What does it mean for public sector employees?
The Human Rights Act 2019 (QLD) (‘the Act’) was passed by the Queensland Parliament on the 27 February 2019. The Act came into effect in Queensland on the 1st January 2020. The new Act allows for greater protection of Queenslanders dealing with public entities including as employees of the public sector. This includes State Government, local governments, public service employees and other organisations performing public work.
The Attorney-General and Minister for Justice, Yvette D’Ath, stated that “the primary aim of the legislation is to ensure that respect for human rights is embedded in the culture of the public sector, and that public functions are exercised in a principled way that is compatible with human rights”.
What are the main objects of the Act?
The objects are to:
- Establish and consolidate statutory protections for certain human rights;
- Ensure that public functions are exercised in a way that is compatible with human rights;
- Promote a dialogue about the nature, meaning and scope of human rights; and
- Rename and empower the Anti-Discrimination Commission Queensland as the Queensland Human Rights Commission to:
- Provide a dispute resolution process for dealing with human rights complaints; and
- Promote an understanding, acceptance and public discussion of human rights.
What rights are protected?
The Act protects 23 fundamental human rights and freedoms. The following are relevant to the regulation of the employment relationship:
- Right to recognition and equality before the law – a person’s right to be recognised as a person before the law and enjoy human rights without discrimination (section 15)
- Right of freedom of expression – a person’s right to hold an opinion without interference, which includes the freedom to seek, receive and impart information and ideas of all kinds (section 21).
- Right of freedom of thought, conscience, religion and belief – a person’s right to have a religious belief of their choice and to demonstrate that belief in public or in private without being restrained in a way that limits the freedom to have that belief (section 20).
- Right of peaceful assembly and freedom of association – every person has the right of peaceful assembly and the right to freedom of association with others, including the right to form and join trade unions (section 22).
- Right of privacy and reputation – a person’s right not to have their privacy, family, home or correspondence unlawfully interfered with and not to have their reputation attacked (section 25).
- Cultural rights (general) – people with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with others of that background, to enjoy their culture, to declare and practise their religion and to use their language (section 27)
What can you do if your rights are breached?
If you feel that your human rights have been violated by a public entity, under the Act you can:
- Raise the issue directly with the relevant public entity; or
- Lodge a complaint with the Queensland Human Rights Commission; or
- Include the human rights complaint as part of a court action to protect another legal right.
The Act established for human rights complaints to be made to the Queensland Human Rights Commission. This creates a more accessible and inexpensive way for human rights issues to be heard and resolved.
Possible outcomes from a complaint include:
Public sector employees claiming breach of the HRA by public entities may complain to the Queensland Human Rights Commission (previously called the Anti-Discrimination Commissioner) for a conciliated outcome or seek substantive relief.
This is a mechanism for accessible and affordable complaints.
First step is the Commission must accept the complaint. This means the Commission must be satisfied that the complaint was originally made to the public entity and handled in a manner that the aggrieved person considers to be inadequate. The Commission may reject a complaint if it considers the matter to be frivolous, trivial, vexatious, misconceived or lacking in substance.
The Commission may make inquiries and request information, direct parties to attend conciliation and to refer complaints to other entities. Conciliation will not necessarily produce an outcome and does not affect other rights. But the Commission must prepare a report if a complaint is not resolved, which may include details of action the Commissioner considers the respondent should take to ensure its acts and decisions are compatible with human rights.
An independent claim can be made by the employee relating to the decision the subject of the complaint before the Commission.
Adverse action claims are increasingly common employment complaints. This is where an employee asserts prejudice or discrimination as a result of a choice to exercise or not exercise a workplace right. If an applicant submits an adverse action claim to the Queensland Industrial Relations Commission (QIRC), the claim could be piggybacked by claim for relief or remedy (other than damages under the HRA). The QIRC would then be required to consider whether;
- the adverse action was incompatible the applicant’s human rights; or
- the employer, in taking the adverse action, failed to give proper consideration to human rights.
A claim for human rights relief could also be piggybacked on a claim for breach of employment contract.
What does this mean for you?
Public sector employees should be mindful that public entities are likely to be taking steps in their workplaces to ensure compliance with this new legislation, which will hopefully include such matters as culture training, and revision of current policies including grievance policies. We can help you navigate this new regime should you consider the actions of your public sector employer may be in breach of your human rights.
If you are a public sector employee and have questions in regards to your human rights protection under the Act, contact our client engagement team for an appointment with one of our employment team.