Public Sector Commission update

Workforce Mobility (Directive 03/25)

The Workforce Mobility (Directive 03/25) (Directive), effective as of 10 September 2025, establishes specific guidance and procedural requirements for the use of workforce mobility, being the temporary movement or change of duties initiated by either employees or employers.

Key mechanisms for mobility within the public sector include:

(a) mobility arrangements under s 82 of the Public Sector Act 2022 (Qld) (the Act), to enable a public sector employee to temporarily perform work for or within, or duties in, another part of their public sector entity or another entity (which includes an entity outside the public sector) while maintaining continuity of employment. Mobility arrangement can also be used for a person employed in an entity outside the public sector to temporarily perform work for or within, or duties in a public sector entity; and

(b) secondments under s 160 of the Act for public service officers within or between public service entities.

Mobility arrangements do not include movements related to suspension or medical reasons under sections 101 and 107 of the Act.

Prior to giving effect to an arrangement to support workforce mobility, a chief executive must select the most appropriate mobility option, for example, a secondment (for public service entities); a mobility arrangement; or another option such as employment on a non-permanent basis. Chief executives must also ensure compliance with the Act and relevant policies, and weigh up competing factors such as the operational impact, employee development, and benefits to both home and host entities.

Mobility arrangements require consent from the employee and relevant chief executives. At a minimum, the documented terms and conditions of the arrangement must include the parties to the arrangement, the duration of the arrangement (including start and end dates), details of the home and host entities, details of work or roles, details of supervision, work location, remuneration, remuneration scale or classification, payroll arrangements including which entity is responsible for paying the person’s salary and superannuation arrangements, hours of work, leave arrangements (including who is responsible for approving leave), applicable industrial instruments, and work health and safety and WorkCover obligations.

Public sector employees who enter into a mobility arrangement retain their employment with the home entity. Non-public sector employees do not gain public sector status by virtue of the mobility arrangement.

Where a public sector employee is undertaking a mobility arrangement, the chief executive of a home entity must consider:

(a) how the employee’s return to their home entity will be managed following the conclusion of the mobility arrangement; and

(b) the employee’s right to a review under chapter 3, part 9, division 1 of the Act (review of non-permanent employment) and division 2 of the Act (review of acting or secondment at higher classification level) in their home entity.

Any request to extend a mobility arrangement or change the terms of a mobility arrangement requires consent of the parties mentioned in section 82(2) of the Act, being the individual involved and the respective chief executives (or appropriate office holders).

Mobility arrangements can be ended by either the home or host entity with notice, and employees dissatisfied with an arrangement can seek resolution with managers or escalate complaints via grievance frameworks.

Existing mobility arrangements prior to the commencement of the Directive are exempt, while new arrangements or extensions/changes to arrangements from the Directive’s commencement are subject to its requirements.

Decisions of interest in the Industrial Relations Commission

QR v State of Queensland (Queensland Health) (No. 2) [2025] QIRC 269

A clinical nurse employed by Queensland Health, working in paediatric care, filed a public service appeal against Queensland Health’s decision to suspend him without pay.

The nurse was suspended after a patient’s mother alleged that she had been raped by the nurse, and the nurse failed to disclose to Queensland Health that he had been charged with the indictable offence of rape in relation to the allegation.

The Office of the Health Ombudsman (OHO) was alerted to the allegation of rape and, after investigation, suspended the nurse’s registration, prohibiting him from practising as a nurse during the period of his suspension.

The nurse responded to the notice to show cause as to why he ought not be suspended without pay issued by the employer, through his legal representatives and essentially argued that he denied the criminal charges. The nurse submitted that he should be afforded the presumption of innocence if and until an adverse finding was made against him. He also pointed to his longstanding service and otherwise good record and claimed that the only reason he did not notify his employer of the charge as required under the Public Sector Act 2022 (Act) was because he thought they already knew.

In his appeal, the nurse relied upon several factors which he submitted made the decision not fair and reasonable:

(a) The employer had not adequately considered all reasonable alternative duties available to him as required by section 101(3) of the Act. He submitted that work from home options had not been adequately considered, nor had alternative duties outside of his established role and that a sufficient list of which alternatives had been explored and the reasons they were deemed to be unsuitable had not been provided to him.

(b) The employer had not properly considered the financial hardship and resultant psychosocial impacts that would be caused to him and his family by suspending him without renumeration.

(c) It was unfair of the employer to withhold the public funds of his pay when he needed to pay legal fees to defend the allegations that originated in his place of work.

