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  4. Gilbert v Metro North Hospital Health Service & Ors - [2020] QIRC 84

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Gilbert v Metro North Hospital Health Service & Ors[2020] QIRC 84

Gilbert v Metro North Hospital Health Service & Ors[2020] QIRC 84

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gilbert v Metro North Hospital Health Service & Ors[2020] QIRC 084

PARTIES: 

Gilbert, Margaret Mary   

(Applicant)

v

Metro North Hospital Health Service ABN 18 496 277 942

(First Respondent)

&

Michelle Gardner 

(Second Respondent)

&

State of Queensland (Queensland Health) 

(Third Respondent)

&

Sliven Simmons 

(Fourth Respondent) 

CASE NO:

B/2020/11 

PROCEEDING:

Application 

DELIVERED ON:

11 June 2020 

HEARING DATE: 

29 April 2020 

MEMBER:

O'Connor VP 

HEARD AT:

Brisbane

ORDERS:

  1. Within seven (7) days from the date of these reasons the parties are to file and serve submissions on the form of the orders to be made.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR DECLARATION – APPLICATION TO BE JOINED AS A PARTY TO PROCEEDINGS – where  applicant is a registered nurse and seeks declaratory relief and other orders against the named respondents – where the Queensland Nurses and Midwives' Union of Employees (QNMU) seeks orders to be joined as a party to the proceedings – whether the QNMU has a direct interest in the proceedings – whether a specific legal right or liability is to be affected – joining parties and leave to be heard – powers incidental to exercise of jurisdiction

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016 (Qld) s 285, s 291 527, s 531, s 533, s 536, s 539  Industrial Relations Act 1999 (Qld) s 322, s 329 

Industrial Relations (Tribunals) Rules 2000 (Qld) r 38 

Human Rights Act 2019 (Qld)

CASES:

Buckley v Queensland Health & Q-COMP (C/2010/13)

China First Pty Ltd v Mount Isa Mines Limited [2019] 3 Qd R 173; [2018] QCA 350

Ergon Energy Corporation Ltd and Another v The Electrical Trades Union of Employees of Australia, Queensland Branch and Others(No. CA140 of 2005) [2005] QIRC 56;

(2005) 179 QGIG 2

John Alexander's Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR1 1.

Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No3) [2015] FCA 542.

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410

Newman v Department of Corrective Services and The Queensland Public Sector Union of Employees (2005) 180 QGIG 1036.

The Electrical Trades Union of Employees of Australia, Queensland Branch [2001] QIRC 186

Queensland Nurses Union v Blue Care [2005] 175 QGIG 872

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 155 CLR 513; 59 ALR 417 Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37

State of Victoria v Sutton (1998) 195 CLR 291

United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 066

Woolworths Ltd v Dinca & Blackwood [2014] QIRC 005

APPEARANCES:

Mr J E Murdoch QC with Mr T Spence instructed by FWEL Pty Ltd t/a Worker Law, for the applicant 

Mr E Shorten instructed by Crown Law, for all Respondents 

Mr P Freeburn QC with Mr C A Massy instructed by Hall Payne, for the Queensland Nurses and Midwives' Union  

Reasons for Decision

  1. [1]
    On 20 March 2020, Ms Margaret Gilbert (the applicant), a registered nurse and a member of the Nurses Professional Association Queensland (NPAQ), filed an amended application seeking declaratory relief and other orders against the named respondents.  Part of the applicant's case is that the respondents misrepresented her workplace rights regarding NPAQ. NPAQ is not a party to the proceedings. 
  1. [2]
    On the same date the Queensland Nurses and Midwives' Union of Employees (QNMU) filed an application seeking orders to be joined as a party to the proceedings on the basis that the relief sought by the applicant will have both a direct and indirect effect on the QNMU's legal interests.[1] The QNMU seeks the following orders:
  1. That pursuant to ss. 527(3), 536(a) and 539(b)(i)(iv) of the Industrial Relations Act 2016 (Qld) (the IR Act) the Queensland Nurses and Midwives' Union of Employees be joined as a party to the proceeding.
  1. Further and/or alternatively, pursuant to s 539 (b)(v) the Queensland Nurses and Midwives' Union of Employees be granted leave to be heard, both orally and in writing, on the matters identified at [39] to [42] of Ms Beth Mohle's affidavit of 9 March 2020.
  1. [3]
    The Applicant opposes the QNMU being given any right to intervene on the basis that the declarations and other relief sought do not interfere with, limit or in any way affect the legal rights of the QNMU.[2]
  1. [4]
    The question for the Commission to determine is whether, in the present circumstances, those powers ought to be exercised in favour of the QNMU and, if so, the exact nature and extent of the participation that may be afforded them.

The Statutory Scheme

  1. [5]
    Section 531 is concerned with the basis of decisions of the Commission and provides, in relevant part: 

531 Decisions of the commission and magistrates

…

  1. (2)
    In proceedings, the commission or Industrial Magistrates Court—
  1. (a)
    is not bound by rules of evidence; and
  1. (b)
    may inform itself in the way it considers appropriate in the exercise of its jurisdiction.
  1. [6]
    Section 533 provides that the Minister or State Peak Council may intervene in proceedings.

