State of Queensland (Queensland Health) v Hume

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS - nature of a public service appeal to be conducted by the Queensland Industrial Relations Commission pursuant to s 562B of the Industrial Relations Act 2016 - whether public service appeal is a fresh hearing on the merits - a public service appeal to be conducted by the Commission is a review of the decision appealed against to decide if the decision was fair and reasonable

Acts Interpretation Act 1954, s 14A

Industrial Relations Act 2016, s 27, s 28, s 320, s 429, s 447, s 530A, s 531, s 557, s 558, s 562B, s 562C and sch 5

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

Queensland Civil and Administrative Tribunal Act 2009, s 19 and s 20

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016

Ex parte Australian Sporting Club Ltd; Re Dash [1947] NSWStRp 11; (1947) 64 WN (NSW) 63; (1947) 47 SR (NSW) 283

Gilmour v Waddell & Ors [2019] QSC 170

GJL v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2010) 242 CLR 573

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Neil Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Nesbit v Metro North Hospital and Health Service [2021] ICQ 005

Pope v Lawler [1996] FCA 1446; (1996) 41 ALD 127

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

State of Queensland (Queensland Health) v Hume (No.2) [2022] ICQ 33

Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446

Victoria Legal Aid v Kuek [2010] VSCA 29; (2010) 26 VR 700

Mr C. J. Murdoch KC and Mr C. Martin of counsel instructed by Crown Law for the Appellant.

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

• [1] This is the third decision of the Court in respect of this appeal. It is convenient to re-state the background facts.

• [2] Mr Daniel Hume was formerly employed by the State of Queensland through Queensland Health ('the Department'). Mr Hume, at the time material to this appeal, was employed as a Manager in the Infrastructure Analysis and Reporting Team, Capital and Asset Services Branch ('CASB') of the Corporate Services Division of the Department.[1]

• [3] On 9 March 2021, Mr Hume submitted a flexible working arrangements request ('the request'). The request was that Mr Hume be able to work from home for all of his hours of work. The request was made pursuant to s 27 of the Industrial Relations Act 2016 ('the IR Act').[2]

• [4] Section 27(1) of the IR Act relevantly provides that an employee may ask the employee's employer for a change in the way the employee works including the place where the employee works. Section 28(1) of the IR Act provides that the employer may decide to grant the request, grant the request in part or subject to conditions or refuse the request. Section 28(2) provides that the employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.

• [5] On 30 March 2021, Mr Hume received written advice from Ms Fiona Brewin‑Brown, Senior Director, Capital Infrastructure Delivery, CASB, that his request was partly approved. The decision was that Mr Hume had to physically attend his workplace two days one week and three days the other week ('the internal decision').[3]
• [6] By appeal notice filed on 12 April 2021, Mr Hume, pursuant to ch 7, pt 1 of the (now repealed) Public Service Act 2008 ('the PS Act'), appealed against the internal decision to the Queensland Industrial Relations Commission.[4] Pursuant to that part, the Commission was to hear and determine such an appeal under ch 11 of the IR Act. Chapter 11, pt 6, div 4 of the IR Act deals with appeals to the Commission.

• [7] By decision dated 5 August 2021, the Commission, pursuant to s 562C(1)(c) of the IR Act, set aside the internal decision and substituted another decision, namely, that Mr Hume's request be partly approved in that his working arrangements be adjusted to require his physical attendance at work 20% of the time or one day each week ('the decision').[5]

• [8] By application filed on 27 August 2021, the Department appealed to this Court against the decision. There are three grounds of appeal. The Department contends that the decision is affected by two errors of law and that the Commission acted in excess of jurisdiction in making the decision. The Department's fundamental contention is that the Commission erred in law by conducting its own merit based review of the internal decision, contrary to its statutory function under the IR Act.

• [9] In light of the submissions of the parties, the questions for my determination are:

• what was the task to be undertaken by the Commission in reviewing the internal decision under ch 11, pt 6, div 4 of the IR Act?

• what is the task for this Court in the present appeal? and

• did the Commission determine Mr Hume's appeal in a way that was wrong in law?

• [10] For the reasons that follow, I find that none of the grounds of appeal are established, the consequence of which is that, pursuant to s 558(1)(a) of the IR Act, the appeal must be dismissed.

The appeal to the Commission against the internal decision

• [11] Mr Hume's appeal to the Commission against the internal decision was made pursuant to ch 7, pt 1 of the PS Act. Section 194(1)(eb) of the PS Act provided that an appeal may be made against a decision a public service employee '... believes is unfair and unreasonable (a fair treatment decision).' It was on this basis that Mr Hume filed his application to appeal.[6]

• [12] The reasons for the internal decision were:

Support work from home option but not 100 %. Currently CAS Branch requirement is workplace attendance 50% per fortnight ie 2 days one week and 3 days the next.

Communication has been provided to CASB employees to work in the office 50% for the last year.

Requirement to return to work in office environment as outlined in Department of Health New Normal, Line Manager pack at https://qheps.health.qld.gov.au/hr/coronavirus/new-normal/doh-nn-managers. This pack requires a return of employees to their workplace (principal place of work).

As an A08 line manager a requirement will be to implement this pack with your team and hence also to individually lead and model the Department of Health requirements.

Role requires face to face access for direct reports, peers and line managers, which is often impromptu

It is noted that pre COVID work was effectively being completed almost 100% in the workplace.

