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Gilbert v Metro North Hospital Health Service[2021] QIRC 255

Gilbert v Metro North Hospital Health Service[2021] QIRC 255

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gilbert v Metro North Hospital Health Service

& Ors [2021] QIRC 255

PARTIES:

Gilbert, Margaret Mary

(Applicant)

v

Metro North Hospital Health Service

(First Respondent)

Michele Gardner

(Second Respondent)

State of Queensland (Queensland Health)

(Third Respondent)

Silven Simmons

(Fourth Respondent)

CASE NO:

B/2020/11

PROCEEDING:

Application for declarations and orders

DELIVERED ON:

27 July 2021

HEARING DATES:

10 and 20 February 2020

29 April 2020

29 and 30 June 2020

1 July 2020

11 September 2020

MEMBER:

O'Connor VP

ORDERS:

  1. The Application is dismissed.
  2. I will hear the parties on any further orders to be made.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – WORKPLACE RIGHTS AND RESPONSIBILITIES – GENERAL PROTECTIONS – application for declaratory relief and accessorial liability – where alleged adverse action taken by employer because applicant had exercised a workplace right – where alleged coercion, misrepresentation and discrimination – where applicant employed by the Prince Charles Hospital as a Duty Nurse Manager – where applicant Branch Secretary, Nurses' Professional Association of Queensland Inc – where article published in media which identified applicant making critical comments about nursing graduates and nursing profession generally – where applicant did not seek prior authority or permission to participate in the article in that capacity – where applicant contends memorandum issued misrepresented her rights to be represented by her chosen industrial association – where show cause issued and subsequently withdrawn – where definition of or meaning of 'industrial association' – where definition of or meaning of 'trade union activity' – determined show cause notice was authorised pursuant to s 282(6) of the Industrial Relations Act 2016 – determined Nurses' Professional Association of Queensland Inc is not an industrial association and applicant cannot establish she engaged in industrial activity for or on behalf of one – determined applicant did not have the claimed workplace rights or protections.

HUMAN RIGHTS – HUMAN RIGHTS AND DISCRIMINATION LEGISLATION – QUEENSLAND – where declarations sought by applicant – whether respondents acted unlawfully in accordance with s 58(1)(a) and (b) of the Human Rights Act 2019 – whether compatible with applicant's human right to freedom of expression in accordance with s 21 of the Human Rights Act 2019 - whether compatible with applicant's human right to freedom of association in accordance with s 22(2) of the Human Rights Act 2019 – whether a limit on a human right is reasonable and justifiable – where declarations sought have no practical relevance or utility – determined applicant's rights under ss 21 and 22 of the Human Rights Act 2019 have not been breached – determined not to exercise discretion to issue declarations sought.

INDUSTRIAL LAW – QUEENSLAND – ANTI‑DISCRIMINATION LEGISLATION – where applicant seeking declarations in accordance with s 463 of the Industrial Relations Act 2016 that respondents discriminated against her for engaging in trade union activity – where applicant alleges delivering show cause notice was discrimination in contravention of s 295 of the Industrial Relations Act 2016 - where alleged adverse action taken because of a prohibited reason – where definition of or meaning of 'discriminates' – where applicant has not established there was comparatively less favourable treatment – determined that issuing show cause notice was not adverse action because it was issued exercising the power in s 187 of the Public Service Act 2008 and therefore authorised pursuant to s 282(6) of the Industrial Relations Act 2016 – determined no unlawful discrimination because the activity was not trade union activity and not the subject of the protected attribute.

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 20(2)(b)

Anti-Discrimination Act 1991 (Qld), s 9

Associations Incorporation Act 1981 (Qld), Schedule 2

Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32

Corporations Act 2001 (Cth), s 631

Fair Work Act 2009 (Cth), s 342, s 343, s 345, s 347

Hospital and Health Boards Act 2011 (Qld), s 57A

Human Rights Act 2019 (Qld), s 8, s 13, s 21, s 22, s 58

Industrial Arbitration Act 1940 (NSW), s 95

Industrial Relations Act 2016 (Qld), s 278, s 279, s 282, s 284 s 285, s 287, s 289, s 290, s 291, s 293, s 295, s 306, s 314, s 463, s 531, s 571, s 574, s 576, Schedule 5

Public Sector Ethics Act 1994 (Qld), s 12H

Public Service Act 2008 (Qld), s 187

Statutory Instruments Act 1992 (Qld), s 57

Workplace Relations Act 1996 (Cth), s 170NC, s 298K

Hospital and Health Boards (Changes to Prescribed Services) Amendment Regulation (Qld) 2019

Hospital and Health Boards Regulation (Qld) 2012

CASES:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Angela Banovic v State of Queensland, Department of Education [2019] QIRC 132

Anisminic Ltd v Foreign Compensation Commission [1968] 2 QB 862

Antunovic v Dawson & Anor (2010) 30 VR 355

Association of Consulting Surveyors (Queensland) Ltd. [1999] QIC 2; 160 QGIG 80

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Australian Building and Construction Commissioner v Parker (2017) 266 IR 340; [2017] FCA 564

Australian Education Union v Lawler [2008] FCAFC 135

Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985

Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215

Australian Securities and Investments Commission v Mariner Corporation Limited [2015] FCA 589

Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2000) 106 FCR 482

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14

BHP Iron Ore Pty Ltd v Australian Workers’ Union [2000] FCA 430; (2000) 102 FCR 97

Blackwell v Regina (2011) 81 NSWLR 119

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32

Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 1536

Carlton v Blackwood [2017] ICQ 001

Cavar v Nursing Australia [2012] FCA 338

Certain Children v Minister for Families and Children & Ors (No 2) (2017) 266 A Crim R 152

Childs v Metropolitan Transport Trust (1981) 29 AILR 24

Clermont Coal Pty Limited [2015] FCA 1014

Comcare v Banerji [2019] HCA 23

Commissioner of Taxation v Day (2008) 236 CLR 163

Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146

Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329

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

Community & Public Sector Union v Telstra Corporation Ltd [2001], 107 FCR 93

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Construction, Forestry, Mining and Energy Union v BHP Coal Pty [2015] FCAFC 25

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014

Construction, Forestry, Mining and Energy Union v Corinthian Industrial (Australia) Pty Ltd [2014] FCA 239

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No.2) [2017] FCA 1046

Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2012) 209 FCR 448

Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150

Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462

Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559

Director of the Fair Work Building Industry Inspectorate v Bavco Pty Ltd & Ors (No 2) [2014] FCCA 2712

Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251

Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833

Finance Sector Union of Australia v Commonwealth Bank of Australia FCR (2000) 106 16

General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605; 51 ALJR 235

Gibbs v Palmerston Town Council [1987] FCA 732

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

Goode v Common Equity Housing (1983) 6 IR 371

Goode v Common Equity Housing [2014] VSC 585

Hammond v Department of Health & Anor (1983) 6 IR 371

Harrison v P & T Tube Mills (2009) 181 IR 162

IW v City of Perth (1997) 191 CLR 1

Jones v Queensland Tertiary Admissions Centre Ltd (No 2), 186 FCR 22

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622

Koehler v Cerebos (Australia) (2005) 222 CLR 44

Kracke v Mental Health Review Board [2009] VCAT 646

Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 001

Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154

McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828; (2006) 154 IR 111

McManus v Scott-Charleton (1996) 70 FCR 16

Minister for Immigration and Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40

Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502

Momcilovic v The Queen (2011) 245 CLR 1

National Tertiary Education Union v Royal Nationwide News v Naidu (2007) 71 NSWLR 471

Melbourne Institute of Technology (2013) 234 IR 139

Newton v Australian Postal Corp (No 2) [2019] FCA 2192

Nigro & Ors v Secretary to the Dept of Justice [2013] VSCA 213

Norseman Amalgamated Distress and Injustices Fund v the Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1159

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1988) 195 CLR 1

PJB v Melbourne Health & Anor (2011) 39 VR 373

Police Federation of Australia v Nixon [2008] FCA 467

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 263 IR 344

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v Momcilovic [2010] VSCA 50

Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341

Re: McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland) (1995) CLR 620

Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37

Slaveski v Smith & Anor [2012] VSCA 25

Stone & Spelta v Brisbane City Council [2015] QCAT 507

Tattsbet Ltd v Morrow (2015) 233 FCR 46

The Queen v Rockhampton Fire Brigade Board [1974] QSCFC 25

The Queensland Public Sector Union of Employees v Queensland Fire and Rescue – Senior Officers Union of Employees (2009) 192 QGIG 39

United Firefighters Union of Australia v Easy [2013] FCA 763

Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Waugh v Kippen (1986) 160 CLR 156

Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39

Yousif v Workers’ Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr J.E. Murdoch, QC with Mr T. Spence and Mr J. Ludwig of Counsel instructed by Worker Law, for the Applicant.

Mr A. Duffy, QC with Mr E. Shorten of Counsel instructed by Crown Law, for all Respondents.

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

Reasons for Decision

  1. [1]
    This is an application by Margaret Gilbert (the Applicant) who is employed on a full‑time basis as a Duty Nurse Manager, Hospital Wide Clinical Support Services at The Prince Charles Hospital, Brisbane, Queensland (TPCH), a Hospital service delivered pursuant to the Hospital and Health Boards Act 2011.  At the time of filing her application the Applicant was employed by Metro North Hospital and Health Service.
  1. [2]
    The Hospital and Health Boards Regulation 2012 was amended by the Hospital and Health Boards (Changes to Prescribed Services) Amendment Regulation 2019 as from 15 June 2020 whereby particular health service employees will be employed by the chief executive of the department.  As a consequence, the relief sought against the health service will now be sought against the State of Queensland.[1]
  1. [3]
    On 11 June 2020 the Queensland Industrial Relations Commission (the Commission) granted the Queensland Nurses and Midwives' Union of Employees (QNMU) the right to be heard by way of making written and oral submissions with an appropriate order to be issued as to the exact nature and extent of any submissions to be made by the QNMU.[2]  An order to this effect was issued on 19 June 2020.
  1. [4]
    It is accepted by the parties that in the event that the Commission determines that a contravention or contraventions have occurred, and compensation or penalties ought to be ordered, that such matters should be reserved subsequent to the Commission determining the question of liability.[3]
  1. [5]
    On 11 September 2020 Mr Murdoch, QC on behalf of the Applicant, handed up a more reflective form of final orders sought.

Background

  1. [6]
    The Applicant was appointed Branch Secretary, Nurses' Professional Association of Queensland Inc (NPAQ) about October 2018 and that is a role which has continued more or less the same since then.
  1. [7]
    On 24 November 2019, the Sunday Mail published an Article entitled "Nurse decline is off the charts" (the Article), which quoted the Applicant, who was identified as "the duty nurse manager at Prince Charles Hospital", as making a number of critical comments about nursing graduates and the nursing profession generally.
  1. [8]
    The Applicant did not seek authority or permission to participate in the Article in that capacity.
  1. [9]
    On 8 January 2020, Ms Michelle Gardner, the Executive Director of TPCH (the Second Respondent), in her capacity as delegate for the First Respondent, sent to the Applicant a notice to show cause why she should not be disciplined for making the comments without proper authority (the Show Cause Notice).
  1. [10]
    The Applicant sought and was granted an extension to respond.  Instead of responding to the Show Cause Notice the Applicant filed the application which is the subject of the present proceedings.

General Protections claims under the IR Act

  1. [11]
    The general protections scheme under the Industrial Relations Act 2016 (the IR Act) protects employees from adverse action taken against them by their employer because they have exercised or not exercised a workplace right or proposes to exercise or not exercise a workplace right. 
  1. [12]
    The Applicant must establish that the action taken was "adverse action" within the scope of s 282 of the IR Act (which substantially mirrors s 342 of the FW Act).[4]  Section 282 of the IR Act relevantly provides:

282 Meaning of adverse action

  1. (1)
    Adverse action is taken by an employer against an employee if the employer -
  1. (a)
    dismisses the employee; or
  1. (b)
    injures the employee in his or her employment; or
  1. (c)
    alters the position of the employee to the employee's prejudice; or
  1. (d)
    discriminates between the employee and other employees of the employer.

. . .

  1. (5)
    Adverse action includes -
  1. (a)
    threatening to take action covered by subsections (1) to (4); and
  1. (b)
    organising to take action covered by subsections (1) to (4).
  1. (6)
    Adverse action does not include action that is authorised under -
  1. (a)
    this Act or any other law of the State; or
  1. (b)
    a law of the Commonwealth.
  1. [13]
    To constitute adverse action, relevantly the incident or event must constitute something that injured Ms Gilbert or altered her position to her detriment.
  1. [14]
    Section 282(1)(b), requires that the employee be in a worse position in his or her employment after the action than before it.[5]  It requires more than embarrassment or upset on the part of the employee.  When determining whether an injury has occurred, an objective view must be taken: the employee's subjective view alone is insufficient to make out an injury.[6]
  1. [15]
    Section 282(1)(c), "alters the position of the employee to the employee's prejudice" is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.[7]  However, the prejudicial alteration must be real and substantial, rather than merely possible or hypothetical.[8]
  1. [16]
    In s 282(1)(d), "discriminates" ought to be given its ordinary meaning, drawing on the meaning of the term in anti-discrimination law only to a limited extent, if at all.  Intention is required and establishing adverse action of this kind necessarily involves a comparison (and whether there was comparatively less favourable, or at least different, treatment).[9]
  1. [17]
    With each alleged instance, the Applicant must establish that such action taken was "adverse action" within the scope of s 282 of the IR Act (which substantially mirrors s 342 of the FW Act).[10] 
  1. [18]
    Section 285 of the IR Act defines the nature of the "Protection" as follows:

285 Protection

  1. (1)
    A person must not take adverse action against another person -
  1. (a)
    because the other person -
  1. (i)
    has a workplace right; or
  1. (ii)
    has, or has not, exercised a workplace right; or
  1. (iii)
    proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. (b)
    to prevent the exercise of a workplace right by the other person.
  1. (2)
    A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person's benefit or for the benefit of a class of persons to which the second person belongs.
  1. [19]
    The prohibition in s 285 of the IR Act is aimed at the protection of workplace rights.  The relevant prohibition in s 285(1)(a) is that a person must not take adverse action against another person because the other person has a workplace right or has/has not exercised, or proposes/proposed to exercise or not to exercise, a workplace right.[11]
  1. [20]
    The Respondents submit that three central concepts arise:  "workplace right", "adverse action" and the taking of adverse action "because" of one of the prohibited reasons.

Workplace Right

  1. [21]
    Section 284(1) of the IR Act defines "workplace right" (in essentially identical terms to s 341 of the FW Act):

284 Meaning of workplace right

  1. (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
  2. (b)
    is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  3. (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 his or her employment.
  1. [22]
    Under Schedule 5 to the IR Act, industrial law is defined to mean: (a) this Act; (b) or another Act regulating the relationships between employers and employees.
  1. [23]
    The purpose of the prohibition in s 291 of the IR Act is to protect a person from adverse action taken because the person is/is not, or was/was not, an officer or member of an "industrial association";  or engages/does not engage or proposes to engage/not engage in "industrial activity" within the relevant meaning of the term.
  1. [24]
    With respect to each alleged instance of adverse action, the Applicant must establish that:
  1. the alleged workplace rights which are relied upon fall within the scope of s 284 of the IR Act (as only workplace rights under s 284 of the IR Act are captured by the general protections regime);[12] and
  1. the Applicant exercised the workplace rights relied upon in the way alleged (as the Applicant bears the onus of establishing the factual existence of the circumstances which are alleged to have been the reason for taking the alleged adverse action).[13]
  1. [25]
    There are two allegations of adverse action allegedly taken because of a workplace right in breach of s 285 or s 291 of the IR Act:
  1. issuing the Memo was itself adverse action taken against the Applicant because she was an officer or member of NPAQ;[14] and
  1. delivering the Show Cause to the Applicant was adverse action taken because she had engaged in industrial activity on behalf of NPAQ1.[15]

When adverse action taken 'because' of a prohibited reason

  1. [26]
    What must be determined is whether the adverse action was taken by the employer against the Applicant "because" she had exercised a workplace right.
  1. [27]
    Importantly, there needs to be a connection between the reason, or reasons as found and the adverse action which arises from the presence of the word "because" in s 285 of the IR Act.
  1. [28]
    The term "because" connotes the existence of a particular reason, being an operative and immediate reason, for taking adverse action.[16]  It prohibits a person from taking adverse action "because" a person has a "workplace right", or because the person has, or has not, proposes to exercise, or proposes not to exercise, such a right.
  1. [29]
    In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd, Jessup J, after considering Board of Bendigo Regional Institute of Technical and Further Education v Barclay (Barclay)[17] and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (BHP Coal),[18] said:

The "connection" which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged.  It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer's conduct policy and as participation in industrial activity.  As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity.  The existence of such a "connection" was insufficient.  What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee's participation in industrial activity.  To see their Honours' reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case.  Those statements represent the law after Barclay and BHP Coal.[19]

  1. [30]
    In BHP Coal, Gageler J said:

… The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity.  It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.[20]

  1. [31]
    In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No.2), Wigney J wrote:

The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker's reasons in this matter.  BHP Coal concerned an alleged contravention s 346 of the Fair Work Act.  While it might be thought to be a very fine and highly nuanced distinction, if Gageler J's distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right.  It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right.[21]

  1. [32]
    Assuming that the reverse onus is engaged, the issue to be determined is whether the evidence is sufficient for the Commission to be satisfied that none of the reasons of the decision maker in respect of the Memorandum or the Show Cause Notice included a proscribed reason. 

Onus of Proof

  1. [33]
    As a matter of general principle, in proceedings before the Commission the legal onus of proof lies with the person who alleges the thing that must be proved.  The Applicant accepts that, subject to the application of the reverse onus of proof, she bears the onus of proving the facts alleged in her claim.[22]
  1. [34]
    Relevant to this concept is the reverse onus imposed by s 306 of the IR Act:

306 Reason for action to be presumed unless proved otherwise

  1. (1)
    Subsection (2) applies if -
  1. (a)
    in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
  2. (b)
    taking that action for that reason or with that intent would be a contravention of the provision.
  1. (2)
    It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
  1. (3)
    Subsection (2) does not apply in relation to orders for an interim injunction.
  1. [35]
    Before the reverse onus is engaged the Applicant bears the onus of first proving that:
  1. (a)
    the conduct that she alleges was taken in fact occurred;
  2. (b)
    the workplace right alleged exists (or she was relevantly protected);
  3. (c)
    the conduct constitutes adverse action for the purposes of s 282;
  4. (d)
    the alleged proscribed reason for that conduct is within one or more of the relevant proscribed categories; and
  5. (e)
    the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose.[23]
  1. [36]
    The equivalent provision in the FW Act is s 361.
  1. [37]
    In United Firefighters Union of Australia v Easy, Ross J stated:

. . . [I]t is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent's conduct.  The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely.  It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.[24]

  1. [38]
    The High Court considered the effect of s 361 of the Act in Barclay.[25]  In that case, the alleged reason for the adverse action was that the employee was an officer or member of an industrial association or engaged or proposed to engage in particular kinds of industrial activity.  French CJ and Crennan J said:

There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action.  The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".

This question is one of fact, which must be answered in the light of all the facts established in the proceeding.  Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.  Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence.  However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[26] (citations omitted)

  1. [39]
    French CJ and Crennan J adopted the reasons of Mason J (with whom Stephen and Jacobs JJ also agreed) in General Motors-Holden's Pty Ltd v Bowling[27] where their Honours said:

The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J.  It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons.[28]

  1. [40]
    Gummow and Hayne JJ adopted a similar position in Barclay observing:

In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence [said] to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[29]

Heydon J wrote:

To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted.  Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position.  No requirement for such search can be implied.  This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention.  How could an employer ever prove that there was no unconscious reason of a prohibited kind?   An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.[30]

  1. [41]
    For the Applicant to succeed, the reason for the adverse action must be "a substantial and operative factor".  The Commission must consider the conscious reasons and does not require analysis of unconscious or subconscious reasons.
  1. [42]
    When engaged, the reverse onus necessarily informs the Commission's approach to determining whether adverse action was taken "because" of a prohibited reason.
  1. [43]
    The authorities indicate that the focus of the general protections is to prevent conscious and deliberate victimisation.  If the evidence establishes there was none, the reverse onus will be discharged.

The Applicant's Claim

  1. [44]
    In her Statement of Facts and Contentions (SFC) filed on 11 March 2020, the Applicant alleged contraventions of the general protections provisions of the IR Act and makes ancillary claims under the Anti-Discrimination Act 1991 (the AD Act) and the Human Rights Act 2019 (the HR Act).
  1. [45]
    The essence of the Applicant's grievances is that her involvement with an incorporated association, now known as NPAQ was the reason for what she says was adverse action taken against her.
  1. [46]
    The first allegation of adverse action allegedly taken because of a workplace right is that of issuing the Memorandum by the Respondents against the Applicant because she was an officer or member of NPAQ.[31]
  1. [47]
    The second allegation of adverse action allegedly taken because of a workplace right is that delivering the Show Cause Notice to the Applicant was adverse action taken because she had engaged in industrial activity on behalf of the NPAQ.[32]
  1. [48]
    The alleged contraventions relate to the Show Cause Notice and are said to also relate to another matter occurring nine months previously, namely the issue of a Memorandum on 13 March 2019 entitled, "Nurses' Professional Association of Queensland Inc (NPAQ)" from Queensland Health (the Third Respondent) to the Hospital and Health Service Chief Executives and others, sent under the signature of Mr Silven Simmons (the Fourth Respondent) in his capacity as Acting Chief Human Resources Officer, Queensland Health.
  1. [49]
    The Respondents deny the alleged contraventions of the IR Act or the HR Act and also deny the Applicant is entitled to the relief claimed or indeed any relief.
  1. [50]
    The Respondents submit the general protections claims under the IR Act cannot succeed as the Applicant did not have the workplace rights or protections claimed and the relevant conduct of the Respondents was not unlawful.  The ancillary claims made under the HR Act are variously misconceived or unsustainable.
  1. [51]
    The following orders are sought by the Respondents:
  1. (a)
    the application be dismissed;
  2. (b)
    the Applicant pay the Respondents' costs of and incidental to the application; and
  3. (c)
    such further or other orders the Commission deems appropriate.
  1. [52]
    Given the broad scope of the claim and the role of the reverse onus,[33] the Respondents have dealt with each of the aspects of the claim in detail.[34]

Is NPAQ an Industrial Association?

  1. [53]
    The application is built on the contention that for the purposes of the definition in Schedule 5 and s 279 of the IR Act, the NPAQ is "an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment.[35]
  1. [54]
    The above definition has two components:
  1. (a)
    an association of employees; and
  2. (b)
    having as a principle purpose the protection and promotion of employees' interests.
  1. [55]
    The Respondents contend that an incorporated association which is not registered under Chapter 12 of the IR Act does not qualify as "an association of employees".
  1. [56]
    Schedule 5 of the IR Act provides the following definitions of "association" and "industrial association":

association -

  1. (a)
    generally, means an unincorporated body or entity formed or carried on to protect and promote its members' interests; and
  1. (b)
    for chapter 11, part 2, division 4, subdivision 10, see section 478.

…

industrial association, for chapter 8, part 1, see section 279.

  1. [57]
    Section 279 of the IR Act sets out definitions:

In this part -

…

industrial association means any of the following -

  1. (a)
    an employee organisation;
  1. (b)
    an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment;
  1. (c)
    an employer organisation;
  1. (d)
    an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment;
  1. (e)
    a branch of an industrial association under paragraphs (a) to (d).

Note -

An organisation is a body that is registered as an organisation under chapter 12 – see schedule 5, definition of organisation.

  1. [58]
    Section 290 of the IR Act states:

290 Meaning of engages in industrial activity

A person engages in industrial activity if the person -

  1. (a)
    becomes or does not become, or remains or stops being, an officer or member of an industrial association; or
  1. (b)
    does or does not -
  1. (i)
    become involved in establishing an industrial association; or
  1. (ii)
    organise or promote a lawful activity for, or on behalf of, an industrial association; or
  1. (iii)
    encourage, or participate in, a lawful activity organised or promoted by an industrial association;

 or

  1. (iv)
    comply with a lawful request made by, or a lawful requirement of, an industrial association; or
  1. (v)
    represent or advance the views, claims or interests of an industrial association; or
  1. (vi)
    pay a fee (however described) to an industrial association or to someone instead of an industrial association; or
  1. (vii)
    seek to be represented by an industrial association; or

Note -

 For subparagraph (vii), representation of a person by an industrial association includes a member, delegate or officer of an organisation making representations or advocating on the person's behalf.  An organisation is a body that is registered as an organisation under chapter 12 – see schedule 5, definition organisation.

  1. (c)
    organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
  1. (d)
    encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
  1. (e)
    complies with an unlawful request made by, or an unlawful requirement of, an industrial association; or
  1. (f)
    takes part in industrial action that is not protected industrial action.
  1. [59]
    It is submitted by the Respondents that the Applicant is not an officer or member of an "industrial association", nor can she establish that she organised or promoted a lawful activity for or on behalf of one. For the reasons which follow, I agree.
  1. [60]
    The question to be determined by the Commission is whether the NPAQ is "an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment".
  1. [61]
    The Respondents submit the NPAQ does not answer the relevant definition of s 279 of the IR Act.
  1. [62]
    In their submissions,[36] the QNMU argue that NPAQ, as an incorporated association, is not an "industrial association" and, therefore, it cannot engage in industrial activity.
  1. [63]
    The protection offered by s 291 is only for a person who "engages in industrial activity" (or proposes to do so) and for officers or members of an "industrial association".
  1. [64]
    In response to the Applicant's submission that NPAQ is "an association of employees …", the Respondents submit that rather than being an association of employees, what it is in fact is an incorporated association under the Associations Incorporation Act 1981 (Qld) (the AIA Act).
  1. [65]
    It is not in contention that the NPAQ is an incorporated body under the AIA Act.  Schedule 2 of the AIA Act states:

Schedule 2 – Dictionary

association means an association, society, body or other entity formed, or carried on, for a lawful purpose.

  1. [66]
    The Respondents submit that the NPAQ is not and cannot be an association within the relevant meaning of the term in the IR Act.
  1. [67]
    In Association of Consulting Surveyors (Queensland) Ltd. a Full Bench of the Commission (Williams P, Edwards and Swan CC) were called on to consider whether a company incorporated under corporations law as a company limited by guarantee could be registered as an employer association pursuant to the provisions of the Industrial Organisations Act 1977.  The Full Bench concluded that the ordinary meaning of "industrial association" does not normally connote a body corporate:

The significance of the term "association" in s 26 of the 1916 Act was considered by the High Court in Re McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1995) 184 CLR 620. Relevantly Brennan CJ, Deane and Dawson JJ said at 639:-

The view taken by the majority on the Federal Court was that the Queensland branch of the ATAEA, being an entity which was distinct from its members, was not capable of registration under the Queensland Act or did not achieve corporate personality upon registration under that Act. That view cannot, in our opinion, be sustained. Although the condition upon which registration of an industrial union could be granted under s. 26(1) of the Queensland Act was that it answered the description of an 'industrial association' or a 'trade union of employees', neither of those terms, by itself, connotes the existence of a legal entity.  The terms 'association' or 'union' connote a relationship among persons 'associated' or 'united' for a common purpose or to share a common interest.  These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality.[37]

. . .

