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Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast

 

[2020] QIRC 56

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2020] QIRC 056

PARTIES:

Queensland Services, Industrial Union of Employees

(Applicant)

v

Council of the City of Gold Coast

(Respondent)

CASE NOS:

D/2019/125

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

15 April 2020

DATES OF WRITTEN SUBMISSIONS:

Applicant's written submissions filed on 5 March 2020 and Respondent's written submissions in reply filed on 13March 2020

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDERS:

  1. The Respondent's application for leave to be represented by a lawyer pursuant to s 530(1)(d) of the Industrial Relations Act 2016 is dismissed.
  1. That by 4.00 pm on Wednesday, 29 April 2020, the parties:
  • file a document containing the agreed question for arbitration; and
  • file a draft directions order for the conduct of the arbitration.

CATCHWORDS:

INDUSTRIAL LAW – notice of industrial dispute concerning employee's rejected request for reclassification of position and allegation of breach of confidentiality made against same employee – dispute not resolved in conciliation – dispute to be arbitrated – application in existing proceedings for leave for Respondent to be represented by a lawyer pursuant to s 530(1)(d) of the Industrial Relations Act 2016 whether proceeding is a 'proceeding relating to a matter under a relevant provision' within the meaning of s 530(1)(d)(ii) of the Industrial Relations Act 2016 so as to enliven the Commission's discretion to grant leave for Respondent to be represented by a lawyer – application in existing proceedings dismissed

LEGISLATION:

Industrial Relations Act 1999, s 104, s 117, s 125 and s 319

Industrial Relations Act 2016, s 261, s 262, s 529 and s 530

CASES:

Queensland Racing Stewards Award - State 2003 [2003] QIRComm 390; (2003) 174 QGIG 132

APPEARANCES:

Ms M. Robertson of the Queensland Services, Industrial Union of Employees

Ms U. Bhalla of the Council of the City of Gold Coast

Reasons for Decision

Introduction

  1. [1]
    Ms Adrianna Nissel is employed by the Council of the City of Gold Coast ('the Council') and holds the position of Workplace Health and Safety Specialist - Assurance and Compliance ('Ms Nissel's position').  Ms Nissel's position is classified at Level 6 under the Queensland Local Government Industry (Stream A) Award - State 2017. Ms Nissel is a member of the Queensland Services, Industrial Union of Employees ('the Union').
  1. [2]
    The Gold Coast City Council Certified Agreement 2012 ('the certified agreement') applied to Ms Nissel.  In September 2018, Ms Nissel made an application to the Council, to have her position reclassified in accordance with the reclassification process provided for in sch 3 to the certified agreement ('Ms Nissel's request').  By letter dated 20 December 2018, Mr James Mayhew, Manager, Corporate Safety and Risk Branch of the Council, advised Ms Nissel that he had made the decision not to support her request. 
  1. [3]
    By letter dated 30 July 2019, the Union wrote to Mr Mayhew disputing the reasons given by him not to support Ms Nissel's request and asked the Council to urgently review Ms Nissel's request and to reclassify her position to Level 7 by 29 August 2019.  The Council did not reconsider Ms Nissel's request.  This resulted in the Union, on 11 October 2019, pursuant to s 261 of the Industrial Relations Act 2016 ('the Act') notifying the Commission of an industrial dispute.
  1. [4]
    The industrial dispute was not resolved through conciliation and has been referred to me to be determined by arbitration ('this proceeding').
  1. [5]
    On 21 February 2020, the Council made an application in existing proceedings seeking leave to be represented by a lawyer pursuant to s 530(1)(d) of the Act ('the Council's application for legal representation').
  1. [6]
    The Council's application for legal representation is opposed by the Union.
  1. [7]
    Two questions arise for my determination in respect of the Council's application for legal representation, namely:
  • is the discretion conferred by virtue of s 530(1)(d)(ii) of the Act, to give leave to a party to be represented by a lawyer, enlivened in the circumstances of this proceeding? and
  • if the discretion is enlivened, should it be exercised in favour of the Council?
  1. [8]
    In my view, the discretion conferred by virtue of s 530(1)(d)(ii) of the Act, to give leave to a party to be represented by a lawyer, is not enlivened in the circumstances of this proceeding.
  1. [9]
    My reasons follow.

