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CITE

Unreported Judgment

State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2)[2013] ICQ 3Hall
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State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2)[2013] ICQ 3

CITATION:

State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28) - Decision (No. 2)

<http://www.qirc.qld.gov.au>

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 - s. 248(1)(e) - application for declarations

State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28)(No. 2)

PRESIDENT HALL

20 May 2013

DECISION

[1]
On 9 October 2012, State of Queensland (Queensland Health) filed an application under s. 248(1)(e) of the Industrial Relations Act 1999 (the Act), seeking declaratory relief against each of two registered employee organisations, viz., Together Queensland, Industrial Union of Employees (Together Queensland) and United Voice, Industrial Union of Employees (United Voice). Each of the two registered organisations contains within its membership, employees of Queensland Health, whose employment was previously regulated by the Health Practitioners (Queensland Health) Certified Agreement 2007 ("HPEB1") and employees of Queensland Health whose employment is currently regulated by the Health Practitioners (Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2). Many employees, of course, fall into both groups. Each of the two registered organisations is, with the State of Queensland, a party to HPEB1 and HPEB2. The employees/members who are of interest are those who lodged a "reclassification dispute" with the Queensland Industrial Relations Commission (the Commission) under HPEB1 or who have lodged a "reclassification dispute" with the Commission under HPEB2. Such persons are bound by HPEB1 and/or HPEB2, but are parties neither to HPEB1 and HPEB2.

[2]
In short form, HPEB1 introduced a new classification system for Health Practitioners employed by Queensland Health. Provision was made for the reclassification of existing positions, very often occupied by existing employees, under the new classification system. Employees dissatisfied with the proposed reclassification of their position were given access to an internal appeal. Employees also had a right to take the matter to the Commission by way of grievance. Both the internal appellate system and the right to take the matter to the Commission are preserved by HPEB2. Difficulties have arisen as to the date from which the higher rate of pay commences to be due, where the Commission accepts the employee's case and reclassifies the position at a higher wage level. Against that background, Queensland Health seeks the Declarations below:

"The following declarations by the Court under section 248(1)(e) of the Act are sought:

(a)
It is declared that the Queensland Industrial Relations Commission (Commission) has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of the determination by the Commission of a 'reclassification dispute' which is lodged with the Commission under the Health Practitioners (Queensland Health) Certified Agreement 2007 (HPEB1) before the commencement of the Health Practitioners (Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2), so that such wage increase has effect from 1 September 2007 or any other date prior to the date of the decision of the Commission; and

(b)
It is declared that the Commission has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of the determination by the Commission of a 'reclassification dispute' which is lodged with the Commission after the commencement of HPEB2, so that such wage increase has effect from 1 September 2007 or any other date prior to the date of the decision of the Commission; and

(c)
It is declared that a wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner by the Commission in the course of 'classification dispute' under HPEB1 and/or HPEB2, is not a 'wage increase' for the purposes of clause 18.1(b) of HPEB1 or HPEB2.".

[Declaration (a), (b) and (c) reproduced above, are referred hereafter as the First, Second and Third Declaration.]

[3]
Queensland Health's objective in seeking declaratory relief appears from the supporting affidavit of its then Deputy Director-General (Lyn Lowland) which, consistently with the prescribed forms, is included within the Application for Declarations. The apprehension is that the issues traversed by the proposed Declarations may otherwise be argued in numerous proceedings before each of eight Commission Members. Time will be saved by resolution of the issues prior to beginning of the Commission hearings. Appeals will be avoided because the same Declarations will apply in all cases.

[4]
There is robust common sense in the approach adopted by Queensland Health. Accepting that the grant of declaratory relief is discretionary, this is a case in which, if the submissions of Queensland Health be correct, save as to one issue, declarations should issue. However, as a matter of prudence, I caution as to each of two matters. First, in a particular reclassification dispute it may be argued that the evidence establishes a collateral agreement or an estoppel precluding application of the general solution. Second, there may be an issue about whether an applicant pursuing relief in a reclassification dispute lodged under and/or arising out of internal processes under HPEB1 has an accrued right to have the matter determined under HPEB1, though HPEB1 was cancelled and replaced by HPEB2 from 3 November 2011. If Queensland Health is entirely successful in this matter, the latter issue will not, of course, arise. I note only that, the issue has not been argued. Finally, it is necessary to add, that I have found it unnecessary to determine the potential number of reclassification disputes. The estimates by the parties have varied, and have changed over time. All may yet be found to be inaccurate.

