise those workplace rights. It is not enough that the alleged misrepresentations may have an impact on a determination by a decision-maker regarding the outcome of the exercise of a workplace right. 
  1. [93]
    It follows that, the Commission had regard to Mr Smith's reliance on Corke-Cox and rejected his submissions that the decision is authority for his contention that the allegations amounted to misrepresentations "in respect of" his workplace right or "in respect of" the exercise, or effect of the exercise, of his workplace right. The Commission rejected the test stated in Corke-Cox as being "in respect of" the workplace right on the basis that it would significantly broaden the types of matters that could amount to a contravention of s 289 of the IR Act. Further, the Commission noted that the test had not been applied or adopted in more recent authorities. The Commission's reasons for finding that the allegations did not enliven s 289 of the IR Act were orthodox and logical. The Commission's rejection of Corke-Cox as authority for enlivening s 289 of the IR Act, with respect to the allegations, accords with the proper statutory construction of s 289 of the IR Act as set out above.
  1. [94]
    In determining that s 289 of the IR Act had not been enlivened the Commission considered whether the impugned conduct could fall within the provisions of s 289 of the IR Act.
  1. [95]
    With respect to the alleged conduct of Mr Sparrow,[38] the Commission found that:
  1. Mr Smith had a workplace right to seek an order under s 144 of the AD Act;
  1. Mr Smith exercised that right by making an application to the Commission pursuant to s 144 of the AD Act; and
  1. the alleged false evidence given by Mr Sparrow in the course of giving evidence before the Commission, following the exercise of the workplace right, about the impact of issuing an injunction on the First Respondent was not a representation about Mr Smith's workplace right or about the exercise, or the effect of the exercise, of that workplace right.
  1. [96]
    With respect to the alleged conduct of Mr Shorten, the Commission found that:[39]
  1. Mr Smith had a workplace right to lodge a WorkCover claim;
  1. Mr Smith exercised his workplace right by lodging a WorkCover claim; and
  1. the information provided to WorkCover by Mr Shorten, following the exercise of the workplace right, in relation to the First Respondent's position as to the date of the injury was not a representation about Mr Smith's workplace right or about the exercise, or the effect of the exercise, of the workplace right.
  1. [97]
    With respect to the alleged conduct of Mr Bachelder, the Commission found that:[40]
  1. Mr Smith had a workplace right to lodge a WorkCover claim;
  1. that Mr Smith exercised his workplace right by lodging a WorkCover claim; and
  1. the statements and information made by Mr Bachelder to WorkCover and to the Workers' Compensation Regulator on behalf of the First Respondent in the course of the process, following the exercise of Mr Smith's workplace right, was not a representation about Mr Smith's workplace right or about the exercise, or the effect of the exercise, of the workplace right.
  1. [98]
    With respect to the alleged conduct of Dr Webb, the Commission found that:[41]
  1. Mr Smith had a workplace right to lodge a Workcover claim;
  1. that Mr Smith exercised that workplace right by lodging a Workcover claim; and
  1. the alleged statements made by Dr Webb to WorkCover and the Workers' Compensation Regulator, following the exercise of the workplace right are not representations about a workplace right or about the exercise, or the effect of the exercise, of the workplace right.
  1. [99]
    The alleged conduct complained of by Mr Smith relates to conduct of representatives of the First Respondent undertaken after Mr Smith had exercised his workplace right.
  1. [100]
    The conduct involved putting the Respondents' position, whether it be by statements or the provision of information, in separate processes that were commenced following Mr Smith exercising his workplace rights. The conduct did not amount to the making of representations about Mr Smith's workplace right or about the exercise, or the effect of the exercise, of Mr Smith's workplace right so as to enliven s 289 of the IR Act because Mr Smith failed to establish the necessary connection between the alleged representation and the workplace right.
  1. [101]
    The findings of the Commission accord with the correct approach to the construction of s 289 of the IR Act and are consistent with the approach taken in the federal jurisdiction with respect to the construction of s 345 of the FW Act.[42] The decision does not create "discrimination" between workers employed in Queensland or federally as contended by Mr Smith.
  1. [102]
    On this basis, ground two of the appeal is dismissed.