The notice of industrial dispute

  1. [10]
    On 11 October 2019, the Union filed a notice of industrial dispute with the Industrial Registrar ('the Notice') that concerned Ms Nissel's request. Appendix A to the Notice stated:
  1. Ms Adrianna Nissel is an employee of Gold Coast City Council (the Respondent).
  1. Ms Nissel is a member of the Queensland Services Industrial Union of Employees.
  1. In September 2018 Ms Nissel made an application to the respondent to have her position reclassified to a Level 7 (Queensland Local Government Industry (Stream A) Award - State 2017) pursuant to the reclassification process outlined in schedule 2 of the Gold Coast City Council Certified Agreement, 2012. A copy of this application is attached and marked "QSU01"
  1. The Respondent rejected Ms Nissel's request on 20 December 2018. A copy of this letter is attached and marked "QSU02"
  1. On 30 July 2019, the Applicant wrote to the Respondent advising that the Union disagreed with the respondent's application of the classification structure within the award and requested they review their position.  A copy of this letter is attached and marked"QSU03"
  1. Specifically, the Applicant submits that the Characteristics, Responsibilities, Organisational Relationships and her extent of Authority align with that of a level 7 rather than a level 6.
  1. On 3 September 2019 the Applicant emailed the respondent advising of an Industrial Dispute pursuant to clause 1.10 of the Agreement as no response had been received from Council.  A copy of this email is attached and marked "QSU04"
  1. On 4 September 2019 the respondent replied to the Applicant advising that they believed the original decision to reject reclassification was correct. A copy of this email is attached and marked "QSU04"
  1. Ms Nissel became the subject of an investigation conducted by Council in relation to a breach of confidentiality as she had shared with her Union documents that relate to her work outputs and reclassification request.
  1. The Applicant considers the allegation of a breach of confidentiality relevant to the Industrial Dispute and will need to be addressed by the commission.
  1. [11]
    As will soon become apparent in these reasons for decision, it is paragraphs 9 and 10 of Appendix A to the Notice that is at the heart of the Council's application for legal representation.

The relevant provisions of the Act

  1. [12]
    Chapter 11 of the Act deals with the Industrial Tribunals established under that chapter and with the Industrial Registry.  Chapter 11, pt 1 deals with the Industrial Court of Queensland, ch 11, pt 2 deals with the Queensland Industrial Relations Commission, ch 11, pt 3 deals with the Industrial Magistrates Court, ch 11, pt 4 deals with the Industrial Registry and ch 11, pt 5 deals with proceedings before those Industrial Tribunals and before the Industrial Registrar.
  1. [13]
    Chapter 11, pt 5, div 3 deals with the conduct of proceedings before the Industrial Tribunals and the Industrial Registrar.  Section 529 of the Act provides that in proceedings under the Act or another Act being conducted before the Industrial Court of Queensland, the Queensland Industrial Relations Commission, an Industrial Magistrates Court or the Industrial Registrar, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by an agent appointed in writing or, if the party or person is an organisation, an officer or member of the organisation.
  1. [14]
    Section 530 of the Act sets out the circumstances where a party to proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer.  That section relevantly provides:

530 Legal representation

(1) A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if-

(a) for proceedings in the court—

(i) all parties consent; or

(ii) the court gives leave; or

(iii) the proceedings are for the prosecution of an offence; or

(b) for proceedings before the full bench—the full bench gives leave; or

(c) for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or

(d) for other proceedings before the commission, other than the full bench—

  1. (i)
    all parties consent;[1] or
  2. (ii)
    for a proceeding relating to a matter under a relevant provision—the commission gives leave; or

(4) An industrial tribunal may give leave under subsection (1) only if—

  1. it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  2. it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
  3. it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Examples of when it may be unfair not to allow a party or person to be represented by a lawyer—

  • a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy
  • a person is from a non-English speaking background or has difficulty reading or writing

(5) For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—

(a) an employee or officer of the party or person; or

(b) an employee or officer of an entity representing the party or person, if the entity is—

(i) an organisation; or

(ii) an association of employers that is not registered under chapter 12; or

  1. (iii)
    a State peak council.

