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  • Unreported Judgment

Alexander v State of Queensland (TAFE Queensland)

 

[2020] QIRC 96

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Alexander v State of Queensland (TAFE Queensland) [2020] QIRC 096

Alexander, Justin

(Applicant)

v

State of Queensland (TAFE Queensland) (Respondent)

CASE NO:

D/2019/126

PROCEEDING:

Industrial Dispute

DELIVERED ON:

1 July 2020

MEMBER:

HEARD AT:

McLennan IC

On the papers

  ORDERS:

The Industrial Dispute is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – arbitration of a Notice of Industrial Dispute – relief sought pleaded in statement of facts and contentions – whether relief sought is available in an industrial dispute – whether an inconsistency arises in the interaction between the employment powers under the TAFE Queensland Act 2013 (Qld) and the dispute resolution powers under the Industrial Relations Act 2016 (Qld) – criteria to be considered in exercising public interest dismissal powers.

LEGISLATION, AWARDS AND

AGREEMENTS:

Acts Interpretation Act 1954 (Qld) s 6, s 7

Industrial Relations Act 1999 (Qld) s 230, s 331

Industrial Relations Act 2016 (Qld) s 3, s 261, s 262, s 451, s 531, s 541, s 545

Public Service Act 2008 (Qld) ch 7, s 212

Statutory Instruments Act 1992 (Qld) s 7

TAFE Queensland Act 2013 (Qld) s 10, s 29

TAFE Queensland Award – State 2016 cl 7, cl 8

TAFE Queensland Educators Certified Agreement 2016 cl 14

CASES:

August v State of Queensland (Department of Education and Training) & Anor [2019] QSC 31

BHP Coal Pty Ltd & Ors v Minister for Natural Resources, Mines, Energy and Minister for Trade & Anor [2011] QSC 246

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Carey v President of the Industrial Court of Queensland [2004] QCA 62

Commissioner of Police v Eaton [2013] HCA 2

Department of Corrective Services v Queensland Public Sector Union of Employees [2006] QIC 30

Goodwin v Phillips (1908) 7 CLR 1

Orchid Avenue Realty Pty Ltd v Percival [2003] QIC 160

State of Queensland v Lockhart [2014] ICQ 006

State of Queensland v Shankar [2014] QIRC 159

Toll North Pty Ltd AND Q-COMP & Anor (B/2013/32) – Decision >

TWU v PFD Food Services Pty Ltd [2020] FWC 51

Yousif v Workers’ Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr J. Alexander appearing in person.

Ms L. Hues and Ms S. McRostie of Crown Law instructed by TAFE Queensland.

Reasons for Decision

  1. [1]
    Mr Justin Alexander (the Applicant) filed a Notice of Industrial Dispute with the Industrial Registry on 14 October 2019 (the Dispute Notice). The Respondent to that dispute is TAFE Queensland (TAFE).
  1. [2]
    Mr Alexander is employed by the Respondent as a teacher in the Business Team of TAFE’s Online Learning division.
  1. [3]
    The Dispute Notice related to TAFE’s decision to continue Mr Alexander as a temporary employee, rather than provide him a permanent employment contract. That Notice provides that the proceeding was brought “primarily to appeal a decision about my temporary employment status at (TAFE)”.  He goes on to say that he “will be raising concerns about the process followed and the implications of the decision.”
  1. [4]
    Prior to commencing these proceedings, on 3 October 2019 Mr Alexander filed an appeal under the Public Service Act 2008 (Qld) against a temporary employment decision. Mr Alexander was advised by Commissioner Dwyer in a mention of that matter that TAFE employees were not employed under that Act, but instead under the TAFE Queensland Act 2013 (Qld).[1] As such, he was unable to pursue that appeal and so brought these proceedings. That is relevant because some of the remedies sought may have been available under the Public Service Act 2008 (Qld), but are not available in the present dispute.
  1. [5]
    I required the parties to file Statements of Facts and Contentions,[2] to clarify their respective positions. Subsequently, I invited the parties to address me on the remedies sought, and the powers there may be in this jurisdiction to provide those remedies.
  1. [6]
    The Respondent sought that the proceeding be dismissed under ss 451 and 541 of the Industrial Relations Act 2016 (Qld),[3] effectively for want of jurisdiction regarding the remedies sought and the nature of the Industrial Dispute.
  1. [7]
    For the reasons that follow, I have concluded that the remedies sought are not available in this proceeding, and that this Industrial Dispute should be dismissed under s 541 as further proceedings are not necessary or desirable in the public interest.