Ground Three – Inadequate Reasons

  1. [103]
    Mr Smith contends that "the Commissioner erred in failing to give adequate reasons for her decision that a Commissioner receiving a misleading representation by an employer is not considered a 'person' under the IR Act when making a decision on the balance of convenience based upon the parties' statements to her."
  1. [104]
    This ground appears to relate to Mr Smith's contention that Mr Sparrow gave false evidence in the course of the s 144 of the AD Act proceedings before the Commission. That referral was heard and determined by another member of the Commission not being the Commissioner who issued the decision that is the subject of this appeal.
  1. [105]
    Mr Smith argues that the Commission below failed to give adequate reasons. However, rather than identify the basis for that ground of appeal, Mr Smith instead attempts to reagitate the reasons upon which he contends a Commissioner is a person for the purposes of the IR Act. Mr Smith's submissions, in summary, are as follows:[43]
  1. under several other jurisdictions a commissioner or decision-maker is considered a "person";[44]  
  1. Commissioners have authority and autonomy which is a trait usually given to a person, not an entity, including a discretion not to invoke rules pertaining to false evidence under contempt of court rules and perjury;
  1. Commissioners exercise discretionary powers independently of the Commission's rules;
  1. Commissioners have discretion and the ability to make independent decisions which are published in the Commissioner's name and for which they are accountable for;
  1. Commissioners hear matters, maintaining their legal status as a person, with rights, responsibilities and legal standing separate from the Commission as an entity; 
  1. Commissioners make personal oaths to the Commission, are handpicked for the Commission and have different experiences and characters which impact their statutory interpretation and behaviours in a court room; and
  1. if a commissioner is not a person, the purpose of the IR Act is compromised as it could, consequently, mean that employers could make misrepresentations to the Commission without accountability, therefore, the Primary Decision needs further explanation to justify the reasoning to allow natural justice.
  1. [106]
    In Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services),[45] Martin J referred to relevant principles to be applied by courts and quasi-judicial tribunals in ensuring adequate reasons for decisions are provided. These principles include the following:[46]
  1. [15]
    I have, in other decisions, set out the principles relating to the requirement for reasons to be given which are adequate in the circumstances. Decisions of tribunals do not attract the same degree of scrutiny as those of the ordinary civil courts. But the general principles still apply even though they may not be enforced with the same degree of rigour. I will repeat some of them which are particularly relevant in this case:
  1. the content and detail of reasons will vary according to the nature of the jurisdiction which the court or tribunal is exercising and of the particular matter the subject of the decision,
  1. one reason for the obligation to provide adequate reasons is so that an appellate court can discharge its statutory duty on an appeal from the decision and so that the parties can understand the basis for the decision for purposes including the exercise of any right to appeal,
  1. a tribunal member will ordinarily be expected to expose his or her reasoning on points which are critical to the contest between the parties – this applies both to evidence and to argument,
  1. where a party relies on relevant and cogent evidence which is rejected by the tribunal, then the tribunal should provide a reasoned explanation for the rejection of that evidence, and
  1. where parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for the preference of the tribunal of one set of evidence to the other.
  1. [16]
    Of particular relevance to this case is the observation by Nettle J in DL v R where he said:

" … in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law."

  1. [107]
    In DL v The Queen,[47] the High Court relevantly observed:[48]

At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."

