State of Queensland (Queensland Health) v Hume [2022] ICQ 33 | Case summary

COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - COURTS OF RECORD - POWERS GENERALLY - contention by Appellant that the Commission acted in want of jurisdiction - whether the status of the Commission as a court of record renders it necessary or desirable that the record be corrected

Industrial Court of Queensland|2022-12-02|Before: Merrell DP

INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - APPLICATIONS IN EXISTING PROCEEDINGS - Respondent was a public service employee who made a flexible working arrangement request to work from home for all hours of work - decision by the Appellant that the Respondent could work from home for half of all hours of work - Respondent appealed against the Appellant's decision to the Queensland Industrial Relations Commission pursuant to ch 7, pt 1 of the Public Service Act 2008 - decision by the Commission setting aside the Appellant's decision and that a new decision be substituted, namely, that the Respondent be required to physically attend work one day each week - Appellant appealed against the decision of the Commission to the Industrial Court of Queensland - subsequently to the appeal to the Court being started, the Respondent and the Appellant entered into a flexible working arrangement, pursuant to s 28 of the Industrial Relations Act 2016, on terms including those decided by the Commission - application in existing proceedings by the Respondent for the Court to refrain from deciding the Appellant's appeal because further proceedings are not necessary or desirable in the public interest because the decision appealed against no longer has operative effect and there is no practical utility or public interest in the appeal proceeding - whether appeal to the Court is an industrial cause - subsequent to hearing the Respondent's application, the Respondent gave notice of his resignation and the Respondent made a second application in existing proceedings for the parties to make further submissions in light of the Respondent's resignation - directions made for further submissions - appeal is not an industrial cause - there is utility in the appeal being heard and determined because of the contention that the decision of the Commission may be affected by jurisdictional error - first application in existing proceedings dismissed

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - whether an appeal to the Court against a decision of the Commission about a public service appeal made pursuant to ch 7, pt 1 of the Public Service Act 2008 is an 'industrial cause' within the meaning of s 541 of the Industrial Relations Act 2016 - whether the matter the subject of the appeal to the Court is the subject of a proceeding for a public service appeal within the meaning of s 9(2)(b) of the Industrial Relations Act 2016

Public Service Act 2008, s 194, s 195, s 196 and s 197

Campbell v State of Queensland (Department of Justice and Attorney General) [2019] ICQ 18; (2019) 291 IR 17

Green v Lord Penzance (1881) 6 App. Cas. 657

Hume v State of Queensland (Queensland Health) [2021] QIRC 272

Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 54

Mutual Life & Citizens Assurance Co Ltd v Attorney-General for the State of Queensland [1961] HCA 51; (1961) 106 CLR 48

Powell v Queensland University of Technology [2017] QCA 200; [2018] 2 Qd R 234

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Appln by Olrey Pty Ltd (as trustee of FRG Investments Trust) [2016] VSCA 8

Re Public Service Association of NSW and the Industrial Union of Employees (Commissioned Police Officers) Award [1947] HCA 31; (1947) 75 CLR 430

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1

State of Queensland v Dodds [2021] ICQ 007

State of Queensland (Queensland Health) v Hume [2022] ICQ 001

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Mr C. Murdoch KC and Mr C. Martin instructed by Mr L. Grant of Crown Law for the Appellant.

Mr K. McKay of Together Queensland, Industrial Union of Employees, as agent for the Respondent.

[1] This decision assumes familiarity with the earlier decision of the Court in State of Queensland (Queensland Health) v Hume ('Hume No. 1').[1] In Hume No. 1, pursuant to s 530(1)(a)(ii) of the IR Act, I gave leave for the State to be represented by private counsel. The relevant background facts are set out in that decision. Unless otherwise stated, the abbreviations used in Hume No. 1 are used in these reasons.

[2] The appeal the subject of this proceeding was to be heard on 10 March 2022. However, before and after that date, two relevant events occurred.

[3] First, on 7 March 2022, Mr Hume filed an application in existing proceedings seeking an order pursuant to s 541(b)(ii) of the IR Act ('Mr Hume's first application'). The order sought by Mr Hume is that the Court:

[D]ismiss the cause, or refrain from hearing the cause, or refrain from continuing to hear the cause or refrain from deciding the cause in accordance with section 541(b)(ii) as further proceedings are not necessary or desirable in the public interest.