The aim is to balance the individual and organizational requirements. In considering this it was noted that on discussion it clarified that any effect on 'mental health' was noted as general well being and not a specific medical condition.[7]

• [13] In his application to appeal against the internal decision, Mr Hume contended that the Department, in considering the request, took a blanket approach rather than undertaking an assessment of his request on its own merits as required in the applicable Departmental policy, namely, Human Resource Policy C5 'Flexible working arrangements' ('the Policy') as referred to in the applicable guideline, namely, 'Guideline for Flexible working arrangements' ('the Guideline').

• [14] By way of summary, Mr Hume, in his appeal, submitted that:

• the Policy stated that flexible work provides options for employees to achieve an optimum work/life balance;[8]

• the Guideline provided that flexibility can take many forms, be for many reasons, that no one size fits all and every situation is different;[9] and

• - for reasons of his increased productivity as a result of less distraction, eliminated commute time and being more agile in responding to work demands;

• - due to the positive benefits of him being able to contribute more to his household and parental demands, and being able to spend more time with his young family; and

• - due to the positive impacts on his physical health, including reduced fatigue, less illness as a result of potential exposure in the office and on public transport, and his ability to be able to exercise more often.[10]

• [15] After setting out the background and the material provisions of the Policy and Guideline, the Department submitted that:

• while the benefits of working flexibly were valued, working from home at times does not provide a delineation between the work and home environment and there was a risk of staff not 'switching off' and working longer hours because they are more accessible therefore impacting the ability to achieve an optimum work/life balance;

• while technology provided an alternative avenue to interact, this limited the benefits of face-to-face interactions and ad hoc opportunities which may arise when physically present in the workplace;

• Mr Hume held a key line management role within CASB for which meaningful engagement was required with his direct reports, peers, line managers as well as manager networks across the Department;

• working from home exclusively can often lead to a more sedentary lifestyle as incidental exercise is reduced, and established routines and working flexibly also allowed staff access to gyms or outdoor sports/activities more frequently; and

• it was of concern that an optimum work/life balance would not be achieved if Mr Hume's request of working from home 100% of the time, on a permanent basis, was to be approved.[11]

• [16] In setting aside the internal decision and substituting another decision, that Mr Hume's flexible working arrangements be adjusted to require his physical attendance at work of one day each week, the Industrial Commissioner relevantly decided:[12]

• [33] The essence of Mr Hume's submissions is that the decision was not fair and reasonable because his individual circumstances were not considered. Mr Hume submitted that by virtue of applying a "blanket approach" to the decision-making process, the Department has not complied with the Policy or Guideline.

• [34] The decision was prefaced with the proposition that currently the CASB "requirement is workplace attendance 50% per fortnight". The decision-maker then noted that returning to work is a requirement under the Pack - however, this statement was subsequently retracted in the Department's submissions. The decision then turned to focus on Mr Hume's position, noting he is an AO8 Manager and requires face to face access for direct reports, peers and line managers, which is often impromptu.
• [35] The impression I gauged from the decision and subsequent submissions, is that the most significant reason for determining a flexible working arrangement of 50% is that it is an expectation of the particular branch that Mr Hume works within. In the decision-maker's opinion, the fact Mr Hume is in a managerial role supported that arrangement. The Respondent submitted the expectation still allowed for employees like Mr Hume to request alternative flexible working arrangements. That is a necessary ability that was reasonably included. However, upon Mr Hume requesting alternative arrangements, it is unreasonable for the Respondent to then primarily rely on that expectation without sufficient backing. In fact, the reasonableness of allowing employees the opportunity to request alternative arrangements is somewhat negated by the consideration being primarily based on the expectation itself.
• [36] In its submissions, the Respondent contends the purpose of the expectation was to allow the gradual return of employees and balance the priority of health and safety with "the importance of returning to normal business operations". Flexible working arrangements and the supporting Policy and Guideline suggest that the concept of "normal" is evolving. If business operations can occur efficiently while an employee is working remotely, "returning" is not necessarily as important. The purpose behind the expectation supports Mr Hume's contention that a blanket approach has been taken in firstly setting that expectation and secondly, relying primarily on that expectation when making the decision.

• [37] Mr Hume relevantly pointed to a Policy principle that "No one size fits all - everybody and every situation is different". This is supported by cl 2.1 of Attachment One to the Policy which states that "Each individual request is to be considered by the delegate on a case-by-case basis..." The idea of "optimum work/life balance" is not obtainable simply by dividing in half an employee's time between home and the office. Achieving that balance will be different for each individual and therefore requires specific consideration of that individual's circumstances.
• [38] Mr Hume comprehensively set out the reasons why he submits working from home 100% of the time would achieve mutual benefits of boosting performance and his own wellbeing. With respect to his personal life, Mr Hume submitted he has been able to live a healthier lifestyle working remotely, assist with domestic duties and reduce external family stressors. With respect to his work performance, Mr Hume submitted he and his team have successfully worked remotely for more than 12 months and have received positive feedback regarding this period. Further, Mr Hume submits he is more accessible and agile through telecommunication which has led to increased interaction and collaboration.

• [39] In response, the Respondent raised incidental exercise benefits as well as concerns regarding living a sedentary lifestyle and being unable to "switch off" after work. The Respondent's submissions were broad and did not relate back to Mr Hume directly. For those reasons, I accept Mr Hume's submission that the Respondent's reasoning tends to "focus on vague hypothetical benefits or situations rather than specific requirements or consideration" of Mr Hume's individual circumstances. In this regard, I accept the position of Mr Hume rather than the general assumptions put forward by the Respondent, because each individual is different.
• [40] The approach taken to the decision-making did not comply with the Policy nor Guideline for the reasons outlined above. On that basis, I find the decision was not fair or reasonable and should be set aside and substituted with an alternative decision. I will now consider what that alternative decision should be.

