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McIver v State of Queensland (Queensland Health)[2022] QIRC 121

McIver v State of Queensland (Queensland Health)[2022] QIRC 121

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McIver v State of Queensland (Queensland Health) [2022] QIRC 121

PARTIES: 

McIver, Adrian

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/366

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

1 April 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appellant employed by the State of Queensland at the Townsville Hospital and Health Service – where the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements required employees to have at least a first dose of a COVID-19 vaccine by 30 September 2021 and must have received the second dose of a COVID-19 vaccine by 31 October 2021 – appellant sought an exemption due to other exceptional circumstances – exemption was refused – decision to deny exemption fair and reasonable

LEGISLATION:

Australian Human Rights Commission Act 1986 (Cth), sch 2 art 7

Hospital and Health Boards Act 2011 (Qld), s 51A

Human Rights Act 2019 (Qld), ss 14, 17

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), s 194

Work Health and Safety Act 2011 (Qld)

Work Health and Safety Regulation 2011 (Qld), ss 34 and 36

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Higgins v State of Queensland (Queensland Health) [2022] QIRC 030

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Reasons for Decision

Introduction

  1. [1]
    Mr Adrian McIver ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an Information Technology Officer, Information Technology Services, Corporate Services at Townsville University Hospital ('TUH') within the Townsville Hospital and Health Service ('THHS').
  1. [2]
    On 1 October 2021, the Appellant submitted an 'Employee COVID-19 vaccine exemption application form' (the 'exemption application'), seeking for an exemption from obtaining any COVID-19 vaccination based on other exceptional circumstances in accordance with the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive').
  1. [3]
    By letter dated 18 January 2022, Ms Sharon Kelly, Executive Director Human Resources and Engagement, THHS, advised the Appellant's exemption application was refused. The Appellant was directed to comply with the Directive to receive the required dose and provide confirmation of compliance within seven days of receipt of the letter.
  1. [4]
    On 1 February 2022, the Appellant requested an internal review of the decision to refuse the Appellant's exemption application.
  1. [5]
    By letter dated 15 February 2022, Mr Stephen Eaton, Chief Operating Officer, THHS, confirmed the decision to refuse the Appellant's exemption application.
  1. [6]
    On 7 March 2022, the Appellant filed an appeal notice, appealing against the decision of Mr Eaton dated 15 February 2022 pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld) ('the PS Act').

Appeal principles

  1. [7]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [8]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision of Mr Eaton dated 15 February 2022 to confirm the refusal of the Appellant's exemption application was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [9]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

The Directive

  1. [10]
    On 11 September 2021, pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'), the chief executive of the Respondent issued the Directive.
  1. [11]
    Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act.
  1. [12]
    Clause 8.1 of the Directive provides:

8.1  Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

a.  have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and

b.  have received the second dose of a COVID-19 vaccine by 31 October 2021.

 An existing employee must provide to their line manager or upload into the designated system:

a.  evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.

b.  evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.

 An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.

 An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.

 The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.

  1. [13]
    Clause 10.2 of the Directive provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.

Grounds of Appeal

  1. [14]
    The Appellant outlined the following reasons for appeal in the appeal notice:

The Appellant applies for review of the decision to have his exemption declined on the following basis:

  1. The Appellant seeks an external review under 9.3(a)(i) of Directive 11/20 dated 25/09/20.
  1. In the absence of consultation and direct engagement with the Applicant, Individual employee grievances Directive: 11/20 Effective date: 25/09/20 has not been discharged.
  1. For fairness in that the Appellant sought to be consulted with and sought to be heard as part of the decision making process and was not.
  1. The decision makers involved were unknown people in the review committee, who may have had a conflict of interest with the duty to their employer as a HHS (if they were either a Health Executive Service or Senior Health Service Employee, employed by the Host HSS (sic) and also exercise a Department of Health Delegation, as there was an inherent conflict of interest.
  1. The Appellant continued to work from home at all relevant times in compliance with the Directive and no risk assessment has been conducted in his workplace.
  1. Further, the Respondent ignored the Appellant's requests for the following information and has continued to fail to provide same which has affected the Appellant's ability to properly consider and make informed decisions concerning mandatory vaccinations in accordance with the Directive:

a)  Scientific evidence that the vaccines are safe, effective, reliable and they have no long term side effects and, in particular its safety, efficacy and reliability on a person with a mental illness.

