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Pennington v Jamieson (No 2)[2021] QIRC 426

Pennington v Jamieson (No 2)[2021] QIRC 426

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Pennington v Jamieson & Anor (No 2)

[2021] QIRC 426

PARTIES:

Pennington, Adrian

(Applicant)

v

Peta Jamieson (in her capacity as Chair of the Wide Bay Hospital and Health Service)

(First Respondent)

and

Wide Bay Hospital and Health Service

(Second Respondent)

CASE NO:

GP/2020/1

PROCEEDING:

General Protections

DELIVERED ON:

15 December 2021

HEARING DATE:

27 November 2020

Further written submissions –

8 December 2020

14 December 2020

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDERS:

  1. The application filed 6 January 2020 is dismissed for want of jurisdiction.
  2. I will hear the parties as to costs.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – General Protections – where Hospital and Health Boards Act 2011 provides for termination of health service chief executive's appointment and contract of employment – where health service chief executive, following termination, filed general protections application – where, under Industrial Relations Act 2016, adverse action does not include action authorised under a law of the State – whether termination and other alleged contraventions authorised under Hospital and Health Boards Act 2011.

INDUSTRIAL LAW – QUEENSLAND – Industrial Relations Commission – Jurisdiction of Commission – privative clause – where health service chief executive, following termination, filed general protections application – whether application constitutes an 'excluded matter' and therefore not an 'industrial matter' under the Industrial Relations Act 2016 – whether jurisdiction of Commission ousted.

LEGISLATION AND INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14B, sch 1

Fair Work Act 2009 (Cth) ss 51, 52, 53, 342

Health and Hospitals Network Bill 2011 (Qld)

Health Services Act 1991 (Qld) (repealed) s 28H

Health Services Amendment Act 2006 (Qld)

Hospital and Health Boards Act 2011 (Qld) ss 71, 74, 74A, 74B, 75

Industrial Relations Act 1999 (Qld) (repealed)

Industrial Relations Act 2016 (Qld) ss 9, 282, 285, 295, 448, 449, sch 1

Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 (Qld)

Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 (Qld)

Judicial Review Act 1991 (Qld)

Public Service Act 1996 (Qld) (repealed) s 116

Public Service Act 2008 (Qld) ss 137, 187

Public Service Amendment Act 1996 (Qld)

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Blizzard v O'Sullivan [1994] 1 Qd R 112

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

Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560

Director-General of Education v Suttling (1987) 162 CLR 427

Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16

Griffith University v Tang (2005) 221 CLR 99

Leisemann v Cornack & Anor [2011] QSC 410

McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521

North West County Council v Dunn (1971) 126 CLR 247

Northern Territory v Collins (2008) 235 CLR 619

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

Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 049

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

APPEARANCES:

Ms L Doust of Counsel instructed by Hall Payne Lawyers for the Applicant

Mr C Murdoch QC and Mr C Martin of Counsel instructed by MinterEllison Lawyers for the First Respondent

Mr J Murdoch QC and Mr E Shorten of Counsel instructed by Crown Law for the Second Respondent

Reasons for Decision

  1. [1]
    The issue for determination is whether this Commission has jurisdiction to hear a general protections application filed by a former health service chief executive, Mr Adrian Pennington ('the Applicant').
  2. [2]
    The Wide Bay Hospital and Health Service ('the Second Respondent') and its Chair, Ms Peta Jamieson, ('the First Respondent') (collectively, 'the Respondents') challenge the application on two grounds. First, that termination of the Applicant's appointment and contract of employment is not adverse action because it was authorised under a law of the State, namely, the Hospital and Health Boards Act 2011 (Qld) ('the HHB Act'). Second, that s 75 of the HHB Act ousts the Commission's jurisdiction to hear the application as an 'industrial matter' under the Industrial Relations Act 2016 (Qld) ('the IR Act').
  3. [3]
    For reasons which follow, the Applicant's general protections application filed 6 January 2020 must be dismissed for want of jurisdiction.

IR Act s 282(6) – Authorisation

  1. [4]
    The IR Act provides:[1]

282 Meaning of adverse action

  1. Adverse action is taken by an employer against an employee if the employer—
  1. dismisses the employee; or
  2. injures the employee in his or her employment; or
  3. alters the position of the employee to the employee's prejudice; or
  4. discriminates between the employee and other employees of the employer.

...

  1. Adverse action includes—
  1. threatening to take action covered by subsections (1) to (4); and
  2. organising to take action covered by subsections (1) to (4).
  1. Adverse action does not include action that is authorised under—
  1. this Act or any other law of the State; or
  2. a law of the Commonwealth.

...

285 Protection

  1. A person must not take adverse action against another person—
  1. because the other person—
  1. has a workplace right; or
  2. has, or has not, exercised a workplace right; or
  3. proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. to prevent the exercise of a workplace right by the other person.[2]

...

295 Discrimination

  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.[3]

...