The meaning to be attributed to the term "association" will often be dependent upon the context in which it is used.  There is no doubt that, as pointed out in the passage from McJannet quoted above, ordinarily it connotes a relationship between persons sharing a common interest.  Normally it does not connote a body corporate; the definition in the New Shorter Oxford Dictionary refers, inter alia, to "society", but makes no mention of a body corporate.  That is not to say that context could never require placing an interpretation on the use of the term which would include a body corporate.  But particularly given the reasoning in McJannet, which predates the IO Act, it is difficult to give the term that extended meaning here.  That is particularly so in the light of the legislative history; the deletion of the former reference to body corporate in the equivalent sections at least suggests that such an extended meaning should not be imputed here.[38]

  1. [68]
    It is submitted that attention must be drawn to the plain words of the statute and definition of "association", which "generally, means an unincorporated body or entity formed or carried on to protect and promote its members interests".[39]  Referring to the Macquarie Dictionary's definition of "entity", the Applicant submits that NPAQ, as an incorporated industrial association, is an entity formed or carried on, to protect and promote its members.
  1. [69]
    The objects of the NPAQ Constitution include, in short "[t]o represent Members of the Association in matters relating to their employment …" and "[t]o secure satisfactory remuneration and working conditions for Members of the Association".[40]
  1. [70]
    The Applicant argues that the evidence before the Commission proves that the NPAQ, by virtue of its objects and its activities, is an industrial association in accordance with s 279 of the IR Act, for the purposes of Chapter 8, "General Protections". 
  1. [71]
    The Applicant submits that "is entirely consistent with the fact that employed nurses have an interest in their professional standard and in professional development … and it does not … change the character of the membership".[41]  The Applicant continued to refer to other Objects from two to 12 (pp 26-27) stating this cursory analysis undertaken by the Respondents is a rather shallow analysis without regard for the actual state of objectives of the association.
  1. [72]
    The Applicant submitted that, when read with the definition of 'industrial association', in s 279 it "is clear that a principal purpose is the protection and promotion of their interests in matters concerning their employment".[42] 
  1. [73]
    The Applicant makes reference to Mandep Sarkaria v Workers' Compensation Regulator (Sarkaria), where Martin J said, in considering s 34(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld):

First, there is the general rule of interpretation applied to statutes of this kind.  The Act is properly described as being "beneficial" legislation.  As such, it should be construed so as to give the fullest relief which the fair meaning of its language will allow.[43]

  1. [74]
    The Applicant further refers to Waugh v Kippen[44] where it was noted that, where there are two principles of interpretation in conflict, the provision "should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have".
  1. [75]
    The Applicant contends that when reference is made to the above and aligned with s 279 of the IR Act, the principles under Chapter 8 of the IR Act constitute 'beneficial' provisions protecting workplace rights and freedom of association and as such, "should be construed so as to give the fullest relief which the fair meaning of its language will allow".[45]
  1. [76]
    However, the approach described by Martin J in Sarkaria is not without constraint. The interpretation adopted "must be restrained within the confines of the actual language employed and what is fairly open on the words used".[46]
  1. [77]
    In IW v City of Perth, Brennan CJ and McHugh J expressed the approach to construction of beneficial legislation in the following terms:

… [B]eneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".  Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.[47] (citations omitted)

  1. [78]
    The QNMU submit that the legislative intention was to limit the expression "industrial association" to registered organisations but to also extend the definition to groups of individual employees with similar purposes.
  1. [79]
    The argument advanced by the QNMU is that within subsection (a) of s 279 of the IR Act 'employee organisation' is included in the definition.  'Organisation' as defined comprises a registered organisation. It is argued that the express inclusion of registered organisations makes it clear that the legislature did not intend to include unregistered organisations. It would follow that if the legislature had intended that the expression 'an association of employees' was to include unregistered organisations then it would make the deliberate and explicit inclusion of registered organisations in limb (a) pointless.
  1. [80]
    The QNMU argue that its interpretation of the legislative purpose is bolstered when regard is had to s 602 of the IR Act. That section provides:

602  Who may apply

  1. (1)
    An association may apply for registration as an employee organisation or employer organisation.
  1. (2)
    A corporation may only apply for registration as an employer organisation.
  1. [81]
    Section 602(1) provides that an 'association' may apply for registration as an employee organisation or employer organisation.  In light of that limitation it is contended that the purpose in s 279 of the IR Act becomes apparent.  Organisations registered under the Act are protected and groups of workers who go on to obtain registration are also protected.
  1. [82]
    Mr Freeburn QC for the QNMU made reference to the definition of industrial association in Schedule 5 of the IR Act as "a body registered under chapter 12 as an organisation".[48]
  1. [83]
    Chapter 12 of the IR Act provides the mechanism by which employees and employers who wish to be collectively represented may obtain registration for their respective organisations.  Upon the obtaining of registration, an organisation can, for example, be a party to a modern award or certified agreement, seek to recover unpaid wages, or file dispute applications, general protections disputes or unfair dismissal applications.  The IR Act imposes rights and obligations on a registered organisation.  Further the IR Act does not recognise any other entity other than a registered organisation for the collective representation of employees or employers.
  2. [84]
    The QNMU submits that the NPAQ is not an "employee focused organisation".  In support of that submission, the QNMU drew the Commission's attention to the NPAQ's Constitution;[49] and, in particular, who is entitled to become a member of the NPAQ. 
  1. [85]
    Under the NPAQ's Constitution, there are a number of classes of membership, none of which have as a requirement the need to be an employee. 
  1. [86]
    The first category is Ordinary Membership which is set out in the Schedule to the Constitution.[50]
  1. [87]
    The "conditions of entry" of an Ordinary Member are set out in Clause 3 of the Schedule. Clause 3 provides as follows:

3. Classes of Membership and Conditions of Entry

The classes of Members of the Association shall be -

  1. (1)
    Ordinary Members who are -
  1. (a)
    Registered Nurses in Queensland; and
  2. (b)
    Enrolled Nurses in Queensland.

The number of Members of this class is unlimited

  1. (2)
    Inaugural Members who may be other people. The number of Members of this class is limited to 15 and membership can only be accepted up until the date of the first AGM.
  1. [88]
    What is immediately apparent is that it is not necessary as a condition of entry into membership to be employed.  Membership is open to Registered and Enrolled Nurses in Queensland irrespective of whether they are employed or not.
  1. [89]
    The Association's committee can, by resolution, create a new class of members. Clause 4 provides for what is described as affiliate memberships.  This category of membership can, from time to time, be determined by the Association or a specific Branch.
  1. [90]
    However, the Applicant argues that the membership clause needs to be read together with the objects.  It was contended that the ordinary membership categories are consistent with the callings expected in an association with a principal purpose being, the representation of employment matters.[51]
  1. [91]
    The QNMU referred the Commission to Australian Education Union v Lawler (Lawler)[52] which illustrates the problem where the rules permitted both employees and non‑employees.  In this case, unlike Lawler, the rules do not mention employees as a required qualification and there is no purging rule.[53]
  1. [92]
    The QNMU submitted that the NPAQ does not appear to see itself as exclusively an employee organisation.  To apply the proper rules of statutory interpretation, such incorporated body is not an association of employees, because the word "association" has a defined meaning.  If the statutory interpretation is ignored and the wider meaning to the phrase "association of employees" is accepted, then this is not an association that is employee focussed to protect employees.  It is designed to protect its members who may or may not be employees.[54]
  1. [93]
    It is contended that the use of the expression "an association of employees" make it plain that the legislature is contemplating a group of individual employees rather than a single corporate or similar entity.[55] I agree.
  1. [94]
    The argument against the Applicant is that the NPAQ's Constitution establishes something other than an organisation of employees.  What is established is not, in my view, an association of employees.  What is created is an incorporated body under the AIA Act.  The NPAQ has a legal status independent of its members.
  1. [95]
    I accept that on a proper interpretation of the IR Act, NPAQ is not an "industrial association" and, as a result, the Applicant cannot establish that she "[engaged] in industrial activity" for or on behalf of one.

 Is NPAQ a Trade Union?

  1. [96]
    The Applicant contends that the NPAQ, "although not registered" as an employee organisation under the IR Act, is "in fact an organisation in the nature of a trade union".[56]
  1. [97]
    The IR Act does not provide a definition of "trade union activity" however, it is submitted that in considering the Applicant's activities, inter alia, representing and advocating on behalf of NPAQ members, the Commission should determine that this was trade union activity for the purposes of the IR Act.
  1. [98]
    The Applicant submits that absent a definition of "trade union" in the IR Act then the words should not be construed according to their ordinary natural meaning.
  1. [99]
    In support of the above submission, the Applicant relies on a decision of the Supreme Court of Queensland in The Queen v Rockhampton Fire Brigade Board.[57]  In giving the decision of the Full Court, Lucas J said that the United Firefighters' Union, Queensland Branch, "although not registered" as an employee organisation industrial union under the IR Act, is "in fact an organisation in the nature of a trade union".
  1. [100]
    Rockhampton Fire Brigade Board[58] is a case which involved a very different factual and statutory context. It is distinguishable on those two grounds alone. Moreover, there have been a number of other authorities which have more relevant and recent application.
  1. [101]
    Norseman Amalgamated Distress and Injustices Fund v the Commissioner of Taxation of the Commonwealth of Australia (Norseman)[59] involved an "appeal" under the Taxation Administration Act 1953 against a decision of the Commissioner. The principal ground of objection, and the issue raised on the appeal, was whether the income in respect of which the assessment issued was income of a trade union and, therefore, exempt from income tax under the Income Tax Assessment Act 1936.
  1. [102]
    Norseman was an unincorporated association formed and conducted pursuant to a written constitution.  It was not registered under any act of the Commonwealth or of the State of Western Australia relating to the settlement of industrial disputes.  Lee J held:

As the dictionaries confirm, it is still an essential part of the ordinary use of the term "trade union" that an organisation so described be one formed by workers to further the interests of the workers in their employment and although part of the meaning of the term may include an organization formed to provide financial aid to union members suffering adversity, the latter meaning is ancillary to, and dependent upon, the principal meaning described.

. . .

Whether the term "trade union" has a special and expanded meaning for persons in the industrial arena is unnecessary to decide for I remain persuaded, as was Kitto J in Victorian Employers Federation (at 393-395), that popular use of the expression "trade union" conforms to the dictionary definition set out in the Oxford Dictionary and that the term is used in that sense in para.23(f) of the Act.[60]

  1. [103]
    It will be recalled that the High Court considered that "trade union" in this common or natural sense is a voluntary, unincorporated association.  In McJannet the Court said:

Although the condition upon which registration of an industrial union could be granted under s 26(1) of the Queensland Act was that it answer the description of an 'industrial association' or a 'trade union of employees', neither of those terms, by itself, connotes the existence of a legal entity.  The terms 'association' or 'union' connote a relationship among persons 'associated' or 'united' for a common purpose or to share a common interest.  These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality.[61]

  1. [104]
    I accept that the term "trade union" does not mean an entity with some distinct corporate personality from that of its individual members.
  1. [105]
    Mr Tsingos, President of QNurses First Inc. (known as the NPAQ) agreed that the objects of the Association as set out in the Constitution do not include any intention to form a trade union or any intention to negotiate and enter into enterprise agreements.  He agreed that the objects contain no intention or plan to operate as an industrial association or to seek and maintain registration as an industrial association under the IR Act or any legislation.[62]
  1. [106]
    Those concessions are, in the Respondents' submissions, consistent with the argument that NPAQ is not, in any relevant sense, a "trade union".[63]
  1. [107]
    Despite being President, Mr Tsingos provided little helpful evidence in respect of the ownership of the "NPAQ" business name, to whom the "Service Provider Fees" mentioned in the annual returns were paid; or any details of apparent loans to Queensland Association Services Group Proprietary Limited and the 'NPAA'.[64]
  1. [108]
    Mr McGuire, Assistant General Secretary, NPAQ was cross-examined about the following paragraph in his affidavit:

The NPAQ's purposes, as described in its Constitution, is advancing the interests of nurses in Queensland including, as its primary purpose:

 "The Nurses' Professional Association of Queensland is an employee union which fights to protect you, not promote a political party.  Run by practising nurses for nurses.  Every membership dollar supports you, your workplace issues, provides professional indemnity insurance and legal backup for you".[65]

  1. [109]
    It was put to Mr McGuire that the Constitution did not in fact contain those words, nor did it accurately describe NPAQ's actual purposes as set out in its Constitution.  Though Mr McGuire made some concessions under cross-examination,[66] he did not accept that in using this paragraph, he had sought to create the impression that what he had included was a quote from NPAQ's Constitution.[67]
  1. [110]
    During cross-examination, Mr McGuire accepted the proposition that "nowhere in the Constitution is it stated that the association is or wants to be a union … or wants to be a trade union?".[68]
  1. [111]
    The Respondents submit in referring to the commercial structure and transactions of NPAQ and considering the evidence and the Constitution of NPAQ, it does not fit the traditional idea of a trade union. I agree.
  1. [112]
    NPAQ is an incorporated association, with a distinct legal personality.  So much is apparent on the evidence filed by the Applicant.[69]  NPAQ's personality and corporate status is further clarified by the evidence of Theresa Hodges.[70]
  1. [113]
    The minutes of the founding meeting of the State Nurses' Professional Association of Queensland on 6 November and annexed to the Affidavit of Mr Tsingos do not sit comfortably with what Lee J described in Norseman[71] as the ordinary use of the term "trade union" being an organisation "formed by workers to further the interests of the workers in their employment".
  1. [114]
    Mr McGuire in his affidavit deposes that he is the Assistant General Secretary of QNurses First Inc ABN 86 313 257 505 which has the exclusive license to use and exploit trademark 1989061 and the initials NPAQ as well as the words "Nurses Professional Association of Queensland".[72]
  1. [115]
    NPAQ's legal personality and corporate status are, in my view, inconsistent with that of a typical "trade union" and its history is not in any sense typical of a "trade union".  The Business names, "Nurses' Professional Association of Queensland" and "NPAQ" were only transferred to NPAQ after the events, the subject of these proceedings.
  1. [116]
    I cannot accept the Applicant's submission that the NPAQ is a 'trade union'.  It must follow therefore that the Applicant could not have engaged in "trade union activity" on NPAQ's behalf within the meaning of the term in s 295 of the IR Act.

The Memorandum

  1. [117]
    On 13 March 2019, the Memorandum was signed off and distributed by Mr Silven Simmons, Acting Chief Human Resources Officer for the Department of Health.
  1. [118]
    The Memorandum expressed the following:

a. NPAQ was not entitled to be a party to an award or certified agreement made between Queensland Health and employee organisations;

b. NPAQ was not able to represent the industrial interests of employees who are covered by the Nurses and Midwives (Queensland Health) Award – State 2015 and the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB-10) 2018;

c. NPAQ did not have standing to be a union party in any grievance/dispute resolution process;

d. NPAQ was not permitted to display material in the workplace that implied it is entitled to represent the industrial interests of employees; and

e. NPAQ could not represent or advocate on behalf of an employee in relation to employment matters.[73]

  1. [119]
    In the Applicant's Statement of Facts and Contentions (SFC's) it is pleaded that:

41. (a) The First Respondent took adverse action against the Applicant by causing the delivery of the Memorandum to her and thereby rendering her liable to disciplinary actions should she fail to comply with its terms as to union representations.

(b) Contrary to s 291 of the IR Act the adverse action was taken against the Applicant because she was an officer or member of the NPAQ.

(c) Contrary to s 291 of the IR Act the adverse action was taken against the Applicant because she engaged in industrial activity, within the meaning of s 290 (a) and (b) (iii) of the IR Act.

  1. [120]
    The Applicant submits that the Memorandum was:

a. a "health employment directive" within the meaning of s 57A of the Hospital and Health Boards Act 2011;

b. a policy of the Third Respondent intended to be binding on employees; and

c. a statutory instrument in accordance with s 7 of the Statutory Instruments Act 1992.

  1. [121]
    A hard copy of the Memorandum was provided directly to the Applicant by Ms Linda Briggs, as instructed by Ms Cherie Franks, who informed the Applicant that in accordance with the Memorandum, NPAQ should not be promoted as an organisation that could represent the industrial interests of nurses and the Applicant should ensure that advertising did not breach her obligations to TPCH.
  1. [122]
    The Applicant contends that the evidence supports a conclusion that by issuing the Memorandum of 13 March 2019, the First and the Third Respondents knowingly or recklessly misrepresented the Applicant's rights for her to be represented by her chosen industrial association, the NPAQ in contravention of s 289(1) of the IR Act.[74]
  1. [123]
    It is further contended by the Applicant that the evidence demonstrates that the First Respondent contravened s 291 of the IR Act by delivery of the Memorandum, thereby rendering the Applicant liable to disciplinary action should she fail to comply with its terms regarding the status of the NPAQ.
  1. [124]
    Section 291 of the IR Act states:

291 Protection

A person must not take adverse action against another person because the other person –

  1. (a)
    is or is not, or was or was not, an officer or member of an industrial association; or
  1. (b)
    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of section 290(a) or (b); or
  1. (c)
    does not engage or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of section 290(c) to (f).

Note –  This subsection is a civil penalty provision.

  1. [125]
    The Applicant submits the evidence adduced at the hearing established that the First Respondent took adverse action against the Applicant by issuing the Memorandum of 13 March 2019 and putting the Applicant on a Notice to Show Cause.
  1. [126]
    Much of the Applicant's cross-examination of Mr Simmons, who approved the Memorandum, focussed on the sentence, "[t]he NPAQ cannot represent or advocate on behalf of an employee in relation to an employment matter".  Mr Simmons' evidence shows that particular sentence, when read with the rest of the Memorandum in the context in which it was issued, was not such as to reasonably cause confusion.  The Applicant took the Memorandum out of context.[75]
  1. [127]
    The Respondents conceded in their submissions that the above sentence can reasonably be criticised, when viewed in isolation.[76]  However, it was submitted that, in context, the sentence referred to the fact that in the industrial relations context, NPAQ could not represent its members before the Commission.[77]  This was further clarified by Ms Garrahy's evidence.[78]
  1. [128]
    The direct evidence of Mr Simmons for issuing the Memorandum was:
  1. I approved the Memorandum because I was satisfied that the Memorandum was informed by the provisions of the Industrial Relations Act 2016 (IR Act) and was an accurate reflection of the law at the time.  I was satisfied that the contents of the Memorandum had been properly considered and reviewed by the appropriate people before coming to me for my review.
  1. I believe the statements that are made in the Memorandum about the Nurses Professional Association of Queensland Inc (NPAQ) were made because NPAQ is not an employee organisation registered under the IR Act.  It is an incorporated association under the Associations Incorporation Act 1981. Accordingly, it is not a registered employee organisation pursuant to the IR Act.
  1. I was also aware that NPAQ was not a party to the Nurses and Midwives (Queensland Health) Award 2015 (the Award) or the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018 and therefore NPAQ did not have standing and could not represent and advocate on behalf of employees in the context of the industrial activity set out in the Memorandum.  The purpose of the Memorandum was to clarify NPAQ's status under the IR Act.[79]
  1. [129]
    As to the allegation of adverse action, Mr Simmons's evidence was:
  1. I deny that I took adverse action against the Applicant at all. The Memorandum was not addressed to the Applicant. I had no intention that it be sent to her and did not cause it to be sent to her.
  1. With regard to the suggestion that the Applicant would be 'liable to disciplinary actions should she fail to comply' in relation to the Memorandum, any disciplinary process was entirely separate to the Memorandum and a matter for Metro North Hospital and Health Service and their dealings with their employees.
  1. I did not cause the Memorandum to be sent because the Applicant 'engaged in industrial activity'. I was not aware as at the date of the Memorandum that the Applicant was an officer or member of the NPAQ. I did not seek to make the Applicant 'liable to disciplinary actions' for this reason or at all.
  1. I did not cause the Memorandum to be sent because the Applicant 'engaged in industrial activity'. I was not aware as at the date of the Memorandum that the Applicant had engaged in any industrial activity. I did not seek to make the Applicant 'liable to disciplinary actions' for this reason or at all'.[80]
  1. [130]
    Ms Garrahy did not accept that the Memorandum was likely to influence the attitude of frontline nurses to representation in employment matters.[81]
  1. [131]
    The Applicant referred to the following email sent to Ms Garrahy by Mr Daniel Rautio providing feedback on an early draft:

I've removed the more detailed information as I thought his level of detail was unnecessary OR could discourage employees (our indirect audience) from engaging with the material.[82]

  1. [132]
    Ms Garrahy's evidence clarified that Mr Rautio's comment was unremarkable and did not reveal any ulterior agenda.[83]
  1. [133]
    In her evidence Ms Garrahy denied any malign or unlawful intent behind the Memorandum.[84]
  1. [134]
    Even if the Applicant can overcome the hurdles of the status of the NPAQ as an "industrial association" or a "trade union" and the reverse onus is engaged, I accept, as the evidence has unfolded that there were no unlawful reasons for issuing the Memorandum.

Notice to Show Cause

  1. [135]
    On 24 November 2019, the Sunday Mail published an Article titled 'Nurse decline is off the charts'.  The Article relevantly identified the Applicant as 'the duty nurse manager at Prince Charles Hospital'.  Moreover, the Article made a number of critical comments about the standard of nursing graduates and the nursing profession more generally.  The Applicant did not seek nor was any authority given for her to participate in the Sunday Mail Article.
  1. [136]
    On 8 January 2020, the Second Respondent issued the Applicant with a Show Cause, which she received on 13 January 2020.  The Show Cause made seven allegations regarding the Applicant's conduct and listed relevant particulars with possible grounds for discipline under the Public Service Act 2008 (PS Act).[85]
  1. [137]
    The Applicant submits the Show Cause was defective because the First Respondent failed to comply with s 12H of the Public Sector Ethics Act 1994 (Qld) (PSE Act) and the "code of conduct for public service agencies".
  1. [138]
    Moreover, the Applicant alleges the First Respondent has contravened ss 285 and 291 of the IR Act in that they have taken adverse action against the Applicant for exercising a workplace right and/or taking part in an industrial activity, and/or engaging in trade union activity.
  1. [139]
    It is contended by the Applicant that the evidence reveals that the Show Cause process was commenced because the Applicant engaged in the alleged industrial activities. 
  1. [140]
    The Applicant's SFCs plead the allegations as follows:

43. The action of sending the Show Cause to the Applicant was adverse action against the Applicant because the action:

  1. (a)
    altered the position of the Applicant and was thereby adverse action within the meaning of s 282 of the IR Act;
  2. (b)
    injured the Applicant in her employment and was thereby an adverse action within the meaning of s 282 of the IR Act;
  3. (c)
    discriminated between the Applicant and other employees of the First Respondent and was thereby adverse action within the meaning of s 282 of the IR Act; and
  4. (d)
    constituted a threat to take action covered by ss(1)(b)(c) and (d) of s 282 of the IR Act and was thereby adverse action within the meaning of ss(5)(a) of s 282 of the IR Act.

 44. Prior to the issue of the Show Cause on 8 January 2020, the Applicant had:

  1. (a)
    become a member of the NPAQ;
  2. (b)
    was a delegate of the NPAQ;
  3. (c)
    advocated on behalf of the NPAQ;
  4. (d)
    represented the interests of the NPAQ;
  5. (e)
    expressed views on the standard of tertiary education of nurses on behalf of the NPAQ;
  6. (f)
    participated in an interview with a Sunday Mail journalist on behalf of the NPAQ; and
  7. (g)
    allowed her image, name and views to be published in the Sunday Mail newspaper of 24 November 2019 in order to advance the views of the NPAQ.

45. The Show Cause was issued to the Applicant by the First and Second Respondents because the Applicant had exercised her right to engage in, and had engaged in the activities set out in paragraph 41 above.

46. In the premises, the First Respondent contravened the provisions of Chapter 8 Part 1 of the IR Act when it took adverse action against the Applicant because the Applicant:

  1. (a)
    exercised a workplace right (contravention of s 295(1)(b)(i) of the IR Act; and
  2. (b)
    engaged in industrial activity as defined in s290 of the IR Act (contravention of s291(b) if the IR Act).

47. The Second Respondent as a person who aided and abetted the contraventions aforesaid by authoring, signing and sending the Show Cause to the Applicant, was pursuant to s571 of the IR Act involved in the contraventions and is taken to have contravened the said provisions.

48. The action of the First Respondent of discriminating against the Applicant because she engaged in trade union activity was an action which, for the purposes of s295(2)(a) of the IR Act was an unlawful action under the AD Act.

  1. [141]
    It is contended by the Applicant that the Show Cause process was commenced because she engaged in industrial activities.
  1. [142]
    The Respondents submits that the allegations concerning the issuing of the Show Cause Notice has a number of different aspects, none of which can succeed:
  1. (a)
    the Applicant cannot establish that she had the workplace rights and protections upon which she relies;
  2. (b)
    even if she could, the issuing of the Show Cause Notice was not "adverse action" because it was relevantly "authorised"; and
  3. (c)
    even if (a) and (b) are surmounted, and the reverse onus engaged, the relevant decision maker (the Second Respondent) has given direct evidence of her reasons for delivering the Show Cause Notice, which were not unlawful and which ought to be accepted.[86]
  1. [143]
    Section 282(1) of the IR Act includes the following meaning of adverse action:
  1. (1)
    Adverse action is taken by an employer against an employee if the employer -
  1. (a)
    dismisses the employee; or
  1. (b)
    injures the employee in his or her employment; or
  1. (c)
    alters the position of the employee to the employee's prejudice; or
  1. (d)
    discriminates between the employee and other employees of the employer.
  1. [144]
    The Applicant submits that Dwyer IC in Angela Banovic v State of Queensland, Department of Education,[87] identified that the term "injure" has been given a wide definition for the purposes of s 282(1) of the IR Act.  In his decision, Dwyer IC stated:

The respondent says that the applicant has "merely" been asked to show cause.  This submission, with respect, fails to understand the meaning of the terms "injures the employee" or "alters the position of the employee" as they appear in s 282[1](b) and (c) (respectively) of the Act.[88]

In a similar provision contained in s 298K of the Workplace Relations Act 1996, the High Court held that the term "injure" has a wide meaning and covers every compensable injury.[89]

In Squires v Flight Stewards Assn of Australia, Ellicot J held:

"The words 'injure in his employment' are … words of wide import … They are … application to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial."[90]

In Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 a "show cause" process has been found to constitute an "alteration of an employee's position" for the purposes of the definition of adverse action contained at s 342 of the Fair Work Act 2009.[91]

  1. [145]
    The Applicant submitted that the Show Cause process on its own would constitute adverse action, when this is considered in conjunction with the email of Ms Stevens on 24 December 2019[92] and the pre-determination of the outcome.  It was asserted that this leads to a conclusion that the prejudicial alteration of the Applicant's position was "real and substantial", not merely "possible or hypothetical", and therefore adverse action for the purposes of s 282(1)(c) of the IR Act.
  1. [146]
    The assertion that Ms Stevens has pre-determined the outcome of the Show Cause process somewhat overstates the email of 24 December 2019.  The email relevantly stated the following:

Whilst probably not likely to be a termination, there would be a serious consideration given to demotion given the role the employee holds and that the nursing leadership are not impressed with the conduct.[93]

  1. [147]
    Ms Stevens explained to the Commission that as part of the internal processes a determination needs to be made as to whether the matter is a minor matter or a more serious matter.  If it is a minor matter, then the Show Cause letter may be handled by the HR Department.  If it potentially involves a more serious matter, then the Show Cause letter needs to be sent to the Workforce Advisory Unit before being forwarded to the delegate. The following exchange puts the email into perspective:

MR MURDOCH: You were already thinking penalty, weren't you?

MS STEVENS: And that's in part because of the delegation that requires only certain show cause letters to go to Workforce Advisory Unit for clearance.  So if they're minor matters, then we can just simply deal with them at a HR level and give direct to the delegate. If they are matters of a more serious nature, as I consider this one to be, there is a requirement that if they are going to be termination potentially for demotion, then there is an onus on me to send the letter to Workforce Advisory Unit for them to check it before the delegate gets it and for it – before it's issued. So in this case I had to identify to them that I felt in my experience that this was a serious matter. I didn't believe that it would warrant termination, but I did feel that there was a chance that it could be a matter for demotion given this was a senior nurse in the workforce.

MR MURDOCH: Well?