b)  Scientific evidence that an unvaccinated person is a threat and a higher risk than a vaccinated person in the workplace, in particular Bauhinia House, IT Department.

c)  Vaccine MSDS for the current vaccines offered by the Queensland Government.

d)  An explanation of how it is ethical to coerce and force a person into a medical procedure.

e)  The Appellant was not consulted regarding the change in his employment conditions (vaccination as a condition of employment).

f)  I did not agree to the removal of my human rights. At no time was I advised that the removal of my human rights was a condition of employment.

g)  Evidence or written law that requires the Appellant to undergo a forced vaccination of pre-requisite of his ongoing employment.

  1. In all of the circumstances, the decision reached by the Respondent was unfair and unreasonable.

Submissions

  1. [15]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [16]
    The substance of the Appellant's submissions largely replicates the reasons for appeal made under the appeal notice. The Appellant further submits, in summary, that:
  1. (a)
    since 3 August 2020 when the Appellant's employment was changed from temporary to permanent full time, the Appellant was not consulted or agreed to any further changes to his employment contract;
  1. (b)
    the THHS confirmed in a letter dated 18 January 2022 that they have removed the Appellant's human rights of equality, non-discrimination and not to receive medical treatment without consent;
  1. (c)
    the Appellant has requested evidence that the Respondent has not violated ss 14 and 17 of the Human Rights Act 2019 (Qld) and sch 2 art 7 of the Australian Human Rights Commission Act 1986 (Cth), however, this has not been provided;
  1. (d)
    the Appellant has been working remotely from home since 1 November 2021 and have successfully adapted to the new working environment and is able to work independently and maintain strong communication with the Appellant's direct line manager, work colleagues and end users; and
  1. (e)
    as an IT Officer, the Appellant is able to effectively and efficiently work for the Respondent without entering into a facility or work in a location where care is provided. Further, through the use of THHS's existing virtual infrastructure, the Appellant is able to perform daily duties and support the THHS without breaching the Directive.