  1. [5]
    The Applicant alleges that, consequent upon exercising his workplace rights by making complaints, the First Respondent contravened s 285 of the IR Act on seven occasions:
  1. (a)
    On 12 April 2019, by advising the Applicant that, if the project fell behind, it could affect his role as chief executive and that he should be careful what he wished for;
  2. (b)
    On 10 May 2019, by advising the Applicant that he needed to stop interfering and that he should do as she told him or he would lose his job;
  3. (c)
    On 26 June 2019, by advising the Applicant that he could lose his job if he got his way and continued to undermine the First Respondent's position;
  4. (d)
    On 5 July 2019, by telling the Applicant that he would be in serious trouble if he did not deliver on the timeline on a particular project, the 'Detailed Business Case' project;
  5. (e)
    On 14 August 2019, by telling the Applicant that he would not be able to return to work following a period of absence due to illness if he did not agree to the terms of a statement to staff concerning his return to work;
  6. (f)
    On 19 September 2019, by threatening to dismiss the Applicant; and
  7. (g)
    On 30 September 2019, by dismissing the Applicant from his employment.[4]
  1. [6]
    The Applicant also pleads, in the alternative to (g), that the termination contravened s 295 of the IR Act in that it was action taken because of the Applicant's impairment, being major depressive disorder.[5]
  2. [7]
    It may be observed that, apart from the termination itself, the adverse action constitutes threats to his employment.
  3. [8]
    'Adverse action' is defined under s 282 of the IR Act. It expressly includes, and does not include, certain actions to which pt 1, ch 8 of the IR Act applies. To constitute a contravention of ss 285 or 295, for instance, the action must first be 'adverse action'. The Respondents argue that none of the seven actions set out above contravene ss 285 or 295 because s 282(6) excludes from the meaning of adverse action that which is authorised under a law of the State. They contend authorisation for the alleged adverse action is found under s 74 of the HHB Act:

74 Basis of employment for health executives

...

(4) A health executive's appointment and contract of employment may be terminated by written notice given to the health executive at least 1 month before it is to take effect by—

...

(c) for a health service chief executive—the chair of the board for the Service.

(5) For subsection (4), the termination of the appointment and contract of employment of a health service chief executive is not effective until it is approved by the Minister.

Was the Termination Authorised?

  1. [9]
    By letter dated 30 September 2019, the First Respondent gave the Applicant written notice as to the termination of his appointment and contract of employment.[6] According to the Respondents, that action was expressly authorised under s 74(4)(c) of the HHB Act and is therefore, by operation of s 282(6) of the IR Act, excluded from the meaning of adverse action.[7] Thus the Respondents submit the First Respondent did exactly as she was authorised to do.[8]
  2. [10]
    The meaning of 'authorised by or under' in the cognate provision of the Fair Work Act 2009 (Cth) ('the FW Act') was the subject of detailed consideration by Flick J in Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd ('CFMEU').[9] That case related to the validity of differential payments made by Rio Tinto to groups of employees, in circumstances where payments to non-CFMEU members were greater than payments to CFMEU members.
  3. [11]
    Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. Section 51 provides that an agreement must 'apply' to a person before rights or obligations can be enforced. Section 52 provides the circumstances in which an enterprise agreement applies to an employer, employee and employer organisation.
  4. [12]
    These provisions, Rio Tinto contended, required it to pay employees in accordance with the terms of the relevant industrial instruments. Payments so made were to be seen, therefore, as payments authorised by the FW Act. Flick J rejected that contention:

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.

The 'authority' which is referred to is an 'authority' which takes its content from the 'adverse action' which is prohibited. In the present context, the 'authority' to which s 342(3)(a) is referring to is an 'authority' to engage in conduct which otherwise falls within Item 1(d). Section 50, 51 and 52 provide no real 'authority'.[10]

  1. [13]
    His Honour continued:

Notwithstanding whatever flexibility may be inherent in the term 'authorise', what is common to all contexts is the search for some 'authority' to engage in particular conduct. In the case of those provisions which refer to 'authorised by law', the search is for some immediate source of authority to be found in some statutory provision.[11]

  1. [14]
    In a decision of this Commission, Black IC considered, inter alia, whether s 137 of the Public Service Act 2008 (Qld) authorised what might otherwise be adverse action – the suspension from duty and transfer of a nurse.[12] That provision confers a discretion to suspend from duty a public service officer. Before any suspension, however, the chief executive must consider all alternative duties that may be available for the officer to perform. The Commissioner concluded that s 137 provided:

... an express source of legal power or authority in circumstances where but for that section, the actions authorised by the section could not be taken.[13]

  1. [15]
    While on the other hand:

Section 187 of the PS Act ['Grounds for discipline'] does not provide any unconditional authorisation for a public sector employer to injure an employee in employment or alter the position of an employee to their prejudice. It is only if a legitimate finding is made that a ground for discipline exists that some form of disciplinary action can be taken.

...

It could not be said in my view that but for the operation of s 187 of the PS Act ['Grounds for discipline'], a public sector employer could not commence any investigation into suspected misconduct or could not take disciplinary action in the event that the misconduct was proven.[14]

  1. [16]
    Black IC further held that, critically:

A distinction can be drawn between an action which is taken pursuant to a provision of an Act, and an action which is expressly authorised by an Act provision in circumstances where the action would not otherwise be permissible at law.[15]

  1. [17]
    Both Flick J and Black IC applied the ordinary meaning of the term 'authorise' as defined by the Macquarie Dictionary: 'to give authority or legal power; empower (to do something)'.[16] In Ex parte Johnson; Re MacMillan,[17] Jordan CJ considered:

The word 'authorise', according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorisation, he does not possess.[18]

  1. [18]
    Section 74(4)(c) of the HHB Act plainly confers upon the Chair of the board an immediate source of authority to terminate the health service chief executive's appointment and contract of employment; legal power, in other words, to engage in conduct which might otherwise constitute adverse action. Ipso facto, it is clear s 74(4)(c) of the HHB Act authorised the First Respondent to terminate the Applicant's appointment and contract of employment – such action is excluded from the meaning of adverse action.
  2. [19]
    This conclusion, however, leaves unresolved the question of whether other alleged contraventions are authorised – namely, threats to injure or dismiss. I am driven to agree with the Applicant that the scope of the authority conferred by s 74(4)(c) authorises, at most, the action of termination.
  3. [20]
    It is worth citing the words of Wigney J who, adopting the reasoning of Flick J in CFMEU, emphasised that:

The question is whether there is any provision of the Fair Work Act that required or authorised the taking of action that would otherwise fall within item 1(a), (b) or (c) of s 341(1). Is there any provision of the Fair Work Act that authorised action that would otherwise amount to threatening to dismiss an employee, or injuring an employee in his or her employment, or altering the position of the employee to the employee's detriment? The answer to that question is 'no'. Section 50 provided no such authority.[19]

  1. [21]
    Likewise, I am unable to locate a provision which authorises action that would otherwise amount to threatening to dismiss the Applicant or injuring him in his employment.
  2. [22]
    Although I accept that an alleged threat of dismissal plainly affects or relates to dismissal, the scope of the authority at s 74(4)(c), in my view, is confined to termination. I agree with Counsel for the Applicant who, after encapsulating her opponent's argument, remarked:

[The Second Respondent argues that] because there's a power to dismiss, that that means that that action was equally authorised. In other words, there's a provision about dismissal, therefore you can do anything really that sort of falls under that subject matter, within the scope of 282(6).

It is not pleaded [by the Respondents] that the conduct alleged there was authorised, and so falls outside the scope of section 282 and doesn't constitute adverse action. So to the extent it's suggested that the answer on authorisation about dismissal must mean an end to these proceedings, that's contrary to the pleaded cases of the Respondents… it's clear the argument advanced by the [First Respondent] was limited to the dismissal of the Applicant.[20]

  1. [23]
    Without the authorisation of s 74(4) of the HHB Act, the threats to dismiss and injure the Applicant are not excluded from the meaning of adverse action by operation of s 282(6) of the IR Act.
  2. [24]
    It is necessary to consider two arguments the Applicant sets forth as to why the termination was also not authorised. I will address these in turn.

Improper Purpose or Bad Faith

  1. [25]
    Section 282(6) of the IR Act, on the Applicant's construction, does not operate to exclude action which has been vitiated by an improper purpose or bad faith, or action which is not required or compelled by statute, such as discretionary action.[21] To this end, the Applicant argues:

The allegations made by the [Applicant] about the real reasons for his termination are effectively allegations that the First Respondent and/or the Board of the Second Respondent exercised their power in bad faith and/or for an improper purpose. If that is right, any such decision would not be regarded as authorised by s. 74(4) according to general law principles...[22]

  1. [26]
    In oral submissions, Counsel for the Applicant said:

Now, ultimately the question as to whether or not the exercise of the power has been one that is authorised by the section, might require the Commission to ascertain the real reason… [J]ust because there's no particular criterion for the exercise of that power, doesn't mean that the decision maker is then at liberty to bring into play any old consideration.[23]

  1. [27]
    As noted by Counsel for the First Respondent, the Applicant, 'confronted by the dilemma of the plain construction',[24] reads into s 282(6) qualifications, or a 'gloss',[25] for which there is no textual warrant.[26]
  2. [28]
    If Parliament intended to fetter the discretion to terminate, to impose some limitation upon the reasons or factors informing its exercise, one might expect plains words of necessary intendment. The language used is the surest guide to legislative intention.[27] Ultimately:

... the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed...[28]

  1. [29]
    The legislative command in this case requires only that the action be authorised under a law of the State. There is no capacity in the language of s 282(6) of the IR Act for restricting or limiting its application to actions which are authorised to be taken for certain reasons. I have found that the termination was so authorised.
  2. [30]
    On a deeper level, it cannot be forgotten that these proceedings represent the purported exercise of the Commission's jurisdiction, conferred by statute, to hear and decide a general protections application. This proceeding is not a backdoor to judicial review. Invocation of concepts such as 'improper purpose' and 'bad faith' are beside the point; 'a different question for a different claim in a different court'.[29] The case law cited by the Applicant deals with questions of administrative law, hailing from different jurisdictions and, for the most part, judicial review. None is apposite to the question at hand, that is, whether the Applicant's adverse action application under ch 8 of the IR Act is competent.
  3. [31]
    Even if such matters were relevant, the Applicant's points of claim do not squarely allege improper purpose or bad faith.[30] Rather, what is alleged is that:
  1. The conduct in paragraph 41 to 43 above was contrary to s. 285 of the IR Act in that it was action taken:

a. because the applicant has the workers [sic] compensation claim workplace right; and/or

b. because the applicant had exercised his workplaces rights by making the complaints to that date set out in the Table; and/or

c. to prevent the applicant from exercising the general protections workplace right; ...

  1. Further, and or [sic] in the alternative, the conduct in paragraphs 41 to 43 above was contrary to s. 295 of the IR Act in that it was action taken because of the applicant's impairment.[31]

Reckoning of Time

  1. [32]
    The letter, and thus written notice of his termination, was given to the Applicant on 30 September 2019. That letter importantly stated:

Subject to receiving the approval of this decision from the Minister, the termination of your employment and appointment will take effect on the date which is the later of 30 October 2019 or the date on which the Minister gives approval.[32]

  1. [33]
    The Applicant contends that, having received written notice on 30 September 2019, the condition 'at least 1 month before it is to take effect' meant the written notice would take effect on 31 October 2019 and not 30 October 2019 as stated.[33]
  2. [34]
    He argues this failure to ensure the entire calendar month of notice was afforded took the resulting termination 'outside the scope of action authorised' by s 74(4)(c).[34]
  3. [35]
    I am at odds with the Applicant based upon my interpretation of the requirements of the provision. Sections 74(4)(c) and (5) are relevant:[35]
  1. (4)
    A health executive's appointment and contract of employment may be terminated by written notice given to the health executive at least 1 month before it is to take effect by—

...