(7) In this section—

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

proceedings means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.

relevant provision, for a proceeding before the commission other than the full bench, means—

(a) chapter 8; or

(b) section 471; or

(c) chapter 12, part 2 or 16.

Is the discretion conferred by virtue of s 530(1)(d)(ii) of the Act, to give leave to a party to be represented by a lawyer, enlivened in the circumstances of this proceeding?

The Council's submissions

  1. [15]
    The Council submitted that, having regard to s 530(1)(d) of the Act, in the absence of consent from the Union, it accepted that the Commission may only grant leave for a '… proceeding relating to a matter under a relevant provision'.[2]
  1. [16]
    The Council further submitted:
  • the current proceeding does, in fact and in law, relate to a matter under a relevant provision;[3]
  • on the authority of the Queensland Racing Stewards Award - State 2003,[4] in which  the Queensland Industrial Relations Commission construed the phrase '… the proceedings relate to a matter under chapter 4, other than section 110' as contained in s 319(2)(b)(i) of the (now repealed) Industrial Relations Act 1999 ('the 1999 Act') and, having regard to the golden rule of statutory construction, when the legislature enacted s 530(1)(d)(ii) of the Act, it made an election to broaden the scope of circumstances in which legal representation was permitted because substantially identical wording was adopted in s 530(1)(d) of the Act;[5]
  • as a consequence, the fact that the current proceedings are brought pursuant to s 261 of the Act will therefore not be determinative of whether the proceedings 'relate' to a matter under a relevant provision within the meaning of s 530(1)(d)(ii) of the Act;[6] and
  • the current proceedings relate to a 'relevant provision', that is ch 8 of the Act.[7]
  1. [17]
    The Council then submitted:

15 In this regard, it is noted that the Applicant lodged a Notice of Industrial Dispute on 11 October 2019 (Notice) pursuant to section 261 of the IR Act.

16 The Notice asserts the following actions contravene the IR Act: 

  1. (1)
    the Respondent's decision to in relation to Adrianna Nissel's application for the reclassification of her role as Workplace Health and Safety Specialist, Assurance and Compliance, under the Queensland Local Government Industry (Stream A) Award - State 2017; and
  1. (2)
    importantly, the Respondent's decision to conduct an investigation regarding Ms Nissel's potential breach of confidentiality.

17 It is inferred that the Applicant asserts that the Respondent contravened section 285 of the IR Act by conducting an investigation into Ms Nissel's potential breach of confidentiality following her request for the reclassification of her role.

18 Specifically, the Notice expressly asserts:

  1. (1)
    Ms Nissel became the subject of an investigation conducted by Council in relation to a breach of confidentiality as she had shared with her Union documents that relate to her work outputs and reclassification request.
  1. (2)
    The Applicant considers the allegation of a breach of confidentiality relevant to the Industrial Dispute and will need to be addressed by the Commission.

19Given that:

  1. (1)
    the Applicant specifically requested in the Notice for the allegation of a breach of confidentiality to be addressed by the Commission; and
  1. (2)
    this issue relates to a potential contravention of chapter 8 of the IR Act, the Respondent submits that the Applicant's case, as outlined within the Notice, discloses on its plain face that the Applicant views the resolution of this matter as relating to a relevant provision.

20 Having now raised the spectre of that matter as a matter in issue in the proceedings, the Respondent considers that this issue needs to be ventilated and addressed in order to resolve these proceedings.  Again, these circumstances are apposite to those in Queensland Racing Stewards Award - State 2003.