Respondent's submissions

  1. [17]
    The Respondent, in its submissions, highlights that prior to the introduction of the Directive, the Respondent complied with its obligations under the Work Health and Safety Act 2011 (Qld) to consult with employees and with the registered unions representing employees. The Respondent submits that the consultation included dedicated meetings with registered unions representing employees employed within the Respondent and appropriate risk assessments was also conducted prior to the implementation of the Directive. The Respondent submits that the obligation to consult does not impose an obligation to consult with employees on an individual basis, particularly for a workforce the size of the Respondent and THHS.
  1. [18]
    The Respondent submits, with respect to the Appellant's exemption application, that:
  1. (a)
    the Appellant referred to COVID-19 vaccination as being 'experimental', expressed concerns regarding consent, stated the Respondent had 'threatened' him with loss of employment and further advised the direction impacted his mental health;
  1. (b)
    by letter dated 27 October 2022, the Appellant was advised by Ms Kelly that he would be unable to attend the workplace in accordance with the direction under the Directive as of 1 November 2021 and that his manager would be in contact with him to discuss alternative arrangements;
  1. (c)
    the Appellant provided a medical certificate on 1 December 2021 from Dr Gregory Thurling, Mount Louisa Medical Centre advising that the Appellant had given him a 'history of symptoms of reactive depression'. However, the Appellant did not provide evidence that he had a recognised medical contraindication to receiving a COVID-19 vaccine and depression is not a recognised medical contraindication; and
  1. (d)
    on 9 December 2021 and 5 January 2022, the Appellant requested for the Respondent to provide him with a full risk assessment with respect to his role. THHS responded to the Appellant's risk assessment request on 6 January 2022.
  1. [19]
    The Respondent submits, with respect to the Appellant's request for a risk assessment, that:
  1. (a)
    the Respondent undertook risk assessments for the whole workforce in satisfaction of their obligations under the Work Health and Safety Regulation 2011 (Qld), in particular ss 34 and 36(2);
  1. (b)
    before and after the Directive was issued, the Director-General of the Respondent received regular briefings from the Chief Health Officer regarding the risks of COVID-19. This included a specific briefing on employees identified as working in high-risk roles and advice was considered regarding COVID-19 transmission events in New South Wales health facilities and link to health care workers. It was from these briefings that the Director-General was satisfied there was a demonstrable level of risk associated with the work performed by employees to which the Directive applied; and
  1. (c)
    there was no lawful basis upon which the Appellant requested access to a risk assessment undertaken by the Respondent or THHS in relation to vaccines, and proof that he is at a heightened risk of transmission.
  1. [20]
    The Respondent submits the decision to confirm the refusal of the Appellant's exemption application was fair and reasonable. The Respondent submits, in summary, that:
  1. (a)
    Mr Eaton properly considered the Appellant's exemption request and submissions regarding his claim for exceptional circumstances and weighed these against the objects and requirements of the Directive in refusing the Appellant's exemption application;
  1. (b)
    exemption applications are considered on an individual basis and must relate to grounds relating to the employee as an individual and 'other exceptional circumstances' that affect or concern the individual employee, as opposed to general circumstances which may concern a large group of people;
  1. (c)
    the Appellant did not provide any evidence that his individual circumstances were exceptional such that they warranted priority over the health and safety of his colleagues, patients, and members of the public who attend TUH;
  1. (d)
    it is clear from the material that the Appellant is hesitant about receiving COVID-19 vaccination. The Appellant did not provide any specific evidence that would exclude him from being able to safely receive the current vaccines and did not provide any medical evidence that would preclude him from being safely administered the required doses of a COVID-19 vaccine;
  1. (e)
    vaccine hesitancy is not an exceptional circumstance and while the Appellant is entitled to hold the views in relation to the safety and efficacy of the COVID-19 vaccinations, it was not incumbent on the Respondent to accept the Appellant's views, particularly noting the weight of medical and scientific evidence is against him;
  1. (f)
    the Appellant's reference to the issue of consent in receiving a COVID-19 vaccine and likens the vaccination requirement as 'coercion' and a 'threat' is materially different from a situation involving coercive medical treatment or circumstances giving rise to an inability to provide free and informed consent to medical treatment. The Respondent submits that the Directive does not contain an offer to receive treatment but contains a direction to particular employees to be vaccinated;
  1. (g)
    the Appellant has not been deprived of free and informed consent and is not obliged to work for the Respondent. If the Appellant chose to be vaccinated in order to maintain his employment, his consent to a vaccination would not be vitiated;
  1. (h)
    the Appellant's claims that the Respondent ignored his requests for information regarding the safety of vaccination is incorrect. The Respondent responded on 18 January 2022 and 15 February 2022 and it is clear the Appellant does not accept the information provided; and
  1. (i)
    the Appellant's human rights have not been 'removed' from his contract of employment. As set out in the letter dated 15 February 2022, the Appellant's human rights were taken into account and Mr Eaton determined any limitation to the Appellant's human rights was justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients, and the community they serve.
  1. [21]
    The Respondent submits the nature of the Appellant's role presents a high degree of risk to himself, other THHS employees and patients with respect to COVID-19 transmission, highlighting the following in particular:

a)  Mr McIver's workplace is TUH. 'Bauhinia House' is located on the TUH campus. Hospitals and health service facilities are high risk locations with respect to COVID-19 transmission. Hospitals and health service facilities at which clinical services are provided have been covered by HED 12/21 for the safety of Mr McIver, his colleagues, patients, and the broader community.

b)  since 10 November 2021, a worker in healthcare must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements;

c)  as part of his role, Mr McIver is required to physically attend TUH to undertake his duties. Although Mr McIver was permitted to work from home while his application for an exemption request was considered, this is not operationally feasible long term. Prior to 1 November 2021, Mr McIver was performing his duties from the TUH. Further, the fact Mr McIver has been permitted to work from home on a temporary basis is not an exceptional circumstance excusing him from being required to comply with HED 12/21; and

d)  Mr McIver's duties require him to interact closely with other employees throughout the course of each day. This increases the risk of transmission of COVID-19.