• [17] In oral submissions, Mr Murdoch KC, who appeared for the Department with Mr Martin, contended that there were two preliminary questions that needed to be determined. The first is to identify the Court's task in the appeal.[13] The second is to identify the task the Commission had to undertake in reviewing the internal decision.[14]

• [18] In my view, it is convenient to deal with the second of these questions first.

What was the task to be undertaken by the Commission in reviewing the internal decision under ch 11, pt 6, div 4 of the Industrial Relations Act 2016?

• [19] The Department submits that, by virtue of ss 562B(2) and (3) of the IR Act, the Commission was required to determine if the decision was fair and reasonable, which admits of only one answer, either yes or no, and therefore did not involve the making of a discretionary decision. Further, it was submitted that, to the contrary, the Commission impermissibly conducted a merits review of the internal decision by standing in the shoes of the internal decision maker,[15] as if conducting the review de novo.[16]

• [20] The Department contends that the only discretionary decision that arose for the Commission was if it determined the internal decision was not fair and reasonable, namely, to exercise the discretion under s 28(1) of the IR Act.[17]

• [21] In making these submissions, the Department referred to the decision of the High Court in Minister for Immigration and Border Protection v SZVFW ('SZVFW').[18]

• [22] In SZVFW, the two respondents were refused protection visas by the delegate of the Minister. They then applied to the Refugee Review Tribunal ('RRT') for a review of the delegate's decision. The respondents did not appear before the RRT on the day of their review hearing. The RRT still conducted a review and made a decision affirming the delegate's decision. The respondents then sought judicial review, by the Federal Circuit Court, of the RRT's decision. The primary judge decided that the RRT's decision, to proceed in the absence of the respondents, was legally unreasonable. An appeal to the Full Court of the Federal Court by the Minister was dismissed on the basis that the Minister had failed to identify '... error in the reasoning of the primary judge in a manner broadly analogous to that required to be established in appeals from discretionary judgments.'[19]

• [23] The Department referred to the decision of Kiefel CJ where her Honour held:[20]

1. The question for the Full Court was whether the Tribunal's decision was legally unreasonable and whether the primary judge's reasoning in this regard was correct. It was necessary for it to decide these questions for itself rather than to defer to what the primary judge had held and require the Minister to identify some error in her Honour's reasoning. No question of the application of the principles stated in House v The King arises in cases of this kind, for the reasons given by Nettle and Gordon JJ.

• [24] The Department then referred to the reasons of Nettle and Gordon JJ where their Honours relevantly held:[21]
  1. Both the approach adopted by, and the decision of, the Full Court were incorrect. The only question for the Full Court (and for this Court on appeal) was whether the Tribunal's exercise of power under s 426A was beyond power because it was legally unreasonable. There is only one answer to that question: "yes" or "no". In this appeal, the answer is "no": the Tribunal's decision was not legally unreasonable. The appeal should be allowed.

• sub-sections 562B(2) and (3), when read together, disclose the legislative intention that the task imposed on the Commission is to determine whether the decision appealed against was fair and reasonable, and that the Commission, in discharging that task, does not sit in the shoes of the decision maker;[22]

• the determination of whether a decision was fair and reasonable involves a fairness aspect and a reasonableness aspect;[23]

• the fairness aspect goes to a question of whether or not the (internal review) decision was fair in a procedural fairness sense, namely, whether the employee was given an opportunity to be heard or whether the decision was affected by actual or apprehended bias;[24] and

• in terms of reasonableness, what ought to be the focus of the Commission's consideration is whether the decision was reasonable in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation ('Wednesbury')[25] or in Minister for Immigration and Citizenship v Li ('Li')[26] as opposed to the Commission considering for itself what was reasonable in the circumstances.[27]

• [26] I am unable to accept all of these submissions.

• [27] I accept the Department's submission that the task of the Commission, in the present case, was not to stand in the shoes of the internal decision maker and determine the matter afresh.

• [28] As the Department submits, the task for the Commission, in hearing and determining the appeal against the internal decision, was derived from the applicable legislation. In this regard, the language which has actually been employed in the text of legislation is the surest guide to legislative intention.[28] Further, pursuant to s 14A(1) of the Acts Interpretation Act 1954, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

• [29] The decisions that could be appealed under the PS Act to the Commission were those contained in s 194 of the PS Act. At the material time, that section provided:

1. Decisions against which appeals may be made

(1) An appeal may be made against the following decisions-

(a) a decision to take, or not take, action under a directive;

(b) a decision under a disciplinary law to discipline-

(i) a person (other than by termination of employment), including the action taken in disciplining the person; or

(ii) a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;

(ba) a decision of the commission chief executive under section 88IA to give a direction about rectifying a defect in the procedural aspects of the handling of a work performance matter, to the extent the direction affects the employee the subject of the work performance matter;

(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);

(c) a decision to promote a public service officer (a promotion decision);

(d) a decision to transfer a public service officer (a transfer decision);

(e) a decision (each a conversion decision) -

(i) under section 149B not to convert the basis of employment of an employee; or

(ii) under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B(8A); or

(iii) under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;

(eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);

(f) a decision about anything else against which another Act allows a person to appeal.

(a) if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb); and

(b) an appeal can not be made against a decision if section 195 applies to the decision.