21 In that case, the relevant matter which 'related' to a matter under Chapter 4 of the 1999 Act was the allegation of duress applied to employees in relation to freedom of association.

22 In the current proceedings, the relevant matter which the Respondent says 'relates' to a matter under Chapter 8 of the IR Act (which deals with matters relating to workplace rights and freedom of association) is the allegation that Ms Nissel has been subjected to an investigation, with the inference that such an investigation constitutes a breach of her workplace rights.

23 Similarly to the finding in Queensland Racing Stewards Award - State 2003, there is a relevant connection between the Applicant's allegations, the provisions of Chapter 8 of the IR Act and the application pursuant to s 261 of the IR Act.

24 Accordingly, the Commission has the power to grant the respondent leave to be legally represented pursuant to section 530(1)(d)(ii) of the IR Act.[8]

The Union's submissions

  1. [18]
    The Union submitted that:
  • having regard to the combined effect of s 530(1)(d)(ii) and s 530(7) of the Act, the present matter before the Commission is not one involving ch 8, s 471 or ch 2, pts 2 or 16 of the Act;[9]
  • the Council's application for legal representation states that ch 8 of the Act is the 'relevant provision'[10] that has been enlivened in respect of the combined effect of s 530(1)(d)(ii) and s 530(7) ('the Council's ch 8 contention'); and
  • the Council's ch 8 contention is incorrect as '… this matter has changed and moved on since the time of filing' of the Notice.[11]
  1. [19]
    The Union then goes on to submit:

18. The Respondent relies on the fact that the Application filed in this Commission by the Applicant has included in Annexure A that:

9. Ms Nissel became the subject of an investigation conducted by Council in relation to a breach of confidentiality as she had shared with her Union documents that relate to her work outputs and reclassification request.

10. The Applicant considers the allegation of a breach of confidentiality relevant to the Industrial Dispute and will need to be addressed by the commission.

19. The Applicant submits that this matter has been dealt with by the Commission in earlier proceedings and is no longer a live issue.

20. The Respondent has provided a written assurance to Ms Nissel that the investigation referred to in the Application is found not to be capable of substantiation.  This is attached as ATTACHMENT A.

21. This matter has been addressed and is no longer a relevant matter.  Chapter 8 of the IR Act is not relevant to this proceeding.  S 530(1)(d) of the IR Act does not apply.

22. The Applicant has proposed a question to be arbitrated which reflects that this has occurred.

23. The question the Applicant has proposed to be the subject of the arbitration is:

Should the Level 6 position of WHS Specialist (Assurance & Compliance) at the City of Gold Coast be reclassified to a Level 7 position as described in the Queensland Local Government Industry (Stream A) Award - 2017, Division 2 - Section 1 (Administrative, clerical, technical, professional, community service, supervisory and managerial services) Schedule 1?

  1. [20]
    Attachment A to the Union's submissions includes an email to Ms Nissel from Mr Mark Minter, Principal Investigator - Integrity & Ethical Standards, Office of the Chief Operating Officer of the Council, sent on 15 January 2020.  In that email, Mr Minter relevantly states to Ms Nissel:

I can confirm our pre-Christmas conversation whereby the IESU investigation outcome is such that the allegation is found to be not capable of substantiation.  I have since advised James Mayhew and Cordell Jackson of this outcome as well.

Due to the time of year, there is a backlog of matters awaiting final reports and I am endeavouring to get this completed as soon as possible.  However, as advised, you can rely on this information as confirmation of the status of the investigation.  You will be provided with a formal letter once the report is finalised, and I have advised you beforehand to hopefully offset some of the stress you have been experiencing.