MS STEVENS: So it's not determining the – the penalty, but it was identifying that – that it had that possibility for them to be the ones to then clear that letter and that's to fit with that delegation.[94]

  1. [148]
    In identifying this case was a serious matter, Ms Stevens said the senior leadership in nursing were very upset by the conduct that had been demonstrated.  She did not believe that it would warrant termination, but it could be a matter for demotion given this was a senior nurse in the workforce.[95]
  1. [149]
    It was put to Ms Stevens in cross-examination that there is no evidence that the Applicant was speaking on behalf of the Hospital in the Sunday Mail Article. Ms Stevens said that the Applicant was quoted in the newspaper and identified as a senior nurse who works for TPCH then her opinion becomes the Hospital's opinion, so that is the difference.[96] She was show caused because she identified herself as an employee.[97]
  1. [150]
    In terms of aligning herself with the views of the NPAQ, Ms Stevens said, "that was most relevant for allegation 7 in terms of not separating her role in terms of the information that she had an obligation to bring that to the service to be dealing with at service level.  In fact, it was being addressed through the media and in the public without the Hospital having an opportunity to deal with it in the first instance".[98]
  1. [151]
    It is submitted that because adverse action has been taken against the Applicant, it is for the Respondents to rebut the presumption the Applicant was put on a Show Cause because she engaged in industrial activity as alleged.
  1. [152]
    Further, it is contended the Respondents must prove if there are multiple reasons for the adverse action that the Applicant's engagement in industrial activity was not the "substantial or operative factor" for taking the adverse action.
  1. [153]
    The Applicant submits that there were a multiple of persons involved in making the decision to approve the commencement of the disciplinary process and issuing the Show Cause Notice.[99] 
  1. [154]
    Citing the principles set out in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited[100] and Elliot v Kodak Australasia Pty Ltd (Kodak)[101] and approved in Australian Red Cross Society v Queensland Nurses' Union of Employees,[102] the Applicant submits that Ms Gardner, Ms Stevens, Ms Geary, Ms Franks and Mr Bourke all had a material effect on the ultimate decision to commence disciplinary action.  Therefore, the Commission must "examine the reasoning process employed by each person".[103]
  1. [155]
    According to these principles, the Applicant suggests that if one or more of the reasons employed by one or more of the persons involved in commencing the Show Cause process is found to be a prohibited reason, "that will impugn the ultimate decision".[104]
  1. [156]
    In Kodak,[105] the Full Court considered a situation where two supervisors assessed an employee for redundancy by reference to identified criteria. A third person, a general manager, then made the ultimate decision to terminate the employment of the employee. It was explained that if either of the supervisors' assessments was influenced by a prohibited reason, that would have impugned the decision of the general manger, even though the prohibited reason had not been disclosed to him.
  1. [157]
    The Full Court explained that one supervisor made "an indispensable contribution to the rankings" and both supervisors "co-operated in a joint assessment, with each giving an account of what influenced them individually".[106]  If one supervisor "was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason" then this would, inevitably, have, affected the ranking process, whatever the views of the other supervisor. Furthermore, whatever debate there might be about the extent of the general manager's power or involvement in the decision, the manager's evidence was that he took the supervisors' assessment and worked from there.  It followed that if the supervisors' assessment was affected by either supervisor holding an undisclosed prohibited reason, then the general manger "would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of" the general manager.[107]
  1. [158]
    In determining whether or not a person had a "material effect" on a decision, it is relevant to consider:
  1. (a)
    if their contribution was of the nature that it was "indispensable" or would "inevitably" have affected it; and
  1. (b)
    importantly, if their contribution was adopted by the ultimate decision maker, in the sense that the ultimate decision maker "worked from" the basis of their contribution or "inadvertently adopted it so its force continued regardless of the lack of any express prohibited reason in the mind of [the ultimate decision maker]".[108]
  1. [159]
    The second part involves examining the reasoning employed by the decision maker (or decision makers) to ascertain whether it was affected by a proscribed reason, that is, whether the respondent has established to the requisite standard that none of the alleged proscribed reasons were a substantial and operative reason in the ultimate decision. 
  1. [160]
    In this regard, reference is made to the decision in Gibbs v Palmerston Town Council.[109]  In that case, Gray J wrote:

…[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply "rubber stamps" a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.[110]

  1. [161]
    Where the reasoning process is dispersed through a number of persons, the focus of the inquiry is the conscious reasoning processes of those who had a material effect on the ultimate decision.[111]
  1. [162]
    In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (BHP Coal Pty Ltd),[112] the Full Court of the Federal Court held that an applicant must plead or particularise the identity of the officials whose state of mind is relied upon. The Full Court found it unnecessary to decide whether the identity of the relevant officials is a material fact that must be pleaded, or merely evidence by which a material fact is to be proved and which must be particularised.
  1. [163]
    Importantly, the inquiry need extend only to relevant decision makers and does not need to extend to other individuals without a decision-making role, for example persons who provided information only.[113]
  1. [164]
    A person who assists the decision maker with an understanding of the options available to them, but who does not advise the decision maker or make a recommendation as to the decision to be taken, will not necessarily be treated as a decision maker.[114]
  1. [165]
    The Respondents submit that each of Alanna Geary, Judyann Stevens, Cherie Franks and Brett Bourke were involved in the drafting of the Show Cause Notice.[115]  They argue that the nature of bureaucracies is such that a senior officer relies on the preparatory work for a decision to be done by others.[116]  This does not mean, however, that the decision maker necessarily relied upon assessments in the nature of those considered in Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804 and Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014. 
  1. [166]
    Importantly, on the Respondents' argument, none of the four officers, Ms Geary, Ms Stevens, Ms Franks and Mr Bourke had a "material effect" in the relevant sense upon the decision to issue the Show Cause Notice. Only the Second Respondent had the delegated authority to take disciplinary action.[117]
  2. [167]
    It is not the Applicant's pleaded case that any of these four officers took adverse action against her and none of these people were particularised as decision makers in the Applicant's SFCs.  This is not the case the Respondents foreshadowed.
  1. [168]
    To rely on the reverse onus the Applicant must precisely and distinctly plead the alleged reason for the contravening conduct and all the, "[m]aterial facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet".[118]
  1. [169]
    It must be remembered that in Kodak, both supervisors in determining a redundancy "co-operated in a joint assessment, with each giving an account of what influenced them individually".[119]   The manager's evidence was that he took the supervisors' assessment and worked from there.  In those circumstances it followed that if the supervisors' assessment was affected by either supervisor holding an undisclosed prohibited reason, then the general manger "would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of" the general manager.[120]
  1. [170]
    In responding to the issue of multiple decision makers, the Respondents submit that, "not every person who touched a draft or looked at or made immaterial contributions is a decision maker, only those people who had a material contribution".[121] 
  1. [171]
    Where multiple parties are involved in a decision, the Commission is required to focus on the conscious reasoning processes of those who had a "material effect" on the ultimate outcome.[122]  The first task is to determine whose mind or minds were the operative mind in making the decision, based on the whole of the evidence[123] and consider the reasoning of each party.
  1. [172]
    It is not in dispute that only Ms Gardner had the delegated authority to issue the Show Cause Notice in accordance with the PS Act.
  1. [173]
    Ms Geary, Ms Stevens, and Ms Franks all gave direct evidence and were cross‑examined. In this matter the Respondents have provided direct evidence of the reasoning process for each person who had a material effect on each of the ultimate decisions that are the subject of the Applicant's allegations.
  1. [174]
    Accepting for argument sake that they were decision makers, what is clear from the following overview of their evidence, is that none of them in the preparation of the Show Cause letter had in their mind any proscribed reason. 
  1. [175]
    The evidence of Ms Gardner is that the Show Cause was issued for the following reasons:
  1. On my reading of the Article it was very critical of nursing graduates, claiming that they were unable to perform their basic tasks. The Article identified Ms Gilbert as a Duty Nurse Manager at the TPCH and quoted Ms Gilbert as making a number of critical comments about nursing graduates and the nursing profession more generally, including the observation that she had 'seen a decline in the standards of nursing over the years'. I took the view that by identifying herself as a senior and long-standing employee of TPCH when she participated in an interview with the author of the Article, which was expressly recorded in the Article, Ms Gilbert was representing her views as being those of TPCH. Given the content of the Article and the fact that Ms Gilbert was identified as a senior and long-standing employee of TPCH, I was very concerned that its publication could cause reputational damage to TPCH and damage to TPCH's relationship with others, including the universities with whom we partnered in training student nurses, those being University of Queensland (UQ), Queensland University of Technology (QUT), Australian Catholic University, Clinical School for Nursing (ACU), Griffith University and numerous TAFE colleges.
  1. I considered Ms Gilbert's apparent conduct in participating in a media interview as a representative of TPCH to be highly inappropriate and calling for an explanation. While staff are permitted to comment on community and social issues in their private capacity, they are required to take all reasonable steps to ensure that any comment made will be understood as representing their personal views only, not those of TPCH or MNHHS. Even in my position as Executive Director of TPCH, I am not permitted to speak to the media without seeking prior authorisation. Further, staff who are representatives of associations, unions or other organisations are not permitted to use information obtained as a result of their employment with an MNHHS when speaking to the media. This is made very clear in in MNHHS is media policy…
  1. The obligation of public servants when commenting to the media are made clear as clauses 1.3 and 1.4 of the code of conduct for the Queensland public service paragraph 13 in light of Ms Gilbert's seniority and length of service, I consider it unlikely that she was unaware of her obligations in relation to speaking to the media. Ms Gilbert should have obtained a clearance to speak to the media in circumstances where she was identifying herself as a senior and long-standing employee of TPCH…

….

  1. I issued the Show Cause Notice to Ms Gilbert because I considered Ms Gilbert's apparent conduct in speaking to the media without authorisation, and making critical comments based on information obtained through performance of her official duties, to potentially constitute a serious breach of end MNHHS's Media policy, MNHHS's Conflict of Interest Procedure and the Code of Conduct. I also considered that Ms Gilbert's alleged conduct in telling colleagues that she had 'gotten away with making comments' in reference to the Article, to potentially suggest that she was aware that her conduct was inappropriate. I was very concerned that Ms Gilbert's alleged conduct had the potential to damage public confidence in nursing capability at TPCH and across the MNHHS, deter potential candidates from joining the nursing profession and harm MNHHS's relationship with its various partner universities and TAFE's. I also wanted to give Ms Gilbert the opportunity to explain her alleged actions. I therefore felt it was necessary and appropriate to ask Ms Gilbert to show cause why disciplinary findings should not be made against her in relation to her alleged conduct.
  1. Whilst at the time of issuing the Show Cause Notice, I was aware that Ms Gilbert had some involvement with NPAQ I (although I did not know what her actual involvement was), her involvement in any membership with NPAQ had no bearing on my decision to issue the Show Cause Notice. I would have taken the same action in relation to any staff member, irrespective of their membership of or involvement with any organisation, who had spoken to the media in apparent breach of the MNHHS's Media policy, MNHHS's Conflict of Interest Procedure and the Code of Conduct, particularly where their comments had the potential to cause reputational damage to TPCH and MNHHS.
  1. I have read paragraph 43 to 51 of Ms Gilbert's Statement of Facts and Contentions (the Applicant's SFCs) at paragraphs 10 to 13 of the Applicant's Form 3 – Amended Application dated 19 March 2020 (the Applicant's Application). I deny the allegations.
  1. At paragraphs 43 to 45 of the Applicant's SFCs she alleges, in summary, that the First Respondent and I took 'adverse action against' against her by issuing the Show Cause Notice because she 'had exercised her right to engage in, and had engaged in' various activities ... .
  1. I deny the allegations. Other than Ms Gilbert's conduct in respect of the Article, I was not (and not am not) aware of any other activities engaged by her of the nature alleged. Prior to 24 November 2019, I was not aware of NPAQ nor of any involvement Ms Gilbert may have had with NPAQ.
  1. I did not cause the Show Cause Notice to be sent to Ms Gilbert 'had exercised her right to engage in, and had engaged in', those activities. Rather, I caused it to be sent for the reasons detailed above in this affidavit at paragraphs [9] to [20].
  1. At paragraphs 46 and 47 the Applicants SFC's she alleges that the First Respondent took adverse action because the Applicant exercised a workplace right, engage in industrial activity (and engage in trade union activity and that I had aided and abetted those contraventions).
  1. I deny the allegations. I did not cause the Show Cause Notice to be sent for those reasons. Rather, I caused it to be sent for the reasons detailed above in this affidavit at paragraphs [9] to [20].
  1. At paragraphs 48 to 51 of the Applicant's SFC's she alleges that the First Respondent discriminated against the Applicant because she engaged in trade union activity and that it victimised the Applicant (and that I aided and abetted those contraventions).
  1. I deny the allegations. I was not aware of any trade union activity she had engaged in. I did not cause a Show Cause Notice to be sent because of any 'trade union activity' engaged in by Ms Gilbert. Rather, I course are to be sent for the reasons detailed above in this affidavit at paragraphs 9 to 20. I did not victimise her as alleged or at all.
  1. I accept that the Show Cause Notice did refer to Ms Gilbert representing the views of NPAQ. However, in my mind, the Show Cause Notice was not directed at her having done that, but at the apparent breaches of MNHHS's Media policy, MNHHS's Conflict of Interest Procedure and the Code of Conduct, as detailed above in this affidavit at paragraph [9] to [20].
  1. For clarity, I have never taken any adverse action against Ms Gilbert either because of, or for the reasons which included, her affiliation with or activities connected with NPAQ, or because of any other workplace right she might have had or exercised.[124]
  1. [176]
    The evidence of Ms Gardner does not, in my view, disclose that the decision to issue the Show Cause Notice was made for a prohibited reason. In cross-examination, Ms Gardner stressed that her reason for issuing the Show Cause Notice was a concern that Ms Gilbert was identified in the Sunday Mail article as a senior Hospital staff member (not her NPAQ connection).[125]
  1. [177]
    In her evidence, Ms Gardner clarified that while the Show Cause Notice included as "particulars" various factual circumstances connected with NPAQ, those were not her focus, and were only present because of her intention to make the Notice as detailed as possible.[126]
  1. [178]
    Ms Gardner denied sending the Show Cause Notice to ensure that Ms Gilbert did not repeat the conduct of speaking out on behalf of the union.[127]
  1. [179]
    Ms Gardner said the Prince Charles Hospital media and communication manager brought the Article to her attention on the Sunday, 24 November 2019.
  1. [180]
    She refreshed herself on the policies to determine whether management action could have been the first step and considered that but decided to undertake a show cause process to ensure procedural fairness and get the Applicant's perspective on it.[128]
  1. [181]
    The Commission heard that Ms Gardner sought confirmation from Ms Horbury, the Applicant's normal line manager, regarding whether the Applicant had sought authorisation prior to the publication, and she was not aware of it.  Ms Gardner stated, this was sought "in the days following before I made the determination to go through the show cause process. … [i]n my opinion, that is seeking clarity on the – of what occurred to help me make an informed decision".[129]
  1. [182]
    It was the evidence of Ms Gardner that she made the determination not to proceed with management action and to proceed with the show cause process.  She denied that she had given a direction to Ms Stevens to prepare the show cause prior to making the determination.[130]
  1. [183]
    Ms Gardner said she was not aware of any investigation prior to issuing the Show Cause Notice.  She said the Show Cause Notice is a requirement for the Applicant to respond to particular allegations that were made against them.[131]
  1. [184]
    Ms Gardner said she made the determination to withdraw the show cause as advised following receipt of legal advice and after considering that over a 24 hour period.[132]  In re-examination, Ms Gardner said she decided to withdraw the show cause dated 8 January 2020 on 19 February 2020.[133]
  1. [185]
    Ms Gardner did not agree that the Show Cause process was flawed.  It was put to her that she wrote a Show Cause letter that on six or seven different occasions referred to the Applicant being the branch secretary of the NPAQ but considered those matters were entirely irrelevant.  Ms Gardner said that was not correct.[134]
  1. [186]
    During February 2019 to February 2020 Ms Judyann Stevens was acting as the Manager, Human Resource (HR) Services at the Prince Charles Hospital. Her substantive role was Manager of Metro North Workforce Advisory Unit (Discipline).  During that time, she assisted Ms Gardner with a number of disciplinary matters.
  1. [187]
    On Monday 25 November 2019 Ms Stevens noticed an Article in the Sunday Mail titled "Nurse Decline is off the Charts".  Ms Stevens said she was concerned that the Applicant was identified as a senior employee of the TPCH and making comments about student and graduate nurses at TPCH.
  1. [188]
    On or about 25 November 2019 Ms Stevens meet with Ms Gardner and Ms Cherie Franks, the Director of Nursing at TPCH. At the conclusion of the meeting she was asked by Ms Gardner to prepare draft correspondence to the Applicant asking her to show cause as Ms Gardner thought it was very serious and something that warranted a show cause process.
  1. [189]
    On or around 27 November 2019, Ms Stevens together with Ms Gardner and Ms Franks participated in a telephone conference with Ms Alanna Geary, the Executive Director of Nursing and Midwifery at Metro North Hospital and Health Service (MNHHS).  Ms Franks and Ms Geary confirmed that the Applicant had not sought permission to give the Sunday Mail interview.
  1. [190]
    Ms Stevens proceeded to draft the Show Cause Notice for Ms Gardner's consideration. On 24 December 2019, Ms Stevens provided to Ms Franks and Ms Geary the draft Show Cause Notice. A copy of the draft was sent to Workplace Advisory of MNHHS for clearance. Ms Stevens also gave Ms Gardner a verbal update.
  1. [191]
    On 3 January 2020, Mr Brett Bourke, the Director of Workplace Advisory Unit, MNHHS cleared the Show Cause Notice.
  1. [192]
    In cross-examination, Ms Stevens was asked whether there had been an investigation in relation to the incident. Ms Stevens evidence was that the matter was very much based on the paper documents as there was not any identified witnesses nor did it appear that anyone else was relevant.[135]  Ms Stevens said that she did not conduct an investigation as there was nothing to investigate.
  1. [193]
    Mr Murdoch put to Ms Stevens, that she was part of the decision making team to issue the Show Cause Notice and the allegation about bragging, "you issued or participated in the decision to issue the show cause without a scrap of evidence".[136]  Her evidence was that it was simply a matter of putting the allegations to the Applicant and giving her an opportunity to respond.[137]  Ms Stevens did not believe that this was a matter which could be appropriately dealt with by way of management action.[138]
  1. [194]
    In her evidence, Ms Stevens made particular reference to allegation 5 of the Show Cause Notice.  She said that the notice referred to the Applicant's conduct in aligning herself with the views of the NPAQ in respect of the Sunday Mail Article. She said the comments concerning nursing standards were consistent with the comments made by the representatives of the NPAQ referenced in the article.  From her point of view, the problem was the fact that the Applicant had aligned herself with the views of the NPAQ about standards of nursing and nursing students and graduates whilst allowing herself to be identified as a senior member of TPCH. Ms Stevens' main concern related to the Applicant's conduct in apparently speaking on behalf of the TPCH.[139]
  1. [195]
    Ms Franks is the Director of Nursing at TPCH. On 24 November 2019 she was contacted by Ms Gardner who was the Executive "on call" for TPCH.  She brought to Ms Franks attention the Sunday Mail Article.
  1. [196]
    Ms Franks said she found the comments made by the Applicant very concerning.  She said the Article, "makes you think that the education that they're provided today isn't deserving of modern-day nursing. … [t]that's not how I find students of today.  I lost confidence because she spoke on behalf of the Prince Charles Hospital".[140]
  1. [197]
    Having regard to the nature of the concerns raised by the Applicant, Ms Franks wondered why the Applicant had not raised those concerns with her or other senior members of management.  To her knowledge she had never done so.
  1. [198]
    Ms Franks' concern was not that the Applicant had aligned herself with the NPAQ's views in relation to student nurses, but rather that she had done so when she was identified as a senior and highly experienced employee of TPCH.
  1. [199]
    In referring to the Code of Conduct, Ms Franks agreed the Applicant would not have breached the Code of Conduct if she had not represented herself as the Duty Nurse Manager from TPCH.
  1. [200]
    Ms Franks agreed she was part of the decision making process leading up to the show cause and confirmed that she was happy with the contents of the show cause.[141]  However, whilst Ms Franks and Ms Stevens were involved with the process anterior to the decision to issue the Show Cause Notice, the decision to do so was solely one for Ms Gardner to make in accordance with her delegated authority.[142] 
  1. [201]
    Ms Geary is the Executive Director, Nursing and Midwifery at TPCH. In giving her evidence, she was clear as to the reason that she considered Ms Gilbert ought to be asked to show cause.[143]  Whilst the wording of the Show Cause Notice may have been imperfect[144] she denied any unlawful or malign intent.[145]
  1. [202]
    In cross-examination, Ms Geary rejected the assertion that the Applicant was being punished for expressing the views of the NPAQ and the President of the NPAQ. Her evidence was:

So she's put forward a view.  My whole stance on this is that she's put forward the view of Prince Charles Hospital. NPAQ are totally entitled to their viewpoint, as is Ms Gilbert, and Ms Gilbert is more than entitled to espouse whatever NPAQ is saying, just in the same way I can espouse anybody else.  But she actually put herself up as the duty nurse manager of Prince Charles Hospital and aligned herself to views that were not the opinion of Prince Charles Hospital.[146]

  1. [203]
    In respect of allegation 7 of the Show Cause notice, Ms Geary was asked in cross‑examination:

  MR MURDOCH: Now that's about punishing Mrs Gilbert for making comments to the branch secretary NPAQ, isn't it?

MS GEARY:   No.

MR MURDOCH: But what else could it be?

MS GEARY: I don't agree.  I'm sorry, I don't agree.  I – the fact that she was espousing to be the nursing – nurse's manager or duty nurse manager at the Prince Charles Hospital and the NPAQ.  We have people who are members of all sorts of industrial bodies; QNMU, Together Union, just to name a few, and they don't align themselves with one view or another and they certainly don't put themselves up as representatives of the organisation.  They may put themselves up as representatives of their industrial body, and that's absolutely fine, but they don't without the express approval of the Chief Executive or Chief Executive's delegate, put themselves up as the facility for which they work.[147]

  1. [204]
    Ms Geary felt aggrieved that somebody was representing MNHHS and the fact that supposedly nursing graduates were not up to standard.  In particular, Ms Geary found the following statement made by the Applicant offensive: "don't get me wrong, we have some great young people, but the general standard is not up to scratch".[148]
  1. [205]
    It was Ms Geary's opinion that the Applicant was representing herself from TPCH in the first paragraph of the Article, "Margaret Gilbert started nursing in 1974, the duty nurse manager at Prince Charles Hospital".[149]  Ms Geary's concern was about the fact there could be damage to the relationship with the universities as a consequence of what the Applicant had done.[150]
  1. [206]
    Ms Geary did not accept the proposition that she saw the Memorandum and the Show Cause process as an opportunity to shut down the Applicant as being an NPAQ activist.[151]
  1. [207]
    The Applicant submits the Respondents have failed to prove that adverse action they took against the Applicant was not because she was a member of the NPAQ and engaged in industrial activity in her role as the Branch Secretary of the NPAQ at TPCH.[152]
  1. [208]
    The Applicant further submits that despite the First Respondent withdrawing the Show Cause, this does not remove their liability for the adverse action taken against the Applicant for the prohibited reasons prior to their backing down from the proposed course of action.
  1. [209]
    Notwithstanding my earlier findings concerning whether the NPAQ was an "industrial association" or "trade union", even if it could be established that the Applicant had a workplace right or was otherwise relevantly protected and adverse action taken, it would be at that point that the reverse onus imposed by s 306 of the IR Act would be engaged.  However, when the evidence of the decision maker is considered in its entirety, it does not, in my view disclose a proscribed reason.

Authorised

  1. [210]
    Section 282(6) of the IR Act provides that adverse action does not include action that is authorised under the IR Act or any other law of the State, or a law of the Commonwealth.
  1. [211]
    The effect of 282(6) of the IR Act is that even if the alleged conduct falls within the meaning of "adverse action" as defined in s 282(1), s 282(6) provides that such action is not adverse action if the action "is authorised under" the Act.
  1. [212]
    Whilst it is accepted that it is possible that the commencement of a Show Cause process can injure an employee in their employment,[153] it will not be so in every case.
  1. [213]
    In Police Federation of Australia v Nixon, Ryan J relevantly said as follows:

In the light of the history which I have just recounted, I consider that a serious question remains as to whether the resumption of the inquiry by Biggin and Cartwright amounts to an injury to Mullett in his employment.  Not every disciplinary inquiry or investigation of alleged misconduct by an employee will have that effect.  For example, the inquiry may be conducted in such a way that only the affected employee and a few other persons directly involved in it are aware that it is taking place.  Likewise, the subject matter or particulars of the alleged breach of discipline may, on balance, not be reasonably capable, at least before the investigation has been completed, of damaging the reputation of the employee or adversely affecting his or her standing in the workforce or among the wider community, assuming the fact of the inquiry to be so widely known.[154] (emphasis added)

  1. [214]
    Further, as observed by Ryan J, a disciplinary charge brought in good faith will not be said to have altered the position of an employee to their prejudice.  His Honour wrote:[155]

I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute "an adverse affection of, or deterioration in, the advantages enjoyed by the employee" in the sense used by the High Court in the passage from Patrick Stevedores quoted at [14] above.  Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee.  That is the significance of the words to which I have added emphasis in the extract from Goldberg J's reasons reproduced at [47] above.  Until the charge has been proved, the disadvantage to the employee, as his Honour acknowledged, remains merely "potential."[156]

  1. [215]
    In Jones v Queensland Tertiary Admissions Centre Ltd (No 2)[157] Collier J accepted that the commencement of an investigation could constitute the taking of adverse action.  Her Honour wrote:

As a general proposition I consider that the commencement of an investigation into bullying allegations could be adverse action against someone in Ms Jones' position within the meaning of s 342 of the Act.  I form this view because:

In light of her position as CEO, the commencement of the investigation into allegations of bullying either could injure her in her employment or cause a deterioration in her standing in her workplace so as to alter her position within the meaning of s 342 of the Act; and

As observed by Goldberg J in United Firefighters Union [[2003] FCA 480; (2003) 198 ALR 466], Ms Jones' position would be altered to her prejudice because of the exposure to a potential disadvantage of imposition of a penalty if the charges are ultimately proven.[158]

  1. [216]
    I respectfully prefer the reasoning of Ryan J in Police Federation of Australia v Nixon.[159]  Ultimately, whether the commencement of an investigation can be said to constitute an injury or a prejudicial alteration in an employee's position will depend upon the facts and the type of investigation.
  1. [217]
    The Respondents contend that even if the Applicant was found to have the relevant workplace right or protection, the issue of the Show Cause Notice was, in the present case, not "adverse action".  It was a step the Second Respondent was obliged to take before exercising the power afforded to her under s 187(1) of the PS Act.  Accordingly, it was "authorised" under another law of the State.
  1. [218]
    In Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd (Rio Tinto) Flick J considered the breadth of "authorised" in respect of the analogous s 342(3) of the FW Act:

Anything that it is necessary to do in order to comply with an exercise of statutory power can, as a matter of language, be said to be necessary "in order to comply with" the legislative "provision" conferring (and expressly or impliedly requiring obedience to) the statutory power.[160]

. . .

The "authority" which is referred to is an "authority" which takes its content from the "adverse action" which is prohibited.[161]

. . .

The variety of different contexts in which term "authorise" has been employed elsewhere in the Fair Work Act necessarily means that it is a term which must be construed with some degree of flexibility.[162]

. . .

