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The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council (No. 2)[2018] QIRC 15

The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council (No. 2)[2018] QIRC 15

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council (No. 2) [2018] QIRC 015

PARTIES: 

The Electrical Trades Union of Employees Queensland

(first applicant)

&

Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland

(second applicant)

&

Automotive, Metals, Engineering, Printing & Kindred Industries Industrial Union of Employees, Queensland

(third applicant)

v

Brisbane City Council

(respondent)

CASE NO:

PARTIES:

CASE NO:

B/2017/41

The Australian Workers' Union of Employees, Queensland

(applicant)

v

Brisbane City Council

(respondent)

B/2017/42

PROCEEDING:

Applications for declarations, injunctions, and orders

DELIVERED ON:

21 February 2018

HEARING DATES:

27 November 2017

MEMBER:

Deputy President O'Connor

Deputy President Swan

Industrial Commissioner Black

ORDERS:

  1.  The Full Bench declares that pursuant to section 463 of the Industrial Relations Act 2016 (Qld) ("the Act") that the applicants are negotiating parties within the meaning of section 171 of the Act for the purposes of the bargaining instrument proposed by the respondent; and
  1.  Pursuant to section 451 of the Act, that pending the hearing and determination of this matter or further order of the Commission, the respondent be restrained from taking any further steps to have the bargaining instrument proposed by them voted on by employees.

CATCHWORDS:

INDUSTRIAL LAW – COLLECTIVE BARGAINING – APPLICATION FOR DECLARATIONS – scheme of the Industrial Relations Act 2016 (Qld) ("the Act") – who may make certified agreements – where applicants seek declarations that they are "negotiating parties" pursuant to the Act – whether applicants are "negotiating parties" – whether the respondent is able to determine whether applicants are "negotiating parties" – whether certified agreements can be made with employees directly where there is a relevant industrial organisation – application granted.

INDUSTRIAL LAW – COLLECTIVE BARGAINING – APPLICATION FOR INJUNCTIONS – scheme of the Act – who may make certified agreements – where applicants seek injunctions prohibiting the respondent from having its employees vote on a proposed bargaining instrument that is not proposed by the negotiating parties – where applicants seek injunctions prohibiting the respondent from having its employees vote on a proposed bargaining instrument that is not proposed by the negotiating parties – whether "the negotiating parties" means "all of the negotiating parties" or "some of the negotiating parties" – application granted.

LEGISLATION:

CASES:

Acts Interpretation Act 1954 (Qld), s 14A, s 14D

Industrial Relations Act 2016 (Qld), s 3, s 4, s 163, s 165, s 168, s 169, s 171, s 189, s 200, s 242, s 463, s 474

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane City Council [2017] QIRC 087

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1

Northern Territory v Collins (2008) 235 CLR 619

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Plaintiff S4/2014 Minister for Immigration and Border Protections (2014) 253 CLR 219

The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council [2017] QIRC 090

APPEARANCES:

Mr W L Friend QC, and with him Mr C A Massey of counsel, instructed by Hall Payne Lawyers for the first, second, and third applicants

Mr T McKernan for The Australian Workers' Union of Employees, Queensland

Mr R Douglas QC, and with him Mr A Herbert of counsel, instructed by McCullough Robertson Lawyers for the respondent

Reasons for Decision

  1. [1]
    The applicant unions seek declarations pursuant to s 463 of the Industrial Relations Act 2016 (Qld) (the Act) that:
  1. (a)
    The applicants are negotiating parties within the meaning of s 171 of the Act for the purposes of the bargaining instrument proposed by the Brisbane City Council.
  1. (b)
    The respondent may not request its employees to vote on a proposed bargaining instrument that is not proposed by all of the negotiating parties in accordance with s 171 of the Act.
  1. [2]
    The applicants also sought a further, or alternative, declaration under s 463 that:
  1. (c)
    The respondent may not request its employees to vote on a proposed bargaining instrument that misrepresents that the applicant supports or is agreeable to the terms of the proposed bargaining instrument when it is not.
  1. [3]
    The applicants also sought three injunctions, the last of which was interim in nature and was dealt with in The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council [2017] QIRC 090, that injunction is not outlined below. The other two injunctions sought were in the following terms:
  1. (d)
    An injunction pursuant to s 474 of the Act restraining Brisbane City Council from requesting its employees to vote on any proposed bargaining instrument that are not proposed by all of the negotiating parties.
  1. (e)
    An injunction pursuant to s 474 of the Act restraining Brisbane City Council from requesting its employees to vote on any proposed bargaining instrument that misrepresents that the applicant supports or is agreeable to the terms of the proposed bargaining instrument when it is not.
  1. [4]
    The respondent accepts that:
  1. (a)
    The applicants have standing to apply for the injunction pursuant to s 474 of the Act, or that the Commission has the capacity to grant an injunction if it is satisfied that there is a necessity to compel compliance with the Act or to restrain or prevent a contravention of the Act.
  1. (b)
    The Commission has power to make declarations if the Commission is satisfied that the making of the declaration will resolve a real justiciable controversy relating to a matter under the Act.
  1. [5]
    Otherwise, the respondent resists the application for the following reasons:
  1. (a)
    Declaration (a) is a point in time contention which does not and cannot resolve the ongoing real dispute between the parties as to how, and under what circumstances, the applicants can and will cease to be "negotiating parties" as defined in the Act. It is submitted the applicants are not "negotiating parties", and have not been since 22 September, or alternatively 28 September, 2017.
  1. (b)
    Declaration (b) wrongly assumes the applicants are now negotiating parties who are presently entitled to resist the holding of a ballot, and will continue to be so for an indefinite period in the future, irrespective of the actions and views of the respondent or their own conduct. The declaration also involved an error of law, in that it is not necessary under the Act that the proposed instrument is agreed on by all of the negotiating parties.
  1. (c)
    Declaration (c) mistakes the contents of the proposed agreement. In any event it is not addressed in the applicant’s submissions so it is assumed it is not pressed.
  1. (d)
    The injunction sought seeks a permanent injunction which will operate to restrain the respondent indefinitely from ever putting a proposed bargaining instrument out to a ballot of its employees, irrespective of any change in their standing as negotiating parties. Such an injunction does not protect any existing entitlement under the Act to remain permanently entrenched as negotiating parties, but seeks to create a new right for the applicants as permanent negotiating parties, irrespective of the factual position. Further, the grounds upon which the injunction is sought involve an error of law, in that it is wrongly assumed that s 171 requires that the consent of the applicants be given to the holding of a ballot.