(c) for a health service chief executive—the chair of the board for the Service.

  1. (5)
    For subsection (4), the termination of the appointment and contract of employment of a health service chief executive is not effective until it is approved by the Minister.
  1. [36]
    I do not think it is possible to read 'take effect' in sub-s (4) without regard to sub-s (5), which conditions that moment of effectiveness in the case of a health service chief executive. The Applicant urges a separation between the giving of notice and the effectiveness thereof.[36] The Applicant was entitled to be afforded a notice period of 'at least' one month. He was given notice on 30 September 2019. The notice was conditional, its effectiveness conditioned upon the Minister's approval. This approval was forthcoming on 20 December 2019, almost 12 weeks after the giving of notice.
  2. [37]
    The Applicant was given not one, but almost three, months of notice.
  3. [38]
    There is a future orientation to notice. The whole point of a notice period is that one is given notice of something to happen in the future – here, the Applicant was given notice of his termination.
  4. [39]
    The Applicant was given written notice on 30 September 2019 which only became effective almost 12 weeks later on 20 December 2019 – well over the minimum notice of at least one month.
  5. [40]
    For argument's sake, let us say the Applicant is correct and the full calendar month of notice was not afforded. It is settled that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect:

Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[37]

  1. [41]
    Was it a purpose of the HHB Act that the termination of his appointment and contract of employment be invalid by reason of the written notice stipulating 30 October 2019, rather than 31 October 2019?
  2. [42]
    An answer in the affirmative runs counter, surely, to the purpose of the health executive service of which the Applicant formed an integral part:

71 Purpose of health executive service

 The purpose of the health executive service is to promote effectiveness and efficiency in the delivery of public sector health services by attracting, developing and retaining a core of mobile, highly skilled health executives.[38]

  1. [43]
    Furthermore, the Object of the Act – 'mainly achieved' in part by 'strengthening local decision-making and accountability'[39] – would be frustrated if the local decision-making of the First Respondent could be upended, many months later, by the Commission on account of a very minor, and seemingly unprejudicial, deficiency in the notice period.

The Source of the Power to Terminate: Contractual or Statutory?

  1. [44]
    Limited regard was had by the parties as to whether the Applicant's contract of employment might itself provide a source of authority to terminate the appointment and contract of employment. Conceptually, the existence of a separate source of authority sits awkwardly with the now accepted reasoning of Flick J that the question is whether, but for an authorising provision, the action would constitute adverse action.
  2. [45]
    Counsel for the First Respondent evidently recognised this, stating in oral submissions:

[S]ection 74(4) provides an express source of legal power or authority... in circumstances where, but for the section, the actions authorised by the section couldn't be taken...

There is an analogous clause in [the Applicant's] contract to [s 74(4)]. We say that that doesn't have the effect that there is a power other than subsection 4, and that's because when one goes to the contract, the contract is governed by the Act, and the clause in the contract merely reflects, as of course it must reflect because it can't be contrary to the Act, the power provided for by the legislation. So save for the power in subsection 4, there wouldn't be the capacity to bring the employment to an end at the discretion of the [chair of the] board...[40]

  1. [46]
    Yet it strikes me that the utility of the 'but for' test is its guidance in distinguishing between conduct which is 'authorised' by', rather than merely 'pursuant to', a provision.
  2. [47]
    In this particular case, I do not think the existence of a contractual power to terminate the Applicant's appointment and contract of employment is of great moment.
  3. [48]
    Brennan J, in circumstances where a teacher whose appointment under statute at higher duties was prematurely terminated without proper cause, held:

Members of the [Education Teaching] Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute.

...

If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service.[41]

  1. [49]
    Considering an employment engagement on terms partly statutory and partly contractual, Thomas J found in Blizzard v O'Sullivan:[42]

A number of cases have come before the courts raising questions as to whether dismissals from employment by governmental agencies amounted to decisions under an Act or decisions under a contract. The results have differed according to the particular legislation and arrangements existing in the particular cases. However there is a deal of authority supporting the approach that one looks for the operative or substantial source of the power being exercised rather than remote or incidental ones. The approach that can be seen in the cases is to search for the real or substantial basis of the decision and to characterise it accordingly.[43]

  1. [50]
    Entering into a written contract of employment is a requirement of the HHB Act.[44] The health executive service is appointed pursuant to the HHB Act and their rights must be ascertained by reference to its provisions. The contract was based upon the statute, which must control the terms of service.[45] Indeed, the contract largely parrots the terms of the statute. The Applicant was removed by steps taken in reliance upon s 74 of the HHB Act, a statute which exhaustively sets out the course to be followed for termination of his services.
  2. [51]
    The basis for the removal of the Applicant was legislative. The HHB Act was the substantial and proximate source of power in terminating his appointment and contract of employment.[46] But for s 74(4), the First Respondent lacked authority to terminate the Applicant's employment – action which would otherwise fall within the meaning of adverse action.
  3. [52]
    For the reasons given above I am satisfied the termination of the Applicant's contract was authorised under ss 74(4) and (5) of the HHB Act and cannot be characterised as adverse action for the purposes of s 286(6) if the IR Act. However, this does not resolve the question of the Commission's jurisdiction to hear the matter.