To give to the phrase its normal and ordinary meaning requires the identification of some "authority or legal power" or some provision which "empowers".[163]

  1. [219]
    In Rio Tinto, the employer claimed that its actions were authorised by ss 50 to 52 of the FW Act and by virtue of s 342(3) of the FW Act could not constitute adverse action.  Section 50 of the FW Act prohibits a person from contravening an enterprise agreement and ss 51 and 52 refer to how an enterprise agreement applies to a person.  In rejecting the employer's argument, Flick J said:

[T]here emerges a need to approach the interpretation of the term "authorise" with some degree of caution.  Section 342(1) is a provision which seeks to protect employees from "adverse action" being taken against them by an employer.  There is no readily apparent reason why such a provision should be read in any manner other than beneficially and in a manner which makes meaningful the protections there afforded … Section 342(3) should obviously not be construed in a manner which would render the protections meaningless.  That which s 342(3) contemplates, it is concluded, is "action" that is expressly "authorised" by the Fair Work Act or "action" that is sanctioned or approved by a provision (for present purposes) relevantly found elsewhere in the Fair Work Act.[164]

  1. [220]
    Section 187(1) of the PS Act empowers a chief executive (or a relevant person such as the Second Respondent) to discipline an employee.  The Respondents were obliged to accord natural justice to the Applicant by providing an opportunity to show cause why the disciplinary action should not be taken.[165]
  1. [221]
    In Wirth v Mackay Hospital and Health Service & Anor (Wirth)[166] Bond J was called upon to determine, within a Judicial Review application, a complaint by Dr Wirth that: he was denied procedural fairness because the process of obtaining the investigation report was not a process in which he was accorded procedural fairness; he was denied procedural fairness because at no time in the process leading up to either the disciplinary findings decision or the disciplinary action decision was he ever provided with the investigation report or the evidence it contained; and, the decisions of the delegate were vitiated by her apparent bias.  The application was considered having regard to s 187 of the PS Act and the application of the Human Resources Policy, Discipline: E10 (QH-POL-124) (HR Policy E10).
  1. [222]
    Bond J wrote:

The critical question – using the language of Kiefel, Bell and Keane JJ in WZARH - is what was required in order to ensure that the decisions were made fairly in the circumstances having regard to the legal framework within which the decisions were to be made. Or, to turn the question around, is there any aspect of the way in which the decisions were made which compels the conclusion that they were not made fairly and practical injustice has occurred?[167]

  1. [223]
    In Minister for Immigration and Border Protection v WZARH[168] Kiefel, Bell and Keane JJ discussed Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (Lam),[169] to emphasise the proposition that the necessary focus is on the question whether practical injustice occurred:

In Lam, it was held that a failure by the decision-making authority to adhere to a foreshadowed line of inquiry may, but will not necessarily, amount to a denial of procedural fairness.  The manner in which any given administrative process is conducted may generate expectations on the part of the person affected as to how he or she should present his or her case; in some cases, fairness may require that such expectations be honoured.  In this regard, Gleeson CJ said:

'when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. ... Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.'

The present case is readily distinguishable from Lam. In that case, as Gleeson CJ said, '[t]he applicant lost no opportunity to advance his case' and it was for that reason that no practical injustice was held to have occurred.  And Hayne J said:

'[The applicant] was afforded a full opportunity to be heard.  The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children.'.[170]

  1. [224]
    Gageler and Gordon JJ also referred with approval to the statement by Gleeson CJ in Lam that the concern of procedural fairness is to avoid practical injustice and referred with approval to the following observation by Gleeson CJ in Lam:[171]

[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation.  The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.[172]

  1. [225]
    The Applicant contends that the failure to follow the mandatory requirements of HR Policy E10 invalidate the Show Cause process and therefore render it unlawful.[173] Moreover, they contend that based on the evidence of the "decision makers" and the disclosed documents there is a live question of 'real and perceived' bias against Ms Gardner, Ms Franks, Ms Geary and Ms Stevens.
  1. [226]
    Section 190 of the PS Act requires that when discipling a public service employee, a Chief Executive (or his or her delegate) must comply with the Act and any relevant directive of the Commission Chief Executive and the principles of natural justice.
  1. [227]
    In addition to what is expressed in s 190 of the PS Act, HR Policy E10 provides "[t]he principles of natural justice must be applied when undertaking the disciplinary process. Natural justice must be afforded before making a decision on an allegation and any disciplinary action".  The schedule to E10 contemplates a show cause process in which allegations are put to the employee in the form of a Show Cause Notice.
  1. [228]
    After referring to the reasoning of Bond J in Wirth, it is submitted by the Applicant that:

… [P]rior to the consideration of commencing a disciplinary process which culminates in the issue of a Show Cause the delegate must consider whether management action could be more appropriately address the concern.  Further, the Applicant was denied natural justice in the antecedent steps taken by the Respondents.  The first time that the Applicant knew about a Show Cause process had been commenced was only when the Show Cause letter was delivered to the Applicant.  The Respondents had not provided any opportunity to the Applicant to address the issues at all.[174]

  1. [229]
    The Applicant's submissions misunderstand the reasoning adopted by Bond J.  What his Honour actually concluded in terms of the application of natural justice was as follows:

The result is that I conclude that the chief executive of the Hospital was required to comply with the principles of natural justice in relation to at least these two decisions:

  1. (a)
    whether, pursuant to s 187(1) of the PS Act, she was reasonably satisfied particular grounds for discipline actually existed in relation to Dr Wirth (this is what I have earlier described as the disciplinary findings decision); and
  1. (b)
    what particular action to take pursuant to s 188 of the PS Act in respect of the particular grounds for discipline which she had found to exist (this is what I have earlier described as the disciplinary action decision).

A question arises as to what the principles of natural justice would require in relation to those two decisions. In this regard, the law is clear, although its precise application is sometimes difficult.[175]

  1. [230]
    A decision to find a public service employee guilty of one of the grounds contained in s 187(1) of the PS Act is what Bond J described as "the disciplinary findings decision".
  1. [231]
    The distinction was succinctly summarised by his Honour in the following way:

If the delegate determines that the evidence supports the commencement of the disciplinary process, then the "disciplinary process" is commenced.  Policy E10 defines the term "disciplinary process" as "the method used to determine whether or not a disciplinary action is warranted and the taking of the action".  "Allegations" are defined as "a stated claim that is yet to be substantiated on the balance or probabilities". The disciplinary process "commences by issuing a show cause letter to the employee and concludes by notifying the employee of the decision made".  The disciplinary process contemplates two decisions: first a decision on whether the allegation that the employee breached s 187 has been established and second a decision on the disciplinary action which is appropriate in consequence thereof.  These two decisions seem to me to be the s 187 decision and the s 188 decision.[176]

  1. [232]
    The HR Policy E10 places the obligation to comply on the delegate.  It is not in dispute that the delegate in this matter was Ms Gardner.
  1. [233]
    In short, HR Policy E10 requires that on receipt of an allegation against an employee, there must first be a preliminary assessment of the matter which will address whether there is a suspicion of official misconduct (which might require reference elsewhere); whether management action could more appropriately address the allegations; and whether further information needs to be obtained and how this should occur.  The conclusion of the preliminary assessment is a decision whether the delegate is reasonably satisfied the evidence before them supports the commencement of the disciplinary process.  In reaching that decision the delegate must be reasonably satisfied that the employee may have breached s 187(1) of the PS Act.  The delegate is not, at this stage, deciding whether the employee actually has breached s 187(1) as alleged.  This decision is not the s 187(1) decision.[177]
  1. [234]
    The evidence of the delegate is that the Prince Charles Hospital media and communication manager brought the Article to Ms Gardner's attention on the Sunday, 24 November 2019.  Ms Gardner refreshed herself on the policies to determine whether management action could have been the first step and considered that but decided to undertake a show cause process to ensure procedural fairness and get the Applicant's perspective on it.[178]  Ms Gardner made inquiries of Ms Horbury, the Applicant's normal line manager, regarding whether the Applicant had sought authorisation prior to the Sunday Mail publication.  The inquiries were undertaken in the days following the publication but before she made the determination to go through the show cause process.  This was done because Ms Gardner was seeking clarity on what had occurred to help her make an informed decision.[179]  In her affidavit, Ms Garner said that she issued the Show Cause Notice to Ms Gilbert because she considered the Applicant's apparent conduct in speaking to the media without authorisation, and making critical comments based on information obtained through performance of her official duties, to potentially constitute a serious breach of MNHHS's Media policy, MNHHS's Conflict of Interest Procedure and the Code of Conduct.[180]
  1. [235]
    To apply the reasoning in Wirth the evidence before the Commission does not suggest that the decision to issue the Show Cause Notice was made in a way which compels the conclusion that it was not made fairly, and practical injustice has occurred.
  1. [236]
    In Commissioner of Taxation v Day[181] the High Court held that the misconduct provisions of the PS Act (albeit in the Commonwealth context) are directed at securing values proper to a public service: those of integrity and the maintenance of public confidence in that integrity.  They said:

The public service legislation in Australia has served and serves public and constitutional purposes as well as those of employment, as Finn J observed in McManus v Scott Charlton.  Such legislation facilitates government carrying into effect its constitutional obligations to act in the public interest.  For reasons of that interest and of government the legislation contains a number of strictures and limitations which go beyond the implied contractual duty that would be owed to an employer by many employees.  In securing values proper to a public service, those of integrity and the maintenance of public confidence in that integrity, the legislation provides for the regulation and enforcement of the private conduct of public servants.  This extension, to what might be called private conduct, was evident in s 56(d) and (e) of the Public Service Act 1922, which provided that an officer may be taken to have "failed to fulfil his duty as an officer" if he engages in improper conduct as an officer or in improper conduct otherwise than as an officer, in the latter case the conduct "being conduct that affects adversely the performance of his duties or brings the Service into disrepute".  It is noteworthy that in McManus Finn J rejected as untenable, as a generalisation, the submission that the only limiting directions that could be given to a public servant were those which have a nexus with the performance of that person's employment duties.

The chief object of the Public Service Act 1922 was "to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices, … of the public administration of the Australian Government".  The provisions relating to disciplinary action were referable to the maintenance of those standards of conduct.[182]

  1. [237]
    The High Court has also observed in Commissioner of Taxation v Futuris Corp Ltd that:

Members of the Australian Public Service are enjoined by the Public Service Act (s 13) to act with care and diligence and to behave with honesty and integrity. This is indicative of what throughout the whole period of the public administration of the laws of the Commonwealth has been the ethos of an apolitical public service which is skilled and efficient in serving the national interest.[183]

  1. [238]
    In Bragg v Secretary, Department of Employment Education and Training (Federal)[184] Madgwick J, after considering the objects of the Public Service Act 1922 (Cth) wrote:

With that in mind, one may say, without being exhaustive, that the objects of the disciplinary provisions include protection of the public and of the public interest in an efficient, responsive and incorruptible public service; the maintenance of proper standards of conduct on the part of APS officers, bearing in mind that they are both employees and public employees; and the protection of the reputation of the APS, as well as securing that the mode of administering intra-service discipline itself be efficient, equitable and proper.[185]

  1. [239]
    It is clear from the above authorities that the purpose of the disciplinary regime under the PS Act is protective not punitive. In other words, the regime under Chapter 6 of the PS Act is intended to protect the public, maintain proper standards of conduct by public service employees and protect the reputation of the public service.
  2. [240]
    If the Commission was to accept the reasoning of Flick J in Rio Tinto, s 282(6) of the IR Act ought to be construed as excluding from the definition of adverse action not only action which is 'expressly' authorised, by a law of the State, but also action which is 'sanctioned or approved by a provision' of a law of the State then it must be accepted that the taking of disciplinary action under the PS Act is a necessary anterior step that is "authorised".
  1. [241]
    Section 187(1) of the PS Act empowers a chief executive (or a relevant person such as the Second Respondent) to discipline an employee.  The Show Cause Notice commenced the disciplinary proceedings.  The disciplinary proceedings were, in my view, expressly authorised by a law of the State or was an action which was sanctioned or approved by a provision of a law of the State.
  1. [242]
    It must follow that the Show Cause Notice was issued exercising the power in s 187 of the PS Act and was therefore "authorised" pursuant to s 282(6) of the IR Act.

Show Cause Notice was not adverse action

  1. [243]
    The evidence before the Commission confirms in my mind that the particular circumstances of the Show Cause Notice were not such as to amount to adverse action within the meaning of s 282(1) of the IR Act.
  1. [244]
    The Applicant contends that the conduct was adverse action because each aspect of it altered her position.  However, the actions complained of can only constitute adverse action if they alter the Applicant's position in a meaningful and substantial way to her prejudice.  The evidence before the Commission does not, in my view, support such a proposition.
  1. [245]
    In Unsworth v Tristar Steering and Suspension Australia Limited ('Unsworth'), Gyles J said the following:

A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (e.g. per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329 at [127]).  Applying what had been said by the Full Court in an earlier interlocutory appeal (BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430; (2000) 102 FCR 97 at [35]), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2001) 106 FCR 482 at [54] as follows:

Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.

…

Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441, (2006) 160 IR 1 at [13]-[22].  "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury.  Prejudicial alteration of position goes beyond that concept.  There are many examples in the cases.  It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267; 107 FCR 93 at [17]–[22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; 157 FCR 329.[186]

  1. [246]
    The Applicant has failed to demonstrate how each alleged matter altered her position.
  1. [247]
    It is to be remembered that when determining whether an injury has occurred, an objective view must be taken: the employee's subjective view alone is insufficient to make out an injury.[187]
  1. [248]
    In her affidavit, the Applicant deposes that the Show Cause Notice caused her to be restrained in her capacity to act as a delegate for NPAQ.[188] 
  1. [249]
    In cross-examination, it became apparent that Ms Gilbert has a limited understanding of what NPAQ can and cannot do as a branch secretary or delegate of NPAQ as the following exchange illustrates:

MR DUFFY:  Now, in your role as branch secretary and a delegate of the NPAQ, is it fair to say that you're familiar with the provisions of the Industrial Relations Act so far as they concern employee organisations?

MS GILBERT: I have a brief overview, yes.

MR DUFFY:  You knew, didn't you, that the NPAQ was not a registered organisation under the Industrial Relations Act?

MS GILBERT: I'm not aware of that. I understand that I can join whatever union or organisation Association, that I care to.

MR DUFFY:  But you knew it wasn't registered, didn't you?

MS GILBERT: I understand it was registered.

MR DUFFY:  So were you told by somebody that the NPAQ was a registered organisation under the Industrial Relations Act?

MS GILBERT: I understand that it was a registered organisation.

MR DUFFY:  All right. Now, do you mean it was registered under some other Act; is that what you mean to say?

MS GILBERT: No. I'm basically representing nursing and professional indemnity.  I'm not an expert on that side of the law.

MR DUFFY:  All right. But you're familiar, aren't you, being a delegate of this organisation what you can and can't do on behalf of that organisation, so far as the Industrial Relations Act is concerned?

MS GILBERT: I'm purely a delegate and that is referred on to the executive who have that expertise in the industry.

MR DUFFY:  So is the answer, then, you are not familiar with what you can and can't do under the Industrial Relations Act, so far as matters arising under that Act are concerned?

MS GILBERT: I understand that I refer that to the executive who have those powers to represent.

MR DUFFY:  Should we take that as you are not familiar with?

MS GILBERT:  I am familiar and refer it upward as the – into the organisation.

MR DUFFY:  Well, that's the best answer I'm going to get to that question, is it?

MS GILBERT:  I think that's how I can ably explain it.[189]

  1. [250]
    The Applicant did not communicate to her superiors at NPAQ her view that the Memorandum was incorrect, "I left that in the hands of the NPAQ".[190]  During cross‑examination, the Applicant conceded that her activities as branch secretary had continued, in more or less the same way, to the present day.[191]
  1. [251]
    Even if the Applicant felt some level of restraint, there is no evidence, that there was any actual constraint upon her activities on behalf of NPAQ.
  1. [252]
    The Applicant's evidence was that she had "little option but to talk to the media" to illuminate what she called a "patient safety" issue.[192]  However, the Applicant did not, when challenged, dispute the fact that she had never raised her concerns internally,[193] nor was it put to any of the Respondents' witnesses in cross‑examination that she had done so.
  1. [253]
    Ultimately, the Applicant conceded that she had never raised such concerns officially, other than at a different Hospital, at some point prior to 2001.[194]  There is no evidence that she had ever raised any such concerns on behalf of NPAQ.
  1. [254]
    While the Applicant gave evidence to the effect that she had observed a deficient standard of training or education of nursing "throughout [her] career",[195] she gave no evidence of raising with the First Respondent any particular issue of nursing quality at TPCH prior to participating in the Article published on 24 November 2019 in the Sunday Mail.
  1. [255]
    To be protected within the meaning of those sections Ms Gilbert must show that her participation in the Article was on NPAQ's behalf in that she was "requested" or "required" to do so by NPAQ or to "advance the views, claims or interests" of NPAQ.
  1. [256]
    In the Applicant's affidavit she deposes:
  1. I was called by Jackie Sinnerton on or about Wednesday, 13 November 2019, where I spoke to her about NPAQ matters, including the issues and concerns around Queensland nursing graduates.  During that conversation, words to the following effect were said:

a. Ms Sinnerton asked me that as a delegate of the NPAQ, she had been told to talk to me about issues in the workplace.

b. I talked to her about the profession of nursing, explaining how long I had been in the profession.

c. I talked about human interest and nursing graduates not feeling confident because they have not had the practical experience prior to hitting the workforce.

d. I talked about the busy nature of the workplace meaning that graduates were feeling unsupported.

e. I said that the staff had talked to me about being stressed, exhausted and unsupported.

f. Leading up to the interview I frequently discussed with my colleagues and fellow NPAQ members that the quality of graduates had declined in recent years.

g. I talked generally about possible changes to how universities operate and options around incorporating more soft skills training and practical experience into courses.[196]

  1. [257]
    The Applicant further deposes that:
  1. On 24 November 2019, an article was published in The Sunday Mail that included quotes from me with respect to the issues referred to in paragraph 19 hereof.  Such comments were made during the interview I did with the journalist Jackie Sinnerton.  I made those comments and participated in that interview solely and expressly in my capacity as a delegate for the NPAQ.[197]
  1. [258]
    In cross-examination, the Applicant undermined her argument that in speaking to the Sunday Mail, she was "[engaging] in industrial activity" within the meaning of ss 290 and 291 of the IR Act:

MR DUFFY: Right.  So when you gave the interview to The Courier Mail journalist, you were giving your view from what you yourself had seen?

MS GILBERT:  I was giving him a professional view of my nursing

MR DUFFY:  Yeah, but from your own observations?

MS GILBERT:  Of my own observations and those of others which were.

MR DUFFY: All right.  Now, it's right, isn't it, that you have never raised – at least prior to these proceedings, you'd never raised with any of your superiors the proposition that these potentially hundreds of nurses were not properly trained?

MS GILBERT: I was asked to give an opinion as a veteran nurse on how nursing would – how I would see nursing progressing over the next millenia.  I indicated that within the university training, for example, Deakin University, that basically has said with not just nursing, all courses, "We need to look at job readiness and employability."  We are in a system where there is significant change and, myself as a change leader within the organisation, have broached that.  It is an issue that we had spoken within the NPAQ.  My history within nursing, both at Queensland Health and in private industry has also – has been to implement change over many, many years, and I would see that as something that I would continue with, and it was made in that context.

  1. [259]
    The Applicant gave no evidence that anybody from NPAQ required or requested that she participate in the Article. 
  1. [260]
    Mr McGuire gave no evidence that he or anyone else required or requested Ms Gilbert to participate in the Article.  Rather, he "arranged for someone at the office" to put the journalist in "... connection with one of our members who would know on the ground what is happening ...".[198]  He did not himself give the journalist the Applicant's name.[199]
  1. [261]
    It was put to Mr McGuire in cross-examination:

MR DUFFY: And the reason you did that, I suggest to you, was that it was important for the journalist to actually speak to someone who was working at one of the hospitals?

MR MCGUIRE: Sure. Well, I mean, one of our delegates who understands what's going on.[200]

  1. [262]
    It is not clear on the evidence whether the views expressed by the Applicant on nursing standards and her participation in the interview with the journalist from the Sunday Mail was done on behalf of the NPAQ or as asserted by Mr McGuire that the journalist was put in contact with the Applicant because of her position at the Hospital, not because of her position with the NPAQ.  The argument being that if the story could include criticism of the system from someone within, it would be all the more powerful rather than just being from the perspective of an outside organisation.
  2. [263]
    What is apparent from Mr McGuire's evidence is that the NPAQ had no concluded position on the standard of nurse education or training which it had communicated to the First Respondent.[201]
  1. [264]
    The Applicant did not deny telling the journalist that she was the Duty Nurse Manager at TPCH saying only, "I don't believe so".[202] 
  1. [265]
    The Show Cause Notice provided the Applicant with an opportunity to explain herself, including this very issue, as Ms Gardner said in her evidence:

But how do you know that she identified herself as duty nurse manager at Prince Charles?---On what I have seen and that is one of the reasons that I have provided Ms Gilbert the opportunity to, for procedural fairness, to respond to the matters, because she may have a response to that, but I have never received that response. So the process was to enable her to respond to that.[203]

  1. [266]
    Regardless, the Applicant accepted in cross-examination that once the Article was published, she did not seek to correct the fact that it identified her by reference to her Duty Nurse Manager position, rather than by reference to her role with NPAQ:

So you didn't send [the journalist] an email or a letter the following day saying, 'Why did you identify me this way?  I didn't tell you that' or any such thing?---No, I had no communication with the journalist.[204]

  1. [267]
    I accept that the Applicant has not demonstrated that the conduct alleged was adverse action. The actions complained of can only constitute adverse action if they alter the Applicant's position in a meaningful and substantial way to her prejudice.
  1. [268]
    It cannot be reasonably said that the Applicant is in a worse situation after the employer's acts than before them, that there has been a deterioration in her employment which has been caused by those acts and that the acts were intentional in the sense that the employer intended the deterioration to occur. The evidence before the Commission does not, in my view, support such a proposition.

Accessorial liability

  1. [269]
    The Applicant alleges that the First, Second and Fourth Respondents were accessorily liable for alleged contraventions of the IR Act.[205]
  1. [270]
    The Applicant seeks the following declaratory relief:

The First Respondent

  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the First Respondent was involved in the Third Respondent's contravention of s 287 of the IR Act, because it caused the Memo of 13 March 2019 to be personally delivered to Margaret Gilbert.
  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the First Respondent was involved in the Third Respondent's contravention of s 289 of the IR Act, because it caused the Memo of 13 March 2019 to be personally delivered to Margaret Gilbert.
  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the First Respondent was involved in the Third Respondent's contravention of s 295 of the IR Act, because it caused the Memo of 13 March 2019 to be personally delivered to Margaret Gilbert.

The Second Respondent

  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the Second Respondent was involved in the First Respondent's contravention of s 295 of the IR Act, by issuing the Show Cause on 8 January 2020.
  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the Second Respondent was involved in the First Respondent's contravention of s 285 of the IR Act, by issuing the Show Cause on 8 January 2020.
  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the Second Respondent was involved in the First Respondent's contravention of s 287 of the IR Act, by issuing the Show Cause on 8 January 2020.
  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the Second Respondent was involved in the First Respondent's contravention of s 291 of the IR Act, by issuing the Show Cause on 8 January 2020.

The Fourth Respondent

  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the Fourth Respondent was involved in the Third Respondent's contravention of s 287 of the IR Act, because he caused the Memo of 13 March 2019 to be issued.
  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the Fourth Respondent was involved in the Third Respondent's contravention of s 289 of the IR Act, because he caused the Memo of 13 March 2019 to be issued.
  • A declaration, in accordance with s 463 of the IR Act, that in accordance with s 571(2) of the IR Act, the Fourth Respondent was involved in the Third Respondent's contravention of s 295 of the IR Act, because he caused the Memo of 13 March 2019 to be issued.
  1. [271]
    The reverse onus under s 306 of the IR Act does not apply to a claim of accessorial liability under s 571 of the IR Act.[206]
  1. [272]
    Section 571(3) of the IR Act addresses under which circumstances a person will be taken to have been involved in a contravention of a civil penalty provision.  Specifically, it states:
  1. (3)
    For this section, a person is involved in a contravention of a civil penalty provision only if the person -
  1. (a)
    has aided, abetted, counselled or procured the contravention; or
  1. (b)
    has induced the contravention, whether by threats promises or otherwise; or
  1. (c)
    has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention; or
  1. (d)
    has conspired with others to effect the contravention.
  1. [273]
    Section 571 of the IR Act is virtually indistinguishable from s 550 of the FW Act.  Section 550 of the FW Act was considered in Fair Work Ombudsman v Priority Matters Pty Ltd[207] where it was held that in order to be involved in a contravention there had to be some conduct to implicate a person in the offending conduct.
  1. [274]
    In Australian Building and Construction Commissioner v Parker,[208] Flick J comprehensively surveyed the authorities concerning the accessorial provisions and the application of those provisions to alleged contraventions involving a specific state of mind or intent.  Flick J held:

122 For a person to fall within the reach of s 550, that person must associate himself with the contravening conduct.  When addressing the terms of s 550 of the Fair Work Act, North and Bromberg JJ in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37, (2015) 228 FCR 346 at 404 ("Quest South Perth Holdings") thus observed:

[253] The nature of the liability imposed by s 550(1) (in the context of the meaning of "involved in" set out in s 550(2)), was explained by Tamberlin, Gyles and Gilmour JJ in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] as follows:

Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500).  The words "party to, or concerned in" reflect that concept.  The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.

[254] The requirements of what was then s 75B of the Trade Practices Act 1974 (Cth) were considered by the High Court in Yorke v Lucas (1985) 158 CLR 661.  The terms of the former s 75B are the same as those found in s 550(2) of the FW Act.  A wide range of elements are identified by the four sub-paragraphs of s 550(2). …

The person must have engaged in conduct which implicates or involves that person in the contravention such that there is a "practical connection" between that person and the contravention: Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [950] per Katzmann J.

123 The phrase "aided, abetted, counselled or procured" is a phrase borrowed from the criminal law.  In that context, the phrase requires that for a person to assume liability he must have "intentionally participated" in an act and to have "knowledge of the essential matters which go to make up the offence": Yorke v Lucas (1985) 158 CLR 661 at 667.  Mason ACJ, Wilson, Deane and Dawson JJ there observed in the context of the liability of individuals for a contravention by a corporation of the Trade Practices Act 1974 (Cth):

  1. the words used, "aided, abetted, counselled or procured", are taken from the criminal law where they are used to designate participation in a crime as a principal in the second degree or as an accessory before the fact.  Both in the case of felonies where the principal offender and the secondary participant commit separate offences, and in the case of misdemeanours where no distinction is drawn between the two, a person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he intentionally participates in it.  To form the requisite intent he must have knowledge of the essential matters which go to make up the offence whether or not be (sic) knows that those matters amount to a crime. …

Their Honours also later observed (at 670):

  1. There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.

124 In order for a person to have the requisite intention, the person must have knowledge of the "essential matters" which go to make up the events – but it is not necessary for the person to have knowledge that those matters constitute a contravention: Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] per White J.

125 Where a contravention involves a "state of mind", that "state of mind" is an element of the contravening conduct and a person can only be an accessory if he also has the required knowledge.  In Quest South Perth Holdings [2015] FCAFC 37, (2015) 228 FCR at 406 to 407, North and Bromberg JJ went on further to observe:

[267] The need to establish an accessory's knowledge of the primary contravener's state of mind in an adverse action claim brought under s 340(1) of the FW Act, in which the contravener's motive is an essential element of the contravention, was considered by Bromberg J in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290 at [288]-[290], in a passage not dealt with subsequently in the reasons of the Full Court that considered that judgment.  His Honour said:

[288] The CFMEU contended that whilst it is necessary to prove that the accessory knew what the principal contravener was doing, an accessory cannot know what the other person is feeling or thinking.  It argued that whilst it was necessary for an accessory to have knowledge of the essential elements of a contravention, it was not necessary for an accessory to have knowledge of the principal contravener's motive for the contravention.

[289] That submission must be wrong where a particular motive is a necessary element of the contravention.  For instance, a person who assisted in the dismissal of an employee carried out by a contravener because of the employee's race, could not be an accessory to the discriminatory conduct in the absence of having assisted knowing that the contravener's conduct was motivated by race.  Without that knowledge, it could not be said that the alleged accessory is "linked in purpose with the perpetrators".