[5]
Members represented by Together Queensland and United Voice are not the only employees of Queensland Health to have lodged a "reclassification dispute" under HPEB1 or HPEB2. As a result of preliminary proceedings, the following employees represented by an industrial agent were, by consent, added as parties. [*Denotes that the dispute has yet to be referred to arbitration]:

Craig Collins	D/2012/59
Jim Crowhurst	D/2012/80
Chris Gilmore	D/2012/83
Sumant Naidu	D/2012/108
Tina Hamly	D/2012/118
*Andrew De Lepervanche	D/2012/162
*Tracey Guy	D/2012/139
Keith Newton	D/2012/188
*Greg Hennessy	D/2012/166
*Lisa Shepherd	D/2012/208
Anne-Maree Grant	D/2012/187
Ellen McCormick	D/2012/190
*Jo Marks	D/2012/225
*Suzanne Crown	D/2012/186

Additionally, Ms Carla Fuller*, whose dispute (D/2012/36) has been referred for arbitration and who is legally represented, and Dr Adam Scott who also is legally represented and who is a party to proceedings in this Court which canvasses some of the matters raised in this application, elected to become parties to the proceedings. [*Ms Fuller later withdrew from these proceedings. The capacity of persons, other than Together Queensland and United Voice to initiate grievance proceedings, has not been argued.]

[6]
It is convenient to commence with the Third Declaration in the Application, i.e. with the issue, whether HPEB1 or HPEB2 contains a self-executing provision controlling the payment of back-pay, in the event of reclassification.

[7]
It is convenient to reproduce clauses 18 and 19 of HPEB1 (lengthy though they may be). The underlining has been added because, if there is a right to back-pay it arises from the word underlined:

"18.
Implementation of Health Practitioner Classification Structure

18.1
The new Health Practitioner Classification Structure will be implemented in three phases:

(a)
Phase 1: Direct Translation. Employees who meet the criteria in Clauses 4.2(a) and 4(b)(i) or 4(b)(ii) of this Agreement will immediately translate to the new Health Practitioner Classification Structure. The process for the translation is set out in Schedule 2 and shown diagrammatically in Schedule 3 to this Agreement.

Wage increases as a result of Phase 1 will be back-dated to 1 September 2007.

(b)
Phase 2: Work Level Evaluation Project. All employees covered by this Agreement will have the opportunity to have their job descriptions and roles and responsibilities evaluated against new Work Level Statements.

The process for Phase 2 is set out in Schedule 5 to this Agreement. The guiding principles for the Work Level Evaluation process are that:

(i)
all employees are entitled to have their current work of their positions evaluated against the Work Level Statements; and

(ii)
it enables an evaluation and application of the Work Level Statements in support of work unit work 10 redesign to meet work unit requirements and directions.

The Work Level Evaluation process is not the Job Evaluation Management System (JEMS) process.

Phase 2 is proposed to be completed by 30 September 2008.

Wage increases for Reclassified Positions as a result of Phase 2 will be back-dated to 1 September 2007. A Reclassified Position is an existing position that has been reclassified by the Work Level Evaluation Panel as a result of the Work Evaluation Project and where the incumbent continues to perform the same work as before the reclassification.

(c)
Phase 3: Ongoing Work Level Evaluations. The process for Work Level Evaluations after the completion of Phase 2 is set out in Schedule 6 to this Agreement. The guiding principles for the work level evaluations includes an evaluation of the work currently performed by the employee to meet work unit requirements and directions against the Work Level Statements. The Phase 3 Work Level Evaluation process is not the Job Evaluation Management System (JEMS) process. Any wage increases as a result of Phase 3 will take effect from the date of appointment to the position.

18.2
The HPIBB Group will evaluate and review the Health Practitioner Classification Structure, including the Work Level Evaluation processes, by 30 June 2009.

19.
Work Level Evaluation Appeal Process

19.1
In addition to the Dispute Resolution procedure at Clause 15 of this Agreement, the appeal process in this Clause will apply when an individual employee disagrees with the results of a Work Level Evaluation and recommended classification level in Phase 2 or 3 of the implementation of the Health Practitioner Classification Structure.

19.2
An employee can seek Union assistance at any stage of this appeal process.

19.3
An employee may lodge an appeal when:

(a)
during the Phase 2 Work Level Evaluation Project, the employee disagrees with the recommended classification level; or

(b)
during the Phase 3 Ongoing Work Level Evaluation Process:

(i)
the employee's application for review is not supported at the local level and attempts to resolve the issue at local level have been unsuccessful;

(ii)
the employee disagrees with the recommended classification level; or

(iii)
the District/Service does not implement the recommended classification level.