533 Intervention

  1. (1)
    The Minister may intervene –
  1. (a)
    in proceedings before an industrial tribunal; or
  1. (b)
    in proceedings before another court or tribunal that relate to—
  1. (i)
    the jurisdiction or powers of the court, the commission, a magistrate or the registrar; or
  2. (ii)
    a matter for which the jurisdiction or powers mentioned in subparagraph (i) may be     exercised; or
  3. (iii)
    the interpretation of this Act.
  1. (2)
    A State peak council may intervene in proceedings before the commission if any of the State peak council’s members has a sufficient interest in the proceedings.
  1. (3)
    On intervening under this section, the Minister or State peak council becomes a party to the proceedings.
  1. (4)
    In this section—

industrial tribunal means the court, the commission, an Industrial Magistrates Court or the registrar.

  1. [7]
    Section 536 deals with the Commission's power to name and join any parties in any proceedings before it.

536 Interlocutory proceedings

For conducting proceedings under this Act or another Act, the court, commission or registrar may make orders or give directions the court, commission or registrar considers just and necessary in relation to interlocutory matters to be taken before the hearing of the proceedings, including matters about the following -

  1. (a)
    naming and joinder of parties
  1. [8]
    Section 539 deals with powers incidental to the exercise of jurisdiction and, so far as is relevant, provides: 

539 Powers incidental to exercise of jurisdiction

Except as otherwise provided for by this Act or the rules, the court, commission or registrar may—

  1. (a)
    at or before a hearing, take steps to find out whether all persons who are to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and
  1. (b)
    direct, for proceedings—
  1. (i)
    who the parties to the proceedings are; and
  1. (ii)
    by whom the parties may be represented; and
  1. (iii)
    persons to be called to attend the proceedings, if the persons have not been called and it appears the persons should attend the proceedings; and
  1. (iv)
    parties to be joined or struck out; and
  1. (v)
    who may be heard and on what conditions; and

Joining parties and leave to be heard

  1. [9]
    It is not in contention that the Commission has the power, in appropriate cases, to order that a non-party may be given rights to participate in proceedings in the Commission.
  1. [10]
    The QNMU's application identifies s 533 and s 539 of the IR Act as the Commission's principal source of power to grant the relief sought. 
  1. [11]
    Let me deal first with the applicability of s 533 of the IR Act.
  1. [12]
    The applicant submits that s 533 of the IR Act regulates who may intervene and makes express provision for the Minister or a Peak Council and there is a clear inference that persons other than the Minister or a Peak Council cannot intervene. 
  1. [13]
    The Explanatory notes to the Industrial Relations Bill 2016 notes:

Clause 533 preserves section 322 of the Industrial Relations Act 1999 and provides that the Minister or State Peak Council may intervene in proceedings.

  1. [14]
    In Ergon Energy Corporation Ltd and Another v The Electrical Trades Union of Employees of Australia, Queensland Branch and Others (No. CA140 of 2005)[3]the AMACS[4]sought orders for discovery against certain parties to the proposed Ergon certified agreement. The application was opposed on the ground that Rule 38 of the Industrial Relations (Tribunals) Rules 2000 did not authorise the Commission to make an order in favour of a participant other than one who was a party in the proceedings. The AMACS sought an order pursuant to s 329(b)(1) of the Act that it be made a party to the proceedings. In refusing the application, the Full Bench wrote:

Section 329(b) distinguishes between “parties to the proceedings” and persons who, as a matter of discretion, “may be heard”. Section 322 recognises yet another possible participant, viz. an intervener.

Whilst the full rights of an “intervener” under the Industrial Relations Act 1999 have not been exhaustively determined, one has to take as a starting point that as a general proposition a person accepted as an intervener becomes a party to the proceedings, compare Corporate Affairs Commission v Bradley [1974] 1 NSW LR 391 at 396 per Hutley JA and United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534. Given that the right to intervene is confined to the Minister and Peak Councils, we are reluctant to treat those given a “right to be heard” as having comparable rights. Further, if the legislature had intended “related employee organisations” to be parties to proceedings for the certification of an agreement, one might have expected the legislature to say so. In our view the purpose of s. 155 is to give “related employee organisations” the opportunity to be heard without the necessity to seek leave pursuant to s. 329(b)(v).

AMACS’s principle argument is not that it is a party but that it should be made a party pursuant to s. 329(b)(i). As a matter of first impression, s. 329(b)(i) appears to be directed to the determination of the “parties” where the identity of the parties is an issue, e.g. where there is a dispute about the identity of the employer in the case of a “loaned” employee. However, on the assumption that s. 329(b)(i) vests power to make a person a party to proceedings when the person is not, it would be wrong to do so where the explicit purpose of the order is to give an opportunity to seek orders for discovery to a person not otherwise entitled to such orders.

  1. [15]
    The QNMU argue that the Applicant has misconceived the nature of their submission in respect of s 533. It is submitted that s 533 of the IR Act does not in its terms limit the Commission's power pursuant to s 527(3), 536(a) and s 539(b)(i) to (iv) of the IR Act. Rather, s 533 confers the unqualified right on the Minister to intervene in proceedings and, in the case of a peak council, the qualified right to intervene.
  1. [16]
    As was observed in Ergon Energy, what s 533 does is to recognise another participant, namely, an intervener.
  1. [17]
    I accept that s 533 reflects the clear intention of Parliament to confine the right to "intervene" in matters before the Commission to the Minister and Peak Councils. Whilst it must be accepted that s 533 does not confer on the QNMU a right to intervene in the proceedings, it does not necessarily follow that the Commission's other powers to join a party to proceedings, in appropriate circumstances, is diminished.
  1. [18]
    Section 539 of the IR Act deals with powers incidental to the exercise of the Commission's jurisdiction. In particular, s 539 (b)(iv) and (b)(v) deal with circumstances where the Commission may direct what parties are to be joined and who may be heard and on what conditions.  
  1. [19]
    In Woolworths Ltd v Dinca & Blackwood the Commission observed:

The general proposition is that a right to be heard pursuant to s 329(b)(v) of the IR Act is to be exercised in favour of a person whose interest will be directly affected.

