Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2017
  4. United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc. - [2017] QIRC 102

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc.[2017] QIRC 102

United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc.[2017] QIRC 102

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc. [2017] QIRC 102

PARTIES: 

United Firefighters' Union of Australia, Union of Employees, Queensland (applicant/respondent)

v

Queensland Auxiliary Firefighters Association Inc.

(respondent/applicant)

CASE NO:

B/2017/29

PROCEEDING:

Application to refer questions of law to the Industrial Court

DELIVERED ON:

14 November 2017

HEARING DATES:

Decision on the papers

MEMBERS:

Deputy President O'Connor

Deputy President Bloomfield

Industrial Commissioner Black

ORDERS:

  1. The application is dismissed. 

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION TO REFER MATTER TO INDUSTRIAL COURT OF QUEENSLAND – whether Full Bench of the Queensland Industrial Relations Commission should refer matter to Industrial Court of Queensland – whether question of fact and law – whether question of law – where question is of fact and law – application dismissed

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld), s 479, s 487

Somasundaram v Department of Education & Training, North-Eastern Victoria Region [2015] FWC 4461, followed

APPEARANCES:

Ms C. Hartigan, Counsel instructed by Hall Payne Lawyers for the applicant/respondent

Ms J. Marr, Counsel instructed by Herbert Smith Freehills for the respondent/applicant

Reasons for Decision

  1. [1]
    This is an application by the Queensland Auxiliaries Firefighters Association Inc. seeking to refer to the Industrial Court of Queensland two questions of law concerning the construction of "demarcation dispute" in the context of s 487 of the Industrial Relations Act 2016 (Qld) ("the Act"). The referral is pursuant to section 479 of the Act.

Background

  1. [2]
    The United Firefighters Union of Australian, Union of Employees, Queensland ("UFUQ") filed an application in the Industrial Registry on 18 July 2017 seeking the following orders:
  1. An order that the UFUQ has the right, to the exclusion of the Queensland Auxiliary Firefighters Association (IA12833) ("QAFA"), to represent auxiliary firefighters who are eligible for membership of UFUQ, pursuant to s 479(c) of the Act;
  1. An order that the QAFA does not have the right to represent auxiliary firefighters who are eligible for membership of the UFUQ, pursuant to s 479(c) of the Act;
  1. An ancillary order is sought to prohibit the QAFA from representing that it is able to provide representation in stated industrial matters, and as defined in s 9 and Schedule 1 of the Act, pursuant to s 483(1)(c) of the Act; and
  1. The orders are sought because an officer, member, employee, servant and/or agent of the QAFA has made representations directed at employees about the QAFA having rights, functions and/or powers in relation to employees under the Act which it does not have, pursuant to section 481(2)(c) of the Act.
  1. [3]
    The QAFA contends that the orders sought in the UFUQ's application are too wide and go beyond the purpose of the Act and, as a consequence, there is no jurisdiction for the Full Bench to grant the orders sought. It is against this background that the QAFA now seeks to refer two questions of law to the Industrial Court.

Referral of a Question of Law

  1. [4]
    The Commission has pursuant to s 479 of the Act a discretionary power to refer a question of law to the Industrial Court.
  1. [5]
    Section 479 of the Act provides:

"479 Power of full bench to make orders about rights of associations or employee organisations to represent

On application by an entity under section 480, the full bench may make the following orders about a demarcation dispute—

  1. (a)
    an order that an employee organisation has the right, to the exclusion of an association or another organisation, to represent a particular group of employees who are eligible for membership of the organisation;
  1. (b)
    an order that an employee organisation that does not have the right to represent a particular group of employees has the right;
  1. (c)
    an order that an association or employee organisation does not have the right to represent a particular group of employees who are eligible for membership of the organisation."
  1. [6]
    The questions posed by the QAFA to be referred to the Industrial Court are in the following terms:
  1. Whether the relief sought by the United Firefighters' Union of Australia, Union of Employees, Queensland in its application filed on 18 July 2017 in matter number B/2017/29 is beyond the power of the Full Bench of the Commission to grant under s 479 of the Industrial Relations Act 2016 (Qld) (the Act) as it does not arise out of a "demarcation dispute"?
  1. Without limiting question (a), weather the expression "representation under this Act" in the definition of "demarcation dispute" in sub-paragraph (c) of Schedule 5 of the Act can extend beyond acting in a representative capacity under the Act?
  1. [7]
    In short, the QAFA argues that the question of law to be referred is one of the proper construction of "demarcation dispute" within the context of s 479 of Act. It argues that the question is fundamental to the Commission's jurisdiction.
  1. [8]
    The UFUQ submits that the proposal by the QAFA to ask the Industrial Court to expressly determine whether "representation under this act", which falls within the definition of "demarcation dispute" in Schedule 5 of the Act, can extend beyond acting in a representative capacity under the Act, is an irrelevant consideration for the Full Bench in this matter.
  1. [9]
    The UFUQ also submits that any question of law referred to the Industrial Court must not only be one of law but one which is relevant to the proceedings.
  1. [10]
    The UFUQ submits that the QAFA's proposed questions are an irrelevant consideration for the Full Bench. The UFUQ argues that it is not their case that the expression "representation under the Act" extends beyond the representation under the Act. The dispute, on the UFUQ's submission, is about representation of the industrial interests of auxiliary firefighters as defined by the Act.
  1. [11]
    The QAFA presses the following four factors for the exercise of the Full Bench's discretion:
  1. The proper characterisation of demarcation dispute within the meaning of s 479 may dispose of the substantive application, thus saving all parties, and the Commission, the expenditure of considerable time and resources.
  1. Even if the judicial determination of the questions referred does not completely dispose of the substantive case, it is unlikely that significant delay will be incurred by the referral. In any case, the applicant has not pointed to any circumstances of urgency which necessitate the ex-mediated hearing of its s 479 Application. This is not a case where there is any evidence of workplace disruption or industrial unrest.
  1. The question of law in contention involves real issues of substance and complexity, including whether s 479 creates a burden on the object of freedom of association preserved in s 4(m) of the Act and, more significantly, whether s 479 burdens the implied constitutional freedom of political communication.
  1. Certainty as to the Commission's jurisdiction under s 479 will greatly assist the Commission and the participants who appear before it.
  1. [12]
    The Full Bench was referred to the decision of Somasundaram v Department of Education & Training, North-Eastern Victoria Region where Ross J considered a referral to the Federal Court of a question of law under the analogous provision in the Fair Work Act 2009 (Cth). His Honour wrote:

"Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power of the President to refer a question for the opinion of the Court: first, the question must be one 'of law'; and second, the question must be one 'arising in a matter before the Commission'.

It is clear that s.608 confers a discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. That discretion should be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the Act provides that the Tribunal must perform its functions and exercise its powers in a manner that:

   (a) is fair and just; and

   (b) is quick, informal and avoids unnecessary technicalities; and

   (c) is open and transparent; and

   (d) promotes harmonious and cooperative workplace relations.

 In my view the discretion conferred by s.608 should, where possible and appropriate be exercised in such a way as to avoid undue delay in the determination of matters before the Commission. I note that such an approach is entirely consistent with the approach taken by a number of Full Benches in relation to the legislative antecedents to s.608."[1]

  1. [13]
    We respectfully adopt the reasoning of Ross J that in the exercise of the discretion to refer matters to the Industrial Court this Commission should, where possible, avoid undue delay in determining matters before it.
  1. [14]
    The Full Bench notes that the matter was filed on 18 July 2017. It is currently listed to be heard on 20 and 21 November 2017. Directions for the conduct of this matter were issued on 9 September 2017. The QAFA's application was filed on 24 October 2017. Whilst we appreciate that QAFA have only recently engaged legal representatives, it must be considered that UFUQ have a legitimate expectation that their application will be dealt with by the Commission expeditiously and without undue delay.
  1. [15]
    At the earliest, the Industrial Court would not be in a position to consider the referral of any question of law until the sittings currently scheduled for February 2018. Should it be the result that the substantive case is not be disposed by the Court, it is unlikely, having regard to the Commission's anticipated workload, that the Full Bench could be readily reconvened before mid-2018.
  1. [16]
    The referral of the questions put by the QAFA would be likely to lead to a significant delay in the determination of the substantive matter.
  1. [17]
    It was contended by the QAFA in its submissions that:

"The questions of law which the Respondent seeks to have referred to the Industrial Court are fundamental to the jurisdiction conferred by s 479, both when it is invoked and its scope. The exercise of the Commission's powers under s 479 has potentially significant and onerous consequences."

  1. [18]
    It is not uncommon for the Commission, whether it is constituted by a single member or as a Full Bench, to determine a jurisdictional question. Nor is it uncommon for the Commission to make a decision which has significant and sometimes onerous consequences. Nevertheless, those two factors are not a basis, in our view, to consider that this matter is an appropriate one to refer to the Industrial Court.   
  1. [19]
    It is not in dispute between the parties that it is a prerequisite, for the exercise of the Commission's powers pursuant to s 479, that there is a demarcation dispute between the UFUQ and the QAFA. In the present circumstances the determination of that issue is essentially a question of fact to be determined by the Full Bench.
  1. [20]
    We consider that where there is a question, or questions, involving a mix of fact and law it is appropriate that the Full Bench determine it.
  1. [21]
    It is not clear why the Full Bench of this Commission is unable to determine the UFUQ's application without reference to the Industrial Court.
  1. [22]
    Accordingly, the Full Bench is not persuaded that the questions posed by the QAFA should be referred to the Industrial Court.

Order

  1.  The application is dismissed.

Footnotes

[1] Somasundaram v Department of Education & Training, North-Eastern Victoria Region [2015] FWC 4461, [10]-[12].

Close

Editorial Notes

  • Published Case Name:

    United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc.

  • Shortened Case Name:

    United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc.

  • MNC:

    [2017] QIRC 102

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP, Bloomfield DP, Black IC

  • Date:

    14 Nov 2017

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
Somasundaram v Department of Education & Training, North-Eastern Victoria Region [2015] FWC 4461
2 citations
Jump To
Cite 1 - [2015] FWC 4461
Cite 2 - [2015] FWC 4461

Cases Citing

Case NameFull CitationFrequency
Pennington v Jamieson [2020] QIRC 2003 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.