The Commission found that the employer had adequately considered alternative duties and work arrangements and determined that those options were not suitable due to the nature of the allegation against the nurse and the employer’s obligations to maintain a safe environment for other staff and members of the public. The Commission did not consider it necessary for the employer to provide to the nurse a complete list of every possible alternative duty to work arrangement that was explored and the reasons they were not suitable.

The criminal proceedings and OHO’s suspension of the nurse’s registration, being circumstances outside of the employer’s control, as well as the nurse’s ability to access his leave entitlements and seek other employment were factors the Commission found in support of the reasonableness of withholding pay during the period of suspension.

The Commission considered that Queensland Health had correctly given less weight to the financial and psychosocial impact of the employee not receiving pay to its duty to staff, patients and the general public in light of the seriousness of the allegations.

Ultimately, the Commission confirmed the decision to suspend the employee without renumeration.

Syntech Resources Pty Ltd v Minchin [2025] QIRC 272

This case considered the Commission’s power under s 484(1) of the Industrial Relations Act 2016 (Qld) (IR Act) to reopen a proceeding (Earlier Proceeding) and vary or revoke the decision initially made by the Commission.

Syntech Resources Pty Ltd (Syntech), as the employer, sought for the Commission’s decision in the Earlier Proceeding requiring Syntech to pay out an employee’s long service leave entitlements to be reopened, for the order to be revoked and the employee’s original application in the Earlier Proceeding for payment instead of taking long service leave to be dismissed.

The employee, who had worked in the black coal mining industry for several years initially applied to the Commission under s 110 of the IR Act for his long service leave entitlements to be cashed out. The Commission ordered that the employee be paid out the sum of 18.4 weeks of accrued long service leave.

In the application to reopen the Earlier Proceeding, Syntech submitted that the entitlement to long service leave, payment of it, and any disputes about that, were governed by the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (Administration Act), the Fair Work Act 2009 (Cth), and other federal legislation.

The Commission ultimately found that because the Administration Act and other federal law provided the employee’s long service leave entitlements in their entirety, the IR Act did not apply. Therefore, it was concluded that there was no power to make an order as was made pursuant to s 110 of the IR Act.

The Commission was ultimately convinced by the submissions of Syntech that the broad powers under s 484 of the IR Act to reopen a matter where an oversight or an inadvertence had occurred, were contemplated for matters such as this. Pratt IC concluded “I can think of no better example of a case to reopen being in the interests of justice than one where the orders were issued inadvertently without jurisdiction.”

The case was reopened, the initial orders issued were revoked and the initial application itself was dismissed.

Human rights in Queensland Public Sector decision-making: A closer look at Section 58(1)(b)

Key points

• Decision makers in Queensland public entities, and those who brief them, are obligated to properly consider human rights under section 58(1)(b) of the HR Act.
• Recent cases have confirmed that “proper consideration” requires more than merely identifying human rights when making a decision, it demands a genuine, balanced assessment of how a decision affects those rights.
• Courts and tribunals will carefully examine the documentary evidence of the decision maker’s assessment of human rights, including the decision itself and any briefing notes considered by the decision maker, along with the decision maker’s evidence about their decision making process.

Background

In Queensland, section 58(1) of the Human Rights Act 2019 (Qld) (HR Act) requires public entities to:

• act and make decisions in a way that is compatible with human rights (‘substantive limb’); and
• properly consider human rights when making a decision (‘procedural limb’).

Compliance with both limbs of section 58(1) is essential, as contravention of either limb will render a decision unlawful.).

Recent cases provide helpful guidance as to the courts’ approach to determining whether a decision maker has complied with the procedural limb.

What constitutes a “proper consideration” of human rights?

Under section 58(5) of the HR Act, “proper consideration” of a human right includes, but is not limited to:

• identifying the human rights that may be affected by the decision; and
• considering whether the decision would be compatible with human rights.

In Bare v Independent Broad-Based Anti-Corruption Commission and Others (‘Bare’)¹, the four-limb test for “proper consideration” under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) was set out as follows:

1. understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision;
2. seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person;
3. identify the countervailing interests or obligations; and
4. balance competing private and public interests as part of the exercise of justification.

In Queensland, it has been agreed that “proper consideration” does not involve a sophisticated legal exercise and there is no formula for compliance with it.² The identification of rights must be approached in a common sense and practical manner,³ involving an understanding of which rights may be affected, whether those rights will be interfered with by the decision, and the implications for that person.⁴ The countervailing interests or obligations must also be identified.⁵

How have the legal principles been applied recently?