[290]  An accessory will often know the principal perpetrator's motive because the perpetrator will have revealed it.  Alternatively, an accessory may know the perpetrator's motive because their conduct is so intertwined, that the motive of one will be the obvious motive of the other.

 See also: Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [448], (2015) 253 IR 391 at 476 per Murphy J.

126 For a person to be "knowingly concerned in or a party to the contravention" for the purposes of s 550(2)(c), the person must have been an intentional participant with knowledge at the time of the contravention of the essential elements constituting the contravention: cf. Yorke v Lucas (1985) 158 CLR at 670.  Actual knowledge is required – mere constructive or imputed knowledge is not sufficient.  But actual knowledge may be inferred from "exposure to the obvious": Giorgianni v The Queen (1985) 156 CLR 473 at 507 to 508.[209]

  1. [275]
    In order to establish accessorial liability, the Applicant must establish actual knowledge on behalf of the alleged accessory of each of the essential elements of the offence.  The Applicant must show that the Respondents knew of the proscribed intention.
  1. [276]
    Absent clear evidence of knowledge on behalf of the First, Second and Fourth Respondents, the Applicant cannot succeed in attributing liability for the purposes of s 571 of the IR Act.
  1. [277]
    As was explained in Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate:

The relevant principle to be derived from Giorgianni, Yorke v Lucas (1985) 158 CLR 661, Handlen v The Queen (2011) 245 CLR 282 at [6] and Rafferty v Madgwicks (2012) 203 FCR 1 is that the putative accessory must intentionally participate in the contravention and to form the requisite intent he must have knowledge of the essential matters which go to make up the contravention, whether or not he knows that those matters amount to a contravention.  The necessary intent is absent if the person alleged to be the accessory does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the contravention.[210]

  1. [278]
    Where a contravention involves a "state of mind", that "state of mind" is an element of the contravening conduct and a person can only be an accessory if he or she also has the required knowledge. 
  1. [279]
    There is a dearth of evidence to support a conclusion that there was a contravention in which the First, Second and Fourth Respondents could have been relevantly involved. 

Misrepresentation

  1. [280]
    In relying on s 289(1) of the IR Act and the Explanatory Notes of the Industrial Relations Bill 2016,[211] the Applicant submits that the First Respondent and Third Respondent made false representations regarding the status of the NPAQ and that these were made recklessly.
  1. [281]
    The Applicant's SFCs sets out the allegation of misrepresentation in the following way:

34. By writing and circulating the Memorandum, the Third and Fourth Respondents represented to employees in health services, including the Applicant, that:

  1. (a)
    the NPAQ is not entitled to be a party to an award or certified agreement made between Queensland Health and employee organisations;
  2. (b)
    the NPAQ is not able to represent the industrial interests of employees who are covered by Award and EB10;
  3. (c)
    the NPAQ does not have standing to be a union party in any grievance/dispute resolution process;
  4. (d)
    the NPAQ is not permitted to display any material in the workplace that may imply it is entitled to represent the industrial interests of employees;
  5. (e)
    the NPAQ cannot represent or advocate on behalf of an employee in relation to an employment matter;
  6. (f)
    the NPAQ is not entitled to have access to employees in the workplace; and
  7. (g)
    the NPAQ is not entitled to participate in workplace consultative forums.

35. The representations in paragraph 34 above were untrue because:

  1. (a)
    the NPAQ is, through the Applicant able to represent and/or advocate on behalf of an employee in relation to an employment matter because the Applicant was a member, delegate and Branch Secretary of the NPAQ and was thereby entitled under s290 and s291 of the IR Act to engage in industrial activity which included representing and advocating for employees in the workplace on behalf of the NPAQ;
  2. (b)
    the NPAQ is, through the Applicant, able to represent and advocate for employees by reason of the rights conferred on the Applicant as a member, delegate and Branch Secretary of the NPAQ under s290 and s291 of the IR Act;
  3. (c)
    the NPAQ is able, through the Applicant, to be a union party to any grievance/dispute resolution process of the rights conferred on the Applicant as a member, delegate and Branch Secretary of the NPAQ under s290 and s291 of the IR Act;
  4. (d)
    the NPAQ is entitled, through the Applicant, to display materials in the workplace that may imply it is entitled to represent the industrial interests of employees;
  5. (e)
    the NPAQ is entitled, through the Applicant, to have access to employees in the workplace; and
  6. (f)
    the NPAQ is entitled, through the Applicant, to participate in the workplace consultative forums.

36. The Memorandum thereby misrepresented the workplace rights of the Applicant to be a member of, a participant in the activities of, and to represent and be represented by the NPAQ.

37. The misrepresentations aforesaid were made recklessly because the First and Second Respondents (sic) failed to truly present the law as prescribed in Chapter 8 of the IR Act and clause 1.4 of the Code.

38. A reasonable person would expect the Applicant to rely on the representations in the Memorandum.

 39. In the premises, by the writing and circulation of the Memorandum of 13 March 2019, which contained the untrue statements aforesaid, the Third Respondent contravened s289 of the IR Act and is thereby rendered liable to civil penalty.

40. The Fourth Respondent as a person who aided and abetted the contraventions aforesaid by authoring, signing and distributing the Memorandum, was pursuant to s571 of the IR Act involved in the contravention and is taken to have contravened the said provisions.

  1. [282]
    The Applicant seeks the following order:

A declaration, in accordance with s 463 of the IR Act, that the Third Respondent in issuing the Memo of 13 March 2019, knowingly or recklessly misrepresented Margaret Gilbert's rights for her to be represented by Nurses Professional Association of Queensland in contravention of s 289(1) of the IR Act.

  1. [283]
    Section 289 of the IR Act (s 345 FW Act) provides as follows:

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. (2)
    Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
  1. [284]
    In Australian Education Union v Royal Melbourne Institute of Technology, the term "knowingly or recklessly" was considered in relation to s 345 of the FW Act (the equivalent of s 289 of the IR Act) when Wheelahan J said:

In order to engage s 345 it must be shown that the false or misleading representation was made "knowingly or recklessly".  The state of mind required by s 345(1) of the Act attaches to the false or misleading quality of the representation, not the act of the making of the representation.  What is required is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at 329 [161]. In CEPU v Australian Postal Corporation [2017] FCA 1091 at [257] Mortimer J stated that no authorities have considered the scope or operation of the mental element in s 345.  I did not hear full argument on the content of the word "recklessly" in s 345 for the purposes of this urgent application.  My preferred view is that what is arguably required is proof of subjective recklessness consistent with criminal law principles: Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No 2) [2007] FCA 1425; (2007) 166 IR 51 at 69-70 [86]- [92] (Graham J) (upheld on appeal without consideration of this issue: [2008] FCAFC 42; (2008) 166 FCR 562). See also: Australian Securities and Investments Commission v Mariner Corporation Ltd [2015] FCA 589; (2015) 241 FCR 502 at 552-6 [248]- [279].  However, it may be arguable that an objective element is imported: Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [186]- [199], but noting that Ecosway concerned "reckless" in the different legislative context of s 357(2) of the Fair Work Act, and its legislative history.[212]

  1. [285]
    In Director of the Fair Work Building Industry Inspectorate v Bavco Pty Ltd & Ors (No 2), Manousaridis J said:

If the plurality's construction of "reckless" in Banditt is translated to s. 357(2) of the Act, to prove he or she was not "reckless as to whether . . . the contract was a contract of employment rather than a contract for services", the employer must prove one of two things.  The first is that the employer did not know there was a possibility that the employee might be an employee.  The second arises if the employer was aware there was a possibility that the employee was an employee.  In those circumstances, the employer must prove he or she was not indifferent about whether the employee was in fact an employee.

The next question is whether the analysis in Banditt should be applied to s. 357(2).  In my opinion, it should.  First, as I note above, the language of s.61R(1) of the Crimes Act is similar to the language of s. 357(2) of the Act.  Both subsections use the words "reckless as to whether".  Secondly, if the legislature intended to use an objective criterion by which to measure "reckless", it could have used words that are commonly used to express objective standards of conduct, such as "reasonable" or "negligently" or "grossly negligent".  It cannot be said the legislature was unaware of the availability of these words.[213]

  1. [286]
    In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd the Full Court of the Federal Court was called upon to determine s 345 of the FW Act which requires that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth.[214]  This is an element on which the Applicant bears the onus of proof.[215]
  1. [287]
    The Court held that a representation will be misleading under s 345 of the FW Act in the following circumstances:

A representation is misleading if it has a tendency to lead a person into error:   Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39].  Of course, it is possible that a half-truth or an ambiguous remark or even silence may have this tendency (Justice JD Heydon AC, Thomson Reuters, Trade Practices Law – Competition and Consumer Law, vol 3 (at Service 178) [190.150]).  But the words in the documents must be read in context.  As Gibbs CJ said of misleading conduct contrary to s 52 of the Trade Practices Act 1974 (Cth), "[i]t is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words":  Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199; see also Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 at 241 (Gummow J).[216]

  1. [288]
    The Respondents contend that the Applicant in pursuing the allegation of false or misleading representations is that the Memorandum does not mislead as alleged.  The Memorandum did no more than correctly summarise the relevant effect of the IR Act.
  1. [289]
    The only sentence of the Memorandum that could be reasonably criticised is the following, "[t]he NPAQ cannot represent or advocate on behalf of an employee in relation to an employment matter".  I accept the evidence of Mr Simmons that the sentence was a reference to the fact that in the industrial relations context the NPAQ could not represent members in proceedings before the Commission. This was further clarified by the Third Respondent in a response to the Courier Mail on 26 March 2019 to a request for comment.[217]
  1. [290]
    Consistent with its argument that the Memorandum misrepresented the Applicant's workplace rights under the IR Act, in contravention of s 289 of the IR Act,[218]it is asserted that the First Respondent bears the onus of demonstrating an absence of recklessness.[219]  That is incorrect.
  1. [291]
    The Applicant bears the onus of establishing the "mental element" of the contravention, that is that the representation was made "knowingly or recklessly".[220]
  1. [292]
    The authorities suggest that a conscious disregard of risk is the defining feature of the legal concept of recklessness.
  1. [293]
    The proposition that conscious disregard or indifference to the possible consequences of acts and omissions must be established for a finding of recklessness was explored in Australian Securities and Investments Commission v Mariner Corporation Limited (Mariner).  In that case, Beach J was called upon to consider an alleged breach by a company of s 631(2)(b) of the Corporations Act 2001 (Cth), which provides:

A person must not publicly propose, either alone or with other persons, to make a takeover bid if the person is reckless as to whether they will be able to perform their obligations relating to the takeover bid if a substantial proportion of the offers under the bid are accepted.[221]

  1. [294]
    It was alleged that the company failed to comply with s 631(2)(b) of the Corporations Act 2001 (Cth) by publicly proposing to make a takeover bid for "Austock" and being reckless as to whether it would be able to perform its obligations if the bid was accepted.
  1. [295]
    The first question that was addressed by Beach J was whether ASIC only had to prove Mariner ought to have been aware of a substantial risk that it could not perform its obligations under the bid (an objective question), or whether ASIC had to prove that Mariner was actually aware of that risk (a subjective question)?
  1. [296]
    Beach J said the test is subjective.  He wrote:

In a criminal or quasi-criminal context, for recklessness to be established the risk of a particular result must be subjectively understood by the defendant. Further, there must be a conscious disregard of or indifference to that risk.[222]

 His Honour went on to observe:

Recklessness is an actual advertence to risk but a conscious disregard of or indifference to the risk. Contrastingly, negligence or carelessness is where there may be no advertence to or conscious awareness of the risk at all.[223]

  1. [297]
    The state of mind required by s 289 of the IR Act attaches to the false or misleading quality of the representation, not the act of the making of the representation. 
  1. [298]
    It is accepted by the appellate courts that indifference to or a "conscious disregard" of the possible consequences of acts and omissions must be established to constitute recklessness. 
  1. [299]
    What is required is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth. In proving a person acted "recklessly", what needs to be established is proof of subjective recklessness consistent with criminal law principles.[224]
  1. [300]
    It is entirely irrelevant whether or not the memorandum was "either intended to or in fact reached an even wider audience".[225]
  1. [301]
    Mr Simmons' evidence was that there was no ulterior agenda to send the Memorandum to an "indirect audience".[226]  He denied that the "real agenda" in sending out the Memorandum was to discourage nurses from joining NPAQ.[227]
  1. [302]
    What is alleged against the Third Respondent is that they knowingly or recklessly misrepresented the Applicant's rights to be represented by NPAQ in contravention of s 289(1) of the IR Act.
  1. [303]
    As the evidence of Mr Simmons demonstrates this is not the case.
  1. [304]
    The relevant decision maker, the Fourth Respondent, has given direct evidence of his reasons for issuing the Memorandum, which do not include any of the alleged unlawful reasons.[228] 
  1. [305]
    The Applicant has not, in my view, established the requisite "mental element" of the contravention. Moreover, the Applicant's assertions[229] are unsupported by the evidence.
  1. [306]
    Even if NPAQ did have some or all of the rights referred to, it is contended by the Respondent that they are not rights of the Applicant.  The Memorandum made no representation about any right of the Applicant to be a member of, or participate in the activities of, or to represent, NPAQ.  Neither does the Memorandum say anything about the Applicant's asserted right to be represented by NPAQ.  What the Memorandum does say is the things that the NPAQ may not perform in relation to the processes under the IR Act.
  1. [307]
    The Respondents submit the Applicant seeks to expand her case in her submissions to allege that Ms Franks also contravened s 289 of the IR Act.  No such allegation is pleaded or particularised in the Applicant's SFCs.  If liability is sought the basis for that must be established and the Applicant has not pleaded that Ms Franks was such an individual.
  1. [308]
    In order to succeed in an application of s 289 of the IR Act, the false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth. The Applicant has failed to discharge the onus of establishing that the statement is made knowing it to be false. Moreover, where the mental element of the section comprises recklessness, the Applicant must establish foresight of the possibility of the relevant consequence.[230]  In other words, indifference to or a "conscious disregard" of the possible consequences of acts and omissions must be established to constitute recklessness. The Applicant has failed to discharge the onus to prove this element.
  1. [309]
    I accept that the Memorandum did not mislead as alleged by the Applicant.

Discrimination

  1. [310]
    The Applicant submitted that s 295 of the IR Act is titled "Discrimination", however what it proscribes is adverse action taken because of one of the protected attributes.[231]   The Applicant relies upon the relevant principles submitted in respect of "adverse action" and when adverse action is taken "because of a prohibited reason".
  1. [311]
    Section 295 of the IR Act provides as follows:

295 Discrimination

  1. (1)
    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities or association with, or in relation to, a person identified on the basis of any of these attributes.
  1. (2)
    However, subsection (1) does not apply to action that is –
  1. (a)
    not unlawful under an anti-discrimination law; or
  1. (b)
    taken because of the inherent requirements of the particular position concerned; or
  1. (c)
    if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, taken -
  1. (i)
    in good faith; and
  1. (ii)
    to avoid injury to the religious susceptibilities of adherents of that religion or creed.
  1. (3)
    Each of the following is an anti-discrimination law –
  1. (a)
    the Age Discrimination Act 2004 (Cwlth);
  1. (b)
    the Disability Discrimination Act 1992 (Cwlth);
  1. (c)
    the Racial Discrimination Act 1975 (Cwlth);
  1. (d)
    the Sex Discrimination Act 1984 (Cwlth);
  1. (e)
    the Anti-Discrimination Act 1991.
  1. [312]
    The Applicant seeks the following orders:
  1. A declaration, in accordance with s 463 of the IR Act that the Third Respondent discriminated against Margaret Gilbert for engaging in "trade union activity" in contravention of s 295 of the IR Act.
  1. A declaration, in accordance with s 463 of the IR Act, that the First Respondent, by issuing a Show Cause on 8 January 2020, discriminated against Margaret Gilbert for engaging in "trade union" activity in contravention of s 295 of the IR Act.
  1. [313]
    The Applicant alleged that delivering the Show Cause Notice to her was discrimination in contravention of s 295 of the IR Act.[232]  For the reasons which follow, it was not.
  1. [314]
    The element of intent is central to the definition. To discriminate requires a conscious decision to make a distinction, in this case where an employer takes adverse action against a person who is an employee, because of the person's trade union activity.
  1. [315]
    In short, discrimination as used in s 295 of the IR Act can be interpreted to mean a situation where an employer deliberately treats an employee, or a group of employees, less favourably than its other employees.[233]
  1. [316]
    The Applicant in making the claim of discrimination under s 295 of the IR Act is not relieved from proving each of the elements of the contravention, namely that:
  1. (a)
    the respondent took adverse action;
  2. (b)
    the applicant had one of the particular attributes described in s 295(1); and
  3. (c)
    depending on the particular allegation, the respondent took adverse action by reason of the Applicant having the attribute, or for reasons that included the Applicant having that attribute.
  1. [317]
    Like all of the attributes in s 295 of the IR Act it was "adopted" directly from s 7 of the AD Act.[234]  The AD Act does not itself define "trade union activity". 
  1. [318]
    Stone & Spelta v Brisbane City Council,[235] was a case involving the termination of Messrs Stone and Spelta's employment arising out of unprotected industrial action in which both men participated. The action was ostensibly taken because of the termination of employment of another bus driver at the depot and grievances with management. Both Stone and Spelta were members of the union.
  1. [319]
    Member Fitzpatrick held as follows:

Trade union activity is not defined in the Act. Accordingly I find that it must bear a meaning as it would be commonly understood. I find that the activities Mr Stone and Mr Spelta describe as their trade union activity are trade union activities. That is union membership or acting as a union delegate and engaging in industrial issues. The Council does not submit otherwise. I note that neither Mr Stone nor Mr Spelta asserts that participation in unlawful, unprotected industrial action is trade union activity. To the extent that it is necessary to do so, I find such participation would not be trade union activity within the meaning of section 7(k) of the Act.[236]

. . .

I find that the comparison which must be undertaken should be by reference to a person who did not engage in trade union activity, that is, who was not a Union member or delegate and who did not involve himself in industrial issues … .[237]

  1. [320]
    This construction contemplates that "trade union activity" occurs when a "union member" or "union delegate", as those terms are commonly understood, engages or involves themselves in "industrial issues".
  1. [321]
    For reasons set out elsewhere, the Applicant cannot establish that the activity in which she engaged was "trade union activity".  Accordingly, even if it were accepted that the Second Respondent sent the Show Cause Notice on the basis of the activity the Applicant alleges was "trade union activity", there would be no unlawful discrimination because the activity was not in fact "trade union activity" and not the subject of the protected attribute.
  1. [322]
    Putting aside the fact that what the Applicant did was not "trade union activity", the Applicant has not established, in my view, that the Second Respondent would not have sent the Show Cause Notice to an employee without the attribute.  Therefore, the Applicant has not established that there was comparatively less favourable treatment.
  1. [323]
    If the reverse onus were engaged, the relevant and sole decision maker, the Second Respondent has given direct evidence of her reasons for issuing the Show Cause Notice which I accept do not include any of the alleged unlawful reasons.[238]
  1. [324]
    There is direct evidence, that the purported "trade union activity" was not a substantial or operative reason to issue the Show Cause Notice.[239]
  2. [325]
    The Respondents accept the Show Cause Notice makes explicit reference to the Applicant's activity apparently on behalf of NPAQ.[240]  However, because that activity was not "trade union activity", it would not have been unlawful even if it could be established that the Second Respondent issued the Show Cause Notice on that basis.
  1. [326]
    Further, for the reasons previously given, the issuing of the Show Cause Notice was not "adverse action" because of the operation of s 282(6) of the IR Act, being an action relevantly "authorised" under the PS Act.

Coercion

  1. [327]
    Section 287(1) of the IR Act provides protections against coercion.  This provision of the IR Act replicates s 343 of the FW Act.
  1. [328]
    Section 287(1) states:

287 Coercion

  1. (1)
    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person –
  1. (a)
    to exercise or not exercise, or to propose to exercise or not exercise, a workplace right; or
  1. (b)
    to exercise, or to propose to exercise, a workplace right in a particular way.

Note -

  This subsection is a civil penalty provision.

  1. [329]
    Section 287 of the IR Act is designed to prohibit a person organising or taking (or threatening to take) action against another person with intent to coerce the other person to exercise or propose to exercise (or not exercise) a workplace right at all or to do so in a particular way.
  1. [330]
    The Applicant seeks the following declarations in reliance on a contravention of s 287 of the IR Act:
  1. A declaration, in accordance with s 463 of the Industrial Relations Act 2016 (Qld) (IR Act), that the Third Respondent by issuing and distributing the Memo did so with the intent to coerce Margaret Gilbert in contravention of s 287 of the IR Act.
  1. A declaration, in accordance with s 463 of the Industrial Relations Act 2016, that the First respondent, by issuing a Show Cause on 8 January 2020, coerced Margaret Gilbert to not exercise a workplace right to engage in industrial activity in contravention of s 287 of the Industrial Relations Act 2016.
  1. [331]
    It is submitted by the Applicant that the Third Respondent, by issuing and distributing the Memorandum, did so with the intention to coerce the Applicant, in contravention of s 287 of the IR Act, to:
  1. stop advocating and/or representing the NPAQ;
  2. cease any conduct where she represented that the NPAQ could represent or advocate on behalf of its members in the workplace;
  3. stop the Applicant from seeking to be represented by the NPAQ …; and/or
  4. to punish the Applicant by putting her on a Notice to Show cause for continuing to advocate and/or represent the NPAQ because it was conduct that did not comply with the Memorandum.[241]
  1. [332]
    Further, it is alleged that the First Respondent, by issuing a Show Cause on 8 January 2020, coerced the Applicant to not exercise a workplace right to engage in industrial activity in contravention of s 287 of the IR Act.
  1. [333]
    There are no authorities in this jurisdiction in respect to the construction of s 287 of the IR Act however assistance can be gained as to the meaning of "with intent to coerce" by reference to the analogous s 343 of the FW Act and the observations made by the Federal Court concerning the import of that expression as it appeared in the former s 170NC of the Workplace Relations Act 1996 (Cth).
  1. [334]
    In Finance Sector Union of Australia v Commonwealth Bank of Australia Gyles J concluded that for the purposes of s 170NC(1) coercion requires conduct that is compulsive in the sense that the pressure brought to bear, in a practical sense, negates choice; and is unlawful, illegitimate or unconscionable.[242]
  1. [335]
    In Australian Building and Construction Commissioner v Hall) (Hall) it was held that:
  1. It is well-established that the expression "intent to coerce" in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39 at 84; [2016] FCAFC 72 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404 at 425; [2017] HCA 54 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).
  1. Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression "intent to coerce" applies to the negation of choice element.  This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 86-87 [194]).  It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice.  Conversely, alleging that the particular intent was an "intent to coerce" creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener's intent.[243]
  1. [336]
    In Hall the Court discussed what was necessary to be alleged in order for the reverse onus in s 361(1) of the FW Act to be engaged:

. . . an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct.[244]

The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter.  It is the requirement in s 361(1)(b) that 'taking that action for that reason or with that intent would constitute a contravention of this Part'.[245]

  1. [337]
    It follows from the authorities to which I have referred that the Applicant must establish that:
  1. (a)
    the issuing of the Memorandum and show cause notice was made with intent to negate the Applicant's choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable; and
  1. (b)
    the First and Third Respondents had actual knowledge of the circumstances that made their conduct coercive in the sense identified in (a) above.
  1. [338]
    The conduct engaged in by the Applicant, which was the subject of the Show Cause, was not industrial activity for the purposes of the provisions set out in s 287 of the IR Act.
  1. [339]
    The Applicant asserts that any submission by the Respondents that the provisions contained within s 290 of the IR Act should be construed narrowly or strictly must be rejected as these provisions are "beneficial" provisions and "should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have".[246]
  1. [340]
    The Applicant's allegation that the Memorandum was issued with intent to pressure the Applicant not to continue to advocate and/or represent her industrial association and/or trade union appeared for the first time in her submissions filed on 8 June 2020.  No such allegation was referred to in the relief sought in the Applicant's application, pleaded or particularised in the Applicant's SFCs or in evidence which has been filed.
  1. [341]
    The Applicant needed to fully articulate the argument she wished to advance if it was her intention to pursue this element of the claim in these proceedings.  In my view, the Commission should decline to consider any such claim because to do so would involve a basic lack of procedural fairness and natural justice.
  1. [342]
    The other coercion allegation, and the only one that the Applicant can fairly pursue, is the one made in respect of the Show Cause Notice. That allegation appears within the relief sought in the Applicant's application, however, it is not pleaded or particularised in the Applicant's SFCs. 
  1. [343]
    The Applicant's coercion allegation is not adequate to engage the reverse onus as she cannot establish that issuing the Show Cause Notice was, "the use of unlawful, illegitimate or unconscionable conduct".  She must do so to engage the reverse onus.[247]
  1. [344]
    The second precondition to engage the reverse onus (mentioned in Australian Building and Construction Commissioner v Hall)[248] is not met.  It is not the case that, "taking that action for that reason or with that intent would constitute a contravention of this Part" because the Applicant does not have the alleged workplace right.  She could not have "[engaged] in industrial activity" in the relevant sense as NPAQ is not, for the reasons advanced above, an "industrial association".
  1. [345]
    The Respondents submit that the relevant decision maker, the Second Respondent, has given direct evidence[249] of her reasons for delivering the Show Cause Notice which do not include any of the alleged unlawful reasons and that her evidence should be accepted.
  1. [346]
    It cannot be said that the Applicant has discharged the onus of establishing that there has been a negation of choice; and the use of unlawful, illegitimate, or unconscionable conduct to do so.  The evidence before the Commission falls short of any such conclusion.
  1. [347]
    I do not accept that the evidence before the Commission supports a conclusion that the issuing of the Memorandum and show cause notice as alleged by the Applicant was made with intent to negate the Applicant's choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable.  Moreover, I equally cannot accept that the evidence supports a conclusion that either the First or Third Respondents had actual knowledge of the circumstances that made their conduct coercive.

Claim under the Human Rights Act

  1. [348]
    The Applicant seeks the following declarations in reliance on the HR Act:
  1. A declaration that the First Respondent and Second Respondent acted unlawfully in accordance with s 58(1)(a) of the Human Rights Act 2019 (the HR Act) by making a decision to issue the Show Cause on 8 January 2020 to the Applicant which was not compatible with the Applicant's human right to Freedom of Expression in accordance with s 21 of the HR Act.
  1. A declaration that the First Respondent and Second Respondent acted unlawfully in accordance with s 58(1)(a) of the HR Act by making a decision to issue the Show Cause on 8 January 2020 to the Applicant which was not compatible with the Applicant's human right to Freedom of Association in accordance with s 22(2) of the HR Act.
  1. A declaration that the First Respondent and Second Respondent acted unlawfully in accordance with s 58(1)(b) of the HR Act by failing to give proper consideration to ss 21 and 22(2) of the HR Act when making the decision to issue a Show Cause to the Applicant on 8 January 2020.
  1. [349]
    What can be gleaned from the Applicant's SFCs[250] is that she seeks to pursue a claim under the HR Act in respect of her rights to freedom of expression (s 21 of the HR Act) and freedom of association (s 22 of the HR Act).  Whilst it is not clearly articulated, the Applicant suggests a further claim in respect of her right to recognition and equality before the law under s 15 of the HR Act.[251]  However, no claim is developed in the Applicant's submissions and it would appear that a claim under s 15 of the HR Act is not being pursued.[252]
  1. [350]
    Sections 21 and 22 of the HR Act state as follows:

21 Freedom of expression

  1. (1)
    Every person has the right to hold an opinion without interference.
  2. (2)
    Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Queensland and whether -
  1. (a)
    orally; or
  1. (b)
    in writing; or
  1. (c)
    in print; or
  1. (d)
    by way of art; or
  1. (e)
    in another medium chosen by the person.