What remedies are sought in this proceeding?

  1. [8]
    Mr Alexander’s SOFC concludes with the following:

The following are the outcomes I am seeking:

  1. That I be converted to permanent: …
  2. That the QIRC make an order for payment related to travel time and expenses: …
  3. (TAFE) enhance their approach to conversion and the management of disputes: …
  4. An independent investigation into broader award compliance at (TAFE): …
  5. A Code of Conduct investigation occur in relation to the actions of the (TAFE decision maker/s): …
  1. [9]
    That submission as to the remedies sought is abundantly clear. It is also consistent with the scope of the Industrial Dispute as set out in the initial Dispute Notice and his SOFC.
  1. [10]
    The Respondent’s SOFC was filed subsequently. It contended that the remedies sought by Mr Alexander in his SOFC were not available to him. I then required the parties to file further submissions as to the powers this Commission may have to grant the remedies sought. It was at that point that Mr Alexander appeared to resile from those remedies somewhat.
  1. [11]
    In his subsequent submissions, Mr Alexander says:

I cannot state with any certainty what powers the (Commission) has in relation to helping me resolve this specific dispute.

  1. [12]
    He goes on to say that he relied on s 451(2) of the IR Act in formulating the remedies he sought in these proceedings, which provides as follows:

451  General powers

  1. The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. Without limiting subsection (1), the commission in proceedings may—
  1. give directions about the hearing of a matter; or
  2. make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.
  1. [13]
    Mr Alexander then says that s 451(2) of the IR Act:

… gave me comfort that regardless of what remedies I requested, the (Commission) would provide remedies which were appropriate to my case and within its powers.

  1. [14]
    This Commission, and indeed most other jurisdictions, are not bound by the precise remedy sought and are able to award something greater, lesser or otherwise different.
  1. [15]
    Even so, parties to proceedings in this jurisdiction are required to state their case in filed materials and are bound by those filings, subject to amendments. In many instances, the remedy sought in a proceeding speaks to the crux of the matter. Remedies are formulated to address the proceeding in question, and as such flow from the nature of that proceeding. S 451 is a discretionary power vested with the Commission. It does not obviate the requirement of a party to state their case, including the remedies they seek. That process of explaining one’s case, including the outcome sought, is required to facilitate the orderly and fair conduct of proceedings.
  1. [16]
    It is impermissible, and a distinct unfairness to a respondent party, to simply air a grievance and then wait to see what the Commission may provide. That is particularly true where the party bringing the proceeding has been directed to set out precisely what remedy he seeks, because such an outcome may not be available. I accept that Mr Alexander was self-represented, yet that does not alter the parties’ obligations.
  1. [17]
    In that regard, Justice Martin has said (emphasis added, citations removed):[4]

In Blackwood v Adams, I referred to Statements of Stressors as setting “the boundaries of the application”. More recently, in Carlton v Blackwood I said:

“An appellant’s case has to be known before the hearing starts. The Commission cannot allow a case to “evolve” and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.”

A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party’s case and, if an admission is made, to rely on that admission.

It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.

  1. [18]
    That is particularly pertinent in this instance because where the remedies sought are beyond the power of this Commission, the efficacy of a proceeding continuing is doubtful.
  1. [19]
    Further in his material, Mr Alexander submits that, if he could have re-started these proceedings:

I would have started my list of remedies being sought by more clearly asking the (Commission) to examine the process that was conducted and determine if the decisions made by each of the (TAFE) representatives were made so unjustly that they should be over-turned.

  1. [20]
    That does not appear to be an attempt to amend the remedies sought in his statement of facts and contentions. It might better be described as a musing about the way in which he described the remedies sought. That is borne out when he goes on to say later in his material that conversion to permanency “remains the key outcome (remedy) I am seeking”. Even if his materials were to be amended in that fashion, it would not change nature of the remedies he seeks, which is the true source of the jurisdictional issues his dispute faces.
  1. [21]
    In that regard, the remedy provided in a proceeding flows from the nature of the proceeding itself. Mr Alexander filed this Industrial Dispute on 14 October 2019, which provided:

I am submitting this ‘Notice of industrial dispute’ primarily to appeal a decision about my temporary employment status at (TAFE). I will also be raising concern (sic) about the process followed and the implication of the decision… I believe I should be made permanent based on having two years in the same role, satisfactory performance and there being no genuine operational reasons why it shouldn’t occur.