19.4
Appeals must be received by Senior Director Human Resources within 21 calendar days of receiving the original decision. An extension to this appeal period will be granted in exceptional circumstances at the discretion of the Senior Director Human Resources.

19.5
The Senior Director Human Resources will refer the appeal to an Appeal Panel within 14 days.

19.6
The Appeal Panel will be formed from the Work Level Evaluation Team formed in accordance with Sections 6.4 and 6.5 of Schedule 5 and will include a representative from the employee's discipline or profession. Members of the Appeal Panel will be different to those members of the Work Level Evaluation Team who conducted the original Work Level Evaluation for that position.

19.7
The Appeal Panel has the power to consider whether the Work Level Evaluation of all of the employee's duties, roles and responsibilities should result in the employee's position being reclassified.

19.8
The Appeal Panel must invite submissions regarding the correct classification for the position from:

(a)
the employee; and

(b)
the District, but only if the appeal is because of Clauses 19.3(b).

19.9
The Appeal Panel may seek further information from the party/ies to the Appeal if required.

19.10
The Appeal Panel must consider any submissions and make a majority recommendation regarding the correct classification level of the position being evaluated.

19.11
Summaries of the outcomes of appeals will be systematically reported to the HPIBB Group in sufficient detail to enable it to analyse and oversee the appeals process. If the HPIBB Group is concerned regarding the outcomes of the appeals process, it can:

(a)
seek further information or explanation from the Appeal Panels;

(b)
request that the Appeal Panel reconsider its methodology to ensure that it complies with the guiding principles of Phase 2.

19.12
The Appeal Panel will report their recommendation to the Director-General or their authorised delegate who will make a decision regarding the correct classification level of the position being evaluated.

19.13
The Director-General or their authorised delegate will advise the employee, HPIBB Group and District of their decision made in accordance with Clause 19.12 of this Agreement.

19.14
The District must implement the decision of the Director-General or their authorised delegate made in accordance with Clause 19.12 of this Agreement.

19.15
Any party can refer a reclassification dispute to the Queensland Industrial Relations Commission once all internal appeal processes have been exhausted.".

[8]
The words underlined are not merely the source of the "right"; they are the source of the confusion. The first sentence underlined, contemplates back-dating of wage increases for positions reclassified as a result of Phase 2. However, the second underlined sentence contemplates back-dating of wage increases for positions reclassified "by the Work Level Evaluation Panel" as a result of the Work Evaluation Project. There is no inconsistency in that "conflict". The Work Level Evaluation Panel conducts the Work Evaluation Project in Phase Two. Indeed, when read together, the first and the second sentence make plain that it is not every reclassification which occurs in Phase 2 which will attract back-pay, and makes plain that, put aside a Commission Order, only Phase 2 reclassifications attract back-pay. The problem with the words underlined is the language "an existing position that has been reclassified by the Work Level Evaluation Panel as a result of the Work Evaluation Project". There is much to be said for the view that the Work Level Evaluation Panel does not reclassify positions as a result of the Work Evaluation Project or at all. I note, however, that much the same idea resurfaces at clause 11.1 of Schedule 5 of HPEB1 which provides:

"11.1
Reclassified positions are those positions where as a result of the Work Evaluation Project the Work Level Evaluation Panel has recommended that the classification level of a current position be changed and where the incumbent continues to perform the same work as before the reclassification.".

[9]
The Work Level Evaluation Process is outlined at Schedule 5 of HPEB1. Whilst the Work Level Evaluation Panel conducts the initial evaluation of a position against the relevant Work Level Statement, the recommendations of the Panels are reviewed by the Work Level Evaluation Team (whose members train the Panel). It is the recommendation of the Work Value Evaluation Team which is implemented by the District Manager/Director Statewide Services.

[10]
Plainly, the language of Schedule 5 of HPEB1 presents problems of its own. The authority of the District Manager/Director Statewide Services to implement recommendations, nowhere clearly appears. I have had the benefit of submissions that there was a delegation of authority by the Director-General to the District Manager/Director Statewide Services, that the Director-General saved the process by "endorsing" decisions of the District Manager/Director Statewide Services and that the Director-General's role had been removed because the Public Service Act 2008, had been overridden by other legislation. Additionally "Recommendation" is nowhere defined. Given its normal meaning, the noun refers to non-binding directions, compare WorkCover v Secretary Department of Social Security^[1] at 274, per Drummond and Mansfield JJ. Yet, if "Recommendation" is given that meaning, one might have expected the clause to conform with clauses 19.12 and 13 and emphasise that it is the District Manager/Director Statewide Services who makes the decision.