  1. [108]
    As noted above, Mr Smith does not provide a basis for the reasons he contends the Commissioner's reasons were inadequate.
  1. [109]
    The Commissioner dealt with Mr Smith's argument with respect to this contention in her reasons for the decision as follows:
  1. [60]
    Having determined that Mr Sparrow's evidence before the Commission was not about a workplace right or the exercise of a workplace right, I am not required to address whether Mr Sparrow's evidence also fails to fall within s 289 of the IR Act on the basis that it was not made 'to a person'. However, for completeness, I have considered the submissions of the parties on this point.
  1. [61]
    The Acts Interpretation Act 1954 (Qld) provides that in an Act, a reference to a person generally includes a reference to a corporation as well as an individual The QIRC is not a corporation. The evidence was heard by a Commissioner sitting as 'the Tribunal' for the purposes of the AD Act. The Commission or Tribunal is established under statute and the power exercised is statutory power. The Commissioner hearing a matter is exercising the power of the Commission or Tribunal and therefore is receiving such evidence as the Commission or Tribunal rather than as 'a person'. As the Applicant submits, Commissioner Power is a human being. However, when hearing evidence regarding a matter under the AD Act, Commissioner Power is acting in the capacity of 'the Tribunal' rather than 'a person'.
  1. [110]
    It is apparent from the Commissioner's reasons that she determined that Mr Sparrow's evidence before the Commission was not about a workplace right or about the exercise of a workplace right. That is, the relevant representation did not have the necessary connection to the workplace right. Mr Smith does not challenge that finding in his ground of appeal.
  1. [111]
    The reasons are clear and cogent and relevantly reveal the basis upon which the Commission concluded that Mr Sparrow's evidence in the s 144 of the AD Act proceeding was not a representation with the necessary connection to Mr Smith's workplace right.[49] Mr Smith has not established that the Commissioner's reasons with respect to the finding made were inadequate.
  1. [112]
    For the reasons expressed by the Commissioner, it was unnecessary for her then to consider Mr Smith's further contention that a misleading representation allegedly made to the Commission (or to a commissioner) falls within the meaning of a representation to a person for the purpose of s 289 of the IR Act. The Commissioner's remarks at paragraph 61 of the Primary Decision are obiter and, subsequently, are not subject to this appeal. 
  1. [113]
    Accordingly, Mr Smith has failed to make out ground three of the grounds of appeal.

Ground Four – Failure to Consider the Human Rights Act 2019 (Qld)

  1. [114]
    Mr Smith variously argues that the Commission erred by not construing s 289 of the IR Act by reference to s 48 of the HR Act and by failing to consider ss 15(2), 15(3) and 15(4) of the HR Act. Mr Smith submits that the Commissioner should have considered those provisions "to ensure equality before the law" when construing s 289 of the IR Act as "all statutory interpretation must be made in a way which is compatible with human rights".[50]
  1. [115]
    Mr Smith claims that the Commission below "dismissed" his argument regarding the HR Act without considering the purpose of the HR Act. Mr Smith's submissions were as follows:[51]

… the Commissioner dismissed the Human Rights argument made by the Applicant without considering the purpose of the HR act (her reasoning at para 102). The Commissioner found the Respondent had the right to file a strike out application. She did not consider the effect her decision has on the rights of workers more generally in employment. By agreeing with the Respondent, she has allowed discrimination into the workplace. Under the FWA a misrepresentation to Workcover is clearly captured under the FWA. The Commissioner cited several cases which did not apply to employers making misrepresentations to Workcover to defend her decision and agree with the Respondent. The issues in the cases she preferred were significantly different and did not extend to similar facts; employers making false statements to Workcover to prevent the exercise of the workers right for compensation. This brings significant conflict between the protections under the FWA (Cth) and the IR act (Qld) which causes inequality for workers before the law. Under the Human Rights Act, everyone should have equal protections before the law. The Commissioner's interpretation inadvertently only allows non public service employees to be protected from misrepresentations made to Workcover. This would not have been the intention of the legislators and the statutory interpretation did not consider the HR Act. This point should be openly debated in a hearing rather than simply dismissed. State employees would have no such protections from employer misconduct to cause harm to compensation for injury under the General Protections of the IR Act. All statutory interpretations must be made in a way which is compatible with Human Rights. It is incorrect to assume this can be remedied now as any appeal to the QIRC regarding the handling of the Workcover claim is de novo and does not allow the harm to be addressed under the WCR Act. The ability to successfully claim compensation for a work related injury should be available to all workers, and not exclude public servants due to misrepresentations being condoned as not being protected under the IR Act by the Tribunal.

