INDUSTRIAL COURT OF QUEENSLAND
CITATION: | In the Matter of a Proposed Queensland Local Government Industry Award – State 2015 [2016] ICQ 6 |
PARTIES: | THE HONOURABLE CURTIS PITT, TREASURER AND MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS (appellant) v LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND LIMITED (first respondent) QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES (second respondent) AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND (third respondent) CONSTRUCTION, FORESTRY, MINING & ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND (fourth respondent) PLUMBERS & GAS FITTERS EMPLOYEES’ UNION QUEENSLAND, UNION OF EMPLOYEES (fifth respondent) ELECTRICAL TRADES UNION OF EMPLOYEES, QUEENSLAND (sixth respondent) |
FILE NO/S: | C/2015/51 |
PARTIES: | BENJAMIN CHARLES SWAN, SECRETARY OF THE AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND (appellant) v LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND LIMITED (first respondent) THE HONOURABLE CURTIS PITT, TREASURER AND MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS (second respondent) QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES (third respondent) AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND (fourth respondent) CONSTRUCTION, FORESTRY, MINING & ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND (fifth respondent) PLUMBERS & GAS FITTERS EMPLOYEES’ UNION OF QUEENSLAND, UNION OF EMPLOYEES (sixth respondent) ELECTRICAL TRADES UNION OF EMPLOYEES, QUEENSLAND (seventh respondent) |
FILE NO/S: | C/2015/56 |
PROCEEDING: | Appeal |
DELIVERED ON: | 14 March 2016 |
HEARING DATE: | 23 November 2015 |
MEMBER: | Martin J, President |
ORDER/S: |
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CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – AWARDS – AMENDMENT, VARIATION OR RECISSION – where s 140C(1) of the Industrial Relations Act 1999 permits the Minister to request the Queensland Industrial Relations Commission carry out a process of modernising awards – where s 140CA(1) permits the Minister to vary the request before the award modernisation process is completed by giving a variation notice to the Commission – where an award modernisation process had begun – where the Minister issued a variation notice and a Consolidated Request requesting the recommencement of the award modernisation process in accordance with that Consolidated Request – where, as part of that award modernisation process, a Full Bench of the Commission made orders varying the Queensland Local Government Industry Award – State 2014 – where the appellants appeal those orders – whether the Commission erred in finding that the Consolidated Request was only binding on the Commission in relation to matters of process rather than the subject matter of the award – whether the Commission misinterpreted the terms of the Consolidated Request in making an award where there was a loss or reduction of entitlements compared to relevant pre-modernisation awards – whether the Commission erred in basing its conclusion that no grounds had been made out for reinsertion of locality allowances in a modernised award in part on the finding that this would result in a “discriminatory” award contrary to s 273(1)(a) of the Industrial Relations Act 1999 – whether the powers of the Minister with respect to issuing a Consolidated Request to the Commission are inconsistent with the separation of powers doctrine Acts Interpretation Act 1954 s 32CA(2) Industrial Relations Act 1999 ss 3, 140BA, 140C, 140CA, 140 CC, 140D, 273(1)(a), s 320(3) |
CASES: | Jennifer Cameron AND Q-COMP (C/2011/24) - Decision Hardy v St Vincent’s Hospital Toowoomba Ltd [2000] 2 Qd R 19 Re an Application for Amendment of the Queensland Local Governments Industry Award – State 2014 [2015] QIRC 52 Re: Variation and renaming of a modern award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 186 |
APPEARANCES: | C/2015/51 J Murdoch QC instructed by G Cooper (Crown Solicitor) for the appellant A Herbert instructed by King & Company for the first respondent R Reitano instructed by Hall Payne for the second, third, fourth, fifth and sixth respondents C/2015/56 T McKernan of the Australian Workers’ Union of Employees, Queensland, appellant A Herbert instructed by King & Company for the first respondent J Murdoch QC instructed by G Cooper (Crown Solicitor) for the second respondent R Reitano instructed by Hall Payne for the third, fourth, fifth, sixth and seventh respondents |
“[1] Part 8 of Chapter 5 "Modernisation of awards" as well as Chapter 5A, "Modern awards", were inserted into the Industrial Relations Act 1999 (the Act) by Act No. 61 of 2013. The amending Act thereby introduces a regime which permits the Minister to request the Queensland Industrial Relations Commission (Commission) to undertake a process of modernising awards. Section 140C empowers the Minister to give the Commission an award modernisation request (Request) to carry out an award modernisation process.
[2] On 26 September 2014 following a Request from the then Attorney-General and Minister for Justice given in January 2014, a differently constituted Full Bench of this Commission made the Queensland Local Government Industry Award - State 2014 (the 2014 Award). …
[3] The Act was amended in 2015 by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 which amongst other things, amended s 140D of the Act "Modern award objectives", by deleting the requirement that the Commission have regard to "financial considerations" as defined in that section. It also amended the principal object of the Act by deleting s 3(p) which required that when wages and employment conditions are determined by arbitration and the matter involved the public sector, the financial position of the State and the relevant public sector entity and the State's fiscal strategy were to be taken into account.