  1. [22]
    There is no ambiguity in that statement; the core of this dispute is that Mr Alexander seeks a permanent employment contract.

 Are the remedies sought in these proceedings available?

  1. [23]
    This proceeding commenced with the filing of a Notice of Industrial Dispute pursuant to s 261 of the Act. The hearing and determination of such a Notice is an arbitration.
  1. [24]
    The Respondent relies on TWU v PFD Food Services Pty Ltd as authority for the proposition that:[5]

…the Commission’s arbitration jurisdiction must be exercised in a manner contemplated by the relevant instrument, namely clause 7.1(d) of (the Award).

  1. [25]
    I agree with that submission. This Commission has no inherent jurisdiction to hear and decide all matters. It draws its jurisdiction from statute. As his Honour Deputy President O’Connor (as he then was) said in Toll North Pty Ltd AND Q-COMP & Anor (citations removed):[6]

The inherent jurisdiction of the Commission, if any, was briefly touched upon in submissions. It is clear on the authorities that the Commission does not have any inherent jurisdiction.

It is accepted that the decision in Q-COMP v Helesic makes it clear that the Commission does not have any inherent power. His Honour President Hall wrote:

The Commission has no inherent jurisdiction. It is a Statutory Tribunal which the jurisdiction is conferred upon by statute. …

  1. [26]
    At the time of filing this dispute, Mr Alexander’s employment was governed by three relevant instruments:[7]
  • The TAFE Queensland Act 2013 (Qld);[8]
  • The TAFE Queensland Award – State 2016;[9] and
  • The TAFE Queensland Educators Certified Agreement 2016.[10]
  1. [27]
    The Award provides as follows (emphasis added):

7.1  Prevention and settlement of disputes - Award matters

  1. The objectives of this procedure are the avoidance and resolution of any disputes over matters covered by this Award by measures based on the provision of information and explanation, consultation, co-operation and negotiation.
  2. Subject to legislation, while the dispute procedure is being followed normal work is to continue except in the case of a genuine safety issue. The status quo existing before the emergence of a dispute is to continue whilst the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work.
  3. There is a requirement for management to provide relevant information and explanation and consult with the appropriate employee representatives.
  4. In the event of any disagreement between the parties as to the interpretation or implementation of this Award, the following procedures shall apply:
  1. the matter is to be discussed by the employee's Union representative and/or the employee/s concerned (where appropriate) and the immediate supervisor in the first instance. The discussion should take place within 24 hours and the procedure should not extend beyond 7 days;
  2. if the matter is not resolved as per clause 7.1(d)(i), it shall be referred by the Union representative and/or the employee/s to the appropriate management representative who shall arrange a conference of the relevant parties to discuss the matter. This process should not extend beyond 7 days;
  3. if the matter remains unresolved it may be referred to the Chief Executive for discussion and appropriate action. This process should not exceed 14 days;
  4. if the matter is not resolved then it may be referred by either party to the Commission.

8.4  Review of temporary employment

Where a temporary employee has completed 2 years' (sic) of continuous service in the same role with TAFE Queensland, a review of the temporary status will be undertaken and the General Manager will determine whether the employee will be converted to permanent status at level.

  1. [28]
    The Certified Agreement provides as follows (emphasis added):

14.  Permanent employment

The parties are committed to maximising permanent employment where possible. Casual or temporary forms of employment should only be utilised where permanent employment is not viable or appropriate. TAFE Queensland is encouraged to utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs.