22 Peaceful assembly and freedom of association

  1. (1)
    Every person has the right of peaceful assembly.
  1. (2)
    Every person has the right to freedom of association with others, including the right to form and join trade unions.
  1. [351]
    The Applicant appears to have abandoned the allegation that issuing the Memorandum and failing to revoke or recall it limited her right to freedom of association.[253] The HR Act came into effect on 1 January 2020.  As the Memorandum was issued on 13 March 2019 the HR Act does not apply to the decision to issue the Memorandum.
  1. [352]
    Section 58(1) of the HR Act states:

58 Conduct of public entities

  1. (1)
    It is unlawful for a public entity -
  1. (a)
    to act or make a decision in a way that is not compatible with human rights; or
  1. (b)
    in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  1. [353]
    The Respondents submit this allegation cannot succeed as the Applicant alleges that the relevant right was "restricted" and that the First Respondent "attempted to prevent … the Applicant from exercising the right". 
  1. [354]
    The HR Act imposes no proscription against those things.  The HR Act requires that public entities (such as the First Respondent) not to act in a way that is incompatible with human rights or fail to give proper consideration to a human right:
  1. [355]
    Section 58(6) declares that unlawfulness pursuant to s 58(1) will not invalidate an act or decision or constitute the commission of an offence. However, unlawfulness pursuant to s 58(1) will trigger the opportunity for piggyback relief provided by s 59, which relevantly provides:

59 Legal proceedings

  1. (1)
    Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
  1. (2)
    The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
  1. (3)
    However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
  1. (4)
    This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including -
  1. (a)
    a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and
  1. (b)
    a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.
  1. (5)
    A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
  1. (6)
    Nothing in this section affects a right a person may have to damages apart from the operation of this section.
  1. [356]
    A significant operational limit on the HR Act is the requirement that any claim made pursuant to it for relief or remedy in relation to an act or decision of a public entity must be "piggybacked" onto an independent ground of unlawfulness.  That is the effect of s 59 (1) and (2) of the HR Act.
  1. [357]
    That independent ground of unlawfulness must relate to the same act or decision said to be unlawful under the HR Act.  This was clarified by the Victorian Supreme Court in Goode v Common Equity Housing where Bell J held that in respect of the analogous s 39 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter):

Section 39(1) was not intended to create a new cause of action based on Charter unlawfulness (however desirable that might have been).  As the discussion in the authorities reveals, it was designed to enable a person to seek relief or remedy 'in respect of an act or decision of a public authority' on a ground of Charter unlawfulness where he or she has an independent entitlement to seek such relief or remedy on a ground of non-Charter unlawfulness.[254]

  1. [358]
    In any attempt to engage s 59 of the HR Act, the Applicant has not identified any "act" or "decision" by any of the Respondents in respect of the Code of Conduct.  The Applicant cannot simply complain about those instruments.  There must be some independent ground of unlawfulness.
  1. [359]
    Section 108 of the HR Act provides as follows:

108 Application of Act – generally

  1. (1)
    This Act applies to all Acts and statutory instruments, whether passed or made before or after the commencement.
  1. (2)
    However, this Act -
  1. (a)
    does not affect proceedings commenced or concluded before the commencement; and
  1. (b)
    does not apply to an act, or decision made, by a public entity before the commencement.
  1. (3)
    Subsection (1) is subject to sections 106 and 107.
  1. [360]
    Reference was made at paragraphs [301] and [305] of the Applicant's closing submissions whether consideration was given to rights under the HR Act at the time the Show Cause Notice was issued.  Ms Gardner expressly refers in her evidence to the Applicant's membership of the NPAQ saying, "that wasn't the problem.  The problem was she was, in effect, speaking out of turn, representing the Hospital, it wasn't that she was saying things on behalf of the NPAQ".[255]
  1. [361]
    The Applicant submits that a right to damages arises because of the application of the HR Act.[256]  Damages are specifically precluded for a breach of s 58 of the HR Act.
  1. [362]
    In dealing with the analogous provision under the Victorian Charter, Weinburg JA in Director of Housing v Sudi[257] observed that the Charter does not create a cause of action for breach:

Section 38(1) of the Charter is, as I have previously indicated, pivotal to this proceeding. It imposes an obligation upon public authorities to comply with human rights.  Regrettably, it does not specify what consequences, if any, are to flow from a breach of that obligation.  The Charter does not create a cause of action for breach. Section 39, loosely described as the 'remedies provision', is drafted in terms that are convoluted and extraordinarily difficult to follow.

Section 39 seems to envisage that the various human rights provisions contained in the Charter will, in future, influence the conduct of, and outcome in, pre-existing forms of action.  For example, if a claim requires, as an element, that there be proof of unlawful conduct, it seems that the Charter can be invoked as the basis for a finding of that kind.  However, the Charter itself does not create a new remedy.  The implication of s 39 is that there is no new cause of action for breach of any Charter right.

Courts are under no obligation under the Charter to create any new remedies.

…

However, so far as remedies are concerned, the Charter seems to me to focus upon judicial review and its public law analogues, rather than upon expanding those forms of relief.  That is a consequence of the 'dialogue' model chosen by the legislature as the basis for the Charter's operation.[258]

  1. [363]
    In her SFCs the Applicant alleges that the Respondents "[attempted] to stop the Applicant expressing views on matters concerned with trade union activity" and by doing so it "infringed" the Applicant's right to freedom of expression.[259]
  1. [364]
    The HR Act imposes no proscription against those things.  The HR Act requires that public entities such as the First Respondent not act in a way that is incompatible with human rights or fail to give proper consideration to a human right.
  1. [365]
    There is no relevant act or decision and no independent ground of unlawfulness alleged in respect of the alleged failure to "revoke or recall" the Memorandum.  No relief can be pursued under the HR Act.
  1. [366]
    The allegation presumes that NPAQ is a trade union and that what the Applicant sought to do was trade union activity.  For reasons detailed, NPAQ is not a trade union and what the Applicant sought to do was not trade union activity.[260]
  1. [367]
    The Memorandum did not, as alleged, "[prohibit] the posting of NPAQ material on notice boards".  The notice read that NPAQ "is not permitted to display any material in the workplace that may imply it is entitled to represent the industrial interests of employees".
  1. [368]
    The Applicant alleges the Respondents acted in a way that was not compatible with the Applicant's right to freedom of expression or that they failed to give proper consideration to the Applicant's right to freedom of expression.
  1. [369]
    A public entity's conduct will be incompatible with a human right where it limits the right in a way that is not reasonable and demonstrably justifiable.[261]  By issuing the Memorandum the allegation is that the Respondents limited the Applicant's right to freedom of expression.  The relevant right is recognised in s 21 of the HR Act.
  1. [370]
    The evidence clearly shows the Memorandum did not stop the Applicant from participating in the Article which she alleges was done on NPAQ's behalf even though on the face of the Article she actually participated in her capacity as a senior employee of TPCH.[262]
  1. [371]
    The Respondents did not, as alleged, "[attempt], by means of the Show Cause, to stop the Applicant expressing views to [the] press on matters concerned with the standard of nursing degree graduates".[263]
  1. [372]
    The Second Respondent's evidence revealed how the Applicant spoke publicly without proper authorisation in her capacity as a senior employee of TPCH and made comments which could have caused a loss of confidence in nursing capability at TPCH and damage to relationships with partner universities.[264]  The Show Cause Notice itself sets out the allegations.[265]
  1. [373]
    The Respondents submit that the right to freedom of expression was not relevantly engaged by sending the Show Cause Notice nor did it place any limits or restrictions on the Applicant's right to freedom of expression.  Even if the right was engaged and some limit imposed upon it, any limit was reasonable and justifiable.[266]
  1. [374]
    If the Show Cause Notice imposed any limit then it did so by giving effect to the applicable policies, particularly the Code of Conduct which the Applicant was alleged to have breached by speaking to the media without authorisation.
  1. [375]
    Clause 1.4 of the Code of Conduct relevantly serves to clarify that, "workplace representatives or officials of a trade union … are not required to seek permission from [the employer] before speaking publicly in that capacity" but that when they do, they "will make it clear that [the] comments are made only on behalf of that organisation".[267]  The Code of Conduct places an obligation on an employee prior to the making of public statements.  Its object is to provide guidance to ensure the attainment of the objective of a high performing apolitical public service.
  1. [376]
    The High Court in Comcare v Banerji [2019] HCA 23 (Banerji), has now confirmed, albeit in the context of the implied freedom of political communication, that the values and behavioural expectations of the Australian Public Service ('APS'), as contained in the Public Service Act 1999 (Cth) including the APS Code of Conduct ('Code'), do not offend the implied freedom.  As a consequence, the Commonwealth was entitled to terminate the employment of Ms Banerji, for a series of anonymous 'tweets' critical of her employer and others.
  1. [377]
    What Banerji is illustrative of is that a public sector employee cannot contravene the behavioural expectations of their employer and expect immunity in reliance on the HR Act in respect of their rights to freedom of expression and freedom of association.  Within the employment relationship, the employer's reasonable and lawful instructions about an employee's conduct, typically expressed in the form of a Code of Conduct, remain paramount. 
  1. [378]
    The obligation upon the Applicant to make clear that her comments, critical of nursing graduates, were made in a private capacity or as a representative of a trade union was a proper and unremarkable incident of public administration.
  1. [379]
    As is apparent on the face of the Article, the Applicant was identified not as a representative of the NPAQ but as a Nurse Unit Manager at TPCH.  The Show Cause Notice provided her with an opportunity to clarify this however she did not take up that opportunity. Ultimately, the Show Cause Notice was withdrawn.
  1. [380]
    The ethics principles as given effect by the Code of Conduct, limit the right to freedom of expression and that limit is reasonable and demonstrably justifiable.  The Second Respondent has given direct evidence to this effect which I accept.[268]
  1. [381]
    The Applicant alleged that issuing the Show Cause Notice limited her right to freedom of association.[269]
  1. [382]
    The Respondents submit that the right to freedom of association was not relevantly engaged by the sending of the Show Cause Notice.  It did not place any limits or restrictions on the Applicant's right to freedom of association.
  1. [383]
    Even if it could be shown that the right to freedom of association was engaged and a limit imposed, any limit was reasonable and justifiable for the same reasons already expressed above.[270]  The Second Respondent's direct evidence should be accepted.[271]
  1. [384]
    Section 48 of the HR Act (Interpretation) is a rule of statutory construction for "statutory provisions" (i.e. " … an Act or statutory instrument or a provision of an Act or statutory instrument").[272]
  1. [385]
    Section 48(1) of the HR Act is not a "special" or "remedial" rule of interpretation.[273]  It does not require " … an interpretation of a statutory provision which [overrides] the intention of the enacting Parliament".[274]  As the High Court clarified in Momcilovic v The Queen[275] in respect of the analogous s 48 of the Victorian Charter, s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction.[276]
  1. [386]
    If the words of a statute are clear, the court must give them that meaning:[277]

Section 32(1) is not to be viewed as establishing a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence from the intention of the parliament which enacted the statute.[278]

  1. [387]
    Section 48(4) of the HR Act makes explicit, even if the statutory provision under consideration is, once construed, found to be not compatible with human rights, s 48 does not in and of itself affect the provision's validity.
  1. [388]
    As to what can be done under the HR Act in the event a statutory provision cannot be construed pursuant to s 48 of the HR Act in a way that is compatible with human rights, ss 49 and 53 of the HR Act are relevant.  The power to make a declaration of incompatibility is one for the Supreme Court and in this case the Applicant has not applied to refer any matter to the Supreme Court.
  1. [389]
    In the event s 48 of the HR Act changes the meaning of a statutory provision it does not affect its previous operation, or anything suffered, done or begun under it.[279]
  1. [390]
    In addition, the Applicant has not explained what should flow from the declarations sought or why she should be entitled to them.
  1. [391]
    The Commission's power to make a declaration is contained in s 463 of the IR Act. Section 463 relevantly provides:

463  Power to make declarations about industrial matters

  1. (1)
    The commission may, on application by an entity mentioned in section 464, make a declaration about an industrial matter.
  1. (2)
    The commission may make the declaration whether or not consequential relief is or could be claimed.
  1. (3)
    Subject to chapter 11, part 6, a declaration made by the commission under this section is binding in a proceeding under this Act.

464 Who may apply for declaration

The following may make an application mentioned in section 463 -

  1. (a)
    a person who may be directly affected by the declaration;
  1. (b)
    an inspector;
  1. (c)
    an organisation of employees or employers of which a person mentioned in paragraph (a) is a member, if it is acting with the person's written consent;
  1. (d)
    an organisation of employees or employers who may be directly affected by the declaration.
  1. [392]
    The Commission's power to grant declaratory relief under s 463 of the IR Act is discretionary.  The circumstances in which the discretion to decline to issue a declaration are not closed.[280]  The wide power conferred on the Commission by s 463 to make a declaration, is limited only by the requirement that it relates to an industrial matter.[281]  An industrial matter is defined in s 9 of the IR Act and is a term that is far reaching.
  1. [393]
    Whether or not the making of a decision to issue the Show Cause to the Applicant was or was not compatible with the Applicant's human rights in accordance with s 21 or s 22 of the HR Act, or the failure to give proper consideration to ss 21 and 22(2) of the HR Act would fall within s 9 of the IR Act as an industrial matter, was not fully argued before me.  There is an argument for concluding that a determination of incompatibility under the HR Act would not fit comfortably within the definition of industrial matter in s 9 of the IR Act.  However, absent a considered argument, I am not inclined to draw any final conclusion on the point. 
  1. [394]
    Irrespective, I would be disinclined to exercise the discretion to issue the declarations sought by the Applicant.  As was identified in Ainsworth v Criminal Justice Commission[282] declarations are not generally issued where the determination would have no practical relevance or utility or where the application deals with abstract or hypothetical issues.
  1. [395]
    Once construed, and if found to be not compatible with the Applicant's human rights, there is no tangible or enforceable outcome. As Lord Diplock observed in Anisminic Ltd v Foreign Compensation Commission[283] "the jurisdiction ... to give declaratory judgments is limited to declaring the existence of legally enforceable rights or liabilities".
  1. [396]
    Finally, it needs to be borne in mind that s 13 of the HR Act articulates a proportionality principle by which a human right may be subject under law to "reasonable limits that can be demonstrably justified in a free and democratic society".[284] Whether a limit on a human right is reasonable and justifiable may, pursuant to s 13(2), involve balancing "the importance of the purpose of the limitation" and "the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right".[285]
  1. [397]
    In my view, there was no incompatibility demonstrated by the Applicant in respect of the issuing of the Show Cause Notice.  The Show Cause Notice was lawfully issued pursuant to s 187 of the PS Act; its purpose related to disciplinary action which was preferable to the maintenance of proper standards of conduct.  As expressed elsewhere, the rationale for the disciplinary scheme in the PS Act is underpinned by a recognition that the Applicant is both an employee and a public service employee; and is justifiable by the need to protect the reputation of the public service; and securing the mode of administering intra‑service discipline itself which is efficient, equitable and proper.[286]

Conclusion

  1. [398]
    In short, the Applicant claimed the following conduct contravened the IR Act, and the HR Act:
  1. (a)
    issuing a Department of Health Memorandum on 13 March 2019 which misrepresented the rights of the Applicant to be represented by her chosen industrial association and trade union, the Nurses Professional Association of Queensland (NPAQ);
  1. (b)
    placing the Applicant on a Notice to Show Cause which commenced a disciplinary process as a consequence of an article that was published on 24 November 2019, in the Courier/Sunday Mail which attributed comments to the Applicant; and
  1. (c)
    withdrawing the Show Cause on 19 February 2020.
  1. [399]
    There are two allegations of adverse action said to have been taken because of a workplace right in breach of s 285 or s 291 of the IR Act:
  1. (a)
    issuing the Memo was itself adverse action taken against the Applicant because she was an officer or member of NPAQ;[287] and
  1. (b)
    delivering the Show Cause to the Applicant was adverse action taken because she had engaged in industrial activity on behalf of NPAQ.[288]
  1. [400]
    The Applicant submits the evidence adduced at the hearing proves the First Respondent took adverse action against the Applicant by issuing the Memorandum of 13 March 2019 and putting her on a Notice to Show Cause.[289]
  1. [401]
    In accordance with s 282 of the IR Act, the expression "adverse action" can only be taken against an employee by the employer for a proscribed reason, or for reasons that included a proscribed reason.  Where the particular reason is one of a number of reasons for which the adverse action is taken, it must be a "substantial and operative factor" as to constitute a "reason", potentially among many reasons, or must be an "operative or immediate reason for the action".[290] It must consist of treatment which can be seen to be injurious or prejudicial, and substantially different to the manner in which he or she is ordinarily treated.[291]
  1. [402]
    It is accepted that the Applicant must first prove that her employer took adverse action against her and that she had, and exercised, workplace rights.  Thereafter, it is presumed that the adverse action was taken for the proscribed reason unless the Respondents prove that their reasons did not include the proscribed reason.[292]
  1. [403]
    It must be further established that the Applicant has a "workplace right", or has exercised or not exercised such a right, or proposes to or proposes not to, exercise such a right.
  1. [404]
    Section 285 of the IR Act provides that a person has a "workplace right" if, among other things, the person "is entitled to the benefit of" an "industrial law". Industrial law is defined to mean: (a) this Act; (b) or another Act regulating the relationships between employers and employees.
  1. [405]
    With respect to each alleged instance of adverse action, the Applicant must establish that:
  1. (a)
    the alleged workplace rights which are relied upon fall within the scope of s 284 of the IR Act (as only workplace rights under s 284 of the IR Act are captured by the general protections regime);[293] and
  1. (b)
    the Applicant exercised the workplace rights relied upon in the way alleged (as the Applicant bears the onus of establishing the factual existence of the circumstances which are alleged to have been the reason for taking the alleged adverse action).[294]
  1. [406]
    The term "because" in s 285 of the IR Act connotes the existence of a particular reason, being an operative and immediate reason, for taking adverse action.[295]
  1. [407]
    Fundamental to the Applicant's case is its contention that the NPAQ was a "trade union" and was an "industrial association" within the meaning of the IR Act.
  1. [408]
    Whilst the IR Act does not provide a definition of "trade union activity" the Applicant urged the Commission, having regard to the Applicant's activities, inter alia, representing and advocating on behalf of NPAQ members, to accept that the NPAQ was a trade union for the purposes of the IR Act.
  1. [409]
    However, for the reasons advanced above, I have formed the view that the NPAQ is neither an "industrial association" nor is it a "trade union".
  1. [410]
    The terms "association" or "union" connote a relationship among persons "associated"' or "united" for a common purpose or to share a common interest.  These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality.[296]
  1. [411]
    I accept that the term "trade union" does not mean an entity with some distinct corporate personality from that of its individual members.
  1. [412]
    The NPAQ's Constitution establishes something other than an organisation of employees. Under the NPAQ's Constitution, there are a number of classes of membership, none of which have as a requirement the need to be an employee. 
  1. [413]
    What is established is not, in my view, an association of employees. What is created is an incorporated body under the AIA Act.  The NPAQ has a legal status independent of its members.
  1. [414]
    On a proper interpretation of the IR Act, NPAQ is not an "industrial association" and, as a result, the Applicant cannot establish that she "[engaged] in industrial activity" for or on behalf of one.
  1. [415]
    It was alleged that the Show Cause Notice was delivered to the Applicant by the First Respondent because it was alleged that she engaged in "trade union activity" and therefore the Respondent has contravened s 295 of the IR Act. It was not.
  1. [416]
    In my view the NPAQ is not a "trade union".  NPAQ's legal personality and corporate status are inconsistent with that of a typical "trade union" and its history is not in any sense typical of a "trade union".
  1. [417]
    It must follow therefore that the Applicant could not have engaged in "trade union activity" on the basis that the NPAQ is not a trade union.[297]
  1. [418]
    I am satisfied that even if it could be concluded that the Applicant's activity could be properly categorised as being "industrial activity" or "trade union activity", the activity was not a substantial and operative factor in the reason or reasons for doing so; the Show Cause Notice reveals that each of the allegations that the Applicant was asked to respond to was founded upon contraventions by the Applicant of her employment obligations; and the activity was not a substantial and operative factor in the Second Respondent's reason or reasons for sending the Show Cause Notice. The evidence of Ms Gardner supports the conclusion that the issuing of the Show Cause was not because of the Applicant's trade union activity.
  1. [419]
    The same reasoning applies equally to the allegation that issuing the Memorandum was itself adverse action taken against the Applicant because she was an officer or member of NPAQ.
  1. [420]
    Importantly, there needs to be a connection between the reason, or reasons as found and the adverse action which arises from the presence of the word "because" in s 285 of the IR Act which prohibits a person from taking adverse action "because" a person has a "workplace right", or because the person has, or has not, proposes to exercise, or proposes not to exercise, such a right.
  2. [421]
    The meaning of the term "because" in s 285 of the IR Act connotes the existence of a particular reason, being an operative and immediate reason, for taking adverse action.[298]
  1. [422]
    In Hammond v Department of Health,[299] the Industrial Commission of New South Wales in Court Session, considered an allegation that the respondent contravened s 95 of the Industrial Arbitration Act 1940 (NSW) by injuring an employee in her employment or altering her position to her prejudice by reason of her membership of an industrial union. The Commission held:

We are of the view that, when determining whether a prima facie case has been made out that an employer has injured a person in his employment, or altered that person's position to his prejudice, an objective view must be taken.  We can understand and, indeed, sympathise with an employee when a change in position results, in the employee's view, in less job satisfaction than he was formerly experiencing.  But if that were the only "injury" or "prejudice" which the employee suffers, it would be insufficient, in our view, to bring the employer within the purview of s. 95 of the Act.[300]

  1. [423]
    The expression "injure[s] the employee in his or her employment", was considered by Spender J in Commonwealth Bank of Australia v Finance Sector Union of Australia.[301]  His Honour referred with approval to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:

I cannot help thinking that "injury" refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.[302]

  1. [424]
    In Maritime Union of Australia v Fair Work Ombudsman, Bromberg J considered the meaning to be given to "in his or her employment" in subsection 1(b) of s 342(1) of the FWA.  His Honour held:

The word "in" has a different purpose. It requires that the effect be located in the person's employment. It identifies that there must be a nexus between the effect and an advantage enjoyed by the person which that effect has prejudicially altered. The advantage affected must be an advantage enjoyed in the person's employment. The word "in" connotes that the advantage must derive from the employment. If a mere relation, as distinct from a derivational relation, between the employment and the advantage had been intended, the familiar statutory phrase "in or in connection with", or perhaps just "in connection with", would likely have been utilised. The preposition "in" operates by way of limitation.[303]

  1. [425]
    In Australian Workers' Union v BHP Iron-Ore Pty Ltd[304] Kenny J said in respect of the equivalent provision in the FW Act that before a provision such as item 1 of s 342(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them, that the deterioration has been caused by those acts and that the acts were intentional in the sense that the employer intended the deterioration to occur.[305]
  1. [426]
    In McIlwain v Ramsey Food Packaging Pty Ltd,[306] Greenwood J said that when injury to an employee in his or her employment or the alteration of an employee's position to his or her prejudice is alleged, an assessment of the impugned conduct calls for a comparison of the position of the employee before and after the employer's acts to determine the nature of the injury or prejudicial alteration.[307]
  1. [427]
    Further, to be adverse action, it must consist of treatment which can be seen to be injurious or prejudicial, and substantially different to the manner in which he or she is ordinarily treated.[308]
  1. [428]
    In respect of the issuing of the Memorandum, the Respondents submit the Applicant was not dismissed, she was not injured in her employment in the relevant sense by the Memorandum nor can the Memorandum be said to have altered her position to her prejudice in any "real and substantial, rather than merely possible or hypothetical" way.  The Applicant's allegation that the delivery of the Memorandum, " … [rendered the Applicant] liable to disciplinary actions should she fail to comply with its terms as to union representations" goes beyond what the Memorandum actually says and is unsupported by evidence.
  1. [429]
    At the highest, the evidence of the Applicant in respect of receiving the Memorandum was as follows:
  1. I was provided with the memo on or about 13 March 2019 by Linda Briggs Acting Nursing Director, while I was swiping into my office during the day.
  1. This memo made me feel that my voice was being silenced. I was afraid that I would no longer be able to act on behalf of the NPAQ and raise issues related to the workplace.
  1. This feeling of being silenced, restrained, and limited in my capacity to act as a delegate for the NPAQ made me consider the need to speak with the media so as to be heard with respect to workplace issues.[309]
  1. [430]
    In respect of the Show Cause Notice, the Applicant deposed as follows:
  1. The show cause, in addition to the memo, made me feel punished for acting on behalf of the NPAQ and more restrained from acting as a delegate of the NPAQ in the future.