(a) includes a general employee employed on a temporary basis; but

(b) does not include a person employed under section 147 or 148 on a casual basis.

• [30] The persons who may so appeal were those contained in s 196 of the PS Act. At the material time, that section provided:

The following persons may appeal against the following decisions-

(a) for a decision mentioned in section 194(1)(a)-a public service employee aggrieved by the decision if the employee is entitled to appeal under a directive of the commission chief executive;

(b) for a decision mentioned in section 194(1)(b)-a public service employee or former public service employee aggrieved by the decision to discipline the employee if the employee is entitled to appeal under a directive of the commission chief executive;

(ba) for a decision mentioned in section 194(1)(ba)-the employee the subject of the work performance matter;

(bb) for a suspension without pay decision-the public service employee the subject of the decision;

(c) for a promotion decision-a public service officer aggrieved by the decision who is entitled to appeal under a directive of the commission chief executive;

(d) for a transfer decision-the public service officer the subject of the transfer;

(e) for a conversion decision-the employee the subject of the decision;

(eb) for a fair treatment decision-a public service employee who is aggrieved by the decision;

(f) for a decision mentioned in section 194(1)(f)-the person the other Act allows to appeal.

• [31] Section 197 of the PS Act provided that an appeal under ch 7, pt 1 of the PS Act '... is to be heard and decided under' ch 11 of the IR Act by the Commission. Such an appeal was defined in the IR Act as a 'public service appeal.'[29]

• [32] At the material time, ch 11, pt 6, div 4 of the IR Act, relevantly provided:

562B Public service appeal to commission is by way of review

(1) This section applies to a public service appeal made to the commission.

(2) The commission must decide the appeal by reviewing the decision appealed against.

(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

(4) For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission-

(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but

(b) may allow other evidence to be taken into account if the commission considers it appropriate.

(1) In deciding a public service appeal, the commission may-

(b) for an appeal against a promotion decision-set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or

(c) for another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

• [33] The heading to s 562B of the IR Act refers to such an 'appeal' to the Commission being by way of 'review'. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Therefore, while the statutory text defines the proceeding as an 'appeal', the actual function of the Commission, in hearing and deciding such an appeal, is to review the decision appealed against.

• [34] Two things may be said about this statutory text.

• [35] First, the description of such a proceeding as an 'appeal' is a reference to an appeal from the Executive Government of the State to the Commission, where the Commission is exercising original jurisdiction.[30]

• [36] Secondly, the word 'review' has no settled pre-determined meaning and it takes its meaning from the context in which it appears.[31] As the High Court stated in Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue:

Further, where a jurisdiction called an "appeal" is enlivened, it is essential to identify its nature and the duties and power of the court in the exercise of that jurisdiction. The term "review" presents similar considerations. It takes its meaning from the context in which it appears. It may be used by the statute in question to empower decision-making by an administrative body, or to confer a species of original jurisdiction on a court. If the latter, again it will be necessary to identify the nature of the "review" and the duties and powers of the court in the exercise of that jurisdiction.[32]

• [37] The assessment of the context, in which the word 'review' appears, resides in the text and structure of the IR Act, even though it may be identified by reference to common law and statutory rules of construction.[33]

• [38] The examination of that context begins with s 562B(3) of the IR Act. That section provides that the purpose of the appeal is to decide whether the decision appealed against '....was fair and reasonable.' In my view, this indicates that the review does not involve the Commission determining the matter afresh. The statutory text expressly provides that the duty of the Commission is to decide if the decision appealed against met the description of being '... fair and reasonable.'

• [39] This statutory text may be compared to other statutory provisions that provide for reviews of administrative decisions by tribunals. For example, ch 2, pt 1, div 3 of the Queensland Civil and Administrative Tribunal Act 2009 deals with the review jurisdiction of the Queensland Civil and Administrative Tribunal. That division relevantly provides:
  1. Exercising review jurisdiction generally

In exercising its review jurisdiction, the tribunal-

(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and

(b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and

(c) has all the functions of the decision-maker for the reviewable decision being reviewed.

(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

(2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

• [40] Further, there was a temporal element to the internal decision. The nature of the decision under review is important in determining what facts the reviewing tribunal may take into account.[34] The Commission's duty was to decide if the internal decision, that Mr Hume physically attend the workplace two days one week and three days the other week, '... was fair and reasonable.' Therefore, the Commission was limited in its review to the evidence before the internal decision maker.[35] In my view, this also counts against the appeal being by way of a fresh determination of the internal decision_._ That such an appeal does not involve a fresh hearing on the merits is consistent with how the similar public service appeal regime was construed when it was solely regulated by the PS Act.[36]

• [41] Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '... fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.

• [42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '... fair and reasonable', are used in other than their ordinary meaning.

• [43] The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed.[37] However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable.[38] The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review.[39] That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.

• [44] Similar arguments made to the Commission have been rejected by the Commission.[40]

• [45] Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler[41] as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.[42]

• [46] In that case, the Superannuation (Resolution of Complaints) Act 1993 conferred on the Superannuation Complaints Tribunal the function of reviewing decisions of trustees of superannuation funds following complaints made to it. Section 37(2) of that Act provided that the Tribunal must affirm the decision if it was satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable in all the circumstances.