  1. [22]
    The Respondent further submits that the Directive is both lawful, being issued under s 51A of the HHB Act, and reasonable.[5] The Respondent made the following submissions with respect to the importance of vaccination against COVID-19:

  1. The importance of the mandatory vaccination requirements is articulated at clause 6 of HED 12/21. High vaccination coverage among workers in settings with the potential for exposure to COVID-19 is a key determinant to the health outcomes for the Queensland community and health care delivery across the State. Further, limiting transmission within the workplace through COVID-19 vaccination will also reduce the likelihood of workplace outbreaks and staff shortages.
  1. Vaccination has proven to be successful in preparing the State for outbreaks of COVID-19, including the most recent Omicron outbreak. Despite the surge in cases, rates of severe illness, hospitalisations and deaths were well below what modelling had predicted and, thankfully, the health system was not overwhelmed. The Chief Health Officer attributes this to the high vaccination coverage, noting that over 90% of people in Queensland are fully vaccinated. It is well documented that vaccination offers significant protection against severe illness, hospitalisation, and death, with data from clinical trials showing vaccination can reduce symptomatic infection by up to 95%. The Department's data indicates that people who are unvaccinated are 5.4 times more likely to end up in the ICU compared to people who have had two or more doses of a COVID-19 vaccine.
  1. High levels of vaccination coverage across our community also reduces the spread of infection through protection against symptomatic infection and by reducing a person's infectious period. Vaccination helps in protecting the unvaccinated as well as the vaccinated.

Consideration

  1. [23]
    Consideration of an appeal of this kind requires a review of the decision in order to determine if the decision was fair and reasonable in the circumstances.
  1. [24]
    The Appellant does not appear to directly challenge the Directive, although I note that the grounds of appeal include the Respondent's non-provision of 'evidence or written law' that requires the Appellant to obtain the COVID-19 vaccination as a pre-requisite of ongoing employment. The Directive is based on the Chief Health Officer's directions regarding workers in healthcare settings and has been determined to be reasonable in a number of similar decisions.[6] The Directive is also lawful pursuant to s 51A of the HHB Act.
  1. [25]
    The employee COVID-19 vaccine exemption application form provides that employees may seek an exemption to the vaccination requirements set out in the Directive in circumstances where the employee has a recognised medical contraindication to the COVID-19 vaccine, where the employee has refused the COVID-19 vaccine on grounds of a genuinely held religious belief or other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements.
  1. [26]
    The exemption application states clearly that vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances. 
  1. [27]
    In the Appellant's exemption application, he indicated that he sought an exemption due to other exceptional circumstances and referred to COVID-19 vaccination as being 'experimental', expressed concerns regarding consent, stated the Respondent had 'threatened' him with loss of employment and further advised the direction impacted his mental health. The Appellant provided a medical certificate confirming that he had advised the doctor that he had a history of reactive depression.
  1. [28]
    Ms Kelly advised the Appellant that his application for an exemption had been refused and outlined her considerations as part of the decision. This decision confirmed that the Appellant's concerns regarding the COVID-19 vaccine did not constitute an 'exceptional circumstance' and addressed the Appellant's concerns regarding consent. The decision provided the following:

Free and informed consent to medical treatment is an essential tenet of healthcare. However, as the Directive require vaccination as a condition of employment, this is materially and irreconcilably different from a situation involving coercive medical treatment or circumstances otherwise giving rise to an inability to provide free and informed consent to medical treatment.

  1. [29]
    Ms Kelly's decision also addressed the Appellant's reactive depression, stating that the condition is not a recognised medical contraindication precluding vaccination with a COVID-19 vaccine.
  1. [30]
    The decision by Ms Kelly to deny the exemption application was subsequently reviewed by Mr Eaton following a request from the Appellant. The Appellant provided further material in support of his request relating to the possibility of working remotely and provision of a risk assessment.
  1. [31]
    In his decision, Mr Eaton outlined the risk profile used to determine why prospective and existing health service employees are subject to the Directive:
  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [32]
    The decision addressed the Appellant's submissions with respect to his concerns about complying with the Directive, stating:

The COVID-19 virus presents significant risk to the health and safety of healthcare workers and support staff, their families and the patients under our care. Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine, but the very high-level efficacy. Vaccination reduces the risk of hospitalisation and death, when compared to the unvaccinated. It also means staff are much less likely to transmit the virus to others.