[4] The Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 also inserted Part 20, Transitional Provisions for Industrial Relations (Restoring Fairness) and other Legislation Amendment Act 2015 in to the Act. Section 841 of the Act requires the Commission to review a relevant modern award and vary it if the Minister gives the Commission a variation notice under s 140CA. Section 140CA(1) [sic s 842(1)] requires the Commission to remove certain provisions which had been required to be inserted prior to their repeal by the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015, as well as to include certain provisions that had been contained in relevant pre-modernisation awards.
[5] On 17 July 2015 the Treasurer and Minister for Employment and Industrial Relations (Minister), pursuant to s 140CA(1) issued a variation notice and made a Consolidated Request. …
[6] A differently constituted Full Bench dealt with the Consolidated Request and the requirement of s 844 that the Commission consider an increase to the number of awards covering the Queensland local government industry (Excluding Brisbane City Council) (“Queensland local government industry”). That Full Bench declined to increase the number of awards governing the Queensland local government industry deciding that one award is appropriate.
[7] Following that decision, pursuant to the Consolidated Request, the Commission's award modernisation team (AMOD Team) conducted conferences with interested parties in an attempt to come to an agreed position in relation to amending the 2014 Award in conformity with the Consolidated Request. No agreement was reached and, on 10 September 2015, Deputy President Bloomfield referred the variation of the award to the Vice President who constituted this Full Bench to deal with the matter and to vary the 2014 Award in conformity with the Consolidated Request. The Referral included an Exposure Draft of a proposed new modern award for this Full Bench to consider.”
The Full Bench’s decision
“[20] A preliminary, or threshold, issue relates to the extent to which the Consolidated Request may be said to direct the Commission as to the content of any variation to the 2014 award made in response to the Consolidated Request. In particular:
“DEPUTY PRESIDENT KAUFMAN: … Are you saying that what the Minister is directing this Full Bench to do is to review the various allowance arrangements previously in place to ensure that a certain objective is reached, and that so long as we ensure that that objective is reached, how we get to that point is entirely up to us? In other words, the terms of the award are for us to make, so long as the net effect is to ensure that employee entitlements have not been reduced in comparison with allowance arrangements prescribed in the pre-modernisation awards?
MR JAMES: Your Honour, I would suggest that the Minister’s intent through this process is to ensure that it is not – it is not a consequence of process for entitlements to be removed or lost.
…
DEPUTY PRESIDENT KAUFMAN: But how we get to that point is up to us. Is that your submission?
MR JAMES: Yes.
DEPUTY PRESIDENT KAUFMAN: As long as that objective is reached, the form of the award which achieves that outcome could be expressed, notionally, in a number of ways.
MR JAMES: Yes, Commissioner.
DEPUTY PRESIDENT KAUFMAN: And so is your submission that we should ensure that that objective is reached, but, beyond that, the Minister isn’t prescribing how we get to that objective?
MR JAMES: The Minister is not prescribing the detail of what will be in the award, but he does clearly contemplate that the outcome should not be a reduction in the terms and conditions that were available to employees in the pre-modernised award.” (emphasis added)
“[34] We are reminded by the Minister's Statement of Intent that award modernisation is not intended to reduce or remove employee entitlements and conditions from what was available in pre-modernisation awards, and to that end we are to ensure wages and employment conditions continue to provide fair conditions in relation to living standards prevailing in the community.”
“[44] The Consolidated Request must, of course, be read in the context of the Act, which is paramount. The Commission must comply with the Consolidated Request, but only insofar as it can do so conformably with the Act.
[45] Insofar as terms and conditions of employment and entitlements are concerned, the Act has not changed significantly since the making of the 2014 Award. The deletion of the references in the Act to "financial position" and "fiscal strategy" in ss 3(p) and 145D are not relevant to our decision, as they were not adverted to in the 2014 decision.
[46] It follows that the 2014 Award was made in a context that is substantially the same as that which currently pertains.
[47] The restoration of the pre-existing allowances is not required by the Consolidated Reference, nor is it consistent with the award modernisation provisions of the Act. We refer in particular to ss 3(f), 140BA, 140BB, 140D and 273.
[48] Further in our view, the restoration of the pre-modernisation allowances would be antithetical to the requirements of ss 3(f), 140BA(a), (b), (c), and (d), and 140D(1), (2)(iii), (vi) and (vii).
[49] Significantly, the evidence called by the unions does not demonstrate that any employee's actual entitlements have been reduced in comparison with what he or she would have received under the allowance arrangements prescribed in the pre-modernised awards. We will analyse the evidence later in these reasons.” (emphasis added)
Grounds of appeal – the threshold issue
What are the Minister’s powers and what did the Consolidated Request require?
“[30] It is timely to refer to s 140C which makes it clear that the Minister’s request is in relation to process. We note that the Minister may request that an award modernisation process be carried out by the Commission and the Commission is to carry out the award modernisation process in accordance with the award modernisation request. Beyond an ability to direct the Commission as to subject matter to be included, or not, in the award, the Consolidated Request does not extend to the content of the subject matter.” (emphasis in original)
“140C Minister may make award modernisation request
permitted matter means a matter about which provisions may be included in a modern award under chapter 2A, part 3, division 1 or 2.”