• [47] The Federal Court rejected a submission that 'fair' in that provision was a reference to procedural fairness because the Tribunal had to be satisfied that the decision was fair and reasonable, in all the circumstances, '... in its operation in relation to the complainant.[43] As conceded by Mr McKay, these latter words do not appear in the IR Act.[44] However, reference was then made to the following passage:

The meaning of the words "fair and reasonable" is a question of fact. "Fair" is relevantly defined in The New Shorter Oxford English Dictionary 4th ed (1993) at 907 as "just, unbiased, equitable, impartial". "Reasonable" is defined in the same dictionary at 2496 relevantly as "within the limits of reason; not greatly less or more than might be thought likely or appropriate." In Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680; [1948] 1 KB 223 at 230 the test of whether a court could intervene because of "unreasonableness" was said to be whether the decision was so unreasonable that no reasonable authority could come of it. Here the challenge to the tribunal's decision is not grounded on "unreasonableness" but on the basis that the tribunal was not entitled to conclude either - under s37(2) - that the decision of the trustees was "fair and reasonable" or - under s37(1) - that the decision was not "unfair or unreasonable". Only if the tribunal has before it evidence which properly leads to a finding of the presence of both fairness and reasonableness in the decision of the trustees is it entitled to act under s37(2).[45]

• [48] Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:

• that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and

• that the legislative intention is that those words, that make up the phrase '... fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.

• [49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '... free from bias, dishonesty, or injustice'[46] and the word 'reasonable' means '... agreeable to reason or sound judgment'.[47] Whether a decision the subject of a public service appeal is '... fair and reasonable' is a question of fact.[48]

• [50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '... including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.

• [51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.

• [52] Further, s 530A(3) of the IR Act, at the material time, relevantly provided:

(1) This section applies in relation to a proceeding for a public service appeal.

(2) A party to the appeal may appear personally or by an agent.

(3) However, a party may not be represented by a person if-

(a) the party has instructed the person to act as the party's lawyer; and

(c) in acting as the party's lawyer, the person would be subject to the Legal Profession Act 2007.

• [53] The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.

What is the task for this Court in the present appeal?

• [54] The other preliminary matter raised by the Department is whether the decision to be made by the Court is one that attracts the deferential standard of appellate review articulated in House v The King.[49]

• [55] The Department referred to the joint judgment of Nettle and Gordon JJ in SZVFW, where their Honours relevantly held:[50]

1. The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.

1. That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.

1. Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.

• [56] The Department's submission was that if the hierarchy from SZVFW is transposed to the present case, then the only question for this Court is whether the Department's exercise of power (by the internal decision) was beyond power, which is either a yes or no answer, as opposed to a consideration of whether the Commission below has exercised a discretion in a way that involved an error of law.[51]

• [58] In GJL v The Trustees of the Roman Catholic Church for the Diocese of Lismore,[52] Kiefel CJ, Gageler and Jagot JJ[53] recently stated:[54]

1. The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a "discretion" is "apt to create a legal category of indeterminate reference", but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for "value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right". The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the "correctness standard" applies) was identified as that between questions lending "themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions" in which event "it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance", and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.

• [59] An appeal alleging an error of law against a decision by the Commission, about whether or not the decision appealed against was fair and reasonable, attracts the deferential standard of appellate review applicable to the exercise of judicial discretion as articulated in House v The King.

• [60] Issues of this kind were carefully considered by Gageler J in SZVFW[55] where his Honour stated:[56]
  1. The line of demarcation between conclusions of a primary judge which attract the deferential standard of appellate review applicable to an exercise of judicial discretion articulated in House v The King and conclusions of a primary judge which attract the more general correctness standard of appellate review rearticulated in Warren v Coombes was in due course squarely addressed in Norbis v Norbis. The House v The King standard was there held to apply to appellate review of an order made by a judge in the exercise of a statutory power conferred on the Family Court to "make such order as it thinks fit altering the interests of the parties" in matrimonial property. Mason and Deane JJ, with whom Brennan J agreed, explained that making the order involved an exercise of "discretion" in the sense in which that term had been deployed in House v The King because application of the statutory criterion called for "value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right".
  2. The holding in Norbis v Norbis, and their Honours' explanation of the reason for it, accorded with earlier decisions which had applied the House v The King standard to appellate review of evaluative conclusions in respect of which the applicable legal criteria permitted of some latitude of choice or margin of appreciation such as to admit of a range of legally permissible outcomes. Conclusions as to "just and equitable" apportionment of responsibility between tortfeasors under contribution legislation, as to assessment of general damages at common law, as to the valuation of property, and as to the best interests of the child under child welfare legislation furnish examples. Their Honours in Norbis v Norbis went on to explain that the line of demarcation which they identified stemmed from the fundamental conception of an appeal as a process for the correction of error: "[i]f the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance".
• [61] By way of summary, Gageler J stated:
  1. The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.
• [62] Applying these principles, Davis J, President has held that a decision (by the Commission) to find or not find that a dismissal was '... harsh, unjust or unreasonable' (within the meaning of s 320 of the IR Act) while not an exercise of discretion, is a matter of judgment and assessment which will only be set aside if one of the House v The King errors is found.[57]

• [63] The determination of whether a decision '... was fair and reasonable' within the meaning of s 562B(3) of the IR Act is of the same nature. Such an assessment is not made on the basis of whether the decision met the legal standard of reasonableness. In the present case, whether or not the internal decision was fair and reasonable was a matter of judgment and assessment. The answer to such a question does not demand a unique outcome.

• [64] Leaving aside the ground of appeal going to jurisdictional error, the decision attracts the deferential standard of appellate review as articulated in House v The King, namely:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[58]

Did the Commission determine Mr Hume's appeal in a way that was wrong in law?