[4] The reasons given by Mr Hume for the order he seeks are:

the appeal, the subject of the present proceedings, is against a substituted decision of the Commission of a public service appeal made on 5 August 2021 ('the decision');

on 22 February 2022, Mr Hume made a request for a Flexible Working Arrangement and, on 23 February 2022, that request was approved ('Mr Hume's FWA');

Mr Hume's FWA replaces, in total, the previous substituted decision of the Commission and the decision being appealed no longer has any operative effect;

the decision being appealed was by a single Industrial Commissioner and any view of the law contained in that decision is not binding on other Industrial Commissioners; and

there is no practical utility or public interest in the appeal proceeding.

[5] The State opposes the order sought in Mr Hume's first application.

[6] Secondly, after the hearing on 10 March 2022 and after further written submissions were filed and served concerning Mr Hume's first application, Mr Hume gave notice of his resignation with an effective date of 5 August 2022. Following a further application in existing proceedings by Mr Hume filed on 19 July 2022, the parties were given the opportunity to make further submissions about whether Mr Hume's resignation had any bearing on whether or not the Court should grant the order sought by Mr Hume in his first application. Both parties made further submissions. The State maintains its opposition to the order sought in Mr Hume's first application.

[7] The matter for my determination is whether or not I should make the order sought by Mr Hume in his first application.

[8] In determining that matter, the issues are:

whether the State's appeal against the decision of the Commission is an 'industrial cause' within the meaning of s 541 of the IR Act; and, if it is

whether, on a consideration of the relevant facts, the Court should exercise discretion pursuant to s 541(b)(ii) of the IR Act and make the order sought by Mr Hume.

[9] For the reasons that follow, the Court will not make the order sought by Mr Hume.

[10] The parties agree on the following facts:

on or about 2 January 2022, an instruction by the State was given to Mr Hume and his work unit, as a mitigation strategy in respect of the Omicron COVID-19 variant, that, where possible, employees were to work from home ('the instruction');

Mr Hume then worked from home for 100 per cent of his work time; and

the instruction was lifted on 7 February 2022 which was not to be automatic, but the return to the workplace by employees was to be implemented, in a transitional way, by consultation between the State and the employees, which was the reason for Mr Hume's FWA.[2]

[11] No affidavit was filed with Mr Hume's application. However, annexed to Mr Hume's application was his FWA. There is no dispute about the authenticity of that document.[3] Further, it is common ground that Mr Hume's FWA was made pursuant to s 28 of the IR Act.[4]

[12] In response to Mr Hume's first application, the State, on 8 March 2022, filed an affidavit affirmed by Mr Michael McGuinness, Director of Operations, Capital Infrastructure, Delivery Governance and Performance, Queensland Health.[5]

[13] Mr McGuinness was the officer of Queensland Health who, on behalf of the State, signed Mr Hume's FWA. Mr McGuinness has been employed in the position of Director of Operations, Capital Infrastructure, Delivery Governance and Performance, since 14 February 2022. Mr McGuinness was not cross-examined.

[14] Mr Hume's FWA actually consists of the request for flexible working arrangements made by him, his reasons for that request and Mr McGuinness' decision.

[15] In the part of Mr Hume's FWA dealing with his decision, Mr McGuinness stated:

The office is the default workplace unless a FWA is in place.
Staff must attend the office on any given day if for example the Senior Director
Capital Infrastructure Delivery, Governance and Performance, or the Executive Director
CAS requires, with a minimum of 24 hours notice provided, regardless of a previous arrangement to work remotely on that day (it is noted that this would be extremely rare).
Daily attendance patterns are to be recorded using Real Time Workforce.

The arrangement will be considered a success if it has delivered the desired improvement in employee work-life blend, employee wellbeing or enabled maintenance or improvement of team performance standards.

The arrangement is agreed for a twelve month period from commencement with a review meeting to occur after every three months. Frequent check in discussions will be held as part of our routine meetings as required.