  1. [29]
    Clause 14 of the Certified Agreement is foundationally aspirational in nature. It does not create legal rights and obligations that Mr Alexander could seek to enforce to attain the remedies he seeks in this matter.
  1. [30]
    Clause 8.4 of the Award provides authority to the General Manager to determining whether the employee will be converted to permanent status. That aspect is not dissimilar from the Public Service Act 2008 (Qld) which delegates employment powers to the Commission Chief Executive. However, the two Acts diverge at that point.
  1. [31]
    The Public Service Act 2008 (Qld) goes on provide a right of appeal to this Commission for temporary employment decisions. The Award and Certified Agreement which apply to Mr Alexander do not provide any such express ground of appeal. At its highest, the Award at cl 7 provides that this Commission is empowered to resolve disagreements between the parties as to the interpretation or implementation of the Award.
  1. [32]
    In seeking a permanent employment contract, what Mr Alexander is effectively asking this Commission to do is to breach or terminate his current employment contract, and then create a new employment contract between himself and his employer. Absent a specific statutory power to that effect, such as that contained in the Public Service Act 2008 (Qld), that would involve a significant and uncontemplated disturbance of the foundational rights and obligations of the parties to that contractual relationship.
  1. [33]
    Mr Alexander’s submissions also address the legitimacy of his original engagement on a temporary contract. The answer to that line of enquiry is two-fold. First, TAFE is unambiguously empowered by the TAFE Act to employ persons on temporary contracts as “it considers appropriate”. The Respondent submits, and I agree, that the legal legitimacy of temporary contracting was confirmed in Carey v President of the Industrial Court of Queensland.[11] Second, even if Mr Alexander were correct, that does not obviate the issues with the remedies sought. It does not create a basis upon which this Commission could order that he be provided a permanent employment contract.
  1. [34]
    In State of Queensland v Shankar [2014] QIRC 159,[12] his Honour Deputy President O’Connor (as he then was) considered a dispute where the applicant had sought remedies that required interfering with the essential terms of the employment contract. To achieve the outcome sought by the applicant in that case, the Commission would have been required to effectively end the current contract between the dispute parties and create a new contract of employment. That outcome is comparable to the outcome sought in this case.
  1. [35]
    Cl 7 of the Award does not empower this Commission to exercise the employment power afforded specifically to the General Manager under cl 8.4, or to interfere in the employment contract between the parties to such an extent. For that reason, the remedy sought is not appropriate.
  1. [36]
    That lack of contemplation is also borne out in my consideration of whether there has been an implied repeal.

Has there been an implied repeal?

  1. [37]
    The Respondent’s core jurisdictional contention as to the remedies sought is that the legislative instruments which relate to TAFE’s employment powers supersede some of the jurisdiction provided to this Commission by the IR Act.
  1. [38]
    In Goodwin v Phillips,[13] Justice O’Connor provided (emphasis added):[14]

Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.

  1. [39]
    The Respondent relies on Commissioner of Police v Eaton as authority for that jurisdictional contention.[15] In Eaton, a New South Wales police constable sought to pursue a reinstatement application in the Industrial Relations Commission of New South Wales. The Police Act 1990 (NSW) provided the Commissioner of Police the power to dismiss a probationary constable. The Industrial Relations Act 1996 (NSW) provided a general power to hear and determine dismissals.
  1. [40]
    The conclusion of the majority in that matter was that the general provisions of the Industrial Relations Act 1996 (NSW) did not apply in the face of the specific and inconsistent terms of the earlier Police Act 1990 (NSW).[16]
  1. [41]
    Justice Heydon specifically noted that a key reason for inconsistency between those two Acts lay in the remedies available to the Industrial Relations Commission of New South Wales in a reinstatement application. His Honour noted that the power to reinstate, re-deploy or pay an applicant for lost remuneration is “clearly inconsistent” with the specific power afforded to the Commissioner of Police to dismiss an employee without interference.[17]
  1. [42]
    If two statutory instruments govern the same factual situation, the law which governs that specific subject matter should generally override the law governing only general matters. Justice Heydon adopted that precise reasoning in Eaton:[18]

Section 80(3) of the Police Act deals with the specific and relatively narrow subject of dismissing probationary constables. Section 84(1) of the IR Act deals with the general subject of the remedies open to a broad range of employees dismissed harshly, unreasonably or unjustly. The general provision must give way to the particular provision.

  1. [43]
    As such, it is necessary to first consider whether there is any incompatibility in the application of the relevant legislative materials, before considering how any inconsistency may be resolved.
  1. [44]
    The Award and the Certified Agreement are certified under the IR Act, and are standards of a public nature.[19] As such, they are statutory instruments, subject to the usual rules of statutory interpretation.[20]
  1. [45]
    The TAFE Act provides as follows (emphasis added):

10  Powers

TAFE Queensland has all the powers of an individual, and may, for example—

  1. enter into contracts or agreements; and
  2. acquire, hold, deal with, and dispose of, property; and
  3. appoint agents and attorneys; and
  4. engage consultants and researchers; and
  5. charge a fee for services and other facilities it supplies; and
  6. do anything else necessary or convenient to be done in performing its functions.

29  Other staff

  1. (1)
    TAFE Queensland may employ other staff it considers appropriate to perform its functions, including, for example, on a temporary basis to meet temporary circumstances.
  2. (2)
    The other staff are appointed under this Act and not the Public Service Act 2008.
  1. [46]
    The Award provides as follows (emphasis added):

8.4  Review of temporary employment

Where a temporary employee has completed 2 years' (sic) of continuous service in the same role with TAFE Queensland, a review of the temporary status will be undertaken and the General Manager will determine whether the employee will be converted to permanent status at level.