Ground 1 - error of law (s 556(1)(a))

The Commission erred in deciding (at [40]) that the decision appealed against was not "fair and reasonable" because:

(a) it reached that conclusion solely on the basis that the "approach taken to the decision making did not comply with the Policy nor Guideline for the reasons outlined [at [32]-[39]] and did not consider whether the decision was fair and reasonable;

(b) it failed to apply the correct legal test for whether the decision was fair and reasonable and instead conducted its own merit based review;

(c) it failed to take into account relevant considerations which it was bound to take into account in determining whether the decision appealed against was "fair and reasonable" under s 562B(3) of the Industrial Relations Act 2016.

• [66] These two grounds may be dealt with together.
• [67] The Department submitted that the Industrial Commissioner, at paragraph [34] of the decision:

• was accepting that the internal decision focused on Mr Hume's position as a Manager whose position was classified AO8, which required face-to-face access for his direct reports, peers and line managers which was often impromptu; and

• did not find that the mistake made in the internal decision - an incorrect statement in a document produced by the Department for Line Managers, colloquially referred to as the 'Pack',[59] that employees were required to return to the workplace after COVID-19 - meant the internal decision was not reasonable.[60]

• [68] Further, reference was made to paragraph [35] of the decision, in respect of which it was submitted:

• while the Industrial Commissioner noted that the most significant reason for the internal decision of Mr Hume working 50% of his time at the workplace ('the 50% expectation') was that Mr Hume's Branch had that expectation, the Industrial Commissioner did not find that was the only reason for Mr Hume's request not being granted, only that it was a significant reason;[61] and

• the Industrial Commissioner seemed to state that upon Mr Hume requesting an alternative arrangement, it was unreasonable for the Department to primarily rely on the 50% expectation without sufficient backing.[62]

• the Industrial Commissioner did not explain why there was a lack of sufficient backing and that finding was simply not open; and

• there was plainly a basis before the (internal) decision maker, and the Commission, for the 50% expectation, namely, the nature of Mr Hume's position.[63]

• [70] The Department further submitted that, at paragraph [36] of the decision, the Industrial Commissioner unfairly criticised a submission made by the Department that the purpose of the 50% expectation was to allow the gradual return of employees and balance the priority of health and safety with the importance of returning to normal business operations. The unfairness was said to arise because the Commission did not explain its statement, in that paragraph, that if business operations can occur efficiently while an employee is working remotely, returning (to the workplace) is not necessarily as important. Again, the Department referred to Mr Hume's position and the need for face-to-face access as outlined above.[64]

• [71] Then the Department referred to the Industrial Commissioner's references at paragraph [37] of the decision:

• to one size not fitting all, which it submitted was taken into account by the internal decision maker; and

• to the optimum work/life balance being different for each individual and requiring specific consideration of each individual's circumstances, which it submitted occurred in the internal decision by reference to Mr Hume's position and the need for face-to-face access as outlined above.[65]

• [72] The Department also referred to paragraph [39] of the decision where the Industrial Commissioner accepted Mr Hume's individual circumstances rather than '... the general assumptions put forward' by the Department about incidental exercise benefits, concerns about a sedentary lifestyle and not being able to switch off after work.[66]

• [73] Reference was then made to paragraph [40] of the decision where the conclusion was reached by the Industrial Commissioner that the approach taken in the decision making did not comply with the Policy or Guideline for the reasons outlined by the Industrial Commissioner.[67]

• the Industrial Commissioner engaged in a fact by fact critique of what had been considered by the Department, whereas it ought to have looked at the internal decision as a whole in terms of the outcome and the reasons for it, and considered whether or not the decision was reasonable applying the principles of the legal standard of reasonableness referred to in Gilmour v Waddell & Ors[68] ('Gilmour');[69]

• the Industrial Commissioner's blanket statement, in paragraph [40] of the decision, that the decision making did not comply with the Policy or Guideline, was not to the point in that merely because a decision may or may not comply with an applicable policy or guideline, that does not mean the outcome was unreasonable;[70] and

• the Industrial Commissioner did not tie that finding of non-compliance to any particular part of the Policy or Guideline.[71]

• [75] In my view, none of these criticisms amount to an error of law of the kind referred to in House v The King. Leaving aside that some of the complaints made by the Department are about alleged errors of fact which cannot be pursued in the present appeal, there are a number of reasons for my conclusion.

• [76] First, for the reasons I have given earlier, I do not accept that the Industrial Commissioner had to consider whether or not the decision was reasonable by applying the legal test of reasonableness as referred to in Gilmour.

• [77] Secondly, the task of the Industrial Commissioner was to determine whether or not the internal decision was fair and reasonable. In the decision, the Industrial Commissioner expressly acknowledged that was the task in deciding Mr Hume's appeal.

• [78] At paragraphs [27] to [31] of the decision, the Industrial Commissioner stated:

• [27] In his reply submissions, Mr Hume set out a number of events that occurred subsequent to the decision. I did not summarise those events above and will not consider them for the reasons that follow.

• [28] Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".

• [29] The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the Department and the associated decision-making process.

• [30] Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.

• [31] The issue for my determination is whether the decision was fair and reasonable. I do not consider the events outlined by Mr Hume that occurred following the decision to be relevant to determining whether the decision was fair and reasonable in the circumstances.

• [79] Therefore, the Industrial Commissioner appreciated that the appeal:

• was not a rehearing and, for that reason, did not take into account the further evidence sought to be relied upon by Mr Hume; and

• involved a review of the internal decision to determine if it was fair and reasonable.

