INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees and Ors [2017] ICQ 002 |
PARTIES: | LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND LTD (appellant) v QUEENSLAND SERVICES INDUSTRIAL UNION OF EMPLOYEES (respondent) |
FILE NO/S: | C/2017/8 |
PROCEEDING: | Appeal |
DELIVERED ON: | 7 July 2017 |
HEARING DATE: | 18 May 2017 |
MEMBER: | Martin J, President |
ORDER/S: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the appellant’s objections to the respondent’s submissions at first instance did not address the extension of a locality allowance and annual leave – where the appellant did not file submissions or evidence objecting to those submissions – where the appellant submits it did not have the opportunity to do so – where the appellant submits the extension of the locality allowance and annual leave will have substantial financial impacts – where the appellant applies to adduce additional evidence on the impact of the locality allowance and annual leave extension – whether the application to adduce additional evidence should be granted INDUSTRIAL LAW – QUEENSLAND – AWARDS – AMENDMENT, VARIATION OR RECISSION – where the Minister gave the Full Bench of the Queensland Industrial Relations Commission a Consolidated Request pursuant to s 140C of the Industrial Relations Act 1999 for the variation of an award – where appellant contends that the Full Bench exceeded the intent of the Consolidated Request and therefore acted in excess of its jurisdiction – where the appellant also submits that the Full Bench failed to take into account relevant considerations under ss 140D and 843 – whether the Full Bench erred in law |
LEGISLATION: | Industrial Relations Act 1999 Workers’ Compensation and Rehabilitation Act 2003 |
CASES: | Cameron v Q-Comp (C/2011/22) Carlton v Blackwood [2015] ICQ 029 Cunningham and Others (Flower and Hart) v William Hamilton Hart (2009) 190 QGIG 126 In the Matter of a Proposed Local Government Industry Award – State 2015 [2016] ICQ 6 In the matter of the making of Modern Awards - Queensland Local Government Industry Award - State 2017 [2017] QIRC 009 LGAQ v Grace [2016] QSC 194 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Regan v WorkCover Queensland (2003) 174 QGIG 1009 Smith v Mackay Business Brokers Pty Ltd (2004) 176 QGIG 317 Svenson v Q-COMP (2006) 181 QGIG 629 |
APPEARANCES: | S Blaney for the Local Government Association of Queensland Ltd N Henderson for the Queensland Services Industrial Union of Employees J Harding for the Australian Workers Union of Employees Queensland |
Proceedings leading up to this appeal
“[1] On 31 October 2015 a differently constituted Full Bench of the Queensland Industrial Relations Commission (‘the Commission’) made orders, relying upon the award modernisation process contained in Part 8 of Chapter 5 of the Industrial Relations Act 1999 (‘the Act’), varying the Queensland Local Government Industry Award - State 2014 (‘the Award’).
[2] The history of the proceedings before the previous Full Bench is set out in their decision1 which is repeated below:
‘[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.’
[3] On 10 November 2015, an appeal against the Full Bench’s decision was lodged in the Industrial Registry.
[4] The appeal concerned questions with respect to, among other things, the effect of the Industrial Relations (Restoring Fairness) and Other Legislation Act 2015 and the Minister’s request made under the award modernisation provisions. The grounds of appeal were:
‘The appellants contend that the Full Bench erred in two ways:
[5] In short, Martin J found that the previous Full Bench erred in its determination of the requirements of the Consolidated Request and, as a result, fell into error in the manner in which it proceeded to make the new award. The decision of the Full Bench was set aside and the matter was remitted to the Commission to be heard and determined according to law.
[6] On 20 July 2016, Deputy President O'Connor directed that the Local Government Industry Award - State 2016 (‘the Proposed Award’) be referred back to the AMOD Team in order that further conciliation conferences be conducted with interested parties. It was further ordered that that the AMOD Team produce a further Draft Award for consideration by the parties and for a differently constituted Full Bench to hear and determine any outstanding issues about which the parties could not reach a consent position.
