In Petrie v State of Queensland (Queensland Mental Health Commission)  QIRC 343, the appellant, who is a full-time business support officer, made a ‘flexible work application’ (FWA) to the respondent, the Mental Health Commissioner, seeking to work from home two days per week. His reason for the request was that he has responsibilities as the primary carer of his elderly parents.
The respondent approved the appellant to work from home two days per week for three months, followed by one day per week for a further three months. The respondent submitted that the temporary working-from-home arrangement was approved to assist the appellant in organising alternative care arrangements for his parents.
The approval to work from home two days per week was extended for a further three months to allow the appellant more time to arrange support for his parents.
The appellant requested a further extension of his two day per week working-from-home arrangement. But the respondent only partially approved the request, granting him one day of working from home per week for a period of six months.
The appellant appealed against this decision under the public service appeals provisions of the Public Service Act 2008 (Qld) on the grounds that the partial approval was unfair and unreasonable.
The appellant submitted that the respondent adopted a “one size fits all” approach to flexible working arrangements which did not consider his individual circumstances. He contended that he was not advised of how his working from home arrangement may significantly impact the unit’s operational requirements. His line manager was said to have strongly supported his request.
The respondent acknowledged that there were certain tasks that the appellant could perform at home. It was for this reason he approved one day per week working from home for six months.
The respondent submitted, however, that the appellant’s role requires him to provide a wide range of in-office support and assistance, including ad-hoc assistance and IT support, to the unit manager and others across the Queensland Mental Health Commission. The respondent also submitted that the appellant’s role requires his presence in the office most of the time and that in his absence whilst working from home, others in the office had to perform some of his tasks. The respondent considered that this posed an unfair burden on the appellant’s colleagues.
In her decision, Industrial Commissioner (IC) Power noted that section 4(k) of the Industrial Relations Act 2016 (IR Act) provides that one of the purposes of the IR Act is to promote diversity and inclusion in the workforce, including providing a right for employees to request FWAs to help balance their work and family responsibilities. Sections 27 and 28 of the IR Act also make provision for employees to request FWAs and outlines what the employer may decide to do in responding to such a request.
However, in considering the appellant’s case, IC Power held that the appellant was not entitled to “more” flexibility than his work colleagues because of his particular circumstances. Ultimately, she held, it was a matter for the respondent to determine how best to decide flexible work arrangements to ensure fairness across all employees whilst considering each request on a case-by-case basis.
IC Power was satisfied that the respondent provided a reasonable process allowing sufficient time for the appellant to put in place arrangements to support his parents. She remarked that the difficulty was not that there were particular incidents of the appellant’s absence causing “significant impacts” on the unit’s operations, but rather his absence led to a greater workload for other staff members.
IC Power found that the respondent’s reasons for this decision demonstrated his consideration of the appellant’s personal circumstances, and held that the decision to approve only one day of working from home was reasonably open to the respondent.
In determining that the decision was not unreasonable, IC Power relied on the principles outlined by Ryan J in Gilmour v Waddell & Ors  QSC 170 at -, where it was held that:
“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.”
IC Power did not consider that the decision lacked justification in the circumstances.
The decision appealed against was confirmed.
Working from home is not an entitlement, but in deciding flexible and WFH arrangements, decision makers must deal with requests on a case-by-case basis, taking into account the personal circumstances of the employee and the burden this may pose on the employee’s colleagues.
Authors: Jackie Hamilton & James Phillips
Human Rights and government decision making (11 October 2022)
In this session we will discuss:
Probity in Procurement (20 October 2022)
In this session, we will discuss:
Draft Property law Bill released for public feedback
Draft legislation intended to replace Queensland’s outdated property laws has been made publicly available for community feedback. The Bill had been developed based largely on the recommendations of the Commercial and Property Law Research Centre at the Queensland University of Technology, following its broad-ranging, independent review of current legislation from 2013-18 (16 September 2022). More…
Regional plans updated for Far North
The Department of State Development, Infrastructure, Local Government and Planning is updating its Far North Queensland Regional Plan, followed by all Regional Plans over the next three years. The Regional Plans are intended to set the long-term direction for how the regions could grow and respond to change over time (13 September 2022). More…
Queensland Human Rights Commission recommends overhaul of state's anti-discrimination laws
The Queensland Human Rights Commission has recommended new anti-discrimination legislation to further prevent sex discrimination and sexual harassment, particularly in the workplace. The QHRC's Building Belonging final report made 122 recommendations to strengthen and enhance the Anti-Discrimination Act after the state government commissioned a review (1 September 2022). More…
Work Health Safety Act set for review
Five-yearly review of the Work Health Safety Act 2011 is now underway. Following the comprehensive Best Practice Review of the Act in 2017, Queensland introduced reforms, including making industrial manslaughter an offence and establishing the independent office of the Work Health and Safety Prosecutor (18 August 2022). More…
Four new magistrates appointed to Queensland Courts
Four new magistrates have been appointed to courts in Beenleigh, Bowen, Dalby and Southport. Mr Mark Bamberry, Ms Patrina Clohessy, Ms Michelle Howard and Ms Kyna Morice bring a wealth of legal experience, practice and knowledge to the bench and are clearly well placed as they start their new judicial career (18 August 2022). More…
Disaster Resilience Strategy for even stronger, safer, more resilient communities
A new five-year strategy to strengthen disaster resilience in Queensland will further improve the state’s capacity to deal with natural disasters and climate change. The Queensland Strategy for Disaster Resilience 2022-27 focuses on community-informed resilience investment and greater inter-agency coordination so communities are best prepared to tackle and recover from natural disasters. Read the report here.