• [80] Thirdly, the Industrial Commissioner applied these principles in deciding Mr Hume's appeal.

• [81] The Industrial Commissioner referred to the fact that the internal decision focused on Mr Hume's position, being that of a Manager, classification AO8, which required face‑to‑face access for his direct reports, peers and line managers, often on an impromptu basis.[72] The nature of Mr Hume's position was a material consideration in determining whether or not the internal decision was fair and reasonable. Further, it was an issue expressly referred to in the internal decision.

• [82] The Industrial Commissioner then referred to the Policy and the Guideline.[73] These were Departmental documents concerning requests for flexible working arrangements. In fact, cl 5.4 of the Guideline provided a link to the form that seems to have been used by Mr Hume to make his flexible working arrangements request.[74] Clause 1 of the Guideline stated that it should be read in conjunction with the Policy and that it was developed as a practical reference tool for employees and managers.[75] Clause 2 of the Policy provided that s 27 of the IR Act allowed for an employee to make a flexible working arrangements request.[76] Attachment One to the Policy set out how such requests would be considered.[77] For these reasons, a consideration of the content of those documents was a material consideration as to whether or not the internal decision was fair and reasonable, even if, as seems to be the case, there was no express reference to them in the internal decision.

• [83] In fact, the Industrial Commissioner referred[78] to a principle in the Attachment to the Policy, namely: 'No one size fits all-everybody and every situation is different.'[79] The Industrial Commissioner then stated[80] that principle was supported by (part of) cl 2.1 of the Attachment to the Policy, namely that: 'Each individual request is to be considered by the delegate on a case-by-case basis...'.[81] The Industrial Commissioner then referred[82] to the main body of the Policy which referred to the idea of an 'optimum work/life balance'.[83] That part of the Policy, in full, states: 'Flexible work provides options for employees to achieve an optimum work/life balance.'[84] The Commissioner then stated[85] that that achieving such balance is not obtainable simply by the 50% expectation, and that achieving such balance '... will be different for each individual and therefore requires specific consideration of that individual's circumstances.' That statement is consistent with the principle in the Attachment to the Policy, namely: 'No one size fits all-everybody and every situation is different.'

• [84] Reference was then made by the Industrial Commissioner to the reasons submitted by Mr Hume in support of his request.[86] Reference was also made to what the Industrial Commissioner referred to as the '... general assumptions' submitted by the Department in support of the internal decision, being the incidental exercise benefits, concerns regarding living a sedentary lifestyle and being unable to switch off after work.[87] These issues relate to the broad statement made in the internal decision, namely, the '... aim is to balance the individual and organizational requirements.' For these reasons, these two issues were material considerations in determining whether or not the internal decision was fair and reasonable.

• [85] On a fair reading of paragraph [39] of the decision, the Industrial Commissioner:

• referred to the principle, as expressed in the Attachment to the Policy, namely, '... each individual is different'; and

• concluded that Mr Hume's individual circumstances were not given the appropriate weight in the internal decision, as should have been the case, having regard to the above principle in the Policy, which, as set out by the Industrial Commissioner at paragraph [33] of the decision, was Mr Hume's principal argument in the appeal before the Commission.

• [86] It is for these reasons that the Industrial Commissioner concluded, in paragraph [40] of the decision, that the '... approach taken to the decision-making' did not comply with the Policy or the Guideline. Further, it was on this basis that the Industrial Commissioner decided that the internal decision was not fair and reasonable.

• [87] This analysis reveals three things in respect of Grounds 1(a) and (c).

• [88] First, the Industrial Commissioner approached the task in the appeal by considering if the internal decision was fair and reasonable.

• [89] Secondly, the Industrial Commissioner did not conduct a fresh hearing of Mr Hume's flexible working arrangements request.

• [90] Thirdly, in deciding if the internal decision was fair and reasonable, the Industrial Commissioner considered relevant considerations.

• [91] The Department submitted that by the Industrial Commissioner's reference, at paragraph [32] of the decision, to the decision of the Supreme Court in Gilmour,[88] the correct test of unreasonableness was identified, but error occurred when the Industrial Commissioner '... went on in effect to decide the matter afresh as opposed to focusing on whether or not it was made on reasonable grounds.'[89]

• [92] The Industrial Commissioner did refer to the legal test of reasonableness. At paragraph [32] of the decision, the following was stated:[90]

• [32] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):

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.

... when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful ...

... there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker ...

... it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object ... The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

... Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

• [33] The essence of Mr Hume's submissions is that the decision was not fair and reasonable because his individual circumstances were not considered. Mr Hume submitted that by virtue of applying a "blanket approach" to the decision-making process, the Department has not complied with the Policy or Guideline.

• [93] I accept the Department's submission that the Industrial Commissioner did not approach the matter by determining whether or not the internal decision met the legal standard of reasonableness. I cannot see where the Industrial Commissioner, in paragraphs [33]-[40] of the decision, came to the conclusion that the internal decision was not reasonable by the application of the test of legal reasonableness as referred to earlier in the decision by the reference to Gilmour.

• [94] For the reasons I have given, the question of whether the internal decision was fair and reasonable was not to be answered by the application of the test of legal reasonableness.

• [95] The Industrial Commissioner, in deciding if the internal decision was fair and reasonable, assessed the internal decision against the Policy. This did not involve the Industrial Commissioner conducting a fresh hearing.