General Manager means the position responsible for a Region

  1. [47]
    Mr Alexander provides that he is unsure by which precise power this Commission may grant him the remedies he seeks.[21] Even so, he indicates that s 451 of the IR Act “does not seem overly limiting”.[22] That section provides (emphasis added):

451  General powers

  1. The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. Without limiting subsection (1), the commission in proceedings may—
  1. give directions about the hearing of a matter; or
  2. make a decision it considers appropriate, irrespective of the relief sought by a party; or
  3. make an order it considers appropriate
  1. [48]
    Those powers are, quite literally, general in their ambit.
  1. [49]
    Noting that this proceeding is an Industrial Dispute, the powers contained in s 262 of the IR Act are also relevant (emphasis added):

262  Action on industrial dispute

  1. This section applies if—
  1. notice of a dispute has been given by a party under section 261(2); or
  2. 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.
  1. Subsection (1)(b) applies irrespective of whether the parties are attempting to resolve the dispute.
  2. The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by—
  1. conciliation in the first instance; and
  2. if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute— arbitration.
  1. Without limiting subsection (3), the commission may do 1 or more of the following—
  1. direct any industrial action in relation to the dispute to stop or not happen;
  2. make orders, or give directions, of an interlocutory nature;
  3. exercise the commission’s powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;
  4. make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.
  1. [50]
    Here again, that grant of power is inherently general.
  1. [51]
    There can be no doubt that those instruments should, in the usual course, operate harmoniously with the IR Act. However, inconsistencies may arise in the precise operation of those legislative materials in this instance, given the nature of the outcomes sought. 
  1. [52]
    The TAFE Act provides a specific power to TAFE, such that it may employ other staff “it considers appropriate”. That Act also notes that such staff would be appointed under the TAFE Act, rather than under the Public Service Act 2008. It also specifically provides that TAFE may determine to employ staff on a temporary basis.
  1. [53]
    An Order from this Commission under the broad powers in the IR Act that Mr Alexander be made a permanent employee is clearly inconsistent with that specific power afforded under the TAFE Act. Such a decision would result in an appointment which TAFE did not consider appropriate, which is a stark inconsistency with the appointment powers provided at s 29 of the TAFE Act.
  1. [54]
    In resolving that inconsistency, the specific power provided by the TAFE Act to appoint employees should prevail over the broad and general powers to determine disputes under the IR Act. 
  1. [55]
    As such, the primary remedy sought by Mr Alexander, namely that this Commission provide him with a permanent employment contract, is neither available nor appropriate in these proceedings.

Are the other remedies Mr Alexander is seeking available in these proceedings?

  1. [56]
    Besides the primary remedy of a permanent employment contract, Mr Alexander also seeks four other remedies.

Payment related to travel time and expenses

  1. [57]
    Mr Alexander seeks to be paid for his travel time and expenses accrued in bringing this dispute. In that regard, he provided:

(TAFE) breached (the Award) clause 7.1(b) when they did not allow my ordinary hours to continue when travelling from my place of work… to the city, to attend the QIRC. (TAFE) did not provide information about how to claim expenses (e.g. public transport), despite me asking twice. I believe travelling to and from the (Commission) should be part of my ordinary hours of work, and any related expenses paid by (TAFE).

  1. [58]
    That clause of the Award provides:

(b) Subject to legislation, while the dispute procedure is being followed normal work is to continue except in the case of a genuine safety issue. The status quo existing before the emergence of a dispute is to continue whilst the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work.

  1. [59]
    There is no connection between that clause and Mr Alexander being paid to travel to this Commission. That clause provides that the status quo between parties should remain in the event of a dispute and that normal work is to continue, absent a safety concern. It does not create any entitlement of the kind Mr Alexander seeks, nor does it redefine normal work to mean attending a court or tribunal. The status quo in this instance remains preserved; Mr Alexander continues to be employed by TAFE.
  1. [60]
    I note that the Public Service Act 2008 (Qld) does provide such an entitlement for attending an appeal as part of duties under that Act, and further note that these proceedings originated as an appeal under that Act.[23] However, on my review of the Award, the Certified Agreement and the TAFE Act, there does not appear to be any entitlement of the type Mr Alexander seeks within the industrial instruments that apply to him.
  1. [61]
    Mr Alexander has not categorised the remedy as costs per se, but it is tantamount to what he is seeking and so warrants some consideration. The IR Act provides a general power to award costs in proceedings before it.[24] There is no incompatibility between that general power and the other relevant legislative instruments. However, the IR Act provides that the default position in proceedings before the Commission is that parties are to bear their own costs.[25] That presumption may be disturbed where the parties have acted vexatiously, without reasonable cause, or without reasonable prospects of success.[26] Those descriptors certainly do not apply to the conduct of TAFE in these proceedings, particularly given the outcome in this matter. As such, I am not minded to award costs in these proceedings to either party.