The review will give me the chance to assess the individual arrangement in the context of

[16] On the last page of Mr Hume's FWA, under the heading of 'Summary of approved arrangement' the following is recorded:

This arrangement reflects the Queensland Industrial Relations Commissions' [sic] decision in Case no. PSA/2021/130. Daniel has previously worked from home during mandatory lockdowns, graduated return to work following lockdowns and other Department directives due to the pandemic. There have been no performance issues, and Daniel has consistently met work priorities and provided flexibility in the work program as needed.

shortly after taking up his position, he conducted a review of the flexible working arrangements in place across the Infrastructure Analysis and Reporting Team (of which Mr Hume was a member) and the Capital Budgets and Financial Services Team;

at that time, Mr Hume was not attending the office on any day of the week;[6]

on 23 February 2022, he discussed, with Mr Hume, putting in place a new flexible working arrangement which reflected the (Commission's) decision;

on 23 February 2022, Mr Hume's FWA was entered into; and

in his discussions with Mr Hume, he (Mr McGuinness) made it clear that the FWA '... is subject to review and is not set in stone' noting that the FWA provides its arrangements are for a 12 month period, with a review meeting to occur after every three months.[7]

[18] Of particular relevance are these paragraphs of Mr McGuinness' affidavit:

In light of the QIRC Decision, I wanted to ensure that there was a FWA in place which reflected on paper the adjustment to Mr Hume's working arrangements which had been ordered by the Commission and which required his physical attendance at work 20% of the time (one day each week)

I discussed with Mr Hume putting in place a new FWA reflecting the QIRC Decision during our weekly catchup meeting on 23 February 2022. Mr Hume communicated in writing that he was willing to enter into a new FWA on these terms.

[19] Exhibit MM-2 to Mr McGuinness' affidavit is an email from Mr Hume to Mr McGuinness, which was sent on 23 February 2022, in which Mr Hume relevantly stated:

Whilst my position remains unchanged in that my work location is redundant for the role I perform, I am happy to agree to one day per week in the office as per the current QIRC decision, provided that the review period is 12 months so that I can have some certainty around these arrangements.

[20] Having regard to the further written submissions filed by the parties, it is not in dispute that Mr Hume gave notice of his resignation from his position which took effect on 5 August 2022.

The court or commission may, in an industrial cause do any of the following-

(a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;

(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers-

(i) the cause is trivial; or

(ii) further proceedings by the court or commission are not necessary or desirable in the public interest;

(c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.

Is the State's appeal against the decision of the Commission an 'industrial cause' within the meaning of s 541 of the IR Act?

[22] In oral submissions, Mr McKay of Together Queensland, Industrial Union of Employees, as agent for Mr Hume, submitted that the appeal by the State is not a proceeding for a public service appeal (and therefore is an industrial matter which is capable of being an industrial cause) and cited, as authority for that proposition, the decision of Davis J, President in State of Queensland v Dodds ('Dodds').[8]

[23] Dodds involved an application by the State, made pursuant to s 530(1)(a)(ii) of the IR Act, to be represented by private counsel in its appeal to the Court against a decision of the Commission which allowed a public service appeal by an officer of the public service against a departmental decision not to appoint the officer to a position at a higher classification level. Justice Davis, in determining the Court had jurisdiction to make such an order, relevantly held that:

the appeal to the Court was not a public service appeal as that term was used in s 530 and s 530A of the IR Act;

the definition of 'public service appeal' in the IR Act refers back to an appeal '... under the Public Service Act 2008, chapter 7';

chapter 7 of the PS Act does not concern appeals from the Commission to the Court, but only appeals from the decision of the government agency to the Commission which are public service appeals; and

whether a party may have legal representation in an appeal (to the Court) from a decision on a public service appeal is governed by s 530 of the IR Act, in respect of which the Court may give leave for the State to be represented by other lawyers, such as counsel in private practice.[9]

[24] On the authority of Dodds, Mr Hume submitted that:

- is not a proceeding for a public service appeal; and

- is about whether or not the Commission erred in law in the decision or acted in excess of jurisdiction; and

the subject of the appeal becomes an industrial matter, because it affects or relates to work done or to be done in that the outcome from the appeal affects or relates to work done or to be done, or the privileges, rights or functions of employers or employees, [10] specifically, the work done or to be done or the rights and functions of Mr Hume.[11]

[25] Mr Hume, in further written submissions, relevantly submitted that:

while s 9 of the IR Act excludes a matter from being an industrial matter if it is subject to a proceeding for a public service appeal, the present proceedings are not proceedings for a public service appeal in that the decision in Dodds[12] makes it clear that proceedings for a public service appeal are only proceedings relating to a decision from a government agency, and ch 7 of the PS Act does not concern appeals from the Commission to the Court;

the decision of the Industrial Commissioner, and any decision that may arise from this appeal, affects the work he has to do and may affect his privileges and rights, and, as such, as the present proceedings deal with an industrial matter, they are an industrial cause; and

if these appeal proceedings were for a public service appeal, then lawyers could not appear in these proceedings and the decision in Hume No. 1 would be in excess of jurisdiction.