…

  1. A reprimand being placed on my file, or the alteration of my employment, may make my employment less secure and injure my employment.
  1. Any of the actions that may result from the show cause would be adverse to my employment.[310]
  1. [431]
    When determining whether an injury has occurred, an objective view must be taken: the employee's subjective view alone is insufficient to make out an injury.[311]
  1. [432]
    Moreover, the prejudicial alteration must be real and substantial, rather than merely possible or hypothetical.[312]
  1. [433]
    On the evidence before the Commission it cannot be said that the Applicant is worse off in her employment as a consequence of her employer's alleged acts. There must be a nexus between the effect and an advantage enjoyed by the person which that effect has prejudicially altered. The advantage affected must be an advantage enjoyed in the person's employment. The word "in" connotes that the advantage must derive from the employment.[313]
  1. [434]
    It would appear from the evidence, in particular, Mr McGuire's evidence and from his perspective, the Applicant's activities as branch secretary had continued, notwithstanding the issue of the Memorandum and the Show Cause Notice.[314]  Indeed, the Applicant's own evidence in this regard was to the effect that her activities as branch secretary had continued, in more or less the same way, to the present day.[315]
  1. [435]
    In my view, the Applicant has failed to demonstrate how each alleged matter altered her position to her detriment.
  1. [436]
    Based on the authorities, the issue is whether the Respondent has satisfied me that none of the reasons for the issuing of the Show Cause Notice or Memorandum included a proscribed reason. 
  1. [437]
    The Applicant advanced the argument that there were multiple decision makers in respect of the decision to issue the Show Cause Notice.  In her submissions, the Applicant alleged Alana Geary, Judyann Stevens, Cherie Franks and Brett Bourke as persons who were relevantly involved.  The Applicant did not plead nor particularise any of them as decisions makers in her SFCs.  This is not the case the Respondents foreshadowed or were expected to meet.
  2. [438]
    As was observed in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,[316] the Full Court of the Federal Court held that an applicant must plead or particularise the identity of the officials whose state of mind is relied upon.  The Applicant did not do so.
  1. [439]
    In respect to the issuing of the Memorandum and Show Cause Notice, Mr Simmons and Ms Gardner gave evidence and were cross‑examined as to their reasoning. 
  1. [440]
    Even if the reverse onus was engaged, the following evidence of Mr Simmons demonstrates, in my view, the reasons for issuing the Memorandum did not include any unlawful reasons:
  1. I approved the Memorandum because I was satisfied that the Memorandum was informed by the provisions of the Industrial Relations Act 2016 (IR Act) and was an accurate reflection of the law at the time. I was satisfied that the contents of the Memorandum had been properly considered and reviewed by the appropriate people before coming to me for my review.[317]
  1. [441]
    Equally, in respect of the issuing of the Show Cause Notice, Ms Gardner's evidence was consistent, "the reason I did it was, she was representing the Hospital, and speaking on behalf of the Hospital … if she had just said these things in her own personal capacity, or if she had said them on behalf of the NPAQ it wouldn't have been a problem".[318]
  1. [442]
    In respect of the Show Cause Notice I accept that pursuant to s 282(6) of the IR Act, the issuing of the Show Cause by the Second Respondent in reliance on s 187 of the PS Act was "authorised" under the law of the State.[319]  The effect of s 282(6) of the IR Act is that even if the alleged conduct falls within the meaning of "adverse action" as defined in s 282(1), s 282(6) provides that such action is not adverse action if the action "is authorised under" the Act.
  1. [443]
    The Applicant alleges the First Respondent was involved in the Third Respondent's contravention of ss 287, 289 and 295 of the IR Act because it caused the Memorandum of 13 March 2019 to be personally delivered to the Applicant.[320]  It is alleged against the Second Respondent that she was involved in the First Respondent's contravention of ss 285, 287, 291 and 295 of the IR Act, by issuing the Show Cause on 8 January 2020.  Finally, it is alleged against the Fourth Respondent that he was involved in the Third Respondent's contravention of ss 287, 289 and 295 of the IR Act, because he caused the Memorandum of 13 March 2019 to be issued.
  1. [444]
    In order to establish accessorial liability, the Applicant must establish actual knowledge on behalf of the alleged accessory of each of the essential elements of the offence.  The Applicant must show that the relevant Respondents knew of the proscribed intention.
  1. [445]
    Absent clear evidence of knowledge on behalf of the alleged accessories, the Applicant cannot succeed in attributing liability for the purposes of s 571 of the IR Act.
  1. [446]
    The Applicant has adduced no evidence or argument as to the treatment of a relevant comparator and no evidence or argument sufficient to support a finding of less favourable or different treatment.  The evidence does not support any conclusion that sending the Memorandum constituted adverse action.
  1. [447]
    The Applicant submits that Ms Gardner's explanation of her reasons for putting the Applicant on a Show Cause is contrary to the evidence in this matter and fails to rebut the presumption in accordance with s 306 of the IR Act and it was the Applicant's industrial activity that was the "substantial or operative factor" influencing the adverse action, or alternatively, that it was an "operative or immediate" reason for acting.[321]
  1. [448]
    The Applicant submits for the reasons set out, the First Respondent contravened s 291 of the IR Act by taking adverse action against her for engaging in industrial activity as a representative of the NPAQ and on behalf of NPAQ members.[322]
  1. [449]
    The Applicant's cross-examination of Ms Gardner included questioning in respect of the Show Cause Notice.[323]  This cross-examination appears to suggest that because Ms Gardner had matters to do with the Applicant's involvement with NPAQ "in her mind" when issuing the Show Cause Notice, they were a substantial and operative reason for the action she took.  However, as was illustrated in Barclay[324] and BHP Coal[325] it is not necessary to entirely dissociate the adverse action from the protected attribute. 
  1. [450]
    The task of the Commission is to determine whose mind or minds were the operative mind in making the decision, based on the whole of the evidence and consider the reasoning of each party.[326]
  1. [451]
    The Applicant has made allegations of misrepresentation against the First and Third Respondents in breach of s 289 of the IR Act. In order to engage s 289 of the IR Act it must be shown that the false or misleading representation was made "knowingly or recklessly". The state of mind required by s 289(1) of the IR Act attaches to the false or misleading quality of the representation, not the act of the making of the representation.  What the Applicant is required to establish is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth.
  1. [452]
    The evidence before the Commission does not, in my view, establish that either the First Respondent or the Third Respondent have made false representations regarding the status of the NPAQ and that these were made recklessly.
  1. [453]
    The Applicant has further sought to bring a claim against the First Respondent that by issuing the Show Cause Notice, the Applicant was coerced into not exercising a workplace right; namely to engage in industrial activity in contravention of s 287 of the IR Act.  In respect of the Third Respondent it was alleged that issuing and distributing the Memorandum was done so with the intent to coerce the Applicant in contravention of s 287 of the IR Act. I can only assume that the Applicant contends that the coercion alleged relates to the exercising of a workplace right.
  1. [454]
    In order to establish coercion, the Applicant must establish conduct that is compulsive in the sense that the pressure brought to bear, in a practical sense, negates choice; and is unlawful, illegitimate, or unconscionable.[327]
  1. [455]
    I do not accept that the evidence before the Commission supports a conclusion that the issuing of the Memorandum by the First Respondent or the Show Cause Notice by the Third Respondent was made with intent to negate the Applicant's choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable. Moreover, I cannot accept that the evidence supports a conclusion that they had actual knowledge of the circumstances that made their conduct coercive.
  1. [456]
    The Applicant alleged that delivering the Show Cause Notice to her was discrimination in contravention of s 295 of the IR Act.[328]  For the reasons advanced elsewhere it was not.  The Applicant has not established that the activity in which she engaged was "trade union activity" and therefore could not be the subject of the protected attribute; the Applicant has not established the Second Respondent would not have sent the Show Cause Notice to an employee without the attribute; and the purported "trade union activity" was not a substantial or operative reason for the issue of the Show Cause Notice.
  1. [457]
    The Applicant relies, in her closing submissions,[329] on her submissions in reply[330] to demonstrate that the Respondents failed to comply with the mandatory requirements of HR Policy E10[331] and this invalidated the Show Cause process.[332]  It did not.
  1. [458]
    Much of the Applicant's cross-examination of the Respondents' witnesses went to issues of procedural fairness.[333]
  1. [459]
    However, the implied procedural fairness criticisms are not relevant to the application and are not shown in the Applicant's SFCs.  It is not alleged that any procedural fairness shortcoming was adverse action taken for a prohibited reason or that any procedural fairness shortcoming breached the AD Act or the HR Act.
  1. [460]
    The witnesses provided answers in the face of these implied procedural fairness criticisms.  Management action was considered, but a Show Cause process deemed more appropriate.[334]  The employer was reasonably satisfied that the relevant conduct had occurred and was worth putting the allegations to the Applicant for her response.[335]
  1. [461]
    This is not a complex factual situation.  The allegation against the Applicant, at its simplest is that the Code of Conduct places an obligation on public servants when commenting to the media.  In particular, Clause 1.4 serves to clarify that, "workplace representatives or officials of a trade union … are not required to seek permission from [the employer] before speaking publicly in that capacity" but that when they do, they "will make it clear that [the] comments are made only on behalf of that organisation".  What is alleged against the Applicant is that she was in breach of that clause by giving the Sunday Mail interview.  On the face of the Article, the Applicant was identified and commented as a senior nurse who works for TPCH.
  1. [462]
    As the evidence indicates, an assessment phase did take place in which the question of whether the Applicant may have breached s 187 of the PS Act was addressed.
  1. [463]
    In applying HR Policy E10, the obligation rests on the delegate.  The evidence of Ms Gardner was clear. Ms Gardner refreshed herself on the relevant policy; she considered whether management action should be taken but decided against it; she made inquiries of Ms Horbury, the Applicant's normal line manager, regarding whether the Applicant had sought authorisation prior to the Sunday Mail publication, she had not.  The inquiries were undertaken by Ms Gardner in the days following the publication but before she made the determination to commence the Show Cause process. 
  2. [464]
    The Applicant contends, in reliance on Wirth[336] that she was denied natural justice in the antecedent steps taken by the Respondents; namely, the Show Cause Notice.  However, the antecedent decision referred to by Bond J in Wirth was what his Honour described as the "the disciplinary findings decision" that is the decision which was antecedent to the s188 process of deciding what particular disciplinary action to impose.  The first decision is whether the allegation that the employee breached s 187 of the PS Act has been proven.
  1. [465]
    It is the Show Cause Notice which commences the disciplinary process.  This is reflected in HR Policy E10 which provides, "[t]he principles of natural justice must be applied when undertaking the disciplinary process.  Natural justice must be afforded before making a decision on an allegation and any disciplinary action".  The schedule to HR Policy E10 contemplates a show cause process in which allegations are put to the employee in the form of a Show Cause Notice.  It treats separately the question of the decision whether allegations have been established and the decision as to the disciplinary action which should occur.[337]
  1. [466]
    From what can be ascertained from the SFCs and the final relief sought, the Applicant seeks to pursue a claim under the HR Act in respect of her rights to freedom of expression (s 21 of the HR Act) and freedom of association (s 22 of the HR Act).[338]  However, it does not appear that the Applicant continues with a claim under s 15 of the HR Act.[339]
  1. [467]
    The question that the Commission needs to consider is whether '…the act or decision of a public authority places limitations or restrictions on, or interferes with, the human rights of a person'.[340]  For the reasons advanced above, I do not consider that the Applicant's rights under either ss 21 or 22 of the HR Act have been breached.
  1. [468]
    Human rights are engaged when a public authority makes a decision affecting or acts towards a person in a way which apparently limits their human rights.[341]  If a human right is engaged, the question whether the decision or conduct is compatible with human rights will depend on whether any limitation is demonstrably justified according to the general limitations provision.[342]
  1. [469]
    It needs to be borne in mind that s 13 of the HR Act articulates a proportionality principle by which a human right may be subject under law to "reasonable limits that can be demonstrably justified in a free and democratic society".[343]  Whether a limit on a human right is reasonable and justifiable may involve, pursuant to s 13(2), balancing "the importance of the purpose of the limitation" and "the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right".[344]
  1. [470]
    Equally, the purpose of protecting and promoting freedom of association is balanced against: (a) an employer's right to regulate the conduct of their employees in relation to each other, and (b) an employer's duty to do so under the general law.[345]
  1. [471]
    In respect of freedom of expression, Ms Gardner's evidence, which I accept, points out that the Show Cause Notice was issued not to limit the Applicant's freedom of expression but was in her view a proper and appropriate step for her to take to deal with the Applicant's alleged conduct.
  1. [472]
    The Show Cause Notice issued to the Applicant relevantly refers to clauses 1.2 (Manage conflicts of interest); 1.3 (Contribute to public discussion in an appropriate manner); and 1.5 (Demonstrate a high standard of workplace behaviour and personal conduct) of the Code of Conduct.  The code is made pursuant to the PSE Act.  The purpose and nature of the codes is expressed in s 10 of the PSE Act in the following terms:

10 Nature and purpose of codes

  1. (1)
    In recognition of the ethics principles and values for public service agencies, public sector entities and public officials, codes of conduct are to apply to those agencies, entities and officials in performing their official functions.
  1. (2)
    The purpose of a code is to provide standards of conduct for public service agencies, public sector entities and public officials consistent with the ethics principles and values.
  1. [473]
    The Code of Conduct serves a legitimate and proper purpose. To use the words of the High Court in Banerji the purpose is '…the maintenance and protection of an apolitical and professional public service'.[346]
  1. [474]
    Notwithstanding the above view, I am disinclined to exercise the discretion to issue the declarations sought by the Applicant.  I am of the view that the declarations sought in reliance on the HR Act would have no practical relevance or utility.[347]  The jurisdiction to give declaratory judgments is limited to declaring the existence of legally enforceable rights or liabilities.[348]
  1. [475]
    The Respondent argues that the Applicant has attempted to impermissibly expand its case beyond that which is contained in the application and the SFCs filed in the Commission.
  2. [476]
    It is misconceived for the Applicant to submit, in apparent reliance on s 447(2) of the IR Act, that the Commission is not bound by technicality or form and must perform its functions in a way that is consistent with the objects of the Act; and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act.
  1. [477]
    It must be accepted that where the Commission orders the filing of SFCs they serve to alert the other party to the case it will have to deal with and it identifies the issues which exist and, in turn, allows for a confinement of the matters in dispute.  Subject always to the Commission's power to allow appropriate amendments, a party will be bound by its SFCs and may not lead evidence or make submissions which are not relevant to the identified issues.
  1. [478]
    Whilst it is to be appreciated that in the Commission a SFC is not attended with the same level of formality as pleadings are, in the traditional sense.  In this matter, the Commission has, consistent with the provisions of s 531 of the IR Act, required the parties to provide an outline of their respective cases.[349]
  1. [479]
    As was observed by Martin J in Carlton v Blackwood (Carlton):

An appellant's case has to be known before the hearing starts.  The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument.  If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions.  The Commission can then decide whether or not to allow such an amendment.[350]

  1. [480]
    It is consistent with the requirements of s 531 of the IR Act for a party in a proceeding under the IR Act to set out its case by way of a SFC.  As was expressed by Martin J in Carlton, the SFC serves to alert the other party to the case it will have to deal with and identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. It serves also to assist the Commission in knowing the nature and extent of the matter it is being called upon to adjudicate.

Disposition

  1. [481]
    For the reasons set out above, I have formed the view that the general protections claimed pursuant to the IR Act must fail.  Critically, the Applicant did not have the claimed workplace rights or protections.  Irrespective, the evidence does not support a conclusion that the relevant conduct of the Respondents relied upon by the Applicant was unlawful.  Finally, the claim based in reliance on the HR Act must equally fail. 
  1. [482]
    It follows therefore that the application should be dismissed.

Orders

  1. [483]
    I make the following orders:
  1. The Application is dismissed.
  2. I will hear the parties on any further orders to be made.

Footnotes

[1] TR1-2, LL31-40.

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

[3] Respondents' Outline of Submissions filed 22 June 2020, para 5.3.

[4] Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341 AT [44]; United Firefighters Union of Australia v Easy [2013] FCA 763, [41].

[5] Australian Workers' Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482, [54].

[6] Hammond v Department of Health & Anor (1983) 6 IR 371, 375-6.

[7] Jones v Queensland Tertiary Admissions Centre Ltd (No 2), 186 FCR 22, [64] citing Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1988) 195 CLR 1, the majority at 18.

[8] Community & Public Sector Union v Telstra Corporation Ltd [2001] 107 FCR 93, [18].

[9] Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341, [66];  Construction, Forestry, Mining and Energy Union v Corinthian Industrial (Australia) Pty Ltd [2014] FCA 239, [18];  Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14, [35]-[36].

[10] Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341 AT [44]; United Firefighters Union of Australia v Easy [2013] FCA 763, [41].

[11] Respondents' Outline of Submissions filed 22 June 2020, para 2.11.

[12] Respondents' Outline of Submissions filed 22 June 2020, para 2.14 (a);  Cavar v Nursing Australia [2012] FCA 338, [15].

[13] Respondents' Outline of Submissions filed 22 June 2020, para 2.14 (b);  Tattsbet Ltd v Morrow (2015) 233 FCR 46, [119];  Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273, [76];  United Firefighters Union of Australia v Easy [2013] FCA 763, [41].

[14] Not referred to in the Application.  See Applicant's SFCs, [41].  Not referred to in the Applicant's Outline of Submissions filed 8 June 2020.

[15] See Application, [10]-[13].  See Applicant's SFCs, [43]-[48]; See Applicant's Outline of Submissions filed 8 June 2020, [12], [20], [61].

[16] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32;  Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243.

[17] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32; (2012) 248 CLR 500.

[18] (2014) 253 CLR 243.

[19] (2015) 231 FCR 150, [32].

[20] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, [92].

[21] [2017] FCA 1046, [307].

[22] Applicant's Closing Submissions dated 19 March 2019, [2.94]-[2.96].

[23] Respondents' Outline of Submissions filed 22 June 2020, para 2.23.

[24] [2013] FCA 763, [41].

[25] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32; (2012) 248 CLR 500.

[26] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32; (2012) 248 CLR 500, [44]-[45].

[27] (1976) 12 ALR 605; 51 ALJR 235.

[28] (1976) 12 ALR 605, [616]; 51 ALJR 235, [241].

[29] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647, [127].

[30] (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647, [146].

[31] This was pleaded in the Applicant's SFCs; not referred to in the Application or the Applicant's submissions.

[32] Applicant's SFCs, paras 43-48.

[33] IR Act 2016, s 306.

[34] Respondents' Outline of Submissions filed 22.06.20, para 1.13.

[35] IR Act 2016, s 279(b); Exhibit 3, Affidavit of Jack Henry McGuire affirmed 6 February 2020, [4]-[6].

[36] QNMU Submissions filed 26 June 2020, para 97.

[37] Re:  McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (McJannet) (1995) CLR 620, 629, cited in Association of Consulting Surveyors (Queensland) Ltd. [1999] QIC 2;  160 QGIG 80.

[38] Association of Consulting Surveyors (Queensland) Ltd. [1999] QIC 2; 160 QGIG 80.

[39] IR Act 2016, Schedule 5 (definition of 'association').

[40] Exhibit 4, Affidavit of Phil Tsingos affirmed 5 May 2020, PT-03 'Association Constitution', [25](2)(3).

[41] TR7-26, LL44-46.

[42] TR7-28, LL4-6.

[43] Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 001, [27].

[44] (1986) 160 CLR 156.

[45] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622.

[46] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, [29].

[47] (1997) 191 CLR 1, [12].

[48] The 'note' at the end of s 279 of the IR Act refers to this definition of 'organisation' in Schedule 5.

[49] TR7-22, LL23-28; Exhibit 3, Affidavit Phil Tsingos affirmed 5 May 2020, PT03.

[50] TR7-22, L33 – TR7-23, L13.

[51] TR7-28, LL4-15.

[52] [2008] FCAFC 135.

[53] TR7-25, LL4-6.

[54] TR7-25, LL9-16.

[55] QNMU's Submissions dated 26 June, [82].

[56] The Queen v Rockhampton Fire Brigade Board [1974] QSCFC 25,1.

[57] [1974] QSCFC 25.

[58] The Queen v Rockhampton Fire Brigade Board [1974] QSCFC 25.

[59] [1995] FCA 1159.

[60] Norseman Amalgamated Distress and Injustices Fund v the Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1159, [19]-[21].

[61] Re: McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland) (1995) CLR 620, 639-640.

[62] TR4-26, LL9-15.

[63] See Respondents' Outline of Submissions filed 22 June 2020, section 2E(i), p 51.

[64] TR4-25, L1 – TR4-31, L38; Exhibit 5.

[65] Exhibit 3, Affidavit Jack McGuire affirmed 6 February 2020, [5].

[66] TR4-16, L13 – TR4-18, L46.

[67] TR4-18, LL43-46.

[68] TR4-17, LL35-44.

[69] Exhibit 4, Affidavit Phil Tsingos affirmed 5 May 2020, paras [17]-[18].

[70] Exhibit 14, Affidavit Theresa Hodges sworn 19 May 2020, [12]-[19].

[71] [1995] FCA 1159.

[72] Exhibit 3, Affidavit Jack McGuire affirmed 6 February 2020, [1].

[73] Applicant's Outline of Submissions filed 8 June 2020, para 6.

[74] Applicant's Outline of Submissions filed 8 June 2020, para 4.

[75] TR4-72, LL29-35; TR5-41, LL18-31.

[76] See Respondents' Outline of Submissions filed 22 June 2020, section 2D(ii).

[77] To the extent that there was any room for confusion, this was clarified again by the subsequent comment provided by the Third Respondent to the Courier Mail on 26 March 2019 in response to a request for comment.

[78] TR4-43, LL36-45; TR4-49; TR4-55, LL36-39; TR4-56, LL6-8; TR4-56, LL25-30; TR4-59, LL43-46; TR4-65, LL39-41.

[79] Exhibit 9, Affidavit of Silven Simmons sworn 19 May 2020.

[80] Ibid.

[81] TR4-59, LL3-9.

[82] Exhibit 6, document 4.

[83] TR4-46, L41 – TR4-47, L27; TR4-48, LL20-22.

[84] TR4-64, LL19-26 and LL18-25.

[85] Exhibit 1, Affidavit of Margaret Gilbert affirmed 6 February 2020, MG-04.

[86] Respondents' Outline of Submissions filed 22 June 2020, para 2.95.

[87] [2019] QIRC 132.

[88] Ibid [47].

[89] Ibid [48]; Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) 1998 195 LCR 1, [4].

[90] Angela Banovic v State of Queensland, Department of Education [2019] QIRC 132, [49]; (1982) 2 IR155, [164].

[91] Angela Banovic v State of Queensland, Department of Education [2019] QIRC 132, [50].

[92] Exhibit 7; TR5-62, LL31-44.

[93] Exhibit 7.

[94] TR5-62, L42 – TR5-63, L9.

[95] TR5-63, LL3-16.

[96] TR5-76, LL33-40.

[97] TR5-81, LL16-17.

[98] TR5-84, LL31-43.

[99] Applicant's Outline of Submissions filed 8 June 2020, [71]-[86].

[100] [2015] FCA 1014.

[101] (2001) 129 IR 251; [2001] FCA 1804.

[102] [2019] FCAFC 215.

[103] Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited (Clermont) [2015] FCA 1014 [121].

[104] Ibid.

[105] [2001] FCA 1804; (2001) 129 IR 251.

[106] Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) at 260 [37].

[107] Ibid.

[108] Ibid.

[109] [1987] FCA 732, 84-85, cited in NTEU, [28].

[110] [1987] FCA 732, 84-85.

[111] Clermont, [121], referring to Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251, [37].

[112] [2017] FCAFC 50, [62]

[113] Ibarra Campoverde v Regional Health Care Group Pty Ltd [2017] FCCA 1502, [76].

[114] Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321, [223].

[115] Exhibit 10, Affidavit Alanna Geary sworn 18 May 2020, paras [12]-[22];  Exhibit 11, Affidavit Cherie Franks, sworn 19 May 2020, paras [19]-[36];  Exhibit 15, Affidavit Judyann Stevens sworn 12 June 2020, paras [8]-[27].

[116] See Parer v State of Queensland (Department of Justice and Attorney-General) (No 4) [2016] QIRC 123, [347].

[117] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020,  paras [3], [4], [16] and annexure MG-1.

[118] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, [18].

[119] Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 at 260 [37].

[120] Ibid.

[121] TR7-15, LL30-32.

[122] Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (Clermont) (2015) 253 IR 166, [210].

[123] National Tertiary Education Union v Royal Melbourne Institute of Technology (NTEU) (2013) 234 IR 139, [29]; Clermont, [122].

[124] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020.

[125] TR6-17, LL33-44.

[126] TR6-24, L27 – TR6-25, L16; TR6-27, LL26-36; TR6-28, L15 – TR6-29, L7.

[127] TR6-42, LL5-6.

[128] TR6-9, LL18-23.

[129] TR6-10, L26 – TR6-11, L9.

[130] TR6-12, LL18-27.

[131] TR6-13, LL20-44.

[132] TR6-15, LL18-26.

[133] TR6-42, LL28-29.

[134] TR6-29, LL1-46.

[135] TR5-58, LL7-16.

[136] TR5-62, LL21-26.

[137] TR5-62, LL21-29.

[138] TR5-67, LL9-11.

[139] TR5-73, LL11-13; TR5-81, LL8-35; TR5-82, LL4-11; TR5-84, LL21-31.

[140] TR5-12, L30 – TR5-13, L6.

[141] TR5-25, LL1-5.

[142] TR5-71, L39 – TR5-72, L9.

[143] TR4-85, LL1-10; TR4-92, LL7-13; TR4-97, LL16-21.

[144] TR4-94, LL13-20; TR4-98, LL18-29.

[145] TR4-84, LL5-11; TR4-98, LL39-43.

[146] TR4-94, LL16-21.

[147] TR4-98, LL21-29.

[148] TR4-87, LL14-17.

[149] TR4-90, LL6-11.

[150] TR4-92, L34-37.

[151] TR4-98, LL42-43.

[152] Applicant's Closing Submissions filed 7 September 2020, para 12.

[153] IR Act 2016, s 282(1)(b).

[154] [2008] FCA 467, [42].

[155] [2008] FCA 467; IR Act 2016, s 282(1)(c).

[156] Police Federation of Australia v Nixon [2008] FCA 467, [48].

[157] (2010) 186 FCR 22.

[158] (2010) 186 FCR 22, [81].

[159] [2008] FCA 467.

[160] Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462, [40] citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 369 per Mason CJ and Gaudron J.

[161] Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462, [47].

[162] Ibid, [53].

[163] Ibid, [67].

[164] Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462, [46].

[165] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [25].

[166] Ibid.

[167] Ibid, [40].

[168] (2015) 90 ALJR 25; [2015] HCA 40.

[169] Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 24 CLR 1; 195 ALR 502.

[170] Minister for Immigration and Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40, [35]-[36].

[171] Ibid, [57], [61].

[172] (2003) 214 CLR 1; 195 ALR 502, [34].

[173] Applicant's Submission in Reply dated 25 June 2020.

[174] Applicant's Closing Submissions dated 4 September 2020, [252].

[175] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [25]-[26].

[176] Ibid, [33]

[177] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [25].

[178] TR6-9, LL18-23.

[179] TR6-10, L26 – TR6-11, L9.

[180] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, [19].

[181] (2008) 236 CLR 163, [34]-[35]. The High Court expressly indicated at [34] and footnote 97 that these views apply generally to public service legislation in Australia.  The High Court endorsed the observations of Finn J in McManus v Scott-Charlton (1996) 70 FCR 16, 24–25.

[182] (2008) 236 CLR 163, [34]-[35].

[183] (2008) 237 CLR 146, [55].

[184] [1996] FCA 1536.

[185] Ibid.

[186] Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224, [24], [25].

[187] Hammond v Department of Health & Anor (1983) 6 IR 371, 375-6.

[188] Exhibit 1, Affidavit Margaret Gilbert affirmed 7 February 2020, [21], [34], [41]-[44].

[189] TR4-6, LL22-25; TR4-7, L1 – TR4-8, L30.

[190] TR4-6, LL36-38.

[191] TR4-5, LL14-24.

[192] Exhibit 1, Affidavit Margaret Gilbert affirmed 7 February 2020, [43]-[44].

[193] See for example Exhibit 11, Affidavit Cherie Franks sworn 19 May 2020, [23]; Exhibit 15, Affidavit Judyann Stevens sworn 18 May 2020, [23]; Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, [13], [15].

[194] TR4-11, LL4-26.

[195] TR4-10, LL24-25.

[196] Exhibit 1, Affidavit Margaret Gilbert affirmed 6 February 2020, [24].

[197] Exhibit 1, Affidavit Margaret Gilbert affirmed 6 February 2020, [25].

[198]TR4-19, L47 – TR4-20, L6.

[199] TR4-20, L4.

[200] TR4-20, LL8-11.

[201] TR4-19, LL30-35.

[202] TR4-12, LL1-6.

[203] TR6-19, LL6-17.

[204] TR4-12, LL32-34.

[205] Applicant's SFCs, [47]; Applicant's Outline of Submissions filed 8 June 2020, [64].

[206] Construction, Forestry, Mining and Energy Union v De Martin & Gaspaarini Pty Limited (No 2) [2017] FCA 1046, [332]; Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 263 IR 344, [448].

[207] [2017] FCA 833, [116].

[208] (2017) 266 IR 340; [2017] FCA 564.

[209]Australian Building and Construction Commissioner v Parker (2017) 266 IR 340; [2017] FCA 564, [122]‑[126].

[210] Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2012) 209 FCR 448, [38].

[211] Industrial Relations Bill 2016, Explanatory Notes.

[212] Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985, [44].

[213] [2014] FCCA 2712, [65]-[66].

[214] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, [161].

[215] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091, [257]-[271];  Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985, [44].

[216] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, [159].

[217] Exhibit 14, Affidavit T Hodges sworn 19 May 2020, [5]-[10].

[218] Applicant refers to this in her Application at [1]-[2] and Outline of Submissions filed 8 June 2020, [3](a), [88]‑[102].

[219] Applicant's Outline of Submissions filed 8 June 2020, [100].

[220] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091, [257]-[271]; Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985, [44].

[221] Australian Securities and Investments Commission v Mariner Corporation Limited [2015] FCA 589, [217].

[222] Ibid, [258].

[223] Ibid, [261].

[224] Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985, [44].

[225] TR7-11, L46-TR7-12, L5.

[226] TR4-76, LL16-44.

[227] TR4-75, LL22-23.

[228] Respondents' Outline of Submissions filed 22 June 2020, paras 2.82-2.87; Exhibit 9 – Affidavit Silven Simmons sworn 19 May 2020, [22]-[27].

[229] Applicant's Outline of Submissions filed 8 June 2020, [90], [97] and [98].

[230] Blackwell v Regina (2011) 81 NSWLR 119, 133. 

[231] See, Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37, [29].

[232] Applicant's SFCs, [46]-[48].

[233] BHP Iron Ore Pty Ltd v Australian Workers’ Union [2000] FCA 430; (2000) 102 FCR 97 at 112 [48].

[234] See Explanatory Memorandum to the Industrial Relations Bill 2016, cl 295.

[235] [2015] QCAT 507.

[236] [2015] QCAT 507, [26].

[237] Ibid, [31].

