Re: Remittal from the Industrial Court of Queensland - QIEU v LGAQ
[2015] QIRC 31
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- Re: Remittal from the Industrial Court of Queensland - QIEU v LGAQ[2015] QIRC 31
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Re: Remittal from the Industrial Court of Queensland - QIEU v LGAQ[2015] QIRC 31
Re: Remittal from the Industrial Court of Queensland - QIEU v LGAQ[2015] QIRC 31
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Re: Remittal from the Industrial Court of Queensland - QIEU v LGAQ [2015] QIRC 031 |
PARTIES: | Queensland Independent Education Union of Employees (Appellant) v Local Government Association of Queensland Limited (Respondent) State of Queensland (Minister for Employment and Industrial Relations) (Intervener) |
CASE NO: | MA/2014/88 MA/2014/91 MA/2014/93 MA/2014/94 MA/2014/95 MA/2014/96 MA/2014/97 MA/2014/98 |
PROCEEDING: | Remittal |
DELIVERED ON: | 20 February 2015 |
HEARING DATE: | 20 February 2015 |
MEMBERS: | Deputy President O'Connor Deputy President Kaufman Commissioner Neate |
CATCHWORDS: | INDUSTRIAL LAW QUEENSLAND - APPEAL - failure to give reasons - remittal |
APPEARANCES: | Mr J. Spriggs, for Queensland Independent Education Union of Employees (QIEU) Mr S. Blaney for Local Government Association of Queensland (LGAQ) Mr. A. James for the State of Queensland (on behalf of the Minister for Employment and Industrial Relations). |
Reasons for Decision
- [1]On 8 April 2014 the commission as presently constituted (the first full bench) announced its decision that there was to be one award for local government in Queensland and indicated that it was our intention to publish our reasons at a later stage.
- [2]On 23 May 2014 we published our reasons.[1]
- [3]On 4 June the Queensland Independent Education Union of Employees filed an application to appeal in the registry of the Industrial Court of Queensland. The grounds of the appeal were that 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 scope of the one award to govern the terms and conditions of employees in local government in Queensland and that the full bench erred in failing to consider or give any weight or any proper weight to relevant or material considerations.
- [4]The particulars of those considerations went to the apparent inconsistency in our decision that the approach of the Australian Industrial Relations Commission should be followed unless there are cogent reasons not to do so in circumstances where the Federal commission had excluded early childhood teachers and assistants from the Local Government Industry Award 2010. Also, our failing to take into account common features of teaching staff in schools and early teaching staff, and also common funding arrangements for kindergartens including those operated by the local government. The notice of appeal further asserted that our decision was unreasonable and/or plainly unjust in that we had failed to take into account the consequences of the operation of s 140CE(1)(b) of the Industrial Relations Act 1999 (the Act).
- [5]The QIEU sought that the order of the first full bench made on 23 May 2014 be set aside and that in lieu of that order an order be made that a single award be created for local government except that the award would not cover employees covered by the Early Childhood Education Award – State 2003.
- [6]The appeal was heard by the President on 20 August 2014.
- [7]A differently constituted full bench of the commission (the second full bench) dealt with the content of a single award on 20 and 21 September 2014 and on 26 September 2014 published its reasons for decision and made the Queensland Local Government Industry Award – State 2014.[2] Schedule 4 of that award provides for definitions and position descriptors in relation to the children's services and early childhood education stream.
- [8]That full bench also made an order that the Early Childhood Education Award – State 2012, insofar as it operates in the Queensland local government sector (excluding Brisbane City Council), be repealed on and from 30 September 2014 subject to the provisions of s 824 of the Act.
- [9]On 29 January 2015 the President delivered his judgment in the appeal.[3] His Honour allowed the appeal, suspended the operation of the decision of the first full bench of 8 April 2014 and remitted it back to us to proceed according to law.
- [10]Having come to the conclusion that the reasons given by the first full bench were inadequate, in that we had failed to refer to the submissions of the QIEU, his Honour did not deal with the grounds relating to whether our decision was unreasonable or whether we had misconstrued the Act.
- [11]The President, in remitting the decision back to this full bench, noted that our consideration of the QIEU's submission would necessitate further attention being paid to the issue of whether the repeal of the Early Childhood Education Award – State 2003 (sic) is a consequence of any new award.
- [12]In accordance with the President's orders, we relisted the matter for hearing before this full bench today.
- [13]We observe that the notice of appeal referred to the Early Childhood Education Award – State 2003 as did the President's order. That award was overtaken by the Early Childhood Education Award – State 2012 the subject of the order of the second full bench.
- [14]It should also be noted that no application was made that the commission refrain from making its decision pending the hearing and determination of the QIEU's appeal to the court. Nor was the President advised, after hearing the appeal and prior to delivering his judgment, that the second full bench had made the single modern award which included coverage of local government employees who had been covered by the Early Childhood Education Award – State 2012.
- [15]As a consequence of the judgment of the Industrial Court, the only matter before us is the requirement that we proceed according to law. That means that we must provide reasons for rejecting the submissions of the QIEU that the modern award not apply to persons covered by Early Childhood Education Award – State 2012.
- [16]These are our reasons.
- [17]The QIEU, in its submissions filed on 18 March 2014, but not referred to at the hearing before us, dealt with the decision of the federal commission when making the Local Government Award 2010. That award does not cover early childhood teachers and assistants, those employees being covered by a teachers' award. The QIEU submitted that we should follow a similar course. Although we decided that we should follow the federal approach unless there are cogent reasons not to do so, we considered that insofar as early childhood teachers and assistants in Queensland are concerned, cogent reasons exist.
- [18]As the QIEU noted, only three indigenous councils operate kindergartens in Queensland. There are only a dozen or so employees affected. We do not consider it desirable or consistent with the modern award objective that the terms and conditions of those employees be dealt with by a separate award. It is more appropriate, especially for ease of administration, that the employers be covered by the one award in relation to all of their employees.
- [19]We were and remain of the view that the content of the modern award was not a matter for this full bench when determining whether one or more awards should be made in local government. We note that the Queensland Local Government Industry Award – State 2014 makes provision for early childhood teachers and assistants.
- [20]The QIEU also submitted that there were differences in conditions, particularly in relation to the number of weeks worked as well as hours worked between the Early Childhood Education Award – State 2012 and the pre-modernisation local government award. Again we consider the terms of the modern award should not be the subject of the proceeding to determine the number of awards in local government.
- [21]In summary, we are not and were not persuaded, particularly given the small number of councils and employees affected, that early childhood teachers and assistants employed in local government should not be covered by the same award as applies to all other employees in local government.
- [22]Insofar as s 140CE(1)(b) of the Act is concerned, we note that the QIEU has made no submission in relation to the operation of that section. We also note the decision of the second full bench and its order to provide that the Early Childhood Education Award – State 2012 be repealed only insofar as it operates in the Queensland local government sector.
Footnotes
[1] Re: Referral pursuant to s 140C(1) of the Industrial Relations Act 1999 for a modern award - Local Government [2014] QIRC 089.
[2] Re: Making of a modern award - Queensland Local Government Industry Award - State 2014 [2014] QIRC 149.
[3] Queensland Independent Education Union of Employees v Local Government Association of Queensland Limited [2015] ICQ 003.