Jurisdiction

  1. [53]
    Section 75(3) of the HHB Act provides that:
  1. (3)
    A decision about an excluded matter can not be challenged appealed against, quashed, set aside or called in question in another way, under the Judicial Review Act 1991.
  1. [54]
    The Second Respondent argues s 75(3) of the HHB Act provides a general shield for decisions about an 'excluded matter' being challenged or appealed against and does more than merely prevent an Applicant from seeking judicial review of an 'excluded matter'.[47]
  2. [55]
    It argues that because the provision includes terms of wide signification such as 'challenged' and 'appealed against' which are not found in the Judicial Review Act 1991 (Qld) ('the JR Act'), the Second Respondent's construction is the only tenable one which gives meaning or 'work' to every word of the provision and in turn, operates as an impediment to the substantive application.[48]
  3. [56]
    In response, the Applicant maintains a plain reading of the provision leads to a conclusion that s 75(3) is directed only at applications under the JR Act.[49] He submits the Explanatory Note for the HHB Act further emphasises that the Second Respondent's position is at odds with the true intent of s 75(3).[50]
  4. [57]
    It is appropriate at this stage to dispose of the Second Respondent's argument that, far from preventing only judicial review of an 'excluded matter', s 75(3) constitutes a 'general shield' against the impeachment of certain decisions pertaining to health executives.
  5. [58]
    This argument must be rejected. The proposed construction, in my view, discounts the final words which contemplate judicial review proceedings before the Supreme Court and serve to qualify that which goes before: 'under the Judicial Review Act 1991'. It renders nugatory sub-s (1) – for why would that provision be necessary if sub-s (3) functioned as a 'general shield'?
  6. [59]
    On a plain reading of the provision, the final comma signals that the subordinate clauses beforehand are to be subjugated, brought under the rein of the meaning of the final clause which qualifies and clarifies that which goes before.
  7. [60]
    The Second Respondent's construction voids what it purports to ascribe.
  8. [61]
    In any case, as the Applicant notes, the terms 'challenged' and 'appealed against' are apt to comprehend proceedings under the JR Act where the decision under review is sought to be vitiated in some way.[51] The terms of sub-s (3) are quite typical of a privative clause which seeks to oust judicial review of decisions.
  9. [62]
    This interpretation of the ordinary meaning of sub-s (3) is further supported when regard is had to the Explanatory Note for the Health and Hospital Networks Bill 2011 (Qld) ('the HHN Bill') (the precursor to the HHB Act), which can be consulted to confirm the ordinary meaning of a provision or determine meaning where there is ambiguity:[52]

Clause 75 provides that certain matters ('excluded matters') are not industrial matters for the purposes of the Industrial Relations Act 1999. An excluded matter cannot be challenged appealed, reviewed or called in question under the Judicial Review Act 1991. For the purpose of this clause, an excluded matter means a decision to appoint or not to appoint a person as a health executive, the contract of employment for a health executive, the application of the Act to a health executive, or the termination of a health executive's contract of employment.[53]

  1. [63]
    Although it is clear the words and context of s 75, in its entirety, reveal a clear intention to limit avenues of challenge to certain decisions pertaining to health executives, the way the Explanatory Note paraphrases sub-s (3), in concert with the plain reading of the provision, supports a conclusion s 75(3) is confined to excluding review under the JR Act only, and therefore, on its own, would present no barrier to the application proceeding.

Excluded Matter

  1. [64]
    The same cannot be said however, in relation to s 75(1), when determining whether the HHB Act expressly excludes the Commission's jurisdiction in respect of the Applicant's dismissal and matters affecting or relating to it.
  2. [65]
    Both Respondents submit the Applicant's general protections application should be struck out or dismissed, insofar as it relates to the decision to dismiss the Applicant from his employment, because his dismissal and any matters related to it, fall within the definition of an 'excluded matter'.[54]
  3. [66]
    The Respondents argue s 75 of the HHB Act ousts the Commission's jurisdiction to hear the application as an 'industrial matter' for the purposes of the IR Act.[55]
  4. [67]
    That is, the giving of written notice to the Applicant on 30 September 2019 of termination of his employment, is a matter relating to the Applicant's contract of employment as a health executive, or alternatively a matter relating to the application of a provision of the relevant part of the HHB Act and therefore falls within the definition of an 'excluded matter'.
  5. [68]
    The Applicant takes issue with this position, submitting that where an application is made under pt 1, ch 8 of the IR Act, no recourse is needed to ss 448(1)(a), (b) or (c) to identify the basis for the Commission's power to deal with the substantive application.[56] Moreover, the scope and limits of the operation of pt 8 are precisely described and may be read harmoniously with the rest of the chapter, without the need for recourse to any additional jurisdictional fact.[57]
  6. [69]
    The jurisdiction of the Commission is provided for in s 448(1) of the IR Act:

448 Commission's jurisdiction

(1) The commission may hear and decide the following matters—

(a) a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;

(b) all questions—

(i) arising out of an industrial matter; or

(ii) involving deciding the rights and duties of a person in relation to an industrial matter; or

(iii) it considers expedient to hear and decide about an industrial matter;

(c) an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached;

…

(e) all matters referred to the commission under this Act or another Act.

…

(7) No provision of this Act or another Act limits, by implication, the commission's jurisdiction.

…

  1. [70]
    I acknowledge that where the application being pursued by the Applicant concerns alleged contraventions of ch 8 affecting or relating to the Applicant's dismissal, this type of application, ordinarily, would be one which would fall squarely within the definition of 'industrial matters' as set out in s 9 and sch 1 to the IR Act, namely:[58]

Schedule 1 Industrial matters

...

16 a claim to dismiss or to refuse to employ a particular person or class of person, or whether a particular person or class of person, ought to be continued or reinstated in the employment of a particular employer, considering the public interest, despite common law rights of employers or employees

17 the right to dismiss, or to refuse to employ, reinstate or re-employ a particular person, or class of person, in a particular calling

...

26 discrimination in employment, including in remuneration or other employment conditions

...