  1. [33]
    The Appellant's workplace location is on the TUH campus and as of 1 November 2021, a worker in healthcare must not enter, work in, or provide services in healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements. In response to the Appellant's submission, Mr Eaton adequately explained the risk profile used to determine why health service employees are subject to the Directive.
  1. [34]
    As part of the review process, the Appellant made submissions that he was willing to work remotely. The Appellant was permitted to work from home after 1 November 2021 while his exemption application was considered, however the Respondent submits that this arrangement is not feasible in the long term. Mr Eaton advised that the purpose of the mandate was to ensure the continuing readiness of the health system to respond to the changing nature of the pandemic, in addition to promoting the health and wellbeing of employees, colleagues and persons accessing healthcare. I accept the Respondent's submissions that the Appellant's duties require him to interact closely with other employees throughout the course of each day, thereby increasing the risk of transmission of COVID-19. 
  1. [35]
    Mr Eaton noted that employees are entitled to request flexible and remote working arrangements and have such a request considered in an equitable manner for the whole work unit, recommending that the Appellant discuss any such request with his line manager. As considered in Higgins v State of Queensland (Queensland Health),[7] a Health Service may refuse such a request on reasonable grounds and it is not unreasonable to consider that due to the pressures placed upon public health units by the COVID-19 pandemic, health employees may be reasonably required to be temporarily redeployed to other work locations. Ultimately it is a matter for the Health Service to decide where their employees perform their duties. Mr Eaton reasonably determined that a proposal to work remotely does not constitute an exceptional circumstance for the purposes of an exemption application.
  1. [36]
    The decision maker demonstrated consideration of human rights, noting that the decision engages or limits a number of the Appellant's human rights, including the right to equality and non-discrimination and the right not to receive medical treatment without consent. Mr Eaton concluded that he was satisfied that those limits on human rights are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they service.
  1. [37]
    The Appellant submits that he was not consulted as part of the decision making process. The Respondent submits that it had complied with its obligations under the Work Health and Safety Act 2011 (Qld) to consult with employees and with the registered unions representing employees. Such consultation included dedicated meetings with registered unions representing employees employed with the Respondent. It has been accepted that the obligation to consult does not impose an obligation to consult with employees on an individual basis.[8] The Appellant was able to submit any supporting material with his application for the exemption to the decision maker, with the decision demonstrating, in my view, that his submissions were considered. It is not incumbent on the decision maker to accept the Appellant's view.[9]
  1. [38]
    The Appellant submits that the Respondent has failed to provide information that he sought relating to the COVID-19 vaccines. With respect, this process involves a review of a decision to deny an exemption from the requirements of the Directive. The obligation lies with the Appellant to provide evidence of 'exceptional circumstances' in support of his exemption application.
  1. [39]
    The Appellant submits that the members of the committee determining his exemption application were unknown and may have had a conflict of interest, and there was an inherent conflict of interest if they were employed by the Respondent. I do not accept that employees of the Respondent have an 'inherent' conflict of interest in undertaking their roles, with all decision makers required to undertake their duties in accordance with the relevant Code of Conduct and the PS Act. There is no evidence in this matter that anyone involved in the process has a conflict of interest. 
  1. [40]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[10] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[11]

  1. [41]
    Applying the principles outlined above, I do not consider that the decision to confirm the rejection of the exemption application lacks justification in the circumstances. Based on the information before me, I am satisfied that the internal review decision confirming the decision not to grant the Appellant an exemption under the Directive was fair and reasonable.
  1. [42]
    I order accordingly.

Order

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1]Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2]Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3]Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5]citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039.

[6]Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030.

[7][2022] QIRC 030.

[8]Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356.

[9]Tilley v State of Queensland (Queensland Health) [2022] QIRC 002.

[10][2019] QSC 170.

[11]Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    McIver v State of Queensland (Queensland Health)

  • Shortened Case Name:

    McIver v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 121

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    01 Apr 2022

Appeal Status

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

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