[11]
It has not been suggested by any party that there is not to be any "back-pay" at all. Indeed, all parties accept and submit that where a reclassification occurs, following upon a recommendation of the Work Level Evaluation Panel, endorsed by the Work Level Evaluation Team, wages are to be back-dated to 1 September 2007. Once that submission is adopted, the spectre arising from the noun "result", begins to unravel.

[12]
Whilst lawyers tend to respond to the phrase "as a result" by taking comfort in discussions about remote, direct and immediate cause, the law has not dealt with causation terribly well. In the Commonwealth v Butler^[2] at 479, Windeyer J observed:

"But once the simple question is elaborated by attempted paraphrases and explanations of the words 'results from', logical and philosophical difficulties emerge however much judges and lawyers may assert that they are eschewing all philosophical consideration of the chain of causation. Attempted explanations of causation and consequence can, I feel, be as unhelpful and unhappy as definitions of reasonable doubt. In the search for some grounds for isolating a particular event from the totality of circumstances preceding a later event, various adjectives, such as 'direct', 'proximate', 'decisive', 'immediate', 'effective' and 'real', have been pressed into service to qualify 'cause'. From these there is an easy drift to such term as 'materially contributing factor'. But such formulae do not really dispel the difficulty …".

In March v E and M.H. STRAMARE Limited and Anor^[3] at 509 to 510, Mason CJ revisited the matter observing

"Causation in the context of legal responsibility

It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because 'questions of cause and consequence are not the same for law as for philosophy and science', as Windeyer J pointed out in National Insurance Co. of New Zealand Ltd v. Espange. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill's definition of cause as the sum of the conditions which are jointly sufficient to produce that damage: see McLean v Bell, per Lord Wright; Sherman v Nymboida Collieries Pty Ltd, per Windeyer J.

Causation and the measure of damages

Some of the confusion surrounding the legal concept of causation has been occasioned by the terminology employed in the various attempts which have been made over the years to express the principles governing the measure of damages recoverable in tort of contract. Not infrequently these endeavours have invoked the language of causation with a view to limiting liability by reference to causal considerations. Thus, it has been said that a wrongdoer is liable for consequences of his or her wrongful conduct which have been variously described as 'direct' (In re Polemis and Furness, Withy & Co.), 'natural and probable' (Haynes v Harwood; Dorset Yacht Co. v Home Office, 'direct' and 'natural' (The Edison; affd. Sub nom. Liesbosch, Dredger v Edison, S.S. (Owners)). When the wrongful act is 'the proximate cause' (Yorkshire Dale Steamship Co. v Minister of War Transport) or 'the real effective cause' (Leyland Shipping Co. v Norwich Union fire Insurance Society). Modern commentators take the view that these formulae, or at least some of them, conceal the making of value judgments or reliance on unexpressed policy reasons for refusing to allow liability to extend to the damage sustained in particular cases …". [Footnotes omitted.]

[13]
Here, one cannot reach the consensus position that wages are to be back-dated to 1 September 2007, where a reclassification flows from endorsement of a recommendation of the Work Level Evaluation Panel by the Work Level Evaluation Team, unless one abandons causation as the loadstone. I am prepared to accept that in the simple case, where the Work Level Evaluation Team adopts the recommendation of the Work Level Evaluation Panel, passes the recommendation on to the District Manager/Director Statewide Services and the District Manager/Director Statewide Services implements the recommendation, one can strain language and assert that "an existing position has been reclassified by the Work Level Evaluation Panel as a result of the Work Level Evaluation Project". The attractions of doing so and adopting the consensus outcome are obvious. Firstly, the nature of the exercise is the construction of a certified agreement; not the construction of a statutory instrument. The parties to the agreement are entitled to claim ownership of the agreement. It is a significant step for a Tribunal to disturb a shared understanding of the parties as to the meaning of the agreement.