[7] The Commission recommenced the award modernisation process following the passing of amendments to the Act and the issuing of a variation to the existing Ministerial Request (Consolidated Request) on 17 July 2015. A new Consolidated Request was issued by the Honourable Grace Grace, Minister for Employment and Industrial Relations (the Minister) on 6 June 2016.
[8] In accordance with Chapter 5, Part 8, Division 2 of the Act (i.e. the award modernisation process provisions of the Act) and the Consolidated Request under s 140C(1) of the Act from the Minister, the AMOD Team of the Commission prepared an Exposure Draft of the Proposed Award.”
The consolidated request of June 2016
“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.”
“Objects
Statement of Intent
The purpose of award modernisation is to ensure awards remain relevant and provide for the rights and responsibilities that ensure economic advancement and social justice for all employees and employers.
Award modernisation is not intended to reduce or remove employee entitlements and conditions from what is available in 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. Furthermore, the Commission must give special regard to the needs of low paid employees and the desirability of safeguarding the employment entitlements and protections for such employees.
When modernising awards, the Commission is to take into account the amended legislative framework under which the award modernisation process will recommence, particularly the amendment of the modern award objectives at section 140D of the IR Act and the removal of proscriptions and qualifications for certain content which may now be included in modern industrial instruments. The Commission must also have due regard to any agreement reached by the parties on a particular matter for inclusion in a modern award throughout the modernisation process.
The outcome of award modernisation is to provide for a fair and just industrial relations system underpinned by clear, certain and stable modern awards.
…
a) Chapter 5 Part 8 of the IR Act;
b) for the review and varying of existing modern awards – the provisions of Chapter 20 Part 20 Division 2 of the IR Act;
c) for those awards yet to be modernised – section 851 of the IR Act; and
d) Part 13 Division 6 of the Hospital and Health Boards Act 2011 (in relation to the Resident Medical Officers (Queensland Health) Award – State 2014).
…
Schedule 1 - Local Government (excluding Brisbane City Council) award modernisation priorities
…
Allowances and other provisions
The Commission is to review the allowances and other provisions in the Queensland Local Government Industry Award State – 2014.
To this end, the Commission is to restore the provision of locality allowance and additional annual leave provisions where such provisions were available in the pre-modernisation award/s.
In reviewing the consolidated and other allowance arrangements currently in the Queensland Local Government Industry Award – State 2014 the Commission is to ensure employee entitlements have not been reduced in comparison with the allowances arrangements prescribed in the pre-modernisation awards.
The Commission in reviewing the provisions currently in the Queensland Local Government Industry Award – State 2014 must make certain that the variation of the Award results in the reinstatement of allowances, other employee entitlements and conditions of employment of at least the same value as those which existed in the pre-modernisation award/s.”
Should the additional evidence be considered?
“(1) An appeal to an industrial tribunal is by way of re-hearing on the record.
“[4] While this court is not bound by the decisions of other courts which have dealt with applications to call extra evidence, the principles which have been developed can assist in determining an application such as this. So much was recognised by Hall P in MacDonald v Q-COMP. In Akins v National Australia Bank the New South Wales Court of Appeal considered the relevant principles of an application to call fresh evidence. Although the rule that court considered only allowed fresh evidence on special grounds, the criteria which were applied assist in cases like this. The test that court administered had three conditions:
[5] The applicant does not satisfy either of the first two conditions. I note that the second condition was applied by Hall P in Webb v Q-COMP. I note further that the use of the word ‘additional’ in describing ‘evidence’ in s 561 strongly suggests that it must be evidence which was not before the Commission originally. It would not be consistent with the purpose of s 561(3) to allow witnesses to be called whose evidence would simply revisit an issue already considered by the Commission.