The remaining remedies

  1. [62]
    It is convenient to deal with the remaining three remedies together. In remedies three, four and five, Mr Alexander seeks:
  • That TAFE “enhance their approach to conversion and the management of disputes”;
  • An “independent investigation into broader award compliance at (TAFE); and
  • A “Code of Conduct investigation occur in relation to the actions of (particular staff within TAFE)”.
  1. [63]
    Mr Alexander does not set out in any detail how those remaining remedies might be awarded under the IR Act. This Commission is empowered by s 262 and 451 of the IR Act to make such orders that it considers appropriate. Determining what is an appropriate Order requires considering the nature of the dispute, and the statutory instruments which govern the employment relationship.
  1. [64]
    The Act provides that TAFE has such powers as are necessary for the performance of its functions,[27] which includes the employment of temporary employees.[28] The power to convert employees is set out in the Award at cl 8.4. In clear and unambiguous terms, it provides that the General Manager will determine whether such a conversion will occur. The legislative instruments set out the approach to be taken.
  1. [65]
    There is no explanation of how an investigation or referral of the manner described falls within the ambit of an Order this Commission could grant. Nothing within the relevant legislative instruments empowers this Commission to refer a person for discipline or commence an investigation of the nature described or require the development of policies and procedures as described. Those are matters for TAFE to determine, in accordance with the grant of power under the TAFE Act. They are also matters which Mr Alexander is entitled to raise during the periodic renegotiation of the Certified Agreement in particular. The Respondent contends that the provision of such remedies would be tantamount to a hypothetical or advisory opinion, which is to be avoided.[29] I agree with that submission.
  1. [66]
    When considering s 230 of the Industrial Relations Act 1999 (Qld), which is materially similar to s 262 of the current IR Act, his Honour Vice President O’Connor has said:[30]

Section 230 of the Act is designed to answer the discrete question that is before it, to resolve a dispute between the relevant parties. It does not permit the Commission to do any more.

  1. [67]
    In seeking those additional three remedies, Mr Alexander is effectively asking this Commission to venture far beyond resolving the discrete industrial matter between the parties, and to begin acting in the stead of TAFE’s legislatively appointed management. Indeed, that characterisation also applies to the primary remedy sought, namely a new contract of employment.
  1. [68]
    To make an Order under s 451 or s 262 of the IR Act, this I must be satisfied that said Order is appropriate. For the reasons above, the remedies sought fail to meet that standard. 

Should this proceeding be dismissed under s 541 of the Act?

  1. [69]
    The Respondent has repeatedly sought that this proceeding be dismissed under either s 451 or s 541. Given that none of the remedies sought are available or appropriate, that consideration becomes entirely relevant.
  1. [70]
    The Act provides as follows (emphasis added):

541  Decisions generally

The court or commission may, in an industrial cause do any of the following—

  1. (a)
    make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
  1. (i)
    the cause is trivial; or
  2. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest.
  1. [71]
    Several decisions usefully summarise the relevant considerations in determining ‘the public interest’.
  1. [72]
    The decision of his Honour Deputy President O’Connor (as he then was) in State of Queensland v Lockhart provided (emphasis added, citations removed):[31]

In O’Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression ‘in the public interest’. Their Honours wrote:

‘Indeed, the expression, ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.’

In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes ‘the public interest’ wrote:

‘Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

  1. [73]
    In Campbell v State of Queensland (Department of Justice and Attorney-General),[32] Justice Martin provided (emphasis added, citations removed):

Similarly, in Prange v Brisbane City Council, Hall P held at [3] that:

The power to dismiss proceedings pursuant to s. 331 of the Act, on the ground that further proceedings are not necessary or desirable in the public interest, is a discretionary power. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene. In House v The King at 504 to 506, Dixon, Evatt and McTiernan JJ explained:

‘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.’