The power vested by s 329(b)(v) of the IR Act is discretionary. The Commission has the discretion to determine whether leave to be heard should be granted and, if so, on what conditions. Section 329(b) distinguishes between parties to the proceedings and persons who, as a matter of discretion, may be heard.[5]

  1. [20]
    The case of The Electrical Trades Union of Employees of Australia, Queensland Branch[6] involved an application for the approval of the North power (Queensland Projects) Enterprise Agreement 2001-2004 – Certified Agreement which had been referred by a single member of the Commission to a Full Bench.  The issue dealt with by the Full Bench centred on clause 47 of the proposed Agreement, which provided for the payment of a representation service fee to the ETU[7]by employees to be covered by the Agreement. Leave to be heard in the proceedings was sought by ASMA[8]under s 329(b)(v) of the Industrial Relations Act 1999.  The QCCI[9] sought leave to intervene pursuant to s 322(2) of the IR Act 1990, and if such leave was refused, an alternative application was made under s 329(b)(v).
  1. [21]
    The Full Bench held:

We accept the argument of Mr Murdoch that there is no impediment in s. 155 to the grant of the applications for leave to be heard.  Section 329(b)(v) gives the Commission discretion to grant those applications.  We are of the view, that once leave to be heard is granted under s. 329(b)(v), it is a right for the purposes of s. 155(3). 

…

Inevitably, a decision of the Full Bench about the provisions of the Agreement, particularly clause 47 will set a precedent.  That precedent will directly affect the interests of those represented by the organisations seeking leave to be heard.  We are also of the view that the submissions of those seeking leave to be heard will assist the Commission.  Accordingly, the applications by ASMA and QCCI to be heard in relation to this matter, are granted under s. 329(b)(v).

  1. [22]
    In Queensland Nurses Union v Blue Care,[10] the QNU sought to be heard on an application by Blue Care for the making of an enterprise award. The QNU was given a partial right to be heard. On appeal, a Full Bench of the Commission in referring to the power in s 329(b)(v) of the IR Act said:

The circumstance that the power at s. 329(b)(v) is discretionary does not mean that in no circumstance may a stranger to proceedings in the Commission have a right to be heard. The case in support of a particular application to be heard may be so overwhelming that the discretion to grant a right to be heard will develop into a duty to do so. That will typically be the case where the interests of the person seeking to be heard will be directly affected by a decision in the principal proceedings. The case will be different where any impact of an order made in the principal proceedings upon the applicant to be heard will be indirect, tangential or consequential. In such a case fairness may require grant of the application to be heard. But an applicant seeking to be heard has no exclusive claim on fairness. In such a case it would be necessary to consider a range of other matters, e.g., whether other remedies are available to the applicant, the extent of any disruption to the inter partes nature of the principal proceeding, the applicant’s prospect of success if heard etc. The Commissioner was alive to all of that. The Commissioner expressly referred to the decision of the High Court in Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417. That case of course did not concern s. 329(b)(v) of the Act. It concerned an application to intervene under the Conciliation and Arbitration Act 1904 (Cth). But the parties to the proceedings before the Commissioner accepted that principles developed in Ludeke, ibid, should guide the exercise of discretion under s. 329(b)(v). Importantly at p. 421 Gibbs CJ and at pp. 428-429 Deane J recognised the distinction between direct and indirect impact on the interests of an applicant.[11]

  1. [23]
    In Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division,[12] the High Court was called upon to deal with an application in a demarcation dispute between the Customs Officers Association and the Administrative and Clerical Officers' Association, Australian Government Employment ("ACOA"), both of which claimed to be entitled to represent officers employed by the Australian Customs Service. In the proceeding below an order was made by Ludeke J that leave be granted to the Administrative and Clerical Officers' Association to intervene in the matter subject to the limitation that it should not be open to the Customs Officers Association to raise in those proceedings the question of the constitutional capacity of ACOA to cover customs officers and assistant customs officers. 
  1. [24]
    Gibbs CJ with whom Dawson J agreed said:

The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s.40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969); Reg. v. Moore; Ex parte Victoria [1977]; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978]. That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex Parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.). Those were cases where the person affected sought to be heard as a party; the reasoning in those judgments supports the view that the rules of natural justice do not require the Commission to allow a person who is not a party to the proceedings in question and whose rights will not be directly affected by them to be heard in those proceedings, and therefore do not require the Commission to grant such person leave to intervene. The Commission has power - which, like other powers to which reference has already been made, allows it a wide discretion - to allow any person or organization to intervene in any matter, provided that the Commission is of the opinion that it is desirable that the person or organization should be heard: s.36(2) of the Act. The provisions of that subsection reinforce the view that a person whose rights are not directly affected by a proceeding is not entitled to intervene in the proceeding, although in many cases considerations of fairness may incline the Commission to allow someone who is likely to be indirectly affected by the outcome of the proceedings to intervene in them.[13]

  1. [25]
    What can be gleaned from the reasoning of Gibbs CJ in Ludeke is: first, that every person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard; and secondly, the principles of natural justice do not require that everyone who may suffer a detriment as an indirect result of an order or who is indirectly affected is entitled to be heard before the order is made.
  1. [26]
    In Newman v Department of Corrective Services and The Queensland Public Sector Union of Employees Hall P said:

The general proposition is that a right to be heard pursuant to s. 329(b)(v) of the Industrial Relations Act 1999, and in truth Mr Newman's application was for the right to be heard as he had no right to intervene, is to be exercised in favour of a person whose interest will be directly affected. Conceding that s. 329(b)(v) of the Industrial Relations Act 1999 vests a discretion in the Commission and not in the Court, it is a discretion which goes to the right to be heard. Where, as here, the discretion as exercised against an applicant any issue about the right to be heard is dead forever.