“[44] The Consolidated Request must, of course, be read in the context of the Act, which is paramount. The Commission must comply with the Consolidated Request, but only insofar as it can do so conformably with the Act.”
“(1) The commission must carry out the award modernisation process in accordance with the award modernisation request.
“Award modernisation is not intended to reduce or remove employee entitlements and conditions from what is available in the pre-modernisation awards. Having regard to this, the Commission shall ensure wages and employment conditions continue to provide fair conditions in relation to the living standards prevailing in the community and what is afforded to employees and employers in the relevant pre-modernisation award/s.” (emphasis added)
“The Commission is to give consideration to a review of the allowances and other provisions in the Queensland Local Government Industry Award – State 2014. To this end the Commission is to give consideration to restoring the provision of locality allowance (including additional leave provisions attached to that allowance) where such provisions were available in the pre-modernisation award/s.
Furthermore, the Commission is to review the consolidated and other allowance arrangements currently in the Queensland Local Government Industry Award – State 2014 to ensure employee entitlements have not been reduced in comparison with the allowance arrangements in the pre-modernisation awards.
The Commission is to give consideration to the submissions of the parties in the review of the allowances and other provisions, in particular where a party can demonstrate a reduction in employee remuneration or an employee entitlement as a consequence of the consolidation of, or changes made to, the allowances and other provisions.” (emphasis added)
Separation of powers
“At first blush, it appeared that the terms of the Consolidated Request may have impermissibly breached the doctrine of the separation of powers between the executive and judicial arms of government. The Commission, albeit a tribunal, is a court of record and required to act judicially.”
“[4] A ‘court of record’ means, inter alia a court expressly declared by statute to be so, compare Cooper and Sons v Dawson at 392 to 393 per Madden CJ. Section 255 of the Industrial Relations Act 1999 provides that the Commission as formerly established as a court of record, is continued in existence. By s. 36 of the Acts Interpretation Act 1954, ‘establish’ inter alia, includes constitute and continue in existence. It follows that prima facie, the Commission is a ‘court of record’ and a ‘Queensland Court’ for the purposes of Part 3A of the Evidence Act 1977.
[5] I quite accept that a statutory description of a tribunal as a court of record does not have the effect that the tribunal is a court of record for all purposes. Here for example, given the terms of s. 251 of the Industrial Relations Act 1999, vesting this Court with the power to deal with contempt and the absence of a comparable investiture of power in the Commission and given that s. 660 of the Industrial Relations Act 1999 operates to make many forms of contempt of the Commission an offence against the Act, it would be difficult to contend that the Commission had the powers of a Court of record in respect of contempt. More generally, it may be doubted that s. 255 of the Industrial Relations Act 1999 enlarges the jurisdiction of the Commission to reach matters neither within the Commission's express powers nor incidental thereto. However, there is nothing to suggest that the remedial provisions of the Evidence Act 1977 are not to apply to the Commission. Indeed, there is some commentary to suggest that such a conclusion would be remarkable; compare Helm v Hansely Holdings Pty Ltd (In liq) at paragraphs 9 and 10 and The Bell Group Ltd (In liq) v Westpac Banking Corporation and Anor (4) at paragraph 35 per Owen J. Further, it would be incongruous if the Commission, exercising judicial power, had not the powers of the Coroner's Court exercising administrative power. It may well be, as Counsel for the Respondent suggests, that the Queensland Civil and Administrative Tribunal (QCAT) has been declared a court for the purposes of the Evidence Act 1977 because, unlike members of the Commission, members of QCAT largely do not enjoy tenure; compare Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania). As a matter of comity, it seems to me preferable to observe that, the making of such a regulation by those exercising administrative power, impacts not at all on the issues of statutory construction that arise in determining whether the Commission is a ‘court of record’ for the purposes of the Evidence Act 1977.” (citations omitted)
Locality allowances
“(1) The commission’s functions include the following—
“(3) Also, the commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—
“discrimination means discrimination—
Specific allowances and entitlements
Conclusion
[1] Re: Variation and renaming of a modern award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 186.
[2] Re: Variation and renaming of a modern award - Queensland Local Government Industry Award - State 2015 [2015] QIRC 186 at [26].
[3] See Electrical Power Transmission Pty Ltd v Robinson (1973) 2 QL 329 per Matthews P, approved and adopted in Hardy v St Vincent’s Hospital Toowoomba Ltd [2000] 2 Qd R 19 at 22.
[4] Jennifer Cameron AND Q-COMP (C/2011/24) - Decision
[5] Clyne v East (1967) 68 SR(NSW) 385 at 395, 400; Building Construction Employees and Builders' Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381, 400, 407, 410, 419-420; Nicholas v Western Australia [1972] WAR 68; Gilbertson v South Australia (1976) 15 SASR 66 at 85; aff’d [1978] AC 772 at 783; Grace Bible Church v Reedman (1984) 36 SASR 376; City of Collingwood v Victoria [No 2] [1994] 1 VR 652; and Kable v DPP (NSW) (1996) 189 CLR 51.
[6] [2015] QIRC 52.