[26] In its principal written submissions, the State submitted that:

the matter which is the subject of the appeal to this Court is already the subject of a proceeding for a public service appeal, being the matter before the Commission at first instance in Matter No. PSA/2021/130;[13]

the fact that the proceeding for the public service appeal before the Commission in Matter No. PSA/2021/130 has concluded does not mean that the matter is no longer the subject of a proceeding for a public service appeal, with the result being that the matter the subject of the appeal to this Court remains incapable of constituting an 'industrial matter' and therefore may not be the subject of an 'industrial dispute';

the exclusion of a proceeding for a public service appeal from the definition of 'industrial matter' demonstrates that, for the purposes of the IR Act, such a proceeding is not to be regarded as 'industrial' and therefore does not constitute an 'industrial cause'; and

equally, an appeal against a decision in a proceeding for a public service appeal is a 'matter' which '... is the subject of a proceeding for ... a public service appeal', is therefore incapable of constituting an 'industrial matter' and, as a consequence, such an appeal proceeding (to this Court) is not to be regarded as 'industrial' and does not constitute an 'industrial cause'.

the decision in Dodds did not resolve the issue of whether or not the present appeal was an industrial cause because the focus in Dodds was on the identification of the proceeding whereas, in the present case, having regard to s 9(2) of the IR Act, the focus is on the identification of the subject matter;[14] and

the subject of the public service appeal below was whether or not the decision that was made by the Department was fair and reasonable, which is the same subject matter of the present appeal to the Court, therefore even if a matter is something that affects work done or to be done, or the privileges, rights or functions of employees or employers, if that matter is the subject of a proceeding for a public service appeal, by virtue of s 9(2) of the IR Act, it is not an industrial matter.[15]

[28] In reply, Mr Hume submitted that s 9(2) of the IR Act has no application in the present case because the appeal involves the question of whether or not the Industrial Commissioner erred in law or acted in excess of jurisdiction, and that matter becomes an industrial matter because it could affect or relate to work done or to be done or to the privileges, rights or functions of employers or employees.[16]

The State's appeal is not an industrial cause

[29] From the terms of s 541 of the IR Act, the Court's discretion to do any one of the things referred to in s 541(b) of the IR Act, can only be enlivened '... in an industrial cause.'

[30] The phrase 'industrial cause' is defined in sch 5 to the IR Act. That definition provided:

industrial cause includes an industrial matter and industrial dispute.[17]

[31] Section 9 of the IR Act defines the phrase 'industrial matter' and relevantly provides:

(1) An industrial matter is a matter that affects or relates to-

(a) work done or to be done; or

(b) the privileges, rights or functions of-

(i) employers or employees; or

(ii) persons who have been, or propose to be, or who may become, employers or employees; or

(c) a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.

(2) However, a matter is not an industrial matter if it is the subject of a proceeding for-

(a) an indictable offence; or

(b) a public service appeal.

[32] The phrase 'public service appeal' is exhaustively defined in sch 5 to the IR Act to mean '... an appeal against a decision under the Public Service Act 2008, chapter 7.'

[33] The decision in Dodds is of no assistance to Mr Hume.

[34] Mr Dodds argued that the Court did not have power to give leave to the State to be represented by private counsel because s 530A of the IR Act (which dealt with representation in relation to a proceeding for a public service appeal and prohibited privately instructed lawyers from appearing for a party) excluded the discretion given to the Court, pursuant to s 530(1)(a)(ii) of the IR Act, to give leave to a party to be represented by a lawyer. It was in that context that the Court held that the appeal to the Court was not a 'public service appeal' within the meaning of s 530A of the IR Act. That is, the Court held the appeal to it was not a 'public service appeal' made under ch 7 of the PS Act. As such, s 530A of the IR Act was not engaged.[18]

[35] Mr Hume's argument - that if the present appeal was for a public service appeal, then lawyers could not appear in these proceedings and the decision in Hume No. 1 would be in excess of jurisdiction - is misconceived. That submission proceeds on the basis of the decision in Dodds, namely, that an appeal to the Court, against a public service appeal decision of the Commission, is not a public service appeal. That submission ignores the text and purpose (discussed below) of s 9(2)(b) of the IR Act.