30 matters relating to the relationship between employers and organisations[59]

  1. [71]
    The Second Respondent argues, however, that the special suite of provisions within the HHB Act which deal with the appointment and termination of a 'health executive', introduces the concept of an 'excluded matter',[60] resulting in an outcome whereby the Applicant's dismissal, and matters affecting or relating to it, are not within the jurisdiction of the Commission.[61]
  2. [72]
    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, while at the same time, regard is to be had to its context and purpose.[62]
  3. [73]
    Relevantly, s 74 of the HHB Act deals with the appointment and termination of a 'health executive':

74 Basis of employment for health executives

(1) Each person appointed as a health executive must enter into a written contract of employment with the following—

(a) for a health executive employed by a Service (other than the health service chief executive)—the health service chief executive;

(b) for a health executive in the department—the chief executive;

(c) for a health service chief executive—the chair of the board for the Service.

...

(4) A health executive's appointment and contract of employment may be terminated by written notice given to the health executive at least 1 month before it is to take effect by—

(a) for a health executive employed by a Service (other than the health service chief executive)—the health service chief executive;

(b) for a health executive in the department—the chief executive;

(c) for a health service chief executive—the chair of the board for the Service.

(5) For subsection (4), the termination of the appointment and contract of employment of a health service chief executive is not effective until it is approved by the Minister.

  1. [74]
    Sections 74(4) and (5) fall within div 2, pt 5 of the HHB Act under the heading 'Health Executive Service.'
  2. [75]
    It is not in contention in these proceedings that the Applicant was a 'health executive' appointed pursuant to s 74(1) of the HHB Act, and was dismissed pursuant to ss 74(4) and (5) of that Act.[63]
  3. [76]
    Sub-division 3 of the HHB Act contains a privative clause of some note, in the form of s 75:

75 Exclusion of certain matters from review under other Acts:

(1) An excluded matter, or a matter affecting or relating to an excluded matter, is not an industrial matter for the Industrial Relations Act 2016.

(2) Without limiting subsection (1), industrial instruments do not apply to a health executive.

(3) A decision about an excluded matter can not be challenged, appealed against, reviewed, quashed, set aside, or called in question in another way, under the Judicial Review Act 1991.

(4) In this section—

excluded matter means—

(a) a decision to appoint, or not to appoint, a person as a health executive; or

(b) the contract of employment of, or the application of this part or a provision of this part to, a health executive.[64]

  1. [77]
    Having regard to the broad definition of 'excluded matter' at s 75(4)(b) of the HHB Act, the words 'the contract of employment of, or the application of this part or a provision of this part to, a health executive', in my view, encompass the application of ss 74(4) and (5), including the termination of the Applicant's employment and matters affecting or relating to it.
  2. [78]
    The Applicant relies, in part, on the history of s 75 of the HHB Act and recent amendments to the industrial relations legislation in support of its position that it was not the intention of parliament to limit health executives from accessing remedies under the relevant industrial legislation, and in particular, general protections.[65]
  3. [79]
    Certainly, extrinsic materials can also be used to aid interpretation and can be consulted to confirm the ordinary meaning of a provision or determine meaning where there is ambiguity.[66]
  4. [80]
    By way of background, the provision regarding excluded matters was first inserted in the Health Services Act 1991 (Qld) (repealed) by the Health Services Amendment Act 2006 (Qld). That provision, s 28H, mirrors s 75 in the HHB Act. The Explanatory Note accompanying the amendment bill relevantly provides:

Clause 17 contains a new section 28H (Exclusion of certain matters from review under other Acts) which excludes a decision to appoint, or not to appoint, a person as a health executive or the contract of employment of a health executive from review under the Industrial Relations Act 1999 and the Judicial Review Act 1991.

The inclusion of this new section 28I [sic – s 28H] as part of clause 17 raises the issue whether this new section has sufficient regard to the rights and liberties of individuals by making individual rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review (section 4 (3)(a) of the Legislative Standards Act 1992).

The inclusion of this section is essential as it provides certainty in relation to appointment decisions concerning health executives and it makes clear that the terms and conditions of the health executives' contracts shall govern their employment arrangements. This section is defensible as it is the same standard that applies to senior executives under the Public Service Act 1996.[67]

  1. [81]
    The complimentary provision under the Public Service Act 1996 (Qld) (repealed) referred to above is s 116. That section was inserted by the Public Service Amendment Act 1996 (Qld). The Explanatory Note accompanying the amendment bill relevantly provides:

... it could be argued that statutory office holders removed from office under the Public Service Act 1996 are being denied natural justice, in that such a decision can not be challenged, appealed, reviewed etc. under the Judicial Review Act 1991. It is acknowledged that the Government has a right to remove members of statutory offices other than those operating in a quasi-judicial nature or offices that are crucial to the body politic of the State. In fact, various Acts already provide a legislative basis for either the Governor in Council or the relevant Minister to remove members of those offices at any time and for any reason or none.