It seems to me that in those circumstances, the matter is directly governed by the decision in House v The King (1936) 55 CLR 499 at 504 to 505, and is not subject to a gloss sometimes imposed on appeals from decisions bearing upon points of practice and procedure. See EA and S Plaster Co Pty Ltd v Jones and WorkCover Queensland 171 QGIG 650.

Applying the principles of House v The King, op cit, it seems to me that there was an error in that the Commission failed to take into account that there was a discretion at s. 329(b)(v) of the Industrial Relations Act 1999 to impose conditions upon the grant of any right to be heard the proper exercise of which would avoid interference with the expeditious determination of the proceedings.

There is an additional error in that a finding was made that the persons directly affected, and on behalf of whom Mr Newman had deposited agency forms, might have been adequately and properly represented by the Queensland Public Sector Union of Employees. The proposition may well be right. On the current state of evidence before the Commission, it seems to me that it was simply not open.

In the circumstances, I must set aside the decision of the Commission. The problem lies with the alternative order. What is now pressed on behalf of Mr Newman is not that he should have the right to lead evidence, nor indeed the right to cross-examine, but that he should be confined to the right to make submissions.

It seems to me that it would verge on the impossible to deny the exercise of such right.[14]

Does the QNMU have a direct interest in the proceedings?

  1. [27]
    The test of what is a sufficient ground to entitle a person to be added as a party was expressed by the Privy Council in Pegang Mining Co Ltd v Choong Sam.[15] Lord Diplock, delivering the opinion of the Judicial Committee of the Privy Council, said:

The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to an existing action. In their Lordships’ view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which the facts are unique, to attempt to lay down any general proposition which could be applicable to all cases.

It has been sometimes said as in Moser v Marsden [1892] 1 Ch 487 and in Farbenindustrie AG Agreement [1944] Ch 41 that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between ‘legal’ and ‘commercial’ interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?

  1. [28]
    In John Alexander's Clubs Pty Limited v White City Tennis Club Limited[16] the High Court said that only those third parties which are directly affected should be joined. In coming to that view, the High Court relied on its earlier decision in State of Victoria v Sutton[17]which, in turn, relied on the Full Federal Court decision in News Ltd v Australian Rugby Football League Ltd.[18]
  1. [29]
    In News Ltd, Lockhart, von Doussa and Sackville JJ said:

There are some classes of case where the ascertainment of the necessary parties who “ought to have been joined” is not difficult.  Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties.  This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest. Grovenor v Permanent Trustee Co of New South Wales Ltd is an example of this class of case.  Where the subject matter of the proceedings is not of this kind, the ascertainment of necessary parties who ought to have been joined may be more difficult. In our opinion, the question should be decided according to the test proposed by Lord Diplock.  The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected.  The requirement that a third party’s rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent.  This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322 per Kirby P.  The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.

  1. [30]
    In China First Pty Ltd v Mount Isa Mines Limited[19] it was accepted that consistent with the decision of the High Court in John Alexander’s Clubs Pty Ltd, the test for whether China First and Waratah Coal ought to have been joined turned upon whether, in the MIM proceeding the court had been invited to make, or had proposed to make, orders that would have directly affected the rights or liabilities of either company. The parties were in dispute as to whether this test had been satisfied in the MIM proceeding. Gotterson JA (with whom McMurdo and Fraser JJA agreed) held:

These cases reveal a systematic approach taken by courts to the determination of whether orders made or sought have had, or if made, will have, a direct effect on a legal right or liability. That approach has involved an identification of the specific legal right or liability said to have been affected or liable to be affected, and an assessment of its legal characteristics. Next, the court has inquired into whether the right or liability itself has been affected, or is liable to be affected. Typically, the inquiry has sought to establish whether there is an effect on the existence of the right or liability or on its legal characteristics; or whether there is an effect on the legal environment in which the right might be exercised or the liability discharged, such as would impact upon its exercise or discharge from a legal perspective. An effect of either kind has been regarded by courts as a direct effect on the right or liability for the purposes of the test.

What is the specific legal right or liability said to have been affected or liable to be affected?