[36] The decision in Dodds was not about the construction of s 9(2)(b) of the IR Act or the application of that section to an appeal to the Court against a public service appeal decision made by the Commission.

[37] The resolution of the issue lies in the construction of s 9(2)(b) of the IR Act.

[38] In SZTAL v Minister for Immigration and Border Protection,[19] the plurality, consisting of Kiefel CJ, Nettle J and Gordon J, summarised the modern approach to statutory construction, namely:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[20]

[39] Consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy.[21] The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[22] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[23]

[40] In my opinion, s 9(2)(b) of the IR Act does have application to the State's appeal. There are four reasons for this.

[41] First, s 9 of the IR Act defines what is and what is not an industrial matter for the whole of the IR Act.[24] The focus of s 9(2)(b) of the IR Act, in determining what is not an industrial matter, is on the 'matter.' If the matter is the subject of a proceeding for a public service appeal, then, on the plain words used in s 9(2)(b) of the IR Act, that matter will be prohibited from being an industrial matter.

[42] The decisions that can be appealed under ch 7 of the Public Service Act 2008 ('the PS Act') are those contained in s 194 of the PS Act which, at s 194(1)(eb), relevantly includes a decision a public service employee believes is unfair and unreasonable, defined as a '... fair treatment decision.' The decisions which cannot be appealed are those contained in s 195 of the PS Act, and the identity of the persons who can be appellants are those contained in s 196. The purpose of a public service appeal is to decide whether the decision appealed against was fair and reasonable.[25] Mr Hume was a person who could appeal the internal decision to the Commission because that internal decision met the description of a fair treatment decision.[26] The matter the subject of Mr Hume's public service appeal was his Flexible Working Arrangement request and whether or not the internal decision about that request was fair and reasonable.[27] By virtue of s 9(2)(b) of the IR Act, the matter the subject of Mr Hume's public service appeal cannot be an industrial matter for any purpose in the IR Act.

[43] Secondly, the legislative history and purpose of s 9(2)(b) of the IR Act supports the contention that the matter the subject of Mr Hume's public service appeal cannot be an industrial matter for any purpose in the IR Act.

[44] Chapter 7 of the PS Act, prior to its amendment by the operation of the Public Service and Other Legislation Amendment Act 2020 ('the Amendment Act'), contained the legislative scheme for public service appeals. Under the PS Act, at that time, public service appeal decisions were determined by Members of the Commission but, in doing so, the Members' functions and powers were performed and exercised under the PS Act and not under the IR Act.[28]

[45] In addition, prior to its amendment by the Amendment Act, the IR Act provided that:

the Court did not have jurisdiction to hear and decide a matter that has been, or is, the subject of an appeal under ch 7, pt 1 of the PS Act, other than to the extent the matter related to bullying in the workplace;[29] and

the Commission did not have jurisdiction to hear and decide a matter that has been, or is, the subject of an appeal under ch 7, pt 1 of the PS Act, other than to the extent the matter related to bullying in the workplace.[30]

[41] These provisions were amended by the Amendment Act which commenced operation on 14 September 2020. From that time:

a matter was not an industrial matter if it is the subject of a proceeding for a public service appeal;[31]

an appeal under ch 7, pt 1 of the PS Act, was to be heard and determined under ch 11 of the IR Act by the Commission;[32]

the Commission's functions included dealing with '... applications brought under this Act or another Act including for public service appeals';[33]

chapter 11, pt 5, div 3 prohibited private legal representation in public service appeals;[34]

- conferred discretion on the Commission to hear and to not hear certain public service appeals in particular circumstances;[35]

a public service appeal to the Commission is by way of review; and

the purpose of a public service appeal is to decide whether the decision appealed against was fair and reasonable and specified the evidence upon which the Commission must and may have regard in determining particular public service appeals;[36]

- specified the decisions the Commission can make on appeal;[37] and

- provided the time limit to start a public service appeal;[38] and

the restriction on the jurisdiction of the Court to hear and decide a matter that had been or was the subject of an appeal under ch 7, pt 1 of the PS Act, was removed.[39]

[46] Therefore, as a result of the Amendment Act:

the Commission's power to hear and determine a public service appeal was to be exercised under ch 11, pt 6, div 4 of the IR Act and not under the PS Act; and

the Court could hear and decide an appeal against a public service appeal decision made by the Commission.