It is not unreasonable to exclude the removal of such members from the provisions of the Judicial Review Act 1991 to ensure that boards and committees are able to operate efficiently and effectively without delay and frustration.[68]

  1. [82]
    In 2013, s 75 was amended to include coverage of 'senior health service employees' among the category of affected employees.[69] However, the insertion was removed in 2015 by the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 (Qld), which removed that coverage and instead inserted ss 74A and 74B into the HHB Act. Those sections create a clear distinction between the rights afforded to senior health service employees, and those afforded to a health executive.
  2. [83]
    The Explanatory Note to s 75 of the HHN Bill, in my view, also provides further clarity in the interpretation of the provision, namely:

For the purposes of this clause, an excluded matter means a decision to appoint or not appoint a person as a health executive, the contract of employment for a health executive, the application of the Act to a health executive, or the termination of a health executive's contract of employment.[70]

  1. [84]
    Section 14A of the Acts Interpretation Act 1954 (Qld) requires a provision to be interpreted in a way that will best achieve the purpose of the Act.
  2. [85]
    Having considered both the intrinsic and extrinsic features of the provision and the legislative history, the most tenable construction of s 75and the reason for its inclusion in the HHB Act, in my view, is that Parliament intended to ensure certain rights and remedies were not within the reach of 'executives' of the health service. It is not difficult to conceive why, from a public policy perspective, this approach was taken by the parliament.
  3. [86]
    Indeed, s 71 of the HHB Act sets out the purpose of the health executive service and the requirement to attract and maintain a core group of 'mobile' and 'highly skilled' executives.[71] As with the public service more broadly, it is understandable health services would wish to have the capacity to act without delay to promote the effective and efficient delivery of health services to the community.
  4. [87]
    In my view, the Applicant's dismissal, and matters affecting or relating to it, fall within the definition of 'excluded matter' set out at s 75(4) of the HHB Act.
  5. [88]
    Relevantly, s 449 of the IR Act provides for limitations on the Commission's jurisdiction, namely:

449 Limitations on jurisdiction

 The commission does not have jurisdiction to hear and decide a matter about which another Act excludes—

(a) the jurisdiction of the commission about the matter; or

(b) the application of a decision under this Act about the matter.

  1. [89]
    Section 75 of the HHB Act excludes the Commission's jurisdiction in respect of the 'excluded matter' of the Applicant's dismissal and matters affecting or relating to it.
  2. [90]
    Section 75(1) provides that an 'excluded matter', or a matter affecting or related to the excluded matter is not an industrial matter for the purposes of the IR Act. Section 448 of the IR Act sets out the Commission's jurisdiction.
  3. [91]
    As stated at [70] above, although, ordinarily, the events complained of within the Applicant's general protection's application would fall within the definition of 'industrial matter' as defined in s 9 and sch 1 of the IR Act, s 75 of the HHB Act expressly states that an excluded matter is not an industrial matter for the purposes of the IR Act.
  4. [92]
    The Applicant points to s 448 (1)(e) of the IR Act, which provides that the Commission has jurisdiction to hear and decide matters referred to the Commission under this Act or another Act, in support of its position that no recourse is needed to ss 448(1)(a), (b) or (c) to identify the basis for the Commission's power to deal with the general protections application.
  5. [93]
    The difficulty I have with this argument is the Applicant has been unable to identify how an application under ch 8, pt 1 of the IR Act is one that is 'referred' to this Commission within the meaning of s 448(1)(e). In any event, I am of the view that an application made under ch 8, pt 1 of the IR Act is one that falls squarely within the definition of 'industrial matters', as defined at s 9 and sch 1 of the IR Act.

Conclusion

  1. [94]
    For the reasons set out above, I am satisfied the Applicant's dismissal was authorised under ss 74(4) and (5) of the HHB Act and is therefore not 'adverse action' because of s 282(6) of the IR Act.
  2. [95]
    Even if I was to be wrong on that point, s 75 of the HHB Act excludes the Commission's jurisdiction in respect of the excluded matter of the Applicant's dismissal and matters affecting or relating to it. As 'excluded matters', the dismissal and matters effecting or relating to it are not industrial matters for the purposes of the IR Act. Therefore, the Commission lacks jurisdiction to deal with the application.

Orders

  1. The application filed 6 January 2020 is dismissed for want of jurisdiction.
  2. I will hear the parties as to costs.

Footnotes

[1] Emphasis added.

[2] Note omitted.

[3] Note omitted.

[4] Applicant's Points of Claim filed 26 June 2020, [17]-[44].

[5] Ibid [45].

[6] Applicant's Points of Claim filed 26 June 2020, [41].

[7] Outline of Submissions for the First Respondent filed 4 November 2020, [9]-[10]; Second Respondent's Submissions – Jurisdiction filed 4 November 2020, [53].

[8] Outline of Submissions for the First Respondent filed 4 November 2020, [11]; Second Respondent's Submissions – Jurisdiction filed 4 November 2020, [42].

[9] (2014) 232 FCR 560.

[10] Ibid 573 [46]-[47] (emphasis added).

[11] Ibid 574 [54] (emphasis added).

[12] Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 049.

[13] Ibid [95].

[14] Ibid [88], [91].

[15] Ibid [91] (emphasis added).

[16] Macquarie Dictionary (6th ed, 2013) 'authorise' (def 1).

[17] (1946) 47 SR (NSW) 16.

[18] Ibid 18.

[19] Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046, [288] (emphasis added).

[20] T1-24 ll 30-46.

[21] Outline of Applicant's Argument on Jurisdictional Issues filed 16 November 2020, [51]-[56].

[22] Ibid [56].

[23] T1-26 ll 31-39.

[24] T1-10 ll 25-28.

[25] T1-10 ll 34-35.

[26] Outline of Submissions in Reply for the First Respondent filed 23 November 2020, [11].

[27] See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 ('Alcan'), [46]-[47].

[28] Northern Territory v Collins (2008) 235 CLR 619, 623 (Gummow ACJ and Kirby J).

[29] Second Respondent's Submissions in Reply – Jurisdiction filed 20 November 2020, 6 [45].

[30] Filed 26 June 2020.

[31] Applicant's points of claim filed 26 June 2020, [44]-[45].

[32] Affidavit of Adrian Pennington filed 15 September 2020, Exhibit AP55 (emphasis added).

[33] T1-32 ll 32-33.

[34] T1-32 ll 39-42.

[35] Emphasis added.