[14]
The problem lies in treating the outcome of a successful internal appeal or classification dispute as reclassification by the Work Level Evaluation Panel as a result of the Work Level Evaluation Project. In the simple case in which the practitioner is successful on the internal appeal or in the Commission, the reclassification is despite rather than as a result of the efforts of the Work Level Evaluation Panel. In the more difficult case where the Work Level Evaluation Team changes the recommendation of the Work Level Evaluation Panel and the internal appeal or a dispute in the Commission restores the original recommendation, it denies history to assert that the reclassification was "a result" of the original recommendation. It is an exacerbating feature that, neither the Work Level Evaluation Team hearing a successful appeal nor the Commission setting aside a reclassification and substituting a different reclassification, is treated by the terms of HPEB1 as standing in the shoes of the initial Work Level Evaluation Team in making the substituted order. Each of the internal appellate body and the Commission makes its own order.

[15]
Confronted with the difficulties of construction rehearsed above, the Respondents see refuge in extrinsic materials.

[16]
In reviewing the authorities, it is convenient to commence with Kucks v CSR Limited^[4] at 184, where Madgwick J said:

"It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment then with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect of its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meaning s which avoid inconvenience or injustice may reasonably be strained for… ".

His Honour was, of course, commenting on the construction of an award. However, Northrop J has applied the same principle to the construction of a Federal certified agreement, see Australian Meat Industry Employees Union v Coles Supermarket Australia Pty Ltd^[5] at 212. See also Amore v Construction, Forestry, Mining and Energy Union and Others^[6] at 246 per Gleeson CJ and McHugh J:

"… the resolution of the [construction] issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.",

and at 71, where Kirby J expressly adopted the decision of Madgwick J in Kucks v CSR Limited, op. cit.

[17]
For fullness, I should also record that this Court has previously accepted that the principles of construction applicable to awards apply also to the construction of certified agreements, see Queensland Police Union of Employees v Commissioner of Police^[7] at 16. Not inconsistently, this court has also accepted that the principles relating to the construction of commercial contracts may be drawn upon in the construction of certified agreements, see Wade Saw Mill Pty Ltd v Ussher^[8] at 30. Certified agreements, like commercial contracts, are made by agreement. Certified agreements, like awards, are (by the Act) made binding upon persons who are not parties to the agreement.

[18]
For completeness and the avoidance of ambiguity, I should record that in this matter, I am not required to address the vexed question of the principles to be applied in implying a term into an award or into a certified agreement, as to which see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd^[9] (Finklestein J).

[19]
I should stress also that I am concerned with the construction of HPEB1. Enthusiasm for the robust, commonsense, resolution of ambiguity cannot be permitted to become a cloak for making an agreement which, perhaps imprudently, the parties did not make for themselves. Such caution is particularly important in an industrial relations environment where negotiations (often) never cease, and participants become inured to the notion that what cannot be agreed today may be agreed tomorrow. It is important also for a further reason. No party has cavilled with the proposition that evidence about how an agreement has been implemented and/or performed by the parties, is no guide to its interpretation. However, I have throughout been exposed to such evidence. The open admission that back-payment until 1 September 2007 was made to all successful applicants on an internal appeal, operates as a temptation to arbitrate the same outcome for successful disputants in a reclassification dispute. I resist the temptation.

[20]
On the matter of construction, the problem confronting the Respondents lies not in the principles of interpretation, but in the quality of the evidence sought to be relied upon. HPEB1 was not directed at the resolution of a dispute or difficulty within the workplace. This is not a case in which one may point to a "subject matter" sought to be resolved by the parties. The parties were cooperatively seeking to plan into and to regulate the future. On 27 March 2013, Ms Cannon for Together Queensland submitted (T10-4 to T10-9, unedited):

"So I firstly need to describe the nature of HPEB1, how that came into existence to communicate why we say that this unusual circumstance, that it's not just the four corners of the document that need to be looked at. HP EB1 is an agreement that came about through an interest based bargaining process. Interest based bargaining process is one where the making of the agreement is quite different from the processes of making an agreement under the traditional positional bargaining framework.

It's a more unitary rather than a pluralist approach to reaching an agreement, where the parties identify the issues affecting all. The options for resolution of those issues and they agree on the way forward for resolving those issues. HP EB1 is clearly an artefact of this interest based bargaining process.

The HP EB1 agreement confirms the process in its reference to the HP IBB group, that is the Health Practitioner Interest Based Bargaining Group, which is effectively a replacement for the traditional consultative forum in many public sector agreements. It's not an HP consultative group, it is as clearly stated in the agreement, a Health Practitioner Interest Based Bargaining Group.