The Council's submissions in reply

  1. [21]
    In its written submissions in reply to the Union's submissions as set out above in these reasons for decision, the Council submitted that:
  • it disputes the Union's assertion that the matter had been dealt with in earlier proceedings and that the matter was no longer a live issue;[12]
  • the Union's submission is to the effect that, because the investigation into the alleged breach of confidentiality by Ms Nissel has concluded and the allegation was not substantiated, the matter is no longer a live issue ('the Union's contention');[13] and
  • in response to the Union's contention, the Council submitted that;
  1. the Union's contention seeks to confuse the matter of the findings in relation to the Council's investigation into Ms Nissel's alleged breach of confidentiality with the relevant issue of whether the current proceedings relate to a matter under ch 8;
  2. whether the investigation is live or not, or the Applicant asserts it to no longer be live, is not determinative;
  3. the Notice lodged on 11 October 2019 asserts that the Union '… considers the allegation of a breach of confidentiality relevant to the Industrial Dispute';
  4. the Notice does not request for the Commission to determine the outcome of the investigation, or dispute the prospective findings in the investigation, rather, the Notice raises the 'allegation of breach of confidentiality', stating that it is relevant to the current industrial dispute and will need to be addressed by the Commission;
  5. in an email to the Council dated 23 August 2019, the Union took issue with the Council progressing the allegation of breach of confidentiality and advised the Council that, if the Council progressed the allegation, the Union considered it to be a matter in respect of which it could apply under ch 8 of the Act;[14]
  6. clearly, the Union's objection to the allegation of breach of confidentiality was that it considered the allegation, and the pursuit of it by the Council, to be a contravention of ch 8 of the Act and that the Union has not resiled from that position;
  7. this is the issue the Union refers to in the Notice, namely whether the allegation of the breach of confidentiality, and the Council's pursuit of it, was contrary to ch 8 of the Act and that the issue is an aspect of the current industrial dispute;
  8. accordingly, the proceedings relate to a matter under ch 8 of the Act which is the case whether the Union asserts the investigation to be a live issue or not; and
  9. the question proposed by the Union for arbitration is similarly of no assistance because a proceeding may relate to a matter under ch 8 without the question for arbitration requiring determination of a matter under, or even referring to, ch 8 of the Act.[15]

The discretion conferred on the Commission by virtue of s 530(1)(d)(ii) of the Act, to give leave to a party to be represented by a lawyer, is not enlivened in the circumstances of the present case

  1. [22]
    Because of the Council's reliance on the 2003 decision in Queensland Racing Stewards Award - State 2003,[16] it is necessary to consider that case.
  1. [23]
    In Queensland Racing Stewards Award - State 2003, the Australian Workers' Union of Employees, Queensland ('the AWU') applied for an award under s 125 of the 1999 Act.  That application was opposed by the respondent in that proceeding, Queensland Racing ('QR'). QR also applied for leave to be represented by a lawyer.  The AWU opposed QR's application for leave to be represented by a lawyer.[17]
  1. [24]
    It appears, from the edited report of the ex tempore decision of the Commissioner who heard the matter, that:
  • prior to QR's application for leave to be represented by a lawyer, witness statements had been filed by the AWU in support of the application for an award;
  • various witnesses had indicated, in their witness statements, that were proposed to be read by the AWU, that they signed, under duress, documentation that would prejudice the award being made; and
  • a number of statements also contained the following statement:

I have the right to pursue an award for regulation of my employment and I should not be asked to waive that right or to not support the exercising of right through my union.[18]

  1. [25]
    QR submitted that:
  • the conduct referred to in the witness statements filed by the AWU related to the Freedom of Association provisions in ch 4 of the 1999 Act where certain conduct was prohibited conduct as defined in s 104 of the 1999 Act; and
  • the statements of the AWU witnesses triggered the provisions of s 104(1)(h) of the 1999 Act which relevantly provided that for ch 4, a person engages in conduct for a prohibited reason if the person engages in, or threatens to engage in, the conduct because another person '… has the right to the benefit of an industrial instrument or an order of an industrial body.'[19]
  1. [26]
    The AWU submitted that:
  • the proceedings were not a precursor to any application under ch 4 of the 1999 Act;
  • no relief under s 117 of the 1999 Act was to be sought in any proceedings; and
  • the AWU's application was brought under s 125 of the 1999 Act.[20]
  1. [27]
    In the report of the decision as edited, it was held:

With respect, I see a connection between the allegation of duress, the provisions of Chapter 4 and the application under s. 125. An application for an award is not granted as of right. Certain matters must be proved but of some relevance is whether parties are capable of freely bargaining without the need for the protections embodied in an award of the Commission. It is relevant whether the parties have been freely able to secure for themselves adequate and just employment conditions. I think this is where the allegation of duress is relevant.