  1. [116]
    Mr Smith relies on s 48 of the HR Act to contend that the Commission was required to construe s 289 of the IR Act in a way that is compatible with human rights. Section 48 of the HR Act is set out in the following terms:
  1. 48
    Interpretation
  1. (1)
    All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
  1. (2)
    If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
  1. (3)
    International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
  1. (4)
    This section does not affect the validity of—
  1. (a)
    an Act or provision of an Act that is not compatible with human rights; or
  1. (b)
    a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
  1. (5)
    This section does not apply to a statutory provision the subject of an override declaration that is in force.
  1. [117]
    In making these submissions, Mr Smith raises ss 15(2), 15(3) and 15(4) of the HR Act which relevantly state:
  1. 15
    Recognition and equality before the law
  1. (1)
    Every person has the right to recognition as a person before the law.
  1. (2)
    Every person has the right to enjoy the person's human rights without discrimination.
  1. (3)
    Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  1. (4)
    Every person has the right to equal and effective protection against discrimination.
  1. (5)
    Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [118]
    During oral submissions and in his written submissions in reply filed 30 May 2024, Mr Smith also raised ss 26 (protection of families and children), 37 (right to health services), 17 (protection from torture and cruel, inhuman or degrading treatment), and 43 (override by Parliament) of the HR Act as being relevant to his matter.
  1. [119]
    The Respondents contend that the breadth of the matters Mr Smith now relies on in this appeal were not raised before the Commission below.
  1. [120]
    Mr Smith's submissions below made limited reference to the HR Act. Relevantly, Mr Smith submitted:[52]

The Applicants argument does not need to be taken at its highest; however it should be heard. This is especially in light of the Human Rights Act which needs to be considered to ensure equality before the law. It would be unjust not to hear an argument which has merit simply because the Respondent doesn't wish to have the argument aired as it is important and potentially sets a dangerous precedent if not heard.

  1. [121]
    The degree to which the Commission considered Mr Smith's human rights contention appear in the reasons for the Primary Decision as follows:[53]

I note the Applicant's submission that the Human Rights Act 2019 (Qld) ('the Human Rights Act') needs to be considered to ensure equality before the law. In support of that submission, the Applicant says, 'it would be unjust not to hear an argument which has merit simply because the [Respondents do not] wish to have the argument aired as it is important and potentially sets a dangerous precedent if not heard'. For the reasons given in this decision, I have determined that the relevant paragraphs of the 'Matters in Issue' document do not have merit. I accept that the Human Rights Act provides that every person has the right to recognition and equality before the law. However, with procedural fairness in mind, it is open to a respondent to file a strike out application where the respondent believes parts of a claim do not engage the section of the IR Act pleaded.

  1. [122]
    The Commission's reasons appropriately considered and accepted the submission made by Mr Smith that there be equality before the law.
  1. [123]
    The Respondents object to Mr Smith raising matters in the appeal that were not raised below. The Respondents submitted that it cannot be an appellable error for the Commission to have not dealt with something that the parties did not squarely put before the Commission to be dealt with.[54]
  1. [124]
    In support of its position, the Respondents referred to a recent decision of the High Court in Productivity Partners Pty Ltd (t/as Captain Cook College) v Australian Competition and Consumer Commission.[55] In that decision it was held that it was not incumbent on the court below to consider potentially relevant matters if they were not the focus of the evidence on the submissions before it.
  1. [125]
    As noted above, the limited extent to which Mr Smith's submissions below dealt with his human rights was considered by the Commission. It was not an error for the Commissioner to not have regard to the matters Mr Smith now raises on appeal with respect to the application of the HR Act.
  1. [126]
    In any event, s 48 of the HR Act does not authorise a court to re-write a statutory provision in a way that is inconsistent with its purpose.[56]
  1. [127]
    In the decision below, the Commission undertook a process of statutory construction to discern the purpose of s 289 of the IR Act in accordance with the ordinary techniques of statutory construction. Section 48(1) of the HR Act does not operate so as to override the interpretation of a statutory provision in circumstances where the words of a statute are clear.
  1. [128]
    Accordingly, ground four of the appeal is dismissed. 