  1. [31]
    The QNMU submit that they have an interest of the type described in The Electrical Trades Union of Employees of Australia, Queensland Branch.[20] It will be recalled that in the ETU Case the Full Bench was concerned with the interpretation of clause 47 of a proposed Agreement, which would, it was argued, set a precedent and directly affect the interests of those represented by the organisations seeking leave to be heard.
  1. [32]
    It is also submitted by the QNMU that should the applicant's claims be accepted; the respondent will be obliged to seek changes to the Award and the Certified Agreement to avoid engaging in further unlawful conduct.
  1. [33]
    As part of the applicant's case is the allegation that the respondents have contravened s 285 and s 291 of the IR Act in that they have taken adverse action against Ms Gilbert for exercising a workplace right and/or taking part in an industrial activity or alternatively, engaged in trade union activity. Amongst other things, it is contended by the applicant that the NPAQ is an industrial association for the purposes of s 279 of the IR Act. Further, the applicant asks the Commission to conclude that Ms Gilbert by representing and advocating on behalf of members of the NPAQ, she was engaged in trade union activity for the purposes of the IR Act. 
  1. [34]
    The applicant asserts that the declarations sought by Ms Gilbert relate specifically to her rights in accordance with the IR Act, the HR Act and the Anti- Discrimination Act 1991. 
  1. [35]
    Paragraphs [6], [7], [8], and [9] of the Amended Application provide:
  1. A declaration that the Nurses and Midwives (Queensland Health) Award – State 2015 clauses 3, 4, 6, 35, 7, 10, 11, 15, 18, 32, 33, 35, 36, 37, 39, and/or Schedule 3 (or any combination thereof) violates the Applicant's Human Rights of Freedom of Association under s.22 of the Human Rights Act 2019. 
  2. A declaration Nurses and Midwives (Queensland Health) Award – State 2015, clauses 3, 4, 6, 35, 7, 10, 11, 15, 18, 32, 33, 35, 36, 37, 39, and/or Schedule 3 (or any combination thereof) unlawfully discriminates against the Applicant in a work area based on the attribute of Trade Union Activity within the meaning of s.295 of the IRA and ss.7 and 15 of the Anti-Discrimination Act 1999 (Qld) and s.3 of the Human Rights Commission Act 1986 (CT).
  3. A declaration that the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018 clauses 3, 4, 6, 7, 11, 14, 16, 18, 42, 43, 55, 56, and/or 61 (or any combination thereof) violates the Applicant's Human Right of Freedom of Association under s.22 of the Human Rights Act 2019. 
  4. A declaration that the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018 clauses 3, 4, 6, 7, 11, 14, 16, 18, 42, 43, 55, 56, and/or 61 (or any combination thereof) unlawfully discriminates against the Applicant  in a work area based on the attribute of Trade Union Activity, within the meaning of s.295 of the IRA and ss.7 and 15 of the Anti-Discrimination Act 1991 (Qld) and s.3 of the Human Rights Commission Act 1986 (Cth). 
  1. [36]
    As the underlined passages in paragraphs [6], [7], [8], and [9] of the Amended Application make clear, Ms Gilbert does not seek to call into question the rights of other nurses, nor does she seek declarations in relation to the rights of QNMU members. 
  1. [37]
    The QNMU recognises that the requirement in the Certified Agreement that the respondent exclusively deal with the QNMU representatives is a benefit to the QNMU and its members. But as the applicant points out, "…while the QNMU may perceive itself to be in industrial competition of QNurses First, that is not a proper ground upon which the QNMU should be granted the right to intervene or to be heard in this proceedings."[21]
  1. [38]
    The QNMU further argue that the absence of a direct legal interest is not necessarily fatal. In support of that contention, the QNMU rely on the High Court decision of Roadshow Films Pty Ltd v iiNet Ltd [22] and the decision of Edelman J in Mineralogy Pty Ltd v Sino Iron Pty Ltd (N0 3). [23]
  1. [39]
    In Roadshow Films the High Court considered the question of intervention and wrote:

In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria, are relevant.  A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected.  A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene.  Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation. 

Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.

…

None of the applicants for leave to intervene demonstrates that any identified legal interest of that applicant will be directly affected by the outcome of this case.  It follows that none of those applicants shows that it has a right to intervene in these proceedings. 

In considering whether any applicant should have leave to intervene in order to make submissions or to make submissions as amicus curiae, it is necessary to consider not only whether some legal interests of the applicant may be indirectly affected but also, and in this case critically, whether the applicant will make submissions which the Court should have to assist it to reach a correct determination.  Ordinarily then, in cases like the present where the parties are large organisations represented by experienced lawyers, applications for leave to intervene or to make submissions as amicus curiae should seldom be necessary or appropriate and if such applications are made it would ordinarily be expected that the applicant will identify with some particularity what it is that the applicant seeks to add to the arguments that the parties will advance.[24]

  1. [40]
    Edelman J in Mineralogy Pty Ltd v Sino Iron Pty Ltd (N0 3) held:

In Roadshow Films the High Court can be understood to be saying that the requirement of “direct interest” will establish an entitlement to intervene, but if there is no direct interest then leave to intervene may be granted if the non-party’s legal interest is “likely to be affected substantially by the outcome of the proceedings”. However, an indirect interest, following from the extra-curial operation of a decision or its effect on future litigation is not sufficient.

Consistent with this is the discussion of Brennan CJ in the decision followed by the High Court in Roadshow Films. In Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 603, Brennan CJ explained the reasons why “an indirect affection of legal interests enlivens no absolute right to intervene” before explaining the circumstances in which “the necessary legal interest” might permit a discretionary grant of leave to intervene.

I do not accept Mineralogy’s submission that leave to intervene will only be granted where a party’s interests are directly affected. Nevertheless, it is clear that the less direct the interest of the nonparty, the more unlikely it will be that intervention will be allowed.[25]

  1. [41]
    I accept that the authorities support the proposition that a party whose direct legal interests will be affected by the litigation will have a right to intervene in proceedings. Further, a party whose interests are only indirectly affected may be heard as a matter of discretion. However, the discretion is less likely to be exercised in favour of a party in circumstances where the interest is more remote.  
  1. [42]
    It is sufficient for present purposes to say that in respect of ss 527(3), and 536(a) of the IR Act that they have no direct relevance to the QNMU's application to intervene or to be heard. In respect of s 539(b)(i), it is a provision which is directed to the determination of the parties where the identity of the parties is in issue.[26] Similarly, s 539(b)(iv) is concerned with parties to be joined or struck out.
  1. [43]
    The power granted by s 539(b)(v) is discretionary and may be exercised primarily in circumstances where the interests of the person seeking to be heard will be directly affected by a decision in the principal proceedings.[27] 
  1. [44]
    I accept that the QNMU has not demonstrated that it will be directly affected or "likely to be affected substantially by the outcome of the proceedings." I am of the view that it has not been demonstrated that the relief sought will interfere with, limit or in any way affect the legal rights of the QNMU. 