In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows:

“There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.”

  1. [74]
    In Orchid Avenue,[33] President Hall cautioned against dismissing matters before they have been heard in their entirety (citations removed):

In Nugent v. Aromas Pty Ltd (1996) 153 QGIG 630 I accepted that in exercising the power at s. 331(b) (then the power at s. 90(1)(b) of the Industrial Relations Act 1990) respect should be given to the general principle enunciated by O’Connor J in Burton v. The President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92 that:

"Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.".

I continue to adhere to that view. I also accept that great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed Tribunal, compare General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ.

  1. [75]
    Yet, President Hall went on to say in the same decision (citations removed):

However, where a matter of construction is capable of finally resolving the matter, it seems to me that the exercise of construction should be undertaken notwithstanding that extensive argument may be necessary to demonstrate that the case of the applicant is so clearly untenable that it cannot possibly succeed, compare Queensland University of Technology v. Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 QdR 259 at 265 per Holmes J (with whom Davies JA and Mullins J agreed) and General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ. That is particularly so when the matter goes to jurisdiction, Stevenson v. Barham (1976-1977) 136 CLR 190 at 202 to 203 per Mason and Jacobs JJ.

  1. [76]
    In short, the provision involves a broad discretionary determination informed by the facts of the matter itself and by the objects of the Act. In that regard, some of the relevant sections of the Act are extracted below:

3 Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that—

  1. (a)
    is fair and balanced; and
  2. (b)
    supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.

531 Decisions of the commission and magistrates

 

  1. (1)
    Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of-
  1. (a)
    the persons immediately concerned; and
  2. (b)
    the community as a whole.
  1. [77]
    In Shankar, his Honour Vice President O’Connor found that this Commission was not empowered to grant the outcome sought. His Honour subsequently dismissed that dispute pursuant to s 331(b) of the Industrial Relations Act 1999 (Qld), which is the equivalent of s 541 of the current IR Act.[34] 
  1. [78]
    I have carefully considered the prejudice to be suffered by Mr Alexander if this matter were dismissed. The most pointed prejudice would be that Mr Alexander would be unable to attain the remedies he seeks.
  1. [79]
    I have also considered Mr Alexander’s submission that it is in the public interest that this proceeding continue, even if he cannot have precisely the remedies he originally sought.
  1. [80]
    However, the unavailability of the outcomes sought sharply limits the efficacy in this proceeding continuing. I have considered that Mr Alexander has sought to resile, at least to some degree, from the framing of the remedies sought. Yet in reading the material before me, it is abundantly clear that the nature of those remedies speaks to the heart of this dispute; Mr Alexander wants to be made a permanent employee and is unhappy with processes currently in place at TAFE. He is also unhappy that he was initially contracted as a temporary employee, several years ago. For the reasons above, providing the outcomes sought is not a course this Commission is empowered to undertake, nor would it be appropriate. The scope of the dispute was clear from the outset, and the remedies sought were consistent with that scope. The problem for Mr Alexander’s case is not the form of the remedies sought, but their very nature.
  1. [81]
    In that respect, it is relevant to consider the ramifications in respect of Mr Alexander’s employment contract. First, an employment contract already exists between Mr Alexander and TAFE. To grant him a new permanent employment contract, that existing employment contract would need to be terminated. That alone would be an order beyond the scope of these proceedings. Second, creating a contract requires an “offer”. A contract is not generally enforceable if a party was coerced into its creation. To provide Mr Alexander the primary remedy he seeks would involve precisely that; creating a contract of employment between two entities where one of those entities is an unwilling participant. That outcome would exceed the powers afforded to this Commission.
  1. [82]
    I also accept that Mr Alexander is self-represented and may not be familiar with this jurisdiction. However, that does not alter the fundamental nature of the Industrial Dispute he has brought, nor the remedies he seeks.
  1. [83]
    In truth, the outcomes he seeks are potentially attainable through a different course. The Award and the Certified Agreement which apply to him and his colleagues at TAFE are periodically renegotiated. It would be open to him at that stage to collectively agitate for changes to the provisions contained therein.
  1. [84]
    Having considered the entirety of the present matter, I have determined that the purposes of the Act, and in turn the public interest, are best served by dismissing this Industrial Dispute. Further proceedings are not necessary or desirable in those respects.
  1. [85]
    In the alternative, and for the same reasons, I would find that such an order is the appropriate course and dismiss these proceedings under s 451(2)(c) of the IR Act.