The leave to appear is sought, firstly as of right under s. 319(2)(b)(i) and secondly, because of the existence of special circumstances or satisfaction that the party can be adequately represented only by a lawyer under s. 319(2)(b)(iii).

I read the provisions of s. 319(2):

(2) The party or person may be represented by a lawyer if, and only if -

(a)  for proceedings in the court-

(i) the proceedings are for the prosecution of an offence; or

(ii) ...; or

(iii) ...; or

(b) for proceedings before the commission, other than proceedings under s. 278 or 408F-

(i) the proceedings relate to a matter under chapter 4, other than section 110; or

(ii) ...; or

(iii) the proceedings relate to a matter under chapter 3, or under section 110, 275, 276 or 279, or under chapter 12, part 2 or part 16 and, on application by a party or person–

(A) the commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances that make it desirable for the party or person to be legally represented; or

(B) the commission is satisfied the party or person can be adequately represented only by a lawyer;’.

What strikes me immediately about these provisions is the change in the wording from ‘proceedings under’ to ‘proceedings relate to a matter under’. The latter wording appears to be much wider than the former. Under ss (2)(a), the provision is ‘the proceedings are for the prosecution of an offence’ not ‘the proceedings relate to the prosecution of an offence’. Under ss(2)(b), the provision is ‘other than proceedings under s. 278 or 408F’, words that appear quite direct, not words that say ‘other than proceedings that relate to s. 278 or 408F’. Similarly, under ss (2)(b)(i), the words are ‘the proceedings relate to a matter under chapter 4’, not ‘the proceedings under chapter 4’. It is my view that the legislature has clearly intended a widening of the effects of the provision by the use of the words ‘proceedings relate to’.[21]

  1. [28]
    The Commissioner relevantly went on to hold that:
  • while the proceedings were brought under ch 5 of the 1999 Act, and were clearly not proceedings under ch 4 of the 1999 Act, they related to a matter under ch 4, that is whether the employees or some of them had been subjected to duress in the signing of various documents which was relevant as to whether an award should be made at all; and
  • as a consequence, QR had a right to be represented by a lawyer and that leave was not necessary.[22]
  1. [29]
    It is clear from the decision that the AWU was going to pursue, in the proceedings for the making of an award, the claim that the employees who filed witness statements, or some of them, had been subject to duress when signing various documents.  As the Commissioner found, that matter was '… relevant as to whether an award should be made at all.'[23]
  1. [30]
    Apart from the Council's reliance on the decision in Queensland Racing Stewards Award - State 2003 and its submissions that, in accordance with the golden rule of statutory construction, it must be inferred that the legislature intended to maintain the broadened scope of the circumstances in which legal representation was permitted when enacting the Act, the Council made no other specific submissions about the construction of s 530(1)(d)(ii) of the Act. 
  1. [31]
    The Union made no submissions about whether the decision in Queensland Racing Stewards Award - State 2003, to the extent it was relied upon by the Council, was correctly decided.  Further, the Union made no submissions about the construction of s 530(1)(d)(ii) of the Act. 
  1. [32]
    As such, I have not had the benefit of full argument from the parties about the construction of that provision.
  1. [33]
    In any event, assuming (without deciding) that the decision in Queensland Racing Stewards Award - State 2003 about the construction of s 319(2)(b)(i) of the 1999 Act was correct; and assuming (without deciding) that the reasons for the construction of s 319(2)(b)(i) of the 1999 Act in Queensland Racing Stewards Award - State 2003 have application to the construction of s 530(1)(d)(ii) of the Act, that decision does not, on the facts of the present case, compel the conclusion that my discretion to give leave for the Council to be represented by a lawyer is enlivened.
  1. [34]
    There are two reasons for this decision.
  1. [35]
    First, s 262 of the Act relevantly provides:

262 Action on industrial dispute

  1. (1)
    This section applies if-

(a) notice of a dispute has been given by a party under section 261(2); or

(b) whether or not a notice of a dispute has been given under section 261-the commission considers it is in the public interest to take action under this section in relation to the dispute.

