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Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd[2015] ICQ 3

Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd[2015] ICQ 3

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd [2015] ICQ 003

PARTIES:

QUEENSLAND INDEPENDENT EDUCATION UNION OF EMPLOYEES

(appellant)

v

LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND LIMITED

(respondent)

CASE NO/S:

C/2014/29

PROCEEDING:

Appeal

DELIVERED ON:

29 January 2015

HEARING DATE:

20 August 2014

MEMBER:

Martin J., President

ORDER/S:

1. Appeal allowed.

2. The operation of the decision of 8 April 2014 is suspended.

3. The decision is remitted to the Full Bench of the Commission to proceed according to law.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – AWARDS – AMENDMENT, VARIATION OR RESCISSION – where a recommendation was made that there be one award in place of the almost thirty awards covering local government employees – where the Full Bench decided that there should be one award for local government in Queensland – whether the Full Bench erred by failing to give reasons or adequate reasons for including employees covered by the Early Childhood Education Award – State 2003 within the proposed single award – whether the Full Bench erred in failing to consider or give any weight or proper weight to a number of identified considerations

Industrial Relations Act 1999, Chapter 5A, s 341

CASES:

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Pettitt v Dunkley [1971] 1 NSWLR 376 

Police Federation of Australia v Nixon [2011] FCAFC 161

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Roncevich v Repatriation Commission (2005) 222 CLR 115

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPEARANCES:

LS Reidy instructed by Tress Cox Lawyers for the appellant

KF Watson instructed directly by the Local Government Association of Queensland Limited for the respondent
  1. [1]
    Chapter 5A of the Industrial Relations Act 1999 (the Act) establishes a regime for the making of “modern awards”. In February 2014 the Minister requested that an award modernisation process be carried out. As part of the request, the Minister identified “Local Government” as one of the industries or occupations to be given priority.
  1. [2]
    Pursuant to the request an Award Modernisation Team (“AMT”) was created within the Commission. The AMT consulted with the major participants in local government and, as a result, made a recommendation that there be one award in place of the almost 30 awards which otherwise applied. The respondent to this appeal, the Local Government Association of Queensland Limited (“LGAQ”), contended for the result reached by the AMT. Unions which were parties to the proceedings had sought two or more awards to replace those that were then in force.
  1. [3]
    The recommendation of the AMT was taken to a Full Bench of the Commission. It heard from the LGAQ, the Association of Professional Engineers, Scientists and Managers Australia, the Queensland Services Union, the Automotive Metals Engineering Printing and Kindred Industries Union, the Electrical Trades Union, the Plumbers and Gasfitters Employees Union, the Queensland Nurses Union, United Voice, the Australian Workers Union, the Construction, Forestry, Mining and Energy Union, Queensland and, the appellant in this case, the Queensland Independent Education Union of Employees (QIEU).
  1. [4]
    On 8 April 2014 the Full Bench announced that it had decided that there should be one award for local government in Queensland. The reasons for that decision were given on 23 May 2014.

The appeal

  1. [5]
    On 4 June 2014 the QIEU filed an application to appeal. There was a question as to whether or not that appeal was brought within time but, at the hearing of the appeal, an application for an extension of time was not opposed and the extension, so far as it was necessary, was granted.
  1. [6]
    In summary, the grounds of appeal are:
  1. (a)
    The Full Bench erred by failing to give reasons or adequate reasons for including employees covered by the Early Childhood Education Award – State 2003 within the proposed single award.
  1. (b)
    The Full Bench erred in failing to consider or give any weight or proper weight to a number of identified considerations.
  1. (c)
    The decision of the Full Bench was unreasonable or plainly unjust or both.
  1. (d)
    The Full Bench erred in failing to apply a proper construction of the Act with the result that the Commission would be required to repeal the Early Childhood Education Award – State 2003.

The case for the QIEU before the Full Bench

  1. [7]
    In order to determine whether or not adequate reasons have been given in any particular matter, it is important to understand the context in which the hearing took place and, especially, the evidence called or the submissions made by the party seeking to impeach the decision.
  1. [8]
    The QIEU put a case before the Full Bench to the effect that Early Childhood teaching staff should have their conditions determined under an occupational award, not a local government award. It is unnecessary to set out in great detail what was put on behalf of the Union to the Full Bench. In brief, the following submissions were made:
  1. (a)
     The coverage clause of the Federal Modern Award for Local Government specifically exempted university qualified early childhood teachers and early childhood assistance from coverage. Other Federal Modern Awards covered these occupational groups.
  1. (b)
     In May 2009 the Australian Industrial Relations Commission (AIRC) made a Stage 3 Award Modernisation decision[1] which dealt with 39 industries and occupations. The AIRC determined to include preschool teachers, at that stage in services operated by a school but deferred the question of award coverage for preschool teachers working in preschools, kindergartens and childcare centres.
  1. (c)
     In a decision of the AIRC in September 2009[2] a Full Bench determined to include preschool teachers in an occupational award covering both primary and secondary school teachers.
  1. (d)
     A proposed single award in the State would affect employees in three indigenous councils which operated kindergartens, two of which were currently covered by the Queensland Early Childhood Education Certified Agreement.
  1. (e)
     Kindergarten employees were employed on the same basis as teachers in that they were paid for 52 weeks on the basis of 42 weeks work. In all material respects there was a correspondence between the conditions afforded to early education teaching staff and other school teaching staff.
  1. (f)
     Reference was made to the professionally “unique” features of teaching occupations.
  1. (g)
     The necessary educational qualifications and regulatory requirements set teachers, including kindergarten teachers, apart from many other employees.
  1. (h)
     Funding arrangements for kindergartens and the legal regulatory framework were the same, irrespective of whether the early childhood education facilities were operated by local government.