Can the QNMU still be heard?

  1. [45]
    The QNMU's contends that a party whose interests are only indirectly affected, whilst not having a right, may still be heard as a matter of discretion.
  1. [46]
    On 8 May 2020 I sought from the QNMU and the applicant further submissions in respect of the applicability or otherwise of the powers conferred on the Commission under s 531 of the IR Act.
  1. [47]
    Section 531(2)(b) of the IR Act provides the Commission with a discretion to inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531 can be traced back to s 320 of the IR Act 1999 and is in substantially the same form.
  1. [48]
    In Middleton v Teys Bros (Holdings) Pty Ltd [28] Hall P was called on to consider a case concerning the authority of the Industrial Magistrates Court when exercising power invested in it by the WorkCover Queensland Act 1996. In dealing with s 320 of the IR Act 1999 Hall P wrote:

There is paucity of authority on the exercise of the power at s. 320 by Industrial Magistrates. However, there is authority upon the use of the power by the Queensland Industrial Relations Commission. The cases certainly establish that s. 320(2) vests the commission with a wide ranging power to gather “evidence”. In Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1994) 145 QGIG 664 at 665 Mackenzie, President said “The liberty (the commission) has in going about the process of informing itself for the purpose of exercising its jurisdictional powers and the performance of its duties is extremely wide.”. The cases also establish that in order to inform itself the Commission may hear from a person with no right to be heard, Amalgamated Society of Carpenters, Joiners, Bricklayers, Plasterers, Painters and Decorators of Australasia, Union of Employees, Queensland and Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees and Queensland Colliery Employees Union of Employees (1996) 153 QGIG 537 at 538 per de Jersey, President. Once permitted to appear such a person may, subject to s. 319, be represented by counsel. The structure of s. 320(2) makes impossible any attempt to argue that the powers of the Industrial Magistrates Court are (relevantly) different to the powers of the Queensland Industrial Relations Commission. Indeed, in contemplating that proceedings in the Industrial Magistrates Court may involve “a person ordered or permitted to appear” s. 319(1) contemplates that s. 320(2) may be used to permit a person to appear in the Industrial Magistrates Court. If s. 320(2) does not authorise the Industrial Magistrates Court to permit a person to appear the reference to “a person . . . permitted to appear” in the Industrial Magistrates Court in s. 319(1) has no content. The reference is plainly not to an intervener under s. 322. An intervener under s. 322 is by force of the Act “a party to the proceedings”, see s. 322(3). The reference cannot be to a person “permitted to be heard” pursuant to s. 329(b)(v). Section 329 deals with the powers of “the Court, Commission and Registrar”. “Court” is by Schedule 5 defined to be this court. The noun does not include the Industrial Magistrates Court. For completeness and in deference to arguments which have been put in this matter, I should emphasise that s. 320(2) vests the Industrial Magistrates Court with a discretion to allow a person to be heard. There is no obligation to allow a person to be heard. There seems no reason to doubt that like the intervention power at s. 43 of the Workplace Relations Act 1996 (Cth), s. 320(2) vests power to grant a limited right to be heard or a right to be heard subject to the observance of conditions imposed by the Industrial Magistrate, compare R. v Evatt; ex parte Master Builders Association (NSW) (1974) 132 CLR 150 at 153-4 and 155 and Re: Ludeke and Others; ex parte Customs Officers Association of Australia, 4th Division (1985) 59 ALR 415 at 428 per Mason, J and 429 per Deane, J.

  1. [49]
    In Buckley v Queensland Health & Q-COMP[29] Hall P in setting aside a Case Stated said:

I affirm that on the current state of the authorities, the status quo position is that s. 320 of the Industrial Relations Act 1999 does vest the Queensland Industrial Relations Commission (the Commission) … with the authority to grant interested parties leave to be heard (as a matter of discretion) and subject to such restrictions as the Commission … thinks fit.

  1. [50]
    Section 531 of the IR Act grants the Commission a wide power to inform itself for the purpose of exercising its jurisdictional powers and in the performance of its duties. In doing so, the authorities establish that in order to inform itself, the Commission may hear from a person, with or without restrictions, even in circumstances where a person may have no right to be heard. 
  1. [51]
    In short, the QNMU seeks to be heard on the proper construction of the IR Act provisions, the consequences, if any, arising from the Human Rights Act and international treaties, and whether the NPAQ answers the relevant description of an industrial association, trade union or registered organisation and what effect that has on any rights and entitlements of the NPAQ.[30] Further, the QNMU wishes to adduce evidence in relation to the corporate status, objects and activities of NPAQ. 
  1. [52]
    The nature and extent of the matters that the QNMU wishes to be heard, are set out in the affidavit of Ms Elizabeth Mohle. In that affidavit Ms Mohle deposes:

The QNMU wishes to be joined as a party and be heard in respect of the relief sought at [6], [7], [8] and [9] of the application seeking declarations that certain clauses of the Nurses and Midwives Award and the Certified Agreement 'violate' the Human Rights Act 2019 (Qld) or otherwise contravene the IR Act or other legislation. The QNMU is a party to those instruments and the relief sought will have a direct impact on the rights and/or liabilities of the QNMU pursuant to those instruments.