[238] Respondent's Outline of Submissions filed 22 June 2020, para 2B(iii), 2.126-2.131.

[239] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, [25]-[30].

[240] Respondent's Outline of Submissions filed 22 June 2020, para 2B(iii).

[241] Applicant's Outline of Submissions dated 8 June 2020, [111]-[113].

[242] FCR (2000) 106 16, 23-28.

[243] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, [25], [26].

[244] Ibid, [14].

[245] Ibid, [15].

[246] Waugh v Kippen (1986) 160 CLR 156, 164.

[247] Newton v Australian Postal Corp (No 2) [2019] FCA 2192, [27]-[29].

[248] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, [14].

[249] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, [31]-[32].

[250] Applicant's SFCs, [73], [77], [80], [83], [84];  Applicant's Outline of Submissions filed 8 June 2020, para [130], [131], [132]-[142]; Applicant's Application, [5], [6], [8].

[251] Applicant's SFCs, [59]-[62], [81]-[83], [84].

[252] See for example Applicant's SFCs [73], [77], [80], [81]-[83]; Applicant's Outline of Submissions filed 8 June 2020, [129].

[253] Applicant's SFCs, [73].

[254] Goode v Common Equity Housing [2014] VSC 585, [45].

[255] TR7-18, LL6-8.

[256] Applicant's Closing Submissions filed 7 September 2020, [366].

[257] [2011] VSCA 266; (2011) 33 VR 559.

[258] Ibid, [307].

[259] Applicant's SFCs, para [77].

[260] Respondent's Outline of Submissions filed 22 June 2020, para 2E(i), 2.221-2.236.

[261] HR Act 2019, s 8.

[262] Exhibit 9, Affidavit Silven Simmons sworn 19 May 2020, [39]-[40].

[263] Applicant's SFCs, para [80].

[264] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, [13], [15], [20].

[265] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, MG-6 (Allegation one, Allegation two, Allegation Three and Allegation Five).

[266] HR Act 2019, ss 8, 13.

[267] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, MG-6.

[268] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, [11]-13], [36-39].

[269] Applicant's SFCs, [84].

[270] Respondents' Outline of Submissions filed 22 June 2020, paras 4.59-4.72.

[271] Exhibit 16, Affidavit Michele Gardner sworn 19 May 2020, [40]-[43].

[272] HR Act 2019, Schedule 1, Definition.

[273] See R v Momcilovic [2010] VSCA 50, [35], [92] in respect of the analogous s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).  Relevantly upheld by the High Court in Momcilovic v The Queen (2011) 245 CLR 1.

[274] Momcilovic v the Queen (2011) 245 CLR 1, [74].

[275] Ibid.

[276] See: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Momcilovic v The Queen (2011) 245 CLR 1, [18], [51] (French CJ);  [544], 565] and [566] (Crennan and Kiefel JJ);  [170] (Gummow J);  [280] (Hayne J); and [684] (Bell J).

[277] See Slaveski v Smith & Anor [2012] VSCA 25, [24], applying Momcilovic v The Queen (2011) 245 CLR 1.

[278] Nigro & Ors v Secretary to the Dept of Justice [2013] VSCA 213, [85].

[279] Acts Interpretation Act 1954 (Qld), s 20(2)(b).

[280] Ainsworth v CJC (1992) 175 CLR 564, 581.

[281] The Queensland Public Sector Union of Employees v Queensland Fire and Rescue – Senior Officers Union of Employees (2009) 192 QGIG 39.

[282] (1992) 175 CLR 564

[283] [1968] 2 QB 862, 910.

[284] Certain Children v Minister for Families and Children & Ors (No 2) (2017) 266 A Crim R 152, 209. 

[285] HR Act s 13(2)(e)-(g).

[286] Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 1536 (7 June 1996).

[287] Not referred to in the Application.  See Applicant's SFCs, [41].  Not referred to in the Applicant's Outline of Submissions filed 8 June 2020.

[288] See Application, [10]-[13].  See Applicant's SFCs, [43]-[48]; See Applicant's Outline of Submissions filed 8 June 2020, [12], [20], [61].

[289] Applicant's Closing Submissions filed 7 September 2020, para [3].

[290] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; 220 IR 445; 290 ALR 647; [2012] HCA 32, [127] per Gummow and Hayne JJ; [140] per Heydon J.

[291] Construction, Forestry, Mining and Energy Union v De Martin and Gasparini Pty Ltd (No 2)[2017] FCA 1046.

[292] Industrial Relations Act 2016, s 306.

[293] Respondents' Outline of Submissions filed 22 June 2020, para 2.14 (a);  Cavar v Nursing Australia [2012] FCA 338, [15].

[294] Respondents' Outline of Submissions filed 22 June 2020, para 2.14 (b);  Tattsbet Ltd v Morrow (2015) 233 FCR 46, [119];  Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273, [76];  United Firefighters Union of Australia v Easy [2013] FCA 763, [41].

[295] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243.

[296] Re: McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland) (1995) CLR 620, 639-640.

[297] Respondent's Outline of Submissions filed 22 June 2020, paras 2.224-2.230.

[298] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243.

[299] (1983) 6 IR 371.

[300] Ibid, [375].

[301] (2007) 157 FCR 329.

[302] (1981) 29 AILR 24.

[303] (2016) 247 FCR 154, [59].

[304] [2001] FCA 3; (2000) 106 FCR 482.

[305] [2001] FCA 3; (2000) 106 FCR 482, 499, [54].

[306] [2006] FCA 828; (2006) 154 IR 111.

[307] Ibid, 198 [349].

[308] Construction, Forestry, Mining and Energy Union v De Martin and Gasparini Pty Ltd (No 2) [2017] FCA 1046.

[309] Exhibit 1, Affidavit of Margaret Gilbert affirmed 6 February 2020, paras 19-21.

[310] Exhibit 1, Affidavit of Margaret Gilbert affirmed 6 February 2020, paras 34, 37, 38.

[311] Hammond v Department of Health & Anor (1983) 6 IR 371, 375-6.

[312] Community & Public Sector Union v Telstra Corporation Ltd [2001], 107 FCR 93, [18].

[313] Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154, [59].

[314] TR4-19, LL1-10.

[315] TR4-5, LL14-24.

[316] [2017] FCAFC 50, [62].

[317] Exhibit 9, Affidavit Silven Simmons sworn 19 May 2020.

[318] TR7-19, LL6-9.

[319] Respondent's Outline of Submissions filed 22 June 2020, paras 2.111-2.125.

[320] Applicant's SFCs, [40]; Applicant's Outline of Submissions filed 8 June 2020, [102].

[321] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445; [2012] HCA 32, [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ, [140] per Heydon J.

[322] Applicant's Closing Submissions filed on 7 September 2020, para 208.

[323] TR6-33, LL19-29; TR6-41, LL30-35; TR6-49, LL13-20.

[324] (2012) 248 CLR 500, [62] per French CJ and Crennan J.

[325] (2014) 253 CLR 243, [22], per French CJ and Kiefel J.

[326] National Tertiary Education Union v Royal Melbourne Institute of Technology (NTEU) (2013) 234 IR 139, [29]; Clermont, [122].

[327] Finance Sector Union of Australia v Commonwealth Bank of Australia FCR (2000) 106 16, 23-28, [18]-[38].

[328] Applicant's SFCs, [46]-[48].

[329] Applicant's Closing Submissions filed 7 September 2020, para 251.

[330] Applicant's Outline of Submissions in Reply filed 25 June 2020, [33]-[41].

[331] Affidavit Michele Gardner sworn on 19 May 2020, MG-6, pp 130-137.

[332] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39.

[333] TR5-14 – TR5-18;  TR5-21 – TR5-22 (Franks);  TR5-66 – TR5-67;  TR5-78 (Stevens);  TR6-9 – TR6-13 (Gardner);  TR5-58, TR5-61 – TR5-62, TR5-65 – TR5-67 (Stevens);  TR6-30 – TR6-31 (Gardner).

[334] TR6-9, LL10-25.

[335] TR5-65, LL12-20.

[336] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39.

[337] Ibid, [33].

[338] Applicant's SFCs, [73], [77], [80], [83], [84];  Applicant's Outline of Submissions filed 8 June 2020, para [130], [131], [132]-[142]; Applicant's Application, [5], [6], [8].

[339] See for example Applicant's SFCs [73], [77], [80], [81]-[83]; Applicant's Outline of Submissions filed 8 June 2020, [129].

[340] PJB v Melbourne Health & Anor (2011) 39 VR 373, [36].

[341] Kracke v Mental Health Review Board [2009] VCAT 646, [67].

[342] Antunovic v Dawson & Anor (2010) 30 VR 355, [70].

[343] Certain Children v Minister for Families and Children & Ors (No 2) (2017) 266 A Crim R 152, 209. 

[344] HR Act s 13(2)(e)-(g).

[345] See, Harrison v P & T Tube Mills (2009) 181 IR 162, 232 [282]; McManus v Scott-Charleton (1996) 70 FCR 16, 28-29; Koehler v Cerebos (Australia) (2005) 222 CLR 44, 53 [19]; Nationwide News v Naidu (2007) 71 NSWLR 471, 478 [23], [ 27].

[346] [2019] HCA 23, [31].

[347] Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564.

[348] Anisminic Ltd v Foreign Compensation Commission & Anor [1968] 2 QB 862, 910.

[349] Yousif v Workers’ Compensation Regulator [2017] ICQ 004, [13].

[350] Carlton v Blackwood [2017] ICQ 001, [18].

Close

Editorial Notes

  • Published Case Name:

    Gilbert v Metro North Hospital Health Service & Ors

  • Shortened Case Name:

    Gilbert v Metro North Hospital Health Service

  • MNC:

    [2021] QIRC 255

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    27 Jul 2021

Appeal Status

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

Cases Cited

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Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502
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Australian Workers Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482
2 citations
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Cite 1 - (2001) 106 FCR 482
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Australian Workers' Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482
3 citations
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Cite 1 - (2000) 106 FCR 482
Cite 2 - (2000) 106 FCR 482
Cite 3 - (2000) 106 FCR 482
AWU v BHP Iron Ore [2001] FCA 3
4 citations
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Cite 1 - [2001] FCA 3
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Banovic v Queensland [2019] QIRC 132
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Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14
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Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
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Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044
7 citations
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Cite 6 - (2012) 86 ALJR 1044
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BHP Iron-Ore Pty Ltd v Australian Workers' Union (2000) 102 FCR 97
3 citations
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Cite 1 - (2000) 102 FCR 97
Cite 2 - (2000) 102 FCR 97
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BHP Iron-Ore Pty Ltd v Australian Workers' Union [2000] FCA 430
3 citations
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Blackwell v The Queen (2011) 81 NSWLR 119
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Cite 2 - (2011) 81 NSWLR 119
Blair v Australian Motor Industries Ltd (1982) 61 FLR 283
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Blair v Australian Motor Industries Ltd (1982) 3 IR 176
1 citation
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Cite 1 - (1982) 3 IR 176
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
9 citations
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Cite 1 - (2012) 248 CLR 500
Cite 2 - (2012) 248 CLR 500
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Cite 4 - (2012) 248 CLR 500
Cite 5 - (2012) 248 CLR 500
Cite 6 - (2012) 248 CLR 500
Cite 7 - (2012) 248 CLR 500
Cite 8 - (2012) 248 CLR 500
Cite 9 - (2012) 248 CLR 500
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647
6 citations
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Cite 2 - (2012) 290 ALR 647
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Cite 4 - (2012) 290 ALR 647
Cite 5 - (2012) 290 ALR 647
Cite 6 - (2012) 290 ALR 647
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) HCA 32
7 citations
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Cite 2 - (2012) HCA 32
Cite 3 - (2012) HCA 32
Cite 4 - (2012) HCA 32
Cite 5 - (2012) HCA 32
Cite 6 - (2012) HCA 32
Cite 7 - (2012) HCA 32
Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 1536
3 citations
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Cite 2 - [1996] FCA 1536
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Budby (Barada Barna People) v Native Title Registrar (2015) 228 FCR 406
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Carlton v Workers' Compensation Regulator [2017] ICQ 1
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Cite 2 - [2017] ICQ 1
Cavar v Nursing Australia [2012] FCA 338
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Cite 2 - [2012] FCA 338
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Certain Children v Minister for Families and Children & Ors (No 2) (2017) 266 A Crim R 152
3 citations
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Cite 1 - (2017) 266 A Crim R 152
Cite 2 - (2017) 266 A Crim R 152
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CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014
5 citations
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Cite 1 - [2015] FCA 1014
Cite 2 - [2015] FCA 1014
Cite 3 - [2015] FCA 1014
Cite 4 - [2015] FCA 1014
Cite 5 - [2015] FCA 1014
Comcare v Banerji [2019] HCA 23
3 citations
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Cite 1 - [2019] HCA 23
Cite 2 - [2019] HCA 23
Cite 3 - [2019] HCA 23
Commissioner of Taxation v Day (2008) 236 CLR 163
3 citations
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Cite 1 - (2008) 236 CLR 163
Cite 2 - (2008) 236 CLR 163
Cite 3 - (2008) 236 CLR 163
Commonwealth Bank of Australia v Finance Sector Union (2007) 157 FCR 329
4 citations
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Cite 1 - (2007) 157 FCR 329
Cite 2 - (2007) 157 FCR 329
Cite 3 - (2007) 157 FCR 329
Cite 4 - (2007) 157 FCR 329
Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18
2 citations
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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091
4 citations
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Cite 2 - [2017] FCA 1091
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Cite 4 - [2017] FCA 1091
Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93
4 citations
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Cite 1 - (2001) 107 FCR 93
Cite 2 - (2001) 107 FCR 93
Cite 3 - (2001) 107 FCR 93
Cite 4 - (2001) 107 FCR 93
Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267
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Construction, Forestry, Mining and Energy Union v BHP Coal Pty [2015] FCAFC 25
4 citations
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Cite 2 - [2015] FCAFC 25
Cite 3 - [2015] FCAFC 25
Cite 4 - [2015] FCAFC 25
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
7 citations
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Cite 1 - (2014) 253 CLR 243
Cite 2 - (2014) 253 CLR 243
Cite 3 - (2014) 253 CLR 243
Cite 4 - (2014) 253 CLR 243
Cite 5 - (2014) 253 CLR 243
Cite 6 - (2014) 253 CLR 243
Cite 7 - (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd ( Clermont) (2015) 253 IR 166
4 citations
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Cite 1 - (2015) 253 IR 166
Cite 2 - (2015) 253 IR 166
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Construction, Forestry, Mining and Energy Union v Corinthian Industrial (Australia) Pty Ltd [2014] FCA 239
2 citations
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Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2012) 209 FCR 448
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Cite 2 - (2012) 209 FCR 448
Director of Housing v Sudi (2011) 33 VR 559
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2 citations
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Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51
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Elders Trustee & Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193
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Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251
5 citations
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Cite 1 - (2001) 129 IR 251
Cite 2 - (2001) 129 IR 251
Cite 3 - (2001) 129 IR 251
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Cite 5 - (2001) 129 IR 251
Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804
6 citations
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Employees' Association v Karellas Investments Pty Ltd (2008) 166 FCR 562
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Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588
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Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 112 IR 388
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Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
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Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37
2 citations
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Cite 2 - [2015] FCAFC 37
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346
1 citation
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Cite 1 - (2015) 228 FCR 346
Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146
2 citations
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Cite 1 - (2008) 237 CLR 146
Cite 2 - (2008) 237 CLR 146
Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16
2 citations
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Cite 1 - (2000) 106 FCR 16
Cite 2 - (2000) 106 FCR 16
Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
1 citation
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General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605
3 citations
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Cite 1 - (1976) 12 ALR 605
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General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235
3 citations
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Cite 1 - (1976) 51 ALJR 235
Cite 2 - (1976) 51 ALJR 235
Cite 3 - (1976) 51 ALJR 235
Gibbs v Palmerston Town Council [1987] FCA 732
3 citations
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Cite 1 - [1987] FCA 732
Cite 2 - [1987] FCA 732
Cite 3 - [1987] FCA 732
Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 84
2 citations
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Cite 1 - [2020] QIRC 84
Cite 2 - [2020] QIRC 84
Giorgianni v The Queen (1985) 156 CLR 473
2 citations
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Cite 1 - (1985) 156 CLR 473
Cite 2 - (1985) 156 CLR 473
Goode v Common Equity Housing [2014] VSC 585
2 citations
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Cite 1 - [2014] VSC 585
Cite 2 - [2014] VSC 585
Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232
1 citation
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Cite 1 - (2001) 112 FCR 232
Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349
1 citation
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Cite 1 - [2001] FCA 349
Hammond v Department of Health & Anor (1983) 6 IR 371
7 citations
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Cite 1 - (1983) 6 IR 371
Cite 2 - (1983) 6 IR 371
Cite 3 - (1983) 6 IR 371
Cite 4 - (1983) 6 IR 371
Cite 5 - (1983) 6 IR 371
Cite 6 - (1983) 6 IR 371
Cite 7 - (1983) 6 IR 371
Handlen v The Queen (2011) 245 CLR 282
1 citation
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Cite 1 - (2011) 245 CLR 282
Harrison v P & T Tube Mills (2009) 181 IR 162
2 citations
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Cite 1 - (2009) 181 IR 162
Cite 2 - (2009) 181 IR 162
Ibarra Campoverde v Regional Health Care Group Pty Ltd [2017] FCCA 1502
1 citation
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Cite 1 - [2017] FCCA 1502
IW v City of Perth (1997) 191 CLR 1
2 citations
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Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22
5 citations
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Cite 1 - (2010) 186 FCR 22
Cite 2 - (2010) 186 FCR 22
Cite 3 - (2010) 186 FCR 22
Cite 4 - (2010) 186 FCR 22
Cite 5 - (2010) 186 FCR 22
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
3 citations
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Cite 1 - (1984) 165 CLR 622
Cite 2 - (1984) 165 CLR 622
Cite 3 - (1984) 165 CLR 622
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
2 citations
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Cite 1 - (2005) 222 CLR 44
Cite 2 - (2005) 222 CLR 44
Kracke v Mental Health Review Board & Ors [2009] VCAT 646
2 citations
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Cite 1 - [2009] VCAT 646
Cite 2 - [2009] VCAT 646
Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321
1 citation
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Cite 1 - [2014] FCA 1321
Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154
3 citations
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Cite 1 - (2016) 247 FCR 154
Cite 2 - (2016) 247 FCR 154
Cite 3 - (2016) 247 FCR 154
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111
3 citations
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Cite 1 - (2006) 154 IR 111
Cite 2 - (2006) 154 IR 111
Cite 3 - (2006) 154 IR 111
McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828
2 citations
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Cite 1 - [2006] FCA 828
Cite 2 - [2006] FCA 828
McManus v Scott-Charlton (1996) 70 FCR 16
3 citations
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Cite 1 - (1996) 70 FCR 16
Cite 2 - (1996) 70 FCR 16
Cite 3 - (1996) 70 FCR 16
Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462
6 citations
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Cite 1 - [2014] FCA 462
Cite 2 - [2014] FCA 462
Cite 3 - [2014] FCA 462
Cite 4 - [2014] FCA 462
Cite 5 - [2014] FCA 462
Cite 6 - [2014] FCA 462
Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
3 citations
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Cite 1 - (2015) 238 FCR 273
Cite 2 - (2015) 238 FCR 273
Cite 3 - (2015) 238 FCR 273
Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50
3 citations
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Cite 1 - [2017] FCAFC 50
Cite 2 - [2017] FCAFC 50
Cite 3 - [2017] FCAFC 50
Mining and Energy Union v Clarke (2007) 164 IR 299
1 citation
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Cite 1 - (2007) 164 IR 299
Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046
5 citations
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Cite 1 - [2017] FCA 1046
Cite 2 - [2017] FCA 1046
Cite 3 - [2017] FCA 1046
Cite 4 - [2017] FCA 1046
Cite 5 - [2017] FCA 1046
Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150
2 citations
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Cite 1 - (2015) 231 FCR 150
Cite 2 - (2015) 231 FCR 150
Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290
1 citation
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Cite 1 - (2013) 232 IR 290
Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088
1 citation
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Cite 1 - [2015] FCA 1088
Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) (2015) 253 IR 391
1 citation
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Cite 1 - (2015) 253 IR 391
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
3 citations
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Cite 1 - [2015] HCA 40
Cite 2 - [2015] HCA 40
Cite 3 - [2015] HCA 40
Minister for Immigration and Border Protection v WZARH (2015) 90 ALJR 25
4 citations
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Cite 1 - (2015) 90 ALJR 25
Cite 2 - (2015) 90 ALJR 25
Cite 3 - (2015) 90 ALJR 25
Cite 4 - (2015) 90 ALJR 25
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
2 citations
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Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
3 citations
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Cite 1 - (2003) 195 ALR 502
Cite 2 - (2003) 195 ALR 502
Cite 3 - (2003) 195 ALR 502
Momcilovic v The Queen (2011) 245 CLR 1
5 citations
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Cite 1 - (2011) 245 CLR 1
Cite 2 - (2011) 245 CLR 1
Cite 3 - (2011) 245 CLR 1
Cite 4 - (2011) 245 CLR 1
Cite 5 - (2011) 245 CLR 1
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139
4 citations
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Cite 1 - (2013) 234 IR 139
Cite 2 - (2013) 234 IR 139
Cite 3 - (2013) 234 IR 139
Cite 4 - (2013) 234 IR 139
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471
2 citations
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Cite 1 - (2007) 71 NSWLR 471
Cite 2 - (2007) 71 NSWLR 471
Newton v Australian Postal Corp (No 2) [2019] FCA 2192
2 citations
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Cite 1 - [2019] FCA 2192
Cite 2 - [2019] FCA 2192
Nigro v Secretary to the Department of Justice [2013] VSCA 213
2 citations
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Cite 1 - [2013] VSCA 213
Cite 2 - [2013] VSCA 213
Norseman Amalgamated Distress and Injustices Fund v The Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1159
4 citations
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Cite 1 - [1995] FCA 1159
Cite 2 - [1995] FCA 1159
Cite 3 - [1995] FCA 1159
Cite 4 - [1995] FCA 1159
Parer v Queensland (No 4) [2016] QIRC 123
1 citation
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Cite 1 - [2016] QIRC 123
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
1 citation
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Cite 1 - (1982) 149 CLR 191
Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia (No.3) (1982) 2 IR 155
1 citation
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Cite 1 - (1982) 2 IR 155
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
1 citation
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Cite 1 - (1998) 195 CLR 1
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia ( No 3 ) (1988) 95 CLR 1
2 citations
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Cite 1 - (1988) 95 CLR 1
Cite 2 - (1988) 95 CLR 1
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] [1998] HCA 30
1 citation
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Cite 1 - [1998] HCA 30
PJB v Melbourne Healt (2011) 39 VR 373
2 citations
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Cite 1 - (2011) 39 VR 373
Cite 2 - (2011) 39 VR 373
Police Federation of Australia v Nixon [2008] FCA 467
5 citations
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Cite 1 - [2008] FCA 467
Cite 2 - [2008] FCA 467
Cite 3 - [2008] FCA 467
Cite 4 - [2008] FCA 467
Cite 5 - [2008] FCA 467
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 263 IR 344
2 citations
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Cite 1 - (2016) 263 IR 344
Cite 2 - (2016) 263 IR 344
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
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Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v Momcilovic [2010] VSCA 50
2 citations
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Cite 1 - [2010] VSCA 50
Cite 2 - [2010] VSCA 50
R v Rockhampton Fire Brigade Board [1974] QSCFC 25
4 citations
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Cite 1 - [1974] QSCFC 25
Cite 2 - [1974] QSCFC 25
Cite 3 - [1974] QSCFC 25
Cite 4 - [1974] QSCFC 25
R v Tannous (1987) 10 NSWLR 303
1 citation
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Cite 1 - (1987) 10 NSWLR 303
Rafferty v Madgwicks (2012) 203 FCR 1
1 citation
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Cite 1 - (2012) 203 FCR 1
Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341
4 citations
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Cite 1 - [2011] FMCA 341
Cite 2 - [2011] FMCA 341
Cite 3 - [2011] FMCA 341
Cite 4 - [2011] FMCA 341
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 24 CLR 1
1 citation
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Cite 1 - (2003) 24 CLR 1
Re: McJannet; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland) (1995) 184 CLR 620
5 citations
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Cite 1 - (1995) 184 CLR 620
Cite 2 - (1995) 184 CLR 620
Cite 3 - (1995) 184 CLR 620
Cite 4 - (1995) 184 CLR 620
Cite 5 - (1995) 184 CLR 620
Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37
2 citations
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Cite 1 - [2020] FCAFC 37
Cite 2 - [2020] FCAFC 37
Sarkaria v Workers' Compensation Regulator [2019] ICQ 1
2 citations
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Cite 1 - [2019] ICQ 1
Cite 2 - [2019] ICQ 1
Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No 2) [2007] FCA 1425
1 citation
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Cite 1 - [2007] FCA 1425
Slaveski v Smith & Anor [2012] VSCA 25
2 citations
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Cite 1 - [2012] VSCA 25
Cite 2 - [2012] VSCA 25
Stone v Brisbane City Council [2015] QCAT 507
4 citations
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Cite 1 - [2015] QCAT 507
Cite 2 - [2015] QCAT 507
Cite 3 - [2015] QCAT 507
Cite 4 - [2015] QCAT 507
Tattsbet Ltd v Morrow (2015) 233 FCR 46
3 citations
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Cite 1 - (2015) 233 FCR 46
Cite 2 - (2015) 233 FCR 46
Cite 3 - (2015) 233 FCR 46
Technical and Further Education v Barclay (2012) 220 IR 445
7 citations
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Cite 1 - (2012) 220 IR 445
Cite 2 - (2012) 220 IR 445
Cite 3 - (2012) 220 IR 445
Cite 4 - (2012) 220 IR 445
Cite 5 - (2012) 220 IR 445
Cite 6 - (2012) 220 IR 445
Cite 7 - (2012) 220 IR 445
The Queensland Public Sector Union of Employees v Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39
2 citations
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Cite 1 - (2009) 192 QGIG 39
Cite 2 - (2009) 192 QGIG 39
United Firefighters Union of Australia v Easy [2013] FCA 763
6 citations
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Cite 1 - [2013] FCA 763
Cite 2 - [2013] FCA 763
Cite 3 - [2013] FCA 763
Cite 4 - [2013] FCA 763
Cite 5 - [2013] FCA 763
Cite 6 - [2013] FCA 763
United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480
1 citation
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Cite 1 - [2003] FCA 480
United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board. (2003) 198 ALR 466
1 citation
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Cite 1 - (2003) 198 ALR 466
Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224
2 citations
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Cite 1 - [2008] FCA 1224
Cite 2 - [2008] FCA 1224
Walters v Public Transport Corporation (1991) 173 CLR 349
2 citations
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Cite 1 - (1991) 173 CLR 349
Cite 2 - (1991) 173 CLR 349
Waters v Public Transport Corporation [1991] HCA 49
2 citations
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Cite 1 - [1991] HCA 49
Cite 2 - [1991] HCA 49
Waugh v Kippen (1986) 160 CLR 156
3 citations
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Cite 1 - (1986) 160 CLR 156
Cite 2 - (1986) 160 CLR 156
Cite 3 - (1986) 160 CLR 156
Wirth v Mackay Hospital and Health Service [2016] QSC 39
9 citations
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Cite 1 - [2016] QSC 39
Cite 2 - [2016] QSC 39
Cite 3 - [2016] QSC 39
Cite 4 - [2016] QSC 39
Cite 5 - [2016] QSC 39
Cite 6 - [2016] QSC 39
Cite 7 - [2016] QSC 39
Cite 8 - [2016] QSC 39
Cite 9 - [2016] QSC 39
Yorke v Lucas (1985) 158 CLR 661
3 citations
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Cite 1 - (1985) 158 CLR 661
Cite 2 - (1985) 158 CLR 661
Cite 3 - (1985) 158 CLR 661
Yorke v Lucas (1985) 158 CLR 670
1 citation
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Cite 1 - (1985) 158 CLR 670

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1

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