Conclusion

  1. [86]
    Mr Alexander filed this Industrial Dispute on 14 October 2019, which provided:

I am submitting this ‘Notice of industrial dispute’ primarily to appeal a decision about my temporary employment status at (TAFE). I will also be raising concern (sic) about the process followed and the implication of the decision… I Believe I should be made permanent based on having two years in the same role, satisfactory performance and there being no genuine operational reasons why it shouldn’t occur.

  1. [87]
    In his Statement of Facts and Contentions, Mr Alexander explained that he sought the following:
  1. That I be converted to permanent: …
  2. That the QIRC make an order for payment related to travel time and expenses: …
  3. (TAFE) enhance their approach to conversion and the management of disputes: …
  4. An independent investigation into broader award compliance at (TAFE): …
  5. A Code of Conduct investigation occur in relation to the actions of the (TAFE decision maker/s): …
  1. [88]
    For the reasons above, the remedies are not available in this jurisdiction, nor would they be appropriate. Those remedies are not a separate issue from the Industrial Dispute itself. They speak precisely to the crux of this proceeding. They are, in many ways, the only outcomes that could reasonably be sought or awarded in an Industrial Dispute of that manner.
  1. [89]
    Despite Mr Alexander’s submissions, it is not only a question of whether he should be afforded the remedies he seeks. The initial question is whether such outcomes, in substance rather than in form, can possibly be awarded. The answer to that question is ‘No’. As such, Mr Alexander’s Industrial Dispute cannot succeed on any view of the facts or law. Therefore, I find that the appropriate outcome is that the proceeding be dismissed.[35]
  1. [90]
    It follows that I have determined to dismiss this matter under s 541 as further proceedings are not necessary or desirable in the public interest.
  1. [91]
    I order accordingly.

Orders:

The Industrial Dispute is dismissed.

Footnotes

[1] ‘the TAFE Act’.

[2] ‘SOFC’.

[3] ‘the IR Act’.

[4] Yousif v Workers’ Compensation Regulator [2017] ICQ 004, 4-5.

[5] TWU v PFD Food Services Pty Ltd [2020] FWC 51.

[6] Toll North Pty Ltd AND Q-COMP & Anor (B/2013/32) – Decision >, [40] - [42].

[7] In addition to the IR Act and various other legislation.

[8] ‘the TAFE Act’.

[9] ‘the Award’.

[10] ‘the Certified Agreement’.

[11] Carey v President of the Industrial Court of Queensland [2004] QCA 62.

[12]Shankar’.

[13] Goodwin v Phillips (1908) 7 CLR 1, 7; see also BHP Coal Pty Ltd & Ors v Minister for Natural Resources, Mines, Energy and Minister for Trade & Anor [2011] QSC 246, [35]-[40].

[14] Goodwin v Phillips (1908) 7 CLR 1, 14.

[15] Commissioner of Police v Eaton [2013] HCA 2. ‘Eaton’.

[16] Ibid, 31-32.

[17] Commissioner of Police v Eaton [2013] HCA 2, 6.

[18] Ibid, 7.

[19] Statutory Instruments Act 1992 (Qld), s 7.

[20] Acts Interpretation Act 1954 (Qld) ss 6, 7.

[21] Applicant submissions filed 14 April 2020, page 1.

[22] Ibid.

[23] Public Service Act 2008 (Qld) s 212.

[24] Industrial Relations Act 2016 (Qld) s 545.

[25] Ibid s 545(1)

[26] Ibid s 545(2)

[27] TAFE Queensland Act 2013 (Qld) s 10.

[28] Ibid s 29.

[29] August v State of Queensland (Department of Education and Training) & Anor [2019] QSC 31, [48].

[30] State of Queensland v Shankar [2014] QIRC 159, 4.

[31] State of Queensland v Lockhart [2014] ICQ 006, followed in Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [24].

[32] Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [23]-[26].

[33] Orchid Avenue Realty Pty Ltd v Percival [2003] QIC 160.

[34] State of Queensland v Shankar [2014] QIRC 159, 5.

[35] See, eg, State of Queensland v Shankar [2014] QIRC 159, 3; Department of Corrective Services v Queensland Public Sector Union of Employees [2006] QIC 30.

Close

Editorial Notes

  • Published Case Name:

    Alexander v State of Queensland (TAFE Queensland)

  • Shortened Case Name:

    Alexander v State of Queensland (TAFE Queensland)

  • MNC:

    [2020] QIRC 96

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    01 Jul 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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