Date: 27 July 2021
Tribunal: Queensland Industrial Relations Commission
Tribunal Member: Member O’Connor VP
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 21, 22, 48, 58, 59
Rights Considered: Right to freedom of expression; right to peaceful assembly and freedom of association
Other Legislation: Acts Interpretation Act 1954 (Qld) s 20(2)(b); Anti-Discrimination Act 1991 (Qld) s 9; Associations Incorporation Act 1981 (Qld) Schedule 2; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32; Corporations Act 2001 (Cth) s 631; Fair Work Act 2009 (Cth) ss 342, 343, 345, 347; Hospital and Health Boards Act 2011 (Qld) s 57A; Industrial Arbitration Act 1940 (NSW) s 95; Industrial Relations Act 2016 (Qld) ss 278, 279, 282, 284, 285, 287, 289, 290, 291, 293, 295, 306, 314, 463, 531, 571, 574, 576, Schedule 5; Public Sector Ethics Act 1994 (Qld) s 12H; Public Service Act 2008 (Qld) s 187; Statutory Instruments Act 1992 (Qld) s 57; Workplace Relations Act 1996 (Cth) ss 170NC, 298K; Hospital and Health Boards (Changes to Prescribed Services) Amendment Regulation (Qld) 2019; Hospital and Health Boards Regulation (Qld) 2012
Keywords: Public Law Considerations: Interpretation; Education, Training and Employment

The applicant sought declarations that the respondents had acted unlawfully under section 58 of the Human Rights Act 2019 (Qld) by acting in a way that was incompatible with her right to freedom of expression (sections 21) and freedom of association (section 22(2)), and by failing to give proper consideration to her human rights. The Commission dismissed the application, on the basis that limitations were reasonable and demonstrably justifiable.

This case concerned alleged breaches under the Industrial Relations Act 2016 (Qld) and the Human Rights Act 2019 (Qld)The applicant, Ms Gilbert, was quoted in an article in the Sunday Mail where she made critical comments about nursing graduates and the nursing profession: at [7]. The article identified her as ‘the duty nurse manager at Prince Charles Hospital’: at [7]. She was consequently issued with a notice to show cause why she should not be disciplined for making the comments: at [9]. In response, Ms Gilbert, applied to the Commission alleging there had been contraventions of the Industrial Relations Act 2016 (Qld), the Anti-Discrimination Act 1991 (Qld) and the Human Rights Act 2019 (Qld): [10] and [44].

Ms Gilbert sought declarations under the Human Rights Act 2019 (Qld) that the respondents had breached section 58(1)(a) by issuing the request to show cause. She claimed this was incompatible with Ms Gilbert’s right to freedom of expression (section 21) and her right to freedom of association (section 22(2)): at [348]. She also sought a declaration that the respondents had breached section 58(1)(b) by failing to give proper consideration to her rights in making their decision: at [348].

The applicant claimed that the respondent had taken adverse action against her for engaging in industrial activity as a member of the Nurses’ Professional Association of Queensland (NPAQ): at [448]. The applicant argued that the NPAQ was a ‘protected trade union’ and an ‘industrial association’: at [407]. However, the Commission found that the NPAQ was not an industrial association, nor a trade union: at [409]. Therefore, involvement in trade union activity could not have been the reason that the show cause notice was issued, and there was no breach of section 291 of the Industrial Relations Act 2016 (Qld): at [417].

In relation to the claimed breaches of the Human Rights Act 2019 (Qld), the Commission’s reasoning turned on the employee Code of Conduct upon which the show cause notice was issued: at [374]. The Commission found that the Code of Conduct limited the freedom of expression and the freedom of association, but that this was reasonable and demonstrably justifiable under section 13 of the Human Rights Act 2019 (Qld): at [377]-[383]. Citing Comcare v Banerji [2019] HCA 23, the Commission stated that ‘the employer's reasonable and lawful instructions about an employee's conduct, typically expressed in the form of a Code of Conduct, remain paramount’: at [377]. A public sector employee cannot rely on the Human Rights Act 2019 (Qld) for immunity from contravening their employer’s behavioural expectations, and reasonable limits are justifiable in protecting the reputation of a public service: at [377] and [397].

The Tribunal found that there was no independent ground of unlawfulness upon which section 59 of the Human Rights Act 2019 (Qld) could be engaged to provide piggyback relief for contravention of section 58(1): at [365].

The Commission refused to exercise its discretionary power, under section 463 of the Industrial Relations Act 2019 (Qld), to make a declaration in relation to an industrial matter, on the basis that the declarations the applicant sought in reliance on the Human Rights Act 2019 (Qld) would have no practical relevance or utility: at [392], [394] and [474]. The Commission emphasised that only the Supreme Court had the power to make a declaration of incompatibility and that the applicant had not applied to refer any matter to the Supreme Court: at [388].

The Commission dismissed the application: at [482].

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