[6] For that reason an applicant must be able to identify the evidence sought to be called. Otherwise the court has no prospect of assessing the application and determining whether any proposed evidence carries with it the high probability that there would be a different result if that evidence was allowed to be called.” (citations omitted)
“I accept that the statutory power to hear “additional evidence” is constrained only by the proper exercise of discretion and is not to be exercised only in those cases in which “fresh evidence” would be received in a civil matter at common law, compare Chalk v. WorkCover Queensland (2002) 171 QGIG 327 at 328. However, I can see no reason why the accumulated wisdom of the common law should be ignored. Having regard to the desirability of finality in litigation, the upset and cost of litigation after a trial is completed and the need to encourage litigants to prepare for trial in a proper way, I can see no justification for exercising the statutory discretion to let in additional evidence which might, by the exercise of reasonable diligence, have been discovered by the appellant prior to the trial. The “additional evidence” now relied upon is of that character.” (emphasis added)
“There is of course some capacity to go outside the evidence and proceedings before the Industrial Magistrates Court. Section 561(3) vests an express power to order that "additional evidence be heard". The Court has consistently adopted the view that the statutory power to hear "additional evidence" is constrained only by the proper exercise of discretion, and is not to be exercised only in cases in which "further evidence" would be admitted in a civil matter in the general courts, compare Chalk v WorkCover Queensland (2002) 171 QGIG 327 at 328, and Regan v WorkCover Queensland (2003) 174 QGIG 1009 at 1010. Such an approach, which does not preclude deriving assistance from the recorded wisdom of the civil courts, does not necessarily advance the position of the appellant seeking to adduce "additional evidence". This Court has no authority to order a retrial at the Industrial Magistrates Court, and does not itself have authority to conduct a new trial. An appellant seeking to adduce additional evidence to address a forensic error at first instance, which is attributable to the appellant's conduct at proceedings at first instance, cannot reasonably expect the grant of indulgence where the consequence will be that this Court is put in the position of determining issues of primary fact and, in particular, issues of credibility where part of the evidence has been heard by the Industrial Magistrates Court and part of the evidence has been heard by this Court.” (emphasis added)
“Every litigant is entitled to procedural fairness. However, procedural fairness requires that a litigant be given “a reasonable opportunity to present his case” and not that the Tribunal ensure “that a party takes the best advantage of the opportunity to which he’s entitled” Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J, approved Re Association of Architects of Australia; Ex Party Municipal Officers’ Association of Australia (1989) 63 ALJR 298 at 305 per Gaudron J (with whom Dawson J agreed). This was a case in which the applicant should have realised that the execution of the Employment Agreement was an issue, compare Re Building Workers Industrial Union of Australia; ex parte Gallagher (1988) 62 ALJR 81 at 84 approved Re Association of Architects of Australia; ex parte Municipal Officers’ Association of Australia, op. cit. at 305. A litigant who loses the opportunity to have his case fully and fairly considered by his own folly or the neglect of his advisors has no remedy, Reg v Home Secretary, ex parte Al- Mehdawi [1990] 1AC 877 at 898 per Lord Bridge of Harwich (with whom the other members of the House of Lords agreed) and SBA Foods Pty Ltd v Victorian WorkCover Authority and Anor [ 2001] VSC 276 (10 August 2001) at para 283 per Gillard J.
In our view the application for leave to appeal should be dismissed both upon the ground that the proposed appeal has no prospect of success and upon the basis that it is not in the “public interest” (section 342(3)) to permit a litigant to found an appeal upon the inadequacy of the case presented at first instance. For completeness, we note that it would be unconscionable to exercise the discretion at s. 348(2) to allow “additional evidence” which, by the exercise of a modicum of prudence and diligence, might have been made available and placed before the Commission at first instance.” (emphasis added)
“So our argument is fairly simply: where it applied previously, we’ve got no argument against the minister’s request for its reinsertion but where it didn’t apply, there’s no merit – there was never any merit for it to go in in the first instance, and that’s as far as it should extend.”[7]
The appeal against the inclusion of the locality allowance etc.
The Consolidated Request
“The Commission is to review the allowances and other provisions in the Queensland Local Government Industry Award State – 2014.
To this end, the Commission is to restore the provision of locality allowance and additional annual leave provisions where such provisions were available in the pre-modernisation award/s.”
Did the Full Bench err by inserting the allowances when it was not a requirement of the Consolidated Request?