The flavour of interest based bargaining permeates the whole of that agreement. It's not just an initial process, it's an ongoing one, and the nature of the agreement formed from it is effectively somewhat organic, and the reason for that I think we can see by referring to some of the clauses in HPEB1 and I'll take you now to HPEB1 clause 14.

MS CANNON: Clause number 14. Operation and implementation of the agreement. At 14.1 it says the parties acknowledge that consensus may need to be reached to effect the implementation office agreement and this will be recorded by an exchange of letters. HPEB1 is a very comprehensive document introducing a whole new - excuse me - classification structure. The task of implementing it was quite enormous. It is only reasonable to assume that start of - of the agreement not every circumstance that parties would come across in implementation in operating and interpreting the agreement would be known prior to certification. Thus there is this clause in 14.1 that describes the parties reaching consensus on matters-----

THE PRESIDENT: Is the Commission allowed to certify that sort of arrangement?

MS CANNON: Well they did, your Honour.

THE PRESIDENT: You certify an agreement, the scheme is that people can renegotiate part of it in the Court and exchange of letters that you don't see.

MS CANNON: Well, your Honour, that's not the only example in the agreement where this has been allowed for.

THE PRESIDENT: All right.

MS CANNON: Well it's what the parties agreed to, your Honour, and I think that perhaps it needs to be honoured as the intention of the parties. At 14.2 there is that reference to the HPIBB group, the operation and implementation of the agreement will be overseen by the HPIBB group, and just refer to that just for the naming of the consultative group.

At 14.4 the agreement says the role of the HPIBB group is to provide the principal forum for consultation between the parties to this agreement on all matters relevant to the implementation, application - interpretation, sorry, application and implementation of the agreement. So they're clearly charged with interpreting and overseeing the application and implementation of it. It has specific responsibilities allocated to it described in 14.5, but I just want to draw the Court's attention to the responsibility at E and that is resolving issues relating to the interpretation, application and operation of the agreement if referred to it under clause 5.

Then further o under clause 15 at 15.2 in the event of any disagreement between the parties as to the interpretation, application and implementation of the agreement the following procedures will be followed, and I'll move now to subclause C where if the issues remain unresolved it may be referred to the HPIBB group. It'll deal with it in a timely manner and quite significantly the last sentence of that subclause - it clearly states if the HPIBB group forms an agreed view on the resolution of the issue this is the position that will be accepted and implemented by the parties. This is what the parties agreed to. This is what was in the certified agreement. An ability for the parties to themselves - if there were issues before it - interpret the agreement, resolve it in a way - a typical way of interest based bargaining jointly working through the issues, resolving them, generating operations and implementing them, and that is a clear facility, we believe, for self interpretation of this agreement to occur and be recognised in fact as part of the agreement.

Certainly we would submit that if the HPIBB group did address issues relating to interpretation - form the view on the appropriate resolution and implement it, it could not be said that that was not part of the agreement. We say that must be. That's what the parties agreed to, intended, wrote into the document and gave effect to. So, as I say, your Honour, this document is typical of an agreement where major changes have been agreed to be implemented and brought in, where all of the detail could not possibly have been worked out beforehand. It was envisaged as being something of an evolution in the introduction of the classification structure, one that would be evolved by agreement of the parties. This is the theme that has - an approach that has been taken by a number of government departments, most significantly in Health. In the Medical Officer Certified Agreement arrangements the last two agreements that have been put in place there, similar reclassifications where the detail was worked out later in the whole of the classification structure, eligibility for it, the criteria, that formed the basis of entitlements - genuine entitlements to classification levels, et cetera. It was envisaged as being done, the facility was there for it to be done, and our submission is that it should be recognised.

Without the post certification filling in of a large amount of detail the implementation of the reclassification structure mentioned in that agreement would be a very difficult job indeed. It may not have occurred in a timely fashion and it is likely to have occurred with a far greater level of disputation than we already have.

I'll take you to one document in particular, the appeal guide which your Honour has admitted in these proceedings as attachment 4 to the affidavit of Mr McKay of the 25th of October.

THE PRESIDENT: Just bear with us while we find it.

MS CANNON: I'm not going to the detail within that appeal guide at this particular moment, I will later, I just-----

THE PRESIDENT: Oh sorry.

MS CANNON: -----I just want to refer to it as an example of how the detail was put together after the event by consensus of the parties. The appeal guide is not within the four corners of HPEB1, but it doesn't mean it doesn't form part of the agreement, in our submission, we think that it has to be. It was drafted by consensus to give effect to the implementation of the agreement as allowed for in 14.1, in accordance with 14.5(e)

MS CANNON: Mr McKay was given the opportunity to clarify what he was putting forward in a - in a early affidavit in the filing of the most recent affidavit which we have not looked at, that was filed in January. Attached to that affidavit are these documents-----

MR HERBERT: Well, I object-----.".