[36] Applicant's Further Submission on Separate Questions – Calculation of Notice Period and "Authorisation" filed 14 December 2020, [8]-[10].

[37] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ('Project Blue Sky'), [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ).

[38] Hospital and Health Boards Act 2011 (Qld) (emphasis added).

[39] Ibid s 5(2).

[40] T1-6 ll 43 – T1-7 ll 3.

[41] Director-General of Education v Suttling (1987) 162 CLR 427, 437-738.

[42] [1994] 1 Qd R 112.

[43] Ibid 118 (emphasis added), see also 119.

[44] s 74(1).

[45] See, for instance, McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521, 527 (Dixon, Williams, Fullagar and Kitto JJ).

[46] See also North West County Council v Dunn (1971) 126 CLR 247, 255 (Menzies J), 265 (Walsh J).

[47] Second Respondent's Submissions – Jurisdiction filed 4 November 2020, [18].

[48] Ibid [25]-[26]; Second Respondent's Submissions in Reply – Jurisdiction filed 20 November 2020, [5].

[49] Outline of Applicant's Argument on Jurisdictional Issues filed 16 November 2020, [5].

[50] Ibid [15].

[51] Ibid [7], [13]-[14] citing, by way of example, the High Court's use of the term 'challenge' throughout Griffith University v Tang (2005) 221 CLR 99, and that of the Supreme Court of Queensland in Leisemann v Cornack & Anor [2011] QSC 410, [25]-[27].

[52] Acts Interpretation Act 1954 (Qld) s 14B(3)(e).

[53] Explanatory Note, Health and Hospital Networks Bill 2011 (Qld) 24.

[54] Outline of submissions for the First Respondent filed 4 November 2020, [19].

[55] Ibid [23]; Second Respondent's Submissions – Jurisdiction filed 4 November 2020, [12]-[16].

[56] Outline of Applicant's Argument on Jurisdictional Issues filed 16 November 2020, [23].

[57] Ibid [30].

[58] Second Respondent's Submissions – Jurisdiction filed 4 November 2020, [5].

[59] Industrial Relations Act 2016 (Qld) sch 1.

[60] Second Respondent's Submissions – Jurisdiction filed 4 November 2020, [6].

[61] Ibid [12].

[62] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ) citing Project Blue Sky (n 37) [69]-[71]; Alcan (n 27) [47].

[63] Applicant's Points of Claim filed 26 June 2020, [1(c)]; First Respondent's Amended Points of Defence filed 24 September 2020, [1(b)(ii)]; Second Respondent's Further Amended Points of Defence filed 2 October 2020, [1].

[64] Emphasis added.

[65] Outline of Applicant's Argument on Jurisdictional Issues filed 16 November 2020, [37]-[46].

[66] Acts Interpretation Act 1954 (Qld) s 14B(3)(e).

[67] Explanatory Note, Health and Hospital Networks Bill 2011 (Qld) 2-3.

[68] Explanatory Note, Public Service Amendment Bill 1996 (Qld) 2.

[69] See Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 (Qld).

[70] Explanatory Note, Health and Hospital Networks Bill 2011 (Qld) 24.

[71] See at [43] above.

Close

Editorial Notes

  • Published Case Name:

    Pennington v Jamieson & Anor (No 2)

  • Shortened Case Name:

    Pennington v Jamieson (No 2)

  • MNC:

    [2021] QIRC 426

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    15 Dec 2021

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QIRC 42615 Dec 2021-
Primary Judgment[2022] ICQ 2226 Jul 2022-
Notice of Appeal FiledFile Number: CA10076/2223 Aug 2022-
Appeal Discontinued (QCA)File Number: CA10076/2226 Apr 2023-

Appeal Status

Appeal Discontinued (QCA)

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Blizzard v O'Sullivan[1994] 1 Qd R 112; [1993] QSC 123
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 112
Cite 2 - [1994] 1 Qd R 112
Director-General of Education v Suttling (1987) 162 CLR 427
2 citations
Jump To
Cite 1 - (1987) 162 CLR 427
Cite 2 - (1987) 162 CLR 427
Ex parte Johnson; Re MacMillan (1946) 47 S.R. (N.S.W.) 16
2 citations
Jump To
Cite 1 - (1946) 47 S.R. (N.S.W.) 16
Cite 2 - (1946) 47 S.R. (N.S.W.) 16
Griffith University v Tang (2005) 221 CLR 99
2 citations
Jump To
Cite 1 - (2005) 221 CLR 99
Cite 2 - (2005) 221 CLR 99
Leisemann v Cornack [2011] QSC 410
2 citations
Jump To
Cite 1 - [2011] QSC 410
Cite 2 - [2011] QSC 410
McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521
2 citations
Jump To
Cite 1 - (1951) 83 CLR 521
Cite 2 - (1951) 83 CLR 521
Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046
2 citations
Jump To
Cite 1 - [2017] FCA 1046
Cite 2 - [2017] FCA 1046
Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560
2 citations
Jump To
Cite 1 - (2014) 232 FCR 560
Cite 2 - (2014) 232 FCR 560
North West County Council v Dunn (1971) 126 CLR 247
2 citations
Jump To
Cite 1 - (1971) 126 CLR 247
Cite 2 - (1971) 126 CLR 247
Northern Territory v Collins (2008) 235 CLR 619
2 citations
Jump To
Cite 1 - (2008) 235 CLR 619
Cite 2 - (2008) 235 CLR 619
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 49
2 citations
Jump To
Cite 1 - [2020] QIRC 49
Cite 2 - [2020] QIRC 49
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362

Cases Citing

Case NameFull CitationFrequency
Pennington v Jamieson [2022] ICQ 227 citations
1

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