[47] It seems obvious, having regard to this legislative history and to the IR Act as a whole, that the purpose of s 9(2)(b) of the IR Act, in prohibiting a matter that is the subject of a proceeding for a public service appeal from being an industrial matter, was to prohibit, in relation to such a matter, the exercise of the powers conferred on the Commission by the IR Act in respect of industrial matters.

[48] Given s 9(2)(b) of the IR Act, if a matter is the subject of a proceeding for a public service appeal, then in respect of that matter, the Commission cannot exercise powers under the IR Act in respect of industrial matters. This would include, for example:

the Commission's power to conciliate and arbitrate industrial disputes about industrial matters;[40] and

the Commission's power to make declarations about industrial matters.[41]

[49] Thirdly, the purpose of s 9(2)(b) of the IR Act also supports the State's submission that the fact that the proceeding for the public service appeal before the Industrial Commissioner has concluded, does not mean that the matter is no longer the subject of a proceeding for a public service appeal. A construction of the IR Act which would lead to a conclusion that the matter the subject of Mr Hume's public service appeal, when before the Commission, was not an industrial matter, but that the same subject matter would be an industrial matter in an appeal of the Industrial Commissioner's decision to the Court, would be inconsistent with the purpose of s 9(2)(b) of the IR Act.

[50] Fourthly, as I understand it, Mr Hume's argument, at least in part, is that the subject matter of the State's appeal should be characterised as involving the question of whether or not the Industrial Commissioner erred in law or acted in excess of jurisdiction. In my view, that is too narrow a characterisation of the subject matter of the State's appeal to the Court.

[51] The State's appeal enlivens the Court's appellate jurisdiction. Section 557(1) of the IR Act relevantly provides that a person aggrieved by a decision of the Commission may appeal against the decision to the Court on the ground of error of law or excess, or want, of jurisdiction. Section 558 of the IR Act sets out what the Court may do on appeal under s 557. By its application to appeal, the State contends that the Industrial Commissioner erred in law in making the decision in that the wrong legal test was applied, that irrelevant considerations were taken into account or that the Industrial Commissioner acted in excess, or want, of jurisdiction. By s 558(1) of the IR Act, the State seeks orders allowing the appeal, setting aside the Industrial Commissioner's decision and the substitution of another decision, namely, that the internal decision be confirmed.

[52] By s 567(1) of the IR Act, the appeal to the Court is by way of re-hearing on the record. By s 567(2) of the IR Act, the Court may hear evidence afresh or additional evidence if the Court considers it appropriate to effectively dispose of the appeal.

[53] An appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, is required to give the judgment which, in its opinion, ought to have been given in the first instance. Further, an appeal by way of rehearing is a procedure for the correction of error in that the existence of an error, whether of law or fact, on the part of the court at first instance, is an indispensable condition of a successful appeal.[42]

[54] An appellate court determining an appeal by way of rehearing:

is required to determine the correctness of the judgment under appeal in retrospect and that the correctness of the judgment is to be determined on the evidence adduced at the trial, supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal;[43] and

to the extent necessary to address the ground or grounds on which an appellant claims that a judgment under appeal is erroneous, is obliged to conduct a real review of the trial and of the primary court's reasons.[44]

[55] Error of law or fact on the part of the Industrial Commissioner is an indispensable condition for the State to be successful in its appeal. However, if there is vitiating error in the Industrial Commissioner's decision, the appeal is a rehearing in which the Court is permitted to give the judgment which, in its opinion, ought to have been given in the first instance.

the subject matter of the appeal to the Court is the same as that before the Industrial Commissioner; and

because the matter the subject of the State's appeal is the subject of a proceeding for a public service appeal, then that matter cannot be an industrial matter.