 Submissions by other parties

  1. [9]
    Each of the other unions referred to above made submissions concerning the number and types of awards which should be made through the award modernisation process. Those submissions, with respect to the numbers of awards, were summarised in the reasons of the Full Bench in [9] – [12]:

“[9]  The Association of Professional Engineers, Scientists and Managers Australia sought the making of three awards:

  • one for officers and "indoor staff";
  • one for building, engineering, maintenance employees; and
  • one for employees currently covered by the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003.

[10]  The Queensland Services Union, the Automotive, Metals, Engineering, Printing and Kindred Industries Union, the Electrical Trades Union, the Plumbers and Gasfitters Employees Union, the Queensland Nurses Union and United Voice jointly submitted that there should be three awards:

  • one for white collar employees;
  • one for building, engineering, maintenance, nursing and children's services employees; and
  • one for all other blue collar employees.

[11]  The Australian Workers' Union proposed that there be no fewer than two awards:

  • one for white collar employees; and
  • at least one award for outdoor employees.

[12]  The Construction, Forestry, Mining and Energy Union Queensland's proposal was for three awards:

  • one for tradespersons;
  • one for white collar employees; and
  • another for non-trades based staff not employed in a white collar capacity.”
  1. [10]
    The Full Bench then made brief reference to the state of awards in the Commonwealth and in New South Wales and summarised the submissions for the Unions in these terms:

“[18]  The gravamen of the unions' submissions is that there are significant differences between the awards currently covering "white collar" and "blue collar" employees, and to a lesser, but still significant, extent, insofar as "blue collar" staff are concerned, between building, engineering and maintenance staff on the one hand, and "external/field staff" on the other.

[19]  The unions noted that employers and employees in the local government sector have recognised and bargained along occupational divisions - officers/internal, trades/building, engineering, maintenance, nursing and children, and field staff/external.

[20]  Of major concern to the unions is the potential for a reduction in the terms and conditions of employment of some groups of employees should a single award be made.

[21]  In particular it was noted that white collar employees generally work a 36.25 hour week, whereas blue collar workers generally work a 38 hour week. Differences between, for example, the two groups' entitlement to ordinary hours of work, personal leave, annual leave and long service leave were also noted, as were the differences between the classification methods of the two groups.”

  1. [11]
    The Full Bench did not, at any time, refer to the QIEU or any of its submissions.

Does the decision affect the QIEU?

  1. [12]
    The QIEU submits, and I accept, that the unqualified nature of the decision, namely, “that there be one award governing the terms and conditions of employees in local government in Queensland”[3] catches all employees and includes early childhood teaching staff.

Was there an error?

  1. [13]
    The requirement for a court or quasi judicial tribunal to give reasons for their decisions is well known. The giving of reasons serves at least three purposes:
  1. (a)
    It enables the parties to see the extent to which their arguments have been understood and accepted;
  1. (b)
    It furthers judicial accountability; and
  1. (c)
    It affords a basis for predicting how like cases might be decided in future.[4]
  1. [14]
    A Tribunal need not set out reasons for every step which has led to a decision but it must record the steps which were taken to arrive at the result.[5]
  1. [15]
    The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected.[6] The reasons must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal.[7]
  1. [16]
    It must be understood, though, that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.[8] The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the “real issue” presented by the contest between the parties.[9]
  1. [17]
    A failure to provide reasons in accordance with the principles set out above will, ordinarily, give rise an appealable error.

Were sufficient reasons given?

  1. [18]
    The LGAQ submitted that it was implicit in the reasoning of the Full Bench that the QIEU’s submissions had been rejected. It contended that the decision that there should be one award must, as a matter of logic, mean that the submission that there should be at least two was not accepted. So much can be accepted. It was also submitted by the LGAQ that there was a reference by the Full Bench to the issues raised by the QIEU when, in paragraph [19] the Full Bench referred to occupational divisions and made reference to “nursing and children”. But that is a reference to the historical nature of bargaining which had existed in local government.
  1. [19]
    It was also argued for the LGAQ that the reasoning set out in the decision disclosed a value judgment that there should be an industry based award not an occupational based award or awards. Once that approach was adopted, the LGAQ submitted, the appellant necessarily had to lose. While that may be an accurate description of the manner in which the Full Bench proceeded, the fact that reliance is placed upon a “value judgment” being made necessarily involves what is an exercise of discretion which inevitably means that reasons must given.[10]
  1. [20]
    The absence of any reference to any submission made by the QIEU or any explanation, brief or otherwise, of why persons in the early childhood area should be covered by the proposed single award reveals a failure to provide the necessary reasons. The QIEU is left not knowing why its submissions were rejected and not knowing what approach the Full Bench had with respect to them. This is a situation where the process of reasoning giving rise to the decision, so far as the QIEU is concerned, is unknown and therefore it is not possible to determine whether or not the decision is sound in law.[11] This failure amounts to an error of law.