The QNMU wishes to be heard in respect of whether the QNurses is an industrial association for the purposes of Part 1 of Chapter 8 of the IR Act. Specifically, the QNMU contends that QNurses is not an 'industrial association' within the meaning of ss. 279(b) and 290 of the IR Act as an 'association' is defined as an unincorporated association. QNurses is an incorporated association.

The QNMU wishes to make submissions bout the legislative scheme and why the protections of Part 1 of Chapter are restricted to either registered organisations or unincorporated associations.

As a further and alternative proposition, the QNMU wishes to be heard about whether QNurses, by reason of its objects and activities, answers the description of being an association of employees having as a principal purpose the protection and promotion of their interests in m matters concerning their employment.

The QNMU also wishes to be heard in respect of the contentions advanced at [13], [35] and [58] to [73] of the Statement of Facts and Contentions and the general proposition that the expression of the views of QNurses amounts to engaging in trade union activity. Specifically, the QNMU contends that the QNurses First is not an employee organisation. The QNMU wishes to make submissions about the proper construction of the IR Act provisions, the consequences, if any, arising from the Human Rights Act 2019 and international treaties, and whether QNurses First answers the relevant  description of an industrial association, trade union or registered organisation and what effect that has on any rights and entitlements of QNurses First. [31]

  1. [53]
    The QNMU does not seek to be heard in relation to whether Ms Gilbert engaged in any misconduct nor does it wish to be heard in relation to the reason for any action taken against Ms Gilbert. 
  1. [54]
    The purpose of the IR Act, as outlined in s 3, is two-fold: (i) to provide for a framework for cooperative industrial relations that is fair and balanced; and, (ii) supports the delivery of high-quality services, economic prosperity and social justice for Queenslanders. The way in which those purposes are achieved is set out in s 4 of the Act.
  1. [55]
    It must be observed that fundamental to the scheme of the Act is the primacy of collective representation of employees.[32]
  1. [56]
    It is submitted by the QNMU that it is well positioned to assist the Commission in matters in dispute between the parties. 
  1. [57]
    Whilst I accept that both the applicant and respondents will be represented by experienced senior and junior counsel, I nevertheless consider that that the Commission would benefit in hearing from the QNMU.  

Conclusion

  1. [58]
    In considering this matter, I am of the view that granting the QNMU a right to make both written and oral submissions will not delay the proceedings, will not cause any prejudice to the applicant, nor impede the expeditious determination of the substantive matters before the Commission. 
  1. [59]
    Accordingly, I propose to grant the QNMU the right to be heard by way of making written and oral submissions in the proceedings instituted by Margaret Mary Gilbert.  However, before doing so, I will hear the parties as to appropriate orders to be made, in particular, the exact nature and extent of any submissions to be made by the QNMU.

Order

  1. Within seven (7) days from the date of these reasons the parties are to file and serve submissions on the form of the orders to be made.

Footnotes

[1]Submissions of the QNMU filed 20 March 2020, [2].

[2]Submissions of the Applicant filed 17 April 2020.

[3][2005] QIRC 56; (2005) 179 QGIG 2.

[4]Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees.

[5][2014] QIRC 005, [26]-[27].

[6][2001] QIRC 186.

[7]The Electrical Trades Union of Employees of Australia, Queensland Branch.

[8]Australian Sugar Milling Association, Queensland, Union of Employers

[9]Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers.

[10][2005] 175 QGIG 872.

[11]Op. cit. at [29].

[12](1985) 59 ALR 417.

[13]Ibid, 421- 422 (citations omitted).

[14](2005) 180 QGIG 1036.

[15][1969] 2 MLJ 52, 56.

[16](2010) 241 CLR1 1

[17](1998) 195 CLR 291, 316-318.

[18](1996) 64 FCR 410, 523-525

[19][2019] 3 Qd R 173.

[20][2001] QIRC 186.

[21]Submissions of the Applicant filed 17 April 2020, [12].

[22](2011) 248 CLR 37.

[23][2015] FCA 542.

[24][2015] FCA 542, [2]-[3], [5]-[6].

[25][2015] FCA 542 at [13]–[15].

[26]Queensland Nurses' Union v Blue Care (2004) 175 QGIG 872, 872.

[27]Ibid.

[28](2001) 166 QGIG 138 (23 January 2001).

[29](C/2010/13) 19 April 2010.

[30]Submissions of QNMU, [22].

[31]Affidavit of Ms Elizabeth Mohle filed 20 March 2020, [39]-[42].

[32]United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 066, [81].