In Mizner v State of Queensland (Corrective Services),⁶ Mr Jason Mizner, a prisoner with mental health and physical impairments, repeatedly requested single-cell accommodation due to psychological distress caused by sharing a cell. His requests were denied, prompting claims of discrimination and human rights breaches. The Queensland Civil and Administrative Tribunal (QCAT) dismissed his claims, but on appeal, he argued that the assessments failed to properly consider his human rights. The respondents conceded that earlier assessments may have been inadequate, however maintained that a later, more detailed assessment was sufficient. The Court was satisfied that, based on the documented assessment and the evidence given by the decision maker, proper consideration was given to human rights. It was found that the decision maker had provided detail in his assessment that:

• adequately identified and understood the appellant’s human rights, including dignity, humane treatment and protection from degrading conditions;
• seriously turned his mind to the potential impacts of the decision upon the appellant’s human rights, which included limits being placed on his rights; and
• properly took into account the relevant countervailing interests and obligations, such as ensuring the safe and secure accommodation of all prisoners given capacity pressures.⁷

In Anderson v President of the Parole Board Queensland,⁸ Mr Rodney Anderson, serving a life sentence for two murders, challenged the duration of a restricted prisoner declaration made by the Parole Board President, which barred him from applying for parole until December 2031 (at which point he would be age 78). Mr Anderson, who suffers from multiple serious medical conditions and poor mobility, argued that the decision failed to properly consider his human rights, particularly his right to dignity while deprived of liberty In finding that the President did not adequately consider the human consequences of the declaration’s duration, and setting aside the term as legally invalid, the Court considered that:

• while the President acknowledged Mr Anderson’s health issues and risks to the community, the reasons did not demonstrate a genuine weighing of the human consequences of delaying parole eligibility until 2031;
• merely identifying a human right is insufficient under section 58(1)(b), proper consideration requires a meaningful evaluation of how the decision impacts that right; and
• the failure to engage with Mr Anderson’s deteriorating health and its implications for humane treatment rendered the decision legally flawed.

In Drage v Gold Coast Hospital and Health Service,⁹ Mr Drage was dismissed from Queensland Health in February 2022 for failing to comply with a COVID-19 vaccination directive. He applied for exemptions citing medical, religious, and personal reasons, but they were rejected due to insufficient evidence. After unsuccessfully seeking reinstatement, he filed for judicial review in the Supreme Court, challenging the exemption refusal, his dismissal, and the directive’s lawfulness under the HR Act. The Court ultimately concluded that proper consideration was given to human rights, with the test from Bare satisfied, based on the following assessments of the briefing note that had been put to the decision maker:

• it acknowledged the risks of mandatory vaccination, particularly for employees with medical contraindications or protected attributes (e.g. religious beliefs);
• the policy document regarding mandatory vaccination attached to the briefing note recorded specific consideration of religious beliefs, stating that exemptions would be managed through a process ensuring human rights considerations were addressed;
• the policy document included a detailed human rights assessment, in which a number of human rights were identified that would potentially be limited by the proposed policy; and
• the benefits and risks of the proposed policy were carefully weighed, with the conclusion that the harm to human rights would be outweighed by the benefits of ensuring the readiness of the health system to respond to a pandemic, as well as the protection and promotion of the right to life.

What does this mean for decision makers?

Recent decisions highlight that proper consideration under section 58(1)(b) of the HR Act requires more than a mere acknowledgement of relevant rights. A genuine, balanced assessment of how a decision affects those rights will be necessary. While not a complex legal exercise, the obligation should be approached thoughtfully to ensure lawful outcomes in public decision-making. Courts and tribunals will carefully examine the documentary evidence of the decision maker’s assessment of human rights, including the decision itself and any briefing notes considered by the decision maker, along with the decision maker’s evidence about their decision-making process.

1. (2015) 48 VR 129, [288].
2. Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2, [284] (‘Johnston’), citing Castles v Secretary of Department of Justice (2010) 28 VR 141, [185]-[186].
3. Ibid.
4. Ibid.
5. Castles v Secretary of Department of Justice (2010) 28 VR 141 [185].
6. [2025] QCA 169 (‘Mizner’).
7. Mizner, [269]-[278].
8. [2025] QSC 123.
9. [2025] QSC 022.