[57] As referred to earlier, the IR Act defines the phrase 'industrial cause' to include an industrial matter and industrial dispute. It has long been held that the word 'cause' is '... not a technical word signifying one kind or another, it is causa jurisdictionis, any suit, action, matter, or other similar proceeding competently brought before and litigated in a particular Court'[45] and '... it includes any proceedings competently bought and litigated in a court.'[46]

[58] The phrase 'industrial dispute' is defined to mean '... a dispute, including a threatened or probable dispute about an industrial matter or ... a situation that is likely to give rise to a dispute about an industrial matter.' Having regard to this definition and the non‑exhaustive definition of 'industrial cause,' my opinion is that for a cause to be an industrial cause, it must involve, at least, an industrial matter.[47]

[59] If the matter the subject of the State's appeal is not an industrial matter, then the State's appeal cannot be an industrial cause and, as a consequence, s 541(b)(ii) of the IR Act can have no application.

Would the discretion pursuant to s 541(b)(ii) of the IR Act have been exercised to make an order of the kind sought by Mr Hume?

[60] I will briefly consider whether, in any event, I would have exercised the Court's discretion pursuant to s 541(b)(ii) of the IR Act and made an order of the kind sought by Mr Hume if the State's appeal was an 'industrial cause' within the meaning of s 541(b)(ii) of the IR Act.

[61] The value judgment incorporated in s 541(b)(ii) of the IR Act is a broad one_._[48]

[62] It may be the case that the ascertainment, in any particular case, of where the public interest lies will often depend on a balancing of interests, including competing public interests, and will very much be a question of fact and degree.[49]

[63] Further, the onus lies on an applicant to persuade the Court to exercise discretion, override the prima facie right of a party who has invoked the Court's jurisdiction, and refrain from hearing or determining the proceeding.[50]

[64] Both parties made submissions about whether or not the discretion contained in s 541(b)(ii) of the IR Act should be exercised. However, for the reasons I give below, it is unnecessary to consider those arguments.

[65] In further written submissions, Mr Murdoch KC and Mr Martin, who appeared for the State, contended that despite whether or not Mr Hume's FWA had any effect on the operation of the orders made by the Industrial Commissioner, it was still necessary and desirable for the Court to hear and decide the appeal because, citing the decision in Powell v Queensland University of Technology ('Powell'): [51]

section 429 of the IR Act provides for the continuation of the Commission as a court of record and that status renders it undesirable that its record should contain an order that it had no power to make;[52]

the present appeal challenges the order, made in purported exercise of s 562C of the IR Act, on the basis that it was made in excess, or want, of jurisdiction and if such an order was beyond power, it would be inappropriate to refuse relief and to leave the Commission's record in its present, imperfect state; and for that reason alone, it is necessary and desirable for the Court to hear and decide the appeal so that it can determine whether the order was beyond power, and, if so, correct the Commission's record by setting it aside;[53] and

• unless the Court declares that the making of the order was unauthorised, the order might continue to be treated as effective by government officials and others.[54]

[66] In respect of Mr Hume's resignation, the State submits that:

the cessation of his employment can have no effect on the conclusion made under s 562B(3) of the IR Act that the original decision was not fair and reasonable; and

the Commission's status as a court of record renders it undesirable that its record should contain an order that it had no power to make.

[67] I would have accepted the State's argument that, as a court of record, a decision of the Commission, if it is affected by jurisdictional error, should be corrected.

[68] In Powell, the appellants, pursuant to s 132 of the Information Privacy Act 2009, appealed to the Queensland Civil and Administrative Tribunal ('QCAT') against certain decisions made by the Information Commissioner_._[55] QCAT made certain orders and on appeal to the Court of Appeal, pursuant to s 149 of the Queensland Civil and Administrative Tribunal Act 2009, the appellants argued that one of the orders made by QCAT was beyond its power to make.[56]

[69] The Court of Appeal, pursuant to s 153(1) of the Queensland Civil and Administrative Tribunal Act 2009, exercised discretion to set aside the order that it found was beyond the power of QCAT to make.[57] In doing so, Sofronoff P relevantly held:

[88] But for one additional matter, I would have refused relief and dismissed the appeal.

[89] Section 164 QCAT Act establishes the Tribunal as a court of record. This is not a mere technicality. It connotes two things. First a court of record possesses an inherent power to punish for contempt. Indeed, s 219 of the Act confers upon the Tribunal "all the protection, powers, jurisdiction and authority [of] the Supreme Court ... in relation to contempt".