Close

Editorial Notes

  • Published Case Name:

    Gilbert v Metro North Hospital Health Service & Ors

  • Shortened Case Name:

    Gilbert v Metro North Hospital Health Service & Ors

  • MNC:

    [2020] QIRC 84

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    11 Jun 2020

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
Brisbane City Council v Gillow (1996) 153 QGIG 537
1 citation
Jump To
Cite 1 - (1996) 153 QGIG 537
Brisbane City Council v Gillow & Simon Blackwood (1994) 145 QGIG 664
1 citation
Jump To
Cite 1 - (1994) 145 QGIG 664
Buckley v Queensland Health [2010] ICQ 15
1 citation
Jump To
Cite 1 - [2010] ICQ 15
China First Pty Ltd v Mount Isa Mines Ltd[2019] 3 Qd R 173; [2018] QCA 350
3 citations
Jump To
Cite 1 - [2018] QCA 350
Cite 2 - [2019] 3 Qd R 173
Cite 3 - [2019] 3 Qd R 173
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
1 citation
Jump To
Cite 1 - [1974] 1 NSWLR 391
EA and S Plaster Co Pty Ltd v Jones and WorkCover Queensland (2002) 171 QGIG 650
1 citation
Jump To
Cite 1 - (2002) 171 QGIG 650
Ergon Energy Corporation Ltd & Anor v The Electrical Trades Union of Employees of Australia, Queensland Branch & Ors [2005] QIRC 56
2 citations
Jump To
Cite 1 - [2005] QIRC 56
Cite 2 - [2005] QIRC 56
Ergon Energy Corporation Ltd and Another v The Electrical Trades Union of Employees of Australia, Queensland Branch and Others (No. CA140 of 2005) (2005) 179 QGIG 2
2 citations
Jump To
Cite 1 - (2005) 179 QGIG 2
Cite 2 - (2005) 179 QGIG 2
House v The King (1936) 55 CLR 499
1 citation
Jump To
Cite 1 - (1936) 55 CLR 499
In re IG Farbenindustrie AG [1944] Ch 41
1 citation
Jump To
Cite 1 - [1944] Ch 41
John Alexander's Clubs Pty Ltd v White City Tennis Club Limited (2010) 24 CLR 1
2 citations
Jump To
Cite 1 - (2010) 24 CLR 1
Cite 2 - (2010) 24 CLR 1
Levy v Victoria (1997) 189 CLR 579
1 citation
Jump To
Cite 1 - (1997) 189 CLR 579
Levy v Victoria [1997] HCA 31
1 citation
Jump To
Cite 1 - [1997] HCA 31
Ludeke and Others; ex parte Customs Officers Association of Australia, 4th Division (1985) 59 ALR 415
1 citation
Jump To
Cite 1 - (1985) 59 ALR 415
Middleton and Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138
2 citations
Jump To
Cite 1 - (2001) 166 QGIG 138
Cite 2 - (2001) 166 QGIG 138
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No3) [2015] FCA 542
4 citations
Jump To
Cite 1 - [2015] FCA 542
Cite 2 - [2015] FCA 542
Cite 3 - [2015] FCA 542
Cite 4 - [2015] FCA 542
Moser v Marsden [1892] 1 Ch 487
1 citation
Jump To
Cite 1 - [1892] 1 Ch 487
Newman v Department of Corrective Services (2005) 180 QGIG 1036
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1036
Cite 2 - (2005) 180 QGIG 1036
News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410
2 citations
Jump To
Cite 1 - (1996) 64 FCR 410
Cite 2 - (1996) 64 FCR 410
Pegang Mining Co Ltd v Choong Sam (1985) 59 ALR 417
4 citations
Jump To
Cite 1 - (1985) 59 ALR 417
Cite 2 - (1985) 59 ALR 417
Cite 3 - (1985) 59 ALR 417
Cite 4 - (1985) 59 ALR 417
Pegang Mining Co. Ltd v Choong Sam (1969) 2 MLJ 52
2 citations
Jump To
Cite 1 - (1969) 2 MLJ 52
Cite 2 - (1969) 2 MLJ 52
Queensland Nurses Union v Blue Care [2005] 175 QGIG 872
2 citations
Jump To
Cite 1 - [2005] 175 QGIG 872
Cite 2 - [2005] 175 QGIG 872
Queensland Nurses' Union of Employees v Blue Care & Ors (2004) 175 QGIG 872
1 citation
Jump To
Cite 1 - (2004) 175 QGIG 872
R. v Evatt; Ex parte Master Builders Association (N.S.W.) [No. 2] (1974) 132 CLR 150
1 citation
Jump To
Cite 1 - (1974) 132 CLR 150
Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 155 CLR 513
1 citation
Jump To
Cite 1 - (1985) 155 CLR 513
Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37
2 citations
Jump To
Cite 1 - (2011) 248 CLR 37
Cite 2 - (2011) 248 CLR 37
Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317
1 citation
Jump To
Cite 1 - (1990) 21 NSWLR 317
The Electrical Trades Union of Employees of Australia, Queensland Branch [2001] QIRC 186
3 citations
Jump To
Cite 1 - [2001] QIRC 186
Cite 2 - [2001] QIRC 186
Cite 3 - [2001] QIRC 186
United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 66
2 citations
Jump To
Cite 1 - [2018] QIRC 66
Cite 2 - [2018] QIRC 66
United States Tobacco Co. v Minister for Consumer Affairs (1988) 20 FCR 520
1 citation
Jump To
Cite 1 - (1988) 20 FCR 520
Victoria v Sutton (1998) 195 CLR 291
2 citations
Jump To
Cite 1 - (1998) 195 CLR 291
Cite 2 - (1998) 195 CLR 291
Woolworths Ltd v Dinca & Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 5
2 citations
Jump To
Cite 1 - [2014] QIRC 5
Cite 2 - [2014] QIRC 5

Cases Citing

Case NameFull CitationFrequency
Fox v Programmed Integrated Workforce Ltd [2021] QIRC 2602 citations
Gilbert v Metro North Hospital Health Service [2021] QIRC 2552 citations
Mulholland v State of Queensland [2020] QIRC 1926 citations
1

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