Failure to give weight or any proper weight to considerations advanced by the QIEU

  1. [21]
    The failure to even mention the case advanced by the QIEU allows an inference to be comfortably drawn that no weight was given to QIEU submissions. For reasons I set out below, this ground need not be elaborated upon.

Unreasonable decision? Wrong construction of the Act?

  1. [22]
    These grounds are tied up with the considerations I deal with below and, given that the appellant has succeeded on its first ground, need not be pursued.

Consequences of inadequate reasons

  1. [23]
    Having come to the conclusion that the reasons given by the Full Bench were inadequate, there are at least two avenues available. The first is to remit the matter for hearing according to law. The QIEU pressed its other grounds of appeal and sought the second avenue, namely that this Court make a decision in place of the decision of the Full Bench.
  1. [24]
    The Commission’s consideration of the QIEU’s submissions will necessitate further attention being paid to the issue of whether the repeal of the Early Childhood Education Award – State 2003 is a consequence of any new award. This is a matter which should be left to the Commission once it has considered those submissions.
  1. [25]
    The Award Modernisation process is one which is integrated with the decisions made with respect to other industries and occupations. The proper approach requires consideration of what is done in associated or overlapping awards. The Court does not, in this matter, have that necessary overview. It would not be appropriate for the Court to embark upon a determination without the benefit of full submissions from all the relevant parties.

Orders

  1.  Appeal allowed.
  1.  The operation of the decision of 8 April 2014 is suspended.
  1.  The decision is remitted to the Full Bench of the Commission to proceed according to law.

Footnotes

[1]  [2009] AIRCFB 450.

[2]  [2009] AIRCFB 865.

[3]  [2014] QIRC 089 at [26].

[4]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279.

[5]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666.

[6]Police Federation of Australia v Nixon [2011] FCAFC 161 at [67].

[7]Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386.

[8]Soulemezis at 271.

[9]Roncevich v Repatriation Commission (2005) 222 CLR 115 at [64].

[10]Soulemezis at 279.

[11]Pettitt v Dunkley [1971] 1 NSWLR 376 at 389.

Close

Editorial Notes

  • Published Case Name:

    Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd

  • Shortened Case Name:

    Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd

  • MNC:

    [2015] ICQ 3

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    29 Jan 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Attorney General of Belize v Belize Telecom Ltd [2009] AIRCFB 450
1 citation
Jump To
Cite 1 - [2009] AIRCFB 450
Attorney General of Belize v Belize Telecom Ltd [2009] AIRCFB 865
1 citation
Jump To
Cite 1 - [2009] AIRCFB 865
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
2 citations
Jump To
Cite 1 - (1983) 3 NSWLR 378
Cite 2 - (1983) 3 NSWLR 378
Pettitt v Dunkley (1971) 1 N.S.W. L.R. 376
2 citations
Jump To
Cite 1 - (1971) 1 N.S.W. L.R. 376
Cite 2 - (1971) 1 N.S.W. L.R. 376
Police Federation of Australia v Nixon [2011] FCAFC 161
2 citations
Jump To
Cite 1 - [2011] FCAFC 161
Cite 2 - [2011] FCAFC 161
Public Service Board of NSW v Osmond (1986) 159 CLR 656
2 citations
Jump To
Cite 1 - (1986) 159 CLR 656
Cite 2 - (1986) 159 CLR 656
Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2014] QIRC 89
1 citation
Jump To
Cite 1 - [2014] QIRC 89
Roncevich v Repatriation Commission (2005) 222 CLR 115
2 citations
Jump To
Cite 1 - (2005) 222 CLR 115
Cite 2 - (2005) 222 CLR 115
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
4 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
Cite 3 - (1987) 10 NSWLR 247
Cite 4 - (1987) 10 NSWLR 247

Cases Citing

Case NameFull CitationFrequency
Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 232 citations
Bond v State of Queensland [2022] ICQ 141 citation
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 166 citations
Commissioner for Mine Safety and Health v Pearce [2016] ICQ 232 citations
Gay v Workers' Compensation Regulator [2019] ICQ 112 citations
Hoby v Workers' Compensation Regulator [2019] ICQ 52 citations
McMah v Workers' Compensation Regulator [2015] ICQ 92 citations
Re: Remittal from the Industrial Court of Queensland - QIEU v LGAQ [2015] QIRC 311 citation
Schloss v Bell; Bell v Schloss [2015] ICQ 362 citations
Workers' Compensation Regulator v Langerak [2020] ICQ 22 citations
1

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