“The Minister’s Variation Notice was specific on how the Commission was to deal with locality allowance and additional annual leave in its award modernisation function ie to restore that which existed previously. … this direction established the parameters for how locality allowance and additional leave was to be included in the 2017 award as part of the award modernisation process.”
“[32] Whilst we also accept that in respect of the Mapoon Aboriginal Shire Council, Northern Peninsula Area Regional Council, Napranum Aboriginal Shire Council and Torres Strait Island Regional Council, the Ministerial request imposes no obligation on the Commission to restore locality and additional annual leave provisions, it does raise something of a conundrum. The Commission, in its decisions, is governed by equity and good conscience. It would seem contrary to that provision to exclude workers employed by Mapoon Aboriginal Shire Council, Northern Peninsula Area Regional Council, Napranum Aboriginal Shire Council and Torres Strait Island Regional Council from obtaining the benefits of additional annual leave and locality allowance. There appears to be no logical basis to do so. They are, by locality, entitled to the benefits. The mere fact that the Consolidated Request does not require it to be done is not a sufficient reason for them to be excluded.
…
[34] For the reasons advanced in paragraph [32] above, we see no logical reason why Mapoon Aboriginal Shire Council, Northern Peninsula Area Regional Council and Torres Strait Island Regional Council should not be entitled to five weeks leave. As clause 19.1 provides, the entitlement to a period of leave is ‘…based upon the location of their employment’.”
“140CC Procedure for carrying out modernisation process
“[21] Section 140CC binds the commission to obey the terms of a ministerial request. The words of s 140C are not confined to matters of procedure. …”
“[32] It is not simply the text that I have to consider in arriving at the proper construction of the provisions. I have to consider the text in context. In that regard, the applicant points to other contextual matters.
[33] The first is s 140CC which, as I have said, provides that the Commission must carry out the award modernisation process in accordance with the award modernisation request. It goes on to provide what the Commission may decide in terms of procedure.
[34] The applicant submits the content of s 140CC is focused on the Commission’s procedural powers and submits that this is an indication that the primary purpose of the award modernisation request provisions in s 140C is to permit the Minister to engage in agenda setting and in specifying procedure for the award modernisation process. I am unable to agree. It seems to me that s 140C is not confined to agenda setting. If a particular statement or direction sets an agenda, then procedures are adapted accordingly. If the direction states that certain terms are to be included in the award, then the procedure is adapted accordingly. The request may be a very basic one and not include any matters in addition to those things that must be included by virtue of subsections 140C(2) and (3).”
“[38] … The sections which I have briefly noted contain some mandatory provisions effectively directing the Commission to remove or include some things in an award and some discretionary matters. Section 140C deals with different subject matters and, depending upon the terms of the request, the Commission may be required to include certain matters in the modern award. And it may, in addition, have ample discretion as to what it includes, or does not include, in the award. …”
Did the Full Bench err in relying on s 320(3) as the basis for extending the locality allowance and leave provisions?
“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—
“843 Other variations
“71ND General matters
“140D Modern awards objectives
chapter 5A powers means powers or functions of the commission under this chapter.”
“[82] It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” (citations omitted, emphasis added)
Orders
[1] [2017] QIRC 009.
[2] Pursuant to s 1024 of the Industrial Relations Act 2016 this appeal is a proceeding contemplated by s 1024(1)(a) and, thus, the provisions of the Industrial Relations Act 1999 apply.
[3] [2015] ICQ 029 at [4]-[6].
[4] (2003) 174 QGIG 1009 at 1010.
[5] (2006) 181 QGIG 629 at 630.
[6] (2004) 176 QGIG 317 at 318.
[7] Full Bench, 5 December 2016, T1-14.
[8] [2016] QSC 194.
[9] [2016] ICQ 6.
[10] See Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39.
[11] (2001) 206 CLR 323 at 351.
[12] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 273; Cunningham and Others (Flower and Hart) v William Hamilton Hart (2009) 190 QGIG 126; Cameron v Q-Comp (C/2011/22).