The Grattan truck plan: Practical policies for cleaner freight
According to the latest report from the Grattan Institute, old trucks should be banned from Sydney and Melbourne as part of a comprehensive plan to reduce Australians’ exposure to deadly air pollution. While the report accepts that trucks make our lives better in so many ways, it argues why and how Australia should do more to limit the damage they leave behind. More here.
Improving communication - Casebook 2022 examples
It is important that people affected by government decisions understand the reasoning for making a decision, and are advised of any available right of internal or external review or appeal. If a correct decision is badly communicated, it is likely a complaint will be made. Effective communication of decisions and reasons can help prevent or reduce complaints. The Queensland Ombudsman’s Casebook 2022 includes examples where complainants were not provided effective communication. Details here.
Watchdog takes action over financial red flags
The state’s building industry watchdog confirmed it has issued show-cause notices to at least 296 licensees under the mandatory financial reporting regime. The Queensland Building and Construction Commission has given the companies a deadline of Wednesday, 5 October to lodge their reports or face the prospect of licence cancellation. Read more from the QBCC here.
What’s the plan, Queensland?
1 in 20 people from Sydney and Melbourne are ‘definitely’ or ‘probably’ looking to move interstate in the next five years, with almost two thirds of those keen to make Queensland their new home, according to a startling survey undertaken by the Property Council of Australia. The release of the research coincides with the publication of a position paper, A Home for Every Queenslander, setting out a range of tangible actions the Queensland Government can take to address the current housing shortage. Read the report here.
Administrative Appeals Tribunal Corporate Plan released
The Administrative Appeals Tribunal has released its Corporate Plan for 2022 to 2026. The Corporate Plan describes the Tribunal’s purpose, the key activities it will undertake to achieve that purpose, how it will manage key risks, and how it will measure its performance as required by the Public Governance, Performance and Accountability Act 2013. Read the Plan here.
Do you want to improve access to justice?
The Queensland Law Society’s annual Access to Justice Survey is now open, and your observations can help inform where resources are best directed to increase access to justice for Queenslanders. In its 10th year, the survey serves as a platform for the legal profession to provide critical feedback around current and key barriers to accessing justice. Don’t miss the opportunity to have your say and help the QLS advocate for better access to legal help. Participate here.
Interpreter guideline updated
An updated version of the Guideline for Working with Interpreters in Queensland Courts and Tribunals has been released. It has been amended by reference to the Recommended National Standards for Working with Interpreters in Courts and Tribunals (Second Edition), published by the Judicial Council on Cultural Diversity. Read the Guideline here.
Anters v McInnes Wilson Lawyers Pty Ltd & Ors  QIRC 358
HUMAN RIGHTS - JURISDICTION AND PROCEDURE - APPLICATION FOR LEAVE TO BE GIVEN TO BE REPRESENTED BY A LAWYER - Complainant made complaint to the Queensland Human Rights Commission against the Respondents alleging contraventions of provisions of the Anti‑Discrimination Act 1991 - complaint referred to the Queensland Industrial Relations Commission - application in existing proceedings by the second Respondent for leave to be given to be legally represented pursuant to s 530(1)(c) of the Industrial Relations Act 2016 - opposition by Complainant for leave to be given - whether leave should be given second Respondent to be legally represented having regard to s 530(4) of the Industrial Relations Act 2016 – second Respondent given leave to be legally represented.
Underwood v Metro North Hospital and Health Service & Anor  QCATA 124
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – parties to proceeding – appeal to Appeal Tribunal from decisions of the Information Commissioner – Information Commissioner made respondent – other contradictor available – where Information Commissioner applied to be removed – where the application is opposed by the appellant – whether the Information Commissioner can be removed as a party to the proceedings – the Hardiman principle applied.
SWJ v Department of Justice and Attorney-General  QCATA 119
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – MANDATORY CONSIDERATIONS – decision to refuse application to revoke negative notice – whether decision maker required to have regard to certain reasons for decision of a sentencing court – whether obligation mandatory requirement – practice not generally to obtain and consider court reasons – whether decision according to law.
McQueen v Parole Board Queensland  QSC 27
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – NATURAL JUSTICE – where the applicant applies for judicial review of a decision of the respondent to refuse his application for parole – where the respondent made a decision to indefinitely suspend the applicant’s parole – where the applicant contends that it has a unqualified statutory right to be given reasons–where the respondent restricted the reasons on the basis of confidential information – whether the respondent has proceeded an erroneous basis and failed to provide an information notice in accordance with the Act.
Forbes v Wilmot  QSC 168
ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – OBLIGATION TO GIVE REASONS – where a police officer issued an official warning to the applicant under s 53BAC of the Police Powers and Responsibilities Act 1990 (Qld) – where the applicant intended to judicially review the warning and requested a statement of reasons to issue the notice – where the request was refused on the grounds that there was no such obligation – whether the decision to issue an official warning is a decision to which the Judicial Review Act 1991 (Qld) applies – whether the respondent is required to provide a statement of reasons for the decision.
Australian Christian College Moreton Ltd & Anor v Taniela  QCATA 118
APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION - where respondent of Cook Island race – where custom of Cook Island race to cut first born son’s hair at a hair-cutting ceremony to signify coming of age – where respondents’ parents want first born son to undergo hair-cutting ceremony at age seven – where school board notified complainant that it would unenroll him unless he cut his hair by second semester 2020 – where Tribunal below determined the school and its principal had directly and indirectly discriminated against the boy on the basis of race – where school and principal filed an application for leave to appeal or appeal alleging errors of law and errors of fact.
Bills introduced by Government
Bills introduced by Private Member
Bills passed without amendment
Bills amended during passage
Acts assented to
Subordinate legislation notified
Subordinate legislation tabled
Subordinate legislation repealed
Subordinate legislation expired