Conclusion

  1. [129]
    For the reasons given, grounds one to four as relied on by the Appellant regarding the Commission's decision have not established an error of the kind referred to in s 557(1) of the IR Act. The appeal is dismissed.

Order

  1. [130]
    I make the following order:
  1. The appeal is dismissed.

Footnotes

[1]Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 18 ('Primary Decision').

[2]   Transcript of Proceedings, Smith v State of Queensland (Queensland Health) & Anor (Industrial Court of Queensland, C/2024/14, Hartigan DP, 10 July 2024) 4 (Dr Sherlock).

[3]   Paul Smith, 'Submission in support of the Appeal against the strike out of misrepresentations', Submission in Smith v State of Queensland (Queensland Health) & Anor, C/2024/14, 27 March 2025, [7]-[10] ('Appellant's Amended Submissions filed 27 March 2025').

[4]   Paul Smith, 'Matters in Issue Raised by the Applicant', Document in Smith v State of Queensland (Queensland Health) & Anor, GP/2022/18, 19 September 2023, [50].

[5]   Paul Smith, 'Applicant's submissions regarding striking out request by Respondent', Submission in Smith v State of Queensland (Queensland Health) & Anor, GP/2022/18, 10 October 2023, [25] ('Applicant's Submissions filed 10 October 2023 in GP/2022/18').

[6]   Primary Decision (n 1) [18]-[44].

[7]   Ibid [45].

[8]   Ibid [59]-[61].

[9]  Primary Decision (n 1) [67]-[70].

[10]   Ibid [80]-[83].

[11]   Primary Decision (n 1) [91]-[95].

[12]   (2019) 269 CLR 507.

[13]   Ibid [32]-[37] (citations omitted).

[14]   (2017) 262 CLR 362.

[15]   Ibid [14] (Kiefel CJ, Nettle and Gordan JJ).

[16]  See for example, Industrial Organisations Act 1997 (Qld) and the Workplace Relations Act 1997 (Qld).

[17]Industrial Relations Act 2016 (Qld) s 289(2); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091, 204.

[18]   [2022] FCA 1225, [452]-[459].

[19]Australian Nursing and Midwifery Federation v St Vincent's Private Hospitals Ltd [2025] FCA 18, [40] (Horan J).

[20]   (2020) 299 IR 56.

[21]   Ibid [46].

[22]Macquarie Dictionary (online at 18 June 2025) 'about' (emphasis in original).

[23]   [2017] FCA 1091 ('CEPU v APC').

[24]   Ibid [254] (citations omitted).

[25]   Macquarie Dictionary (online at 19 June 2025) 'effect' (def 1).

[26]   See CEPU v APC (n 23) [253]-[256].

[27]   Primary Decision (n 1) [59], [47]-[69], [79]-[81], [91], [94].

[28]   Appellant's Amended Submissions filed 27 March 2025 (n 3) [12].

[29]   Appellant's Amended Submissions filed 27 March 2025 (n 3) [20], citing Orchid Avenue Realty Pty Ltd t/as Ray White Surfers Paradise v Percival (2003) 174 QGIG 643. 

[30]Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 ('Campbell v State of Queensland').

[31]Industrial Relations Act 2016 (Qld) s 4(q).

[32]Campbell v State of Queensland (n 30) [29].

[33]   Primary Decision (n 1) [100]-[101].

[34]   Appellant's Amended Submissions filed 27 March 2025 (n 3) [13]-[14].