[90] For present purposes, it is the second characteristic of courts of record that is significant. It is that the record of a court is conclusive evidence of what is recorded therein.

"A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself ..." (footnotes omitted)

[91] The Tribunal's status as a court of record renders it undesirable that its record, which is unquestionably subject to review by the Supreme Court, should contain an order that the Tribunal has no jurisdiction to make.[58]

[70] Similarly, McMurdo JA (Gotterson JA agreeing)[59] held:

[156] The appeal to this Court was against order 5, that which purported to affect the processing period. Although that order is a nullity, it is susceptible to an appeal in which this Court can determine whether the order was made in excess of the tribunal's jurisdiction and set it aside upon that basis. This was explained by Lord Millett, sitting as a member of the Court of Final Appeal of Hong Kong, in Hip Hing Timber Co Ltd v Tang Man Kit, a judgment which has been applied in the Privy Council and the New South Wales Court of Appeal. In that case, the (intermediate) Court of Appeal of Hong Kong, constituted by two judges, allowed an appeal. In the circumstances of that case, the court was able to be constituted by two judges, rather than by three, only if the judgment under appeal was interlocutory rather than final. Because the judgment was final, the court was improperly constituted and the order allowing the appeal was made without jurisdiction. It was a nullity. There was then a question of what could and should be done by the Court of Final Appeal.

"[34] ... An order of the Court of Appeal, if not properly constituted, is a nullity. It is, of course, a proper ground of appeal that the court from which the appeal is brought had no jurisdiction to make the order in question; but if that is found to be the case the court hearing the appeal has no jurisdiction to determine the appeal on its merits but is bound to confirm the position by setting aside the order below as a nullity.

[35] The parties cannot confer on us by consent a jurisdiction which we do not possess, and since the issue goes to our own jurisdiction then ... we are bound to inquire into it whether the parties raise it or not."

[158] In the present case, the appeal against order 5 is brought solely upon the basis that it was made in excess of jurisdiction. That order being a nullity, upon that reasoning of Lord Millett, this Court would be bound to set it aside. For the present purposes, let it be assumed that this Court has a discretion to dismiss the appeal although the ground of the appeal is established. Nevertheless, in my view the order should be set aside, because it is irregular and conducive to misunderstanding if the order publicly made and recorded is allowed to stand as if it had some effect.

[71] As the State submits, by virtue of s 429 of the IR Act, the Commission is established as a court of record. The Commission's jurisdiction includes hearing and deciding all appeals properly made to it under the IR Act or another Act, [60] which includes public service appeals.

[72] I accept that the utility in hearing an appeal is a relevant consideration in determining whether an appeal will be entertained.[61] However, as in Powell, it would have been undesirable that the Commission's record should contain an order that the Commission had no jurisdiction to make.

[73] For this reason, even if the State's appeal was an industrial cause within the meaning of s 541 of the IR Act, I would not have exercised my discretion to grant the relief sought by Mr Hume.

[74] I would have heard the appeal to determine if the decision was affected by jurisdictional error.

[75] For the reasons given, I dismiss Mr Hume's first application.

[76] The State's appeal will be heard on a date to be fixed. The issue of the costs of Mr Hume's first application is reserved.

The Respondent's application in existing proceedings filed on 7 March 2022 and made pursuant to s 541(b)(ii) of the Industrial Relations Act 2016, is dismissed.

[6] Due to the instruction given by the State to Mr Hume to work from home as a mitigation strategy in respect of the Omicron COVID-19 variant.

[8] [2021] ICQ 007 ('Dodds').

[13] The case number in the Industrial Commissioner's decision in Hume v State of Queensland (Queensland Health) [2021] QIRC 272 ('Hume QIRC').

[17] The definition of 'industrial cause' was amended by s 65 of the Industrial Relations and Other Legislation Amendment Act 2022. The new definition commenced on 3 November 2022.

[21] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [32]-[33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] agreeing).

[22] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[24] Industrial Relations Act 2016, sch 5 (definition of 'industrial matter').

State of Queensland (Queensland Health) v Hume

At a glance

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Judgment (219 paragraphs)

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Legislation Cited (7)

Cases Cited (10)