Date: 11 June 2020
Tribunal: Queensland Industrial Relations Commission
Tribunal Member: Member O’Connor VP
Human Rights Act 2019 (Qld) Sections: s 22
Rights Considered: Right to peaceful assembly and freedom of association
Other Legislation: Anti-Discrimination Act 1991 (Qld); Industrial Relations Act 2016 (Qld) ss 285, 291, 527, 531, 533, 536, 539; Industrial Relations Act 1999 (Qld) ss 322, 329;  Industrial Relations (Tribunals) Rules 2000 (Qld) r 38

Keywords: Employment; Trade union activity; Discrimination

The applicant relied upon the right to peaceful assembly and freedom of association contained within section 22 of the Human Rights Act 2019 (Qld) in seeking declaratory relief against the respondents. There was, however, no in-depth analysis of this provision provided in the Commission’s decision.

This case concerned an application by Ms. Margaret Gilbert, a registered nurse and member of the Nurses Professional Association Queensland (NPAQ). Ms. Gilbert filed an amended application seeking ‘declaratory relief and other orders against the named respondents,’ arguing that they ‘misrepresented her workplace rights regarding NPAQ’: at [1]. The Queensland Nurses and Midwives’ Union of Employees (QNMU) subsequently filed an application ‘seeking orders to be jointed as a party to the proceedings on the basis that the relief sought by the applicant will have both a direct and indirect effect on the QNMU’s legal interests’: at [2].

The QNMU sought specific orders that they be jointed as a party to the proceeding, pursuant to the Industrial Relations Act 2019 (Qld) (‘the IR Act’) and that they be granted leave to be heard on matters identified in an affidavit issued on 9 March 2020: at [2]. The Commission was required to determine whether there was sufficient ground to entitle the QNMU to be joined as a party, ‘and extent of the participation that may be offered them’ in the proceedings: at [4].

The application was amended to include a reference to section 22 of the Human Rights Act 2019 (Qld), specifically the right to peaceful assembly and freedom of association. Here, the applicant sought declarations that the Nurses and Midwives (Queensland Health) Award - State 2015 and the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018 contained clauses that violated her rights under section 22 and unlawfully discriminated against her on the basis of trade union activity: at [35].

In response, the QNMU sought to be heard ‘on the proper construction of the IR provisions’ and the potential consequences arising from the Human Rights Act 2019 (Qld) and international treaties. They further sought to determine whether the NPAQ ‘answers the relevant description of an industrial association, trade union or registered organisation and what effect that has on any rights and entitlements of the NPAQ’: at [51].

The Commission ultimately granted QNMU ‘a right to make both written and oral submissions’ and ordered that within seven days the parties ‘file and serve submissions on the form of the orders to be made’: at [58]-[59].

Visit the reported judgement: Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 084