[21]
With respect, Ms Cannon's overview of the history of HPEB1 is substantially correct. Notwithstanding the skill with which Counsel for United Voice and Counsel for Dr Scott have argued the case against the granting of the Third Declaration, when required to lead extraneous evidence, only evidence about the actual intentions, aspirations and expectations of the parties and post-agreement "understandings" about the interpretation and implementation of HPEB1, is available to be relied upon.

[22]
In my view, the relief sought at the Third Declaration is available and should be granted in relation to HPEB1.

[23]
In the case of HPEB2, the following paragraph (see clause 18.1(b) of HPEB1):

"Wage increases for Reclassified Positions as a result of Phase 2 will be back-dated to 1 September 2007. A Reclassified Position is an existing position that has been reclassified by the Work Level Evaluation Panel as a result of the Work Evaluation Project and where the incumbent continues to perform the same work as before the reclassification.",

does not appear. The words (in the past tense) which appear at clause 18.1(b) of HPEB2 are:

"Wage increases for reclassified Positions as a result of Phase 2 were back-dated to 1 September 2007. A reclassified Position is an existing position that was reclassified by the Work Level Evaluation Panel as a result of the work evaluation project and where the incumbent continued to perform the same work as before the reclassification.".

Declaratory relief in terms of the Third Declaration should be granted in respect of HPEB2 also.

[24]
In support of the First and Second Declaration, Counsel for Queensland Health submits that the source of the Commission's power to deal with a "classification dispute" is the submission by a party to HPEB1 and HPEB2 of a particular nominated classification dispute for resolution; see s. 159 of the Act, together with clauses 15 and 19.15 of HPEB1 and clauses 15 and 24.15 of HPEB2. Any such arbitration, it is submitted, is in the nature of private arbitration and the Commission exercises such jurisdiction vested in the Commission by HPEB1 or HPEB2, compare Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Anor^[10] at 658 on comparable Commonwealth legislation. It is then contended that there is no provision, nor any cluster of provisions in HPEB1 or in HPEB2, which would authorise retrospective orders about wage increases of the type identified in the First and Second Declarations.

[25]
In my view there is a further issue, viz., whether the Commission is restricted solely to the powers conferred by HPEB1 and for HPEB2, or may have resort to those of its normal statutory powers, which are not inconsistent with HPEB1 and HPEB2, compare Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation^[11] at paragraph 25 per Giudice P, Harrsion SDP and Simmonds C. That issue has not been confronted. I accept, the general rule is that legislation upon the matter of industrial arbitration is not to be interpreted as authorising retrospective orders in the absence of express words or necessary implication, see Australian Sugar Producers' Association Ltd v Australian Workers' Union^[12] at 65 per Griffith CJ and at 73, per Barton J. That decision has, of course, long since been modified by legislation comparable to s. 125(3)(c) of the current Act, compare Re: Public Service Award - State^[13] at 441 per R.H. Matthews P. Section 125(3)(c) of the Act is not here applicable. A comparable power would not authorise a retrospective wage increase antedating reference of the classification dispute to the Commission. However,, I cannot comment on power to deal with the gap between lodgement and decision. I know too little of the variety of situations which may arise. Those matters must be resolved on a case by case basis.

[26]
Pursuant to s. 248(1)(e) of the Industrial Relations Act 1999, the Court declares that:

(A)
That the Queensland Industrial Relations Commission (the Commission) has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of the determination by the Commission of a "reclassification dispute" which is lodged with the Commission under the Health Practitioners (Queensland Health) Certified Agreement 2007 (HPEB1) before the commencement of the Health Practitioners (Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2), so that such wage increase has effect from 1 September 2007;

(B)
That the Commission has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of determination by the Commission of a "reclassification dispute" which is lodged with the Commission after the commencement of HPEB2, so that such wage increase has effect from 1 September 2007;

(C)
That a wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner by the Commission in the course of "classification dispute" under HPEB1 and/or HPEB2, is not a "wage increase" for the purposes of clause 18.1(b) of HPEB1 or HPEB2.

Dated 20 May 2013.

D.R. HALL, President.

Appearances:

Mr A.K. Herbert instructed by Mr M. Moy of McCullough Robertson Lawyers, for the State of Queensland (Queensland Health).