(2) Subsection (1)(b) applies irrespective of whether the parties are attempting to resolve the dispute.

(3) The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by-

(a) conciliation in the first instance; and

(b) if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute-arbitration.

(4) Without limiting subsection (3), the commission may do 1 or more of the following-

  1. (a)
    direct any industrial action in relation to the dispute to stop or not happen;

(b) make orders, or give directions, of an interlocutory nature;

(c) exercise the commission’s powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;

(d) make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.

  1. [36]
    Schedule 5 to the Act exhaustively defines 'industrial dispute' to mean a dispute, including a threatened or probable dispute, about an industrial matter, or a situation that is likely to give rise to a dispute about an industrial matter.
  1. [37]
    It is apparent from s 262(3) of the Act, in respect of an industrial dispute that has been notified to the Commission or has come to the attention of the Commission, that the Commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute by conciliation in the first instance, and then, if the Commission considers conciliation has failed and the parties are unlikely to resolve the dispute, by arbitration.
  1. [38]
    The reality of industrial disputes notified to this Commission is that:
  • it is not uncommon for a party to the industrial dispute to not pursue an issue or issues, that was originally the subject of the dispute, prior to, during or after conciliation has occurred; and
  • where there has been such a narrowing of the issues relevant to the dispute, that has a direct bearing on the matter or matters to be arbitrated.
  1. [39]
    Secondly, the facts in the present case are distinguishable from the facts in Queensland Racing Stewards Award - State 2003.  In that case there was a relevant issue pursued by the AWU about certain employees being subject to duress.  Those facts gave rise to the finding by the Commission that the application made by the AWU, pursuant to s 125 of the 1999 Act for an award to be made, related to a matter under ch 4 of the 1999 Act, such that QR had the right to be represented by a lawyer pursuant to s 319(2)(b)(i) of the 1999 Act.
  1. [40]
    In the present case, the Notice was given by the Union to the Industrial Registrar on 11 October 2019.  Then, according to Attachment A to the Union's submissions, being the email dated 15 January 2020 from Mr Minter to Ms Nissel - the authenticity of which was not contested by the Council - the allegation made against Ms Nissel for a breach confidentiality was found to be not capable of substantiation.
  1. [41]
    Following that, the Union submitted to the Commission, in its submissions filed on 5 March 2020, that the matter referred to in paragraphs 9 and 10 of Appendix A of the Notice (namely, the allegation made by the Council that Ms Nissel breached confidentiality, which the Union notified would need to be addressed by the Commission) had been addressed and '… is no longer a relevant matter.'[24]
  1. [42]
    Thus, unlike the facts in Queensland Racing Stewards Award - State 2003, the issue raised by the Union in the Notice regarding the allegation of a breach of confidentiality levelled against Ms Nissel by the Council, is not an issue that is now being pursued by the Union in the arbitration of the dispute. 
  1. [43]
    Accordingly, and contrary to paragraph 6(6) of the Council's submissions in reply filed on 13 March 2020, the allegation of breach of confidentiality and whether the Council's pursuit of that matter was contrary to ch 8 of the Act, is now not a relevant issue in the arbitration of the dispute about the industrial matter of the classification of Ms Nissel's position.