• [96] Having regard to the three sub-grounds of this ground, the Industrial Commissioner:

• did consider whether the internal decision was fair and reasonable;

• applied the correct test by deciding if the internal decision was fair and reasonable and, in doing so, did not conduct a fresh hearing on the merits and did not conduct '...its own merit based review'; and
• did not fail to take into account any relevant considerations.

Ground 2 - error of law (s 556(1)(a))

The Commission in failing to decide that the decision appealed against was "fair and reasonable" under s 562B(3) applied the wrong legal test because the decision was not on the material before the Commission other than "fair and reasonable"

• [99] The Department submitted that the Industrial Commissioner applied the incorrect test, and the correct test was whether or not the internal decision met the legal standard of reasonableness and was not a factual exercise.[91]

• [101] In determining whether or not the internal decision was fair and reasonable, the Industrial Commissioner was not required to decide whether or not the internal decision met the legal standard of reasonableness.

Ground 3 - excess of jurisdiction (s 556(1)(b)

The Commission acted in excess, or want, of jurisdiction in setting aside the decision appealed against and substituting it with a decision that "Mr Hume's flexible working arrangements be adjusted to require physical attendance at work 20% of the time (1 day each week)" because those orders were made in purported exercise of the power conferred by s 562C(1)(b)-(c) which could only have been exercised by the Commission if the decision appealed against was not "fair and reasonable" under s 562B(3).

• [104] The Department's submission was that once it was accepted that the Industrial Commissioner wrongly found that the internal decision was not reasonable, then it followed that the Industrial Commissioner, in going on to exercise the discretion in s 562C of the IR Act, acted in excess of jurisdiction because there was no jurisdiction to do so.[92]

• [105] I cannot accept this submission. The Industrial Commissioner correctly approached the task imposed by the IR Act and determined that the internal decision was not fair and reasonable. Upon coming to that conclusion, it was open to the Industrial Commissioner to lawfully exercise discretion pursuant to s 562C(1)(c) of the IR Act and set the internal decision aside and substitute another decision.

• [108] For the reasons given, the appeal should be dismissed.

[1] Mr Hume resigned from his employment effective 5 August 2022. Mr Hume's application in existing proceedings, for an order that the Court not determine the Department's appeal, was dismissed for the reasons given in State of Queensland (Queensland Health) v Hume (No.2) [2022] ICQ 33.

[2] Hume v State of Queensland [2021] QIRC 272 ('Hume'), [1]-[2].

[18] [2018] HCA 30; (2018) 264 CLR 541 ('SZVFW').

[25] [1947] EWCA Civ 1; [1948] 1 KB 223, 230 (Lord Greene MR).

[26] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 ('Li'), [76] (Hayne, Kiefel and Bell JJ).

[28] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, [47] ((Hayne, Heydon, Crennan and Kiefel JJ).

[29] Industrial Relations Act 2016, sch 5 (definition of 'public service appeal').

[30] See Ex parte Australian Sporting Club Ltd; Re Dash [1947] NSWStRp 11; (1947) 64 WN (NSW) 63; (1947) 47 SR (NSW) 283, 283 (Jordan CJ and Davidson and Street JJ) and Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446 ('Tasty Chicks'), [5] (French CJ, Gummow, Crennan, Kiefel and Bell JJ). The Queensland Industrial Relations Commission is established as a court of record in Queensland, Industrial Relations Act 2016, s 429.

[32] Tasty Chicks (n 30) [5] (Citations omitted).

[33] Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2010) 242 CLR 573, [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[34] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 ('Shi'), [144] (Kiefel J).

[35] Ibid [143]. Section 562B(4)(b) of the Industrial Relations Act 2016 expressly provides that in relation to promotion decisions and decisions about disciplinary action, other evidence may be taken into account.

[36] See Neil Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [57]-[61] (Byrne SJA).

[38] T 1-5, ll 40-44. See also T 1-12, l 31 to T 1-13, l 4 where the Department submitted that the Industrial Commissioner, by referring to the decision of the Supreme Court in Gilmour v Waddell & Ors [2019] QSC 170, identified the correct test of legal reasonableness, but did not apply that test.

[39] See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307, 335 (Smithers J) and Victoria Legal Aid v Kuek [2010] VSCA 29; (2010) 26 VR 700, [23] (Buchanan JA, Weinberg JA at [30] and Ross AJA at [34] agreeing).

[40] See Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, [19]-[22] (Deputy President Merrell).

[41] [1996] FCA 1446; (1996) 41 ALD 127 ('Pope').

[46] Macquarie Dictionary (7th ed, 2017) 'fair' (def 1).

[47] Macquarie Dictionary (7th ed, 2017) 'reasonable' (def 2).

[48] Where a statute uses words according to their ordinary meaning, then the question of whether the facts found fall within those words is a question of fact: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 8 (Mason J, Gibbs and Stephen JJ at 3 and Murphy and Aickin JJ at 11 agreeing) and Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395 (Brennan CJ and Dawson, Toohey, Gaudron and McHugh JJ).

[49] [1936] HCA 40; (1936) 55 CLR 499 ('House').

[52] [2023] HCA 32; (2023) 97 ALJR 857.

[53] Steward J at [95] and Gleeson J at [161] agreeing.

[57] Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [94]-[95].

[58] House (n 49), 504-505 (Dixon, Evatt and McTiernan JJ).

[68] [2019] QSC 170 ('Gilmour'), [207]-[210] (Ryan J).

[91] T 1-19, ll 45-49 and T 1-21, ll 13-19.