Ms J. Cannon of Together Queensland, Industrial Union of Employees.

Mr R.E. Reed, directly instructed for United Voice, Industrial Union of Employees and with him, Ms K. Badke of United Voice, Industrial Union of Employees.

Mr M. Healy instructed by Ellem Warren Solicitors for Dr Adam Scott.

Released: 20 May 2013

Mr G. Butler for a number of Health Practitioners.

Footnotes

[1]WorkCover v Secretary Department of Social Security (1997) 147 ALR 263

[2]Commonwealth v Butler [1958] 102 CLR 465

[3]March v E and M.H. STRAMARE Limited and Anor (1991) 171 CLR 506

[4]Kucks v CSR Limited (1996) IR 182

[5]Australian Meat Industry Employees Union v Coles Supermarket Australia Pty Ltd (1998) 80 IR 208

[6]Amore v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241

[7]Queensland Police Union of Employees v Commissioner of Police (2000) 164 QGIG 16

[8]Wade Saw Mill Pty Ltd v Ussher (2003) 173 QGIG 1029

[9]Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260

[10]Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Anor (2000) 203 CLR 645

[11]Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation (2003) 128 IR 385

[12]Sugar Producers' Association Ltd v. Australian Workers' Union (1916-1917) 23 CLR 58

[13]Re: Public Service Award - State (1971) 78 QGIG 440

Editorial Notes

Published Case Name:
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2)
Shortened Case Name:
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2)
MNC:
[2013] ICQ 3
Court:
QIRC
Judge(s):
Hall
Date:
20 May 2013

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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Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health)	[2021] QIRC 59	4 citations Jump To Cite 1 - [2021] QIRC 59 Cite 2 - [2021] QIRC 59 Cite 3 - [2021] QIRC 59 Cite 4 - [2021] QIRC 59
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Commonwealth of Australia v Snell	(2019) 269 FCR 18	2 citations Jump To Cite 1 - (2019) 269 FCR 18 Cite 2 - (2019) 269 FCR 18
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Hennessy v State of Queensland (Queensland Health) (No 2)	[2023] QIRC 213	1 citation Jump To Cite 1 - [2023] QIRC 213
Hoysted v Federal Commissioner of Taxation	View on:JADE(1925) 37 CLR 290	2 citations Jump To Cite 1 - (1925) 37 CLR 290 Cite 2 - (1925) 37 CLR 290
Hoysted v Federal Commissioner of Taxation	View on:JADE(1921) 29 CLR 537	2 citations Jump To Cite 1 - (1921) 29 CLR 537 Cite 2 - (1921) 29 CLR 537
Jackson v Goldsmith	View on:JADE(1950) 81 CLR 446	2 citations Jump To Cite 1 - (1950) 81 CLR 446 Cite 2 - (1950) 81 CLR 446
Johnson v Gore Wood & Co	View on:ICLRUK(2002) 2 AC 1	3 citations Jump To Cite 1 - (2002) 2 AC 1 Cite 2 - (2002) 2 AC 1 Cite 3 - (2002) 2 AC 1
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Ling v Commonwealth	(1996) 68 FCR 180	2 citations Jump To Cite 1 - (1996) 68 FCR 180 Cite 2 - (1996) 68 FCR 180
March v E & MH Stramare Pty Ltd	View on:JADE(1991) 171 CLR 506	1 citation Jump To Cite 1 - (1991) 171 CLR 506
Naggs v State of Queensland (Department of Health) (No 2)	[2015] QIRC 26	2 citations Jump To Cite 1 - [2015] QIRC 26 Cite 2 - [2015] QIRC 26
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Queensland Police Union of Employees v Commissioner of Police	(2000) 164 QGIG 16	1 citation Jump To Cite 1 - (2000) 164 QGIG 16
Rogers v The Queen	View on:JADE(1994) 181 CLR 251	3 citations Jump To Cite 1 - (1994) 181 CLR 251 Cite 2 - (1994) 181 CLR 251 Cite 3 - (1994) 181 CLR 251
Scott v State of Queensland (Queensland Health)	[2015] QIRC 164	2 citations Jump To Cite 1 - [2015] QIRC 164 Cite 2 - [2015] QIRC 164
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Cases Citing List of cases on Queensland Judgments citing this Judgment

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Hennessy v State of Queensland (Queensland Health) (No 2)	[2023] QIRC 213	3 citations

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State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2)[2013] ICQ 3