Conclusion

  1. [44]
    The issue claimed by the Council, said to give rise to a conclusion that the proceeding is a proceeding relating to a matter under ch 8 of the Act, so as to enliven the Commission's discretion to give leave for it to be represented by a lawyer pursuant to s 530(1)(d)(ii) of the Act, is not an issue being pursued by the Union in the arbitration of the industrial dispute about the industrial matter of the classification of Ms Nissel's position.
  1. [45]
    In these circumstances, my discretion under s 530(1)(d)(ii) of the Act, is not enlivened.
  1. [46]
    As a consequence, it becomes unnecessary to consider the parties' submissions about whether, if my discretion was enlivened, I would have exercised my discretion in favour of the Council having regard to the matters referred to in s 530(4) of the Act.
  1. [47]
    For these reasons, the Council's application for legal representation is dismissed.
  1. [48]
    At the mention of the proceeding on 18 February 2020:
  • I indicated that the parties should be able to agree on the question for arbitration;[25] and
  • after discussion with the parties, some progress was made about the content of a directions order to enable the orderly conduct of the arbitration.[26]
  1. [49]
    Having regard to what was discussed at that mention, I order that by 4.00 pm on Wednesday, 29 April 2020, the parties:
  • file a document containing the agreed question for arbitration; and
  • file a draft directions order for the conduct of the arbitration.
  1. [50]
    I will determine either or both of those matters in the absence of agreement by the parties.

Footnotes

[1] The Union does not consent to the Council being represented by a lawyer in the proceeding - see the submissions of the Queensland Services, Industrial Union of Employees filed on 5 March 2020, [6] ('the Union's submissions').

[2] The submissions of the Council of the City of Gold Coast contained in Annexure A to the affidavit of Ms Upinder Bhalla affirmed on 21 February 2020, [8] ('the Council's submissions').

[3] The Council's submissions, [9].

[4] [2003] QIRComm 390; (2003) 174 QGIG 132 ('the Queensland Racing Stewards' case').

[5] The Council's submissions, [10]-[14].

[6] The Council's submissions, [14].

[7] The Council's submissions, [14].

[8] The footnotes have been omitted.

[9] The Union's submissions, [5]-[11].

[10] The Union's submissions, [16].

[11] The Union's submissions, [17].

[12] The submissions in reply of the Council of the City of Gold Coast filed on 13 March 2020, [5] ('the Council's reply submissions').

[13] The Council's reply submissions, [6].

[14] That email was attached to the Council's reply submissions. It was an email from Mr Drew Cutler, Industrial Officer of the Union to Mr Mayhew of the Council and stated (typographical mistakes not included):

It has come to the Union's attention that Council intends to meet with our member Ms Adrianna Nissel to discuss an alleged breach of confidentiality.

Yesterday, you indicated to our member that the breach was arising out of documents shared by Ms Nissel to the Union.

The Union has a very strong view that this is not a breach of confidentiality and was a document shared with the Council by Ms Nissel, through me as her appointed representative.

Should Council progress this issue any further, the Union have no hesitation in making an immediate application to the Queensland Industrial Relations Commission pursuant to s282 of the Industrial Relations Act 2016 (QLD).

Ms Nissel is very upset by Council's response to her reclassification request.  As such, please include me on any further correspondence in relation to either the alleged breach or reclassification.

There is no evidence that an application alleging the Council had contravened ch 8 of the Act or s 282 of the Act, in respect of Ms Nissel, has been made.

[15] The Council's reply submissions, [6 (1)-(6)] and [8].

[16] The Queensland Racing Stewards' case (n 4).

[17] Ibid, 132 (Commissioner Blades).

[18] The Queensland Racing Stewards' case (n 4), 132 (Commissioner Blades).

[19] Ibid.

[20] Ibid.

[21] The Queensland Racing Stewards' case (n 4), 132-133 (Commissioner Blades).

[22] Ibid, 133 (Commissioner Blades).

[23] Ibid.

[24] The Union's submissions, [21].

[25] T 1-6, ll 39-42.

[26] T 1-7 to 1-10.

Close

Editorial Notes

  • Published Case Name:

    Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast

  • Shortened Case Name:

    Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast

  • MNC:

    [2020] QIRC 56

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    15 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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