[35]   Mr Smith also appears to rely on the reference to Corke-Cox v Crocker Builders Pty Ltd in a Fair Work Commission benchbook as being supportive of his position.

[36]   [2012] FMCA 677 ('Corke-Cox').

[37]   Primary Decision (n 1) [28]-[31], [33]-[38].

[38]   Primary Decision (n 1) [59]-[61].

[39]   Ibid [67]-[70].

[40]   Ibid [80]-[83].

[41]   Primary Decision (n 1) [91]-[95].

[42]   See Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; Australian Federation of Air Pilots v Regional Express Holdings (No. 2) [2020] FCCA 219; CEPU v APC (n 23).

[43]   Appellant's Amended Submissions filed 27 March 2025 (n 3) [15].

[44]   Ibid. The Appellant in his submissions refers to the Australian Consumer Law and the ASX Listing Rules.

[45]   [2019] ICQ 23.

[46]   Ibid [15]-[16].

[47]   (2018) 266 CLR 1.

[48]   Ibid [33].

[49]   See Primary Decision (n 1) [56]-[60].

[50]   Appellant's Amended Submissions filed 27 March 2025 (n 3) [16], citing Momcilovic v The Queen (2011) 245 CLR 1.

[51]   Ibid [16].

[52]   Applicant's Submissions filed 10 October 2023 in GP/2022/18 (n 5) [6].

[53]   Primary Decision (n 1) [102].

[54]   Transcript of Proceedings, Smith v State of Queensland (Queensland Health) & Anor (Industrial Court of Queensland, C/2024/14, Hartigan DP, 2 April 2025) 17 (P Zielinksi).

[55]   (2024) 98 ALJR 1021.

[56]Momcilovic v The Queen (2011) 245 CLR 1; Greenall v Amaca Pty Ltd (2024) 333 IR 208.

 

Close

Editorial Notes

  • Published Case Name:

    Smith v State of Queensland (Queensland Health) & Anor

  • Shortened Case Name:

    Smith v State of Queensland (Queensland Health)

  • MNC:

    [2025] ICQ 10

  • Court:

    ICQ

  • Judge(s):

    Hartigan DP

  • Date:

    24 Jun 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Federation of Air Pilots v Regional Express Holdings (No. 2) [2020] FCCA 219
2 citations
Jump To
Cite 1 - [2020] FCCA 219
Cite 2 - [2020] FCCA 219
Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225
2 citations
Jump To
Cite 1 - [2022] FCA 1225
Cite 2 - [2022] FCA 1225
Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23
2 citations
Jump To
Cite 1 - [2019] ICQ 23
Cite 2 - [2019] ICQ 23
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
2 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091
3 citations
Jump To
Cite 1 - [2017] FCA 1091
Cite 2 - [2017] FCA 1091
Cite 3 - [2017] FCA 1091
Construction, Forestry, Mining and Energy Union v BHP Coal Pty [2015] FCAFC 25
1 citation
Jump To
Cite 1 - [2015] FCAFC 25
Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677
2 citations
Jump To
Cite 1 - [2012] FMCA 677
Cite 2 - [2012] FMCA 677
DL v R (2018) 266 CLR 1
2 citations
Jump To
Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
3 citations
Jump To
Cite 1 - (2015) 230 FCR 298
Cite 2 - (2015) 230 FCR 298
Cite 3 - (2015) 230 FCR 298
Momcilovic v The Queen (2011) 245 CLR 1
3 citations
Jump To
Cite 1 - (2011) 245 CLR 1
Cite 2 - (2011) 245 CLR 1
Cite 3 - (2011) 245 CLR 1
Orchid Avenue Realty Pty Ltd t/a Ray White Surfers Paradise v Percival (2003) 174 QGIG 643
1 citation
Jump To
Cite 1 - (2003) 174 QGIG 643
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Smith v State of Queensland (Queensland Health) & Webb [2024] QIRC 18
2 citations
Jump To
Cite 1 - [2024] QIRC 18
Cite 2 - [2024] QIRC 18
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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