The questions to be determined

  1. [6]
    The applicants contend that as at 28 September 2017, when the proposed bargaining instrument was given to employees, they were a negotiating party within the meaning of s 165. The respondent rejects that contention.
  1. [7]
    Instead, the respondent asserts that negotiations for the agreement had ceased and, consequently, that the applicants were no longer negotiating parties.
  1. [8]
    It follows then that the key question to be determined by the Full Bench in this matter is whether the respondent can exclude the applicants from the bargaining process. In particular, having made the applicants "negotiating parties" is the respondent now able to exclude the applicants from the process but keep their members, or those eligible to be so, within the coverage of the proposed agreement?

 Facts

  1. [9]
    The facts outlined below were substantially set out in The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council [2017] QIRC 090, there have, however, been some small changers.
  1. [10]
    On 7 October 2016 the Brisbane City Council Certified Agreement 2013 (EBA8) - CA/2013/68 passed its nominal expiry date. On 12 October 2016 the unions ("combined unions") who would be party to the replacement certified agreement ("EBA9"), including the applicants in this matter, wrote collectively to the respondent.
  1. [11]
    In a reply dated 14 October 2016 the respondent provided the combined unions with a Notice of Intention to Commence Bargaining. From 25 October 2017 until August 2017 bargaining meetings occurred between the respondent and the combined unions on an almost weekly basis, with a four week break occurring over the Christmas and New Year period.
  1. [12]
    The Industrial Relations Act 2016 came into effect on 1 March 2017. The new Act allowed for the making of a "Scope Order" which might, in effect, cause an agreement to be divided into smaller agreements made between the employer and a smaller group of workers. There were four such applications made in late March 2017, one by each of the applicants in the current matter. The Scope Order applications were heard together on 21, 22 August, and 1 September 2017.
  1. [13]
    On 4 September 2017 the respondent wrote to the combined unions and informed them that it would conduct a ballot for EBA9. That ballot would be held, so the respondent said, without the agreement of the unions.  In that letter the respondent stated that the "ballot will be open for an almost 3-week period (19 September 2017 to 6 October 2017)." The letter went on: "The ballot will be conducted by an independent ballot company – Cirrena IVS." In response, and on the same day, the combined unions each separately filed a Notice of Industrial Dispute at the Industrial Registry.
  1. [14]
    On 5 September the respondent commenced information sessions about the proposed employee ballot for EBA9. On the same day, all parties to EBA9 attended a conference before Deputy President Bloomfield where they agreed to engage in "voluntary conciliation.""
  1. [15]
    On 6 September 2017, the respondent agreed to cease holding information sessions about the EBA9 ballot and the unions agreed to suspend protected industrial action which had been ongoing for some months. Deputy President Bloomfield held a number of conciliation conferences over the next few days.
  1. [16]
    On 15 September 2017 each of the Scope Order applications was dismissed by a Full Bench of this Commission. Deputy President Bloomfield recommenced voluntary conciliation on 22 September 2017. At that conference there was not a consensus on the terms of the agreement; the applicants were awaiting the reasons for the Full Bench's Scope Order decision; and, the respondent, believing that negotiations would no longer be fruitful, advised the combined unions that it would proceed to a ballot.
  1. [17]
    The reasons for the Full Bench's Scope Order decision were published on 27 September 2017.[1]   
  1. [18]
    On 28 September 2017 the respondent wrote to the combined unions advising them of the details of the ballot with, a copy of a proposed agreement which be the subject of the ballot attached.[2]
  1. [19]
    Information sessions about the ballot for the respondent's employees were recommenced on 3 October 2017 and were to continue until 13 October 2017. On 3 October the respondent wrote to the representative of the applicants in this matter and advised that negotiations had ceased and that the respondent would be withdrawing from any further negotiations regarding the content of the proposed agreement. The relevant portions of that correspondence were:

"Your letter also asserts that a ballot cannot be held now as your clients do not agree to the current form of the agreement. Your clients refused to participate properly or genuinely in the negotiation process facilitated by the QIRC, and have indicated that they want no part of an agreement in its current form. Council has no intention of departing from the terms of that negotiated instrument, and is of the view that there is no point or purpose to any further discussions or negotiations with each of your clients.

Accordingly, Council now formally withdraws from any further negotiations with each of your clients, and will not engage further with either of your clients as to the content of the proposed agreement, until further notice. As such Council considers that your clients are not 'negotiating parties' within the defined meaning of that term in the Act, and that s 171 does not apply to your clients so as to permit them to frustrate the ballot process presently underway."

  1. [20]
    The applicants in this matter sought a declaration and injunction from this Commission on 5 October 2017, a hearing was set down for 9 October 2017.
  1. [21]
    It was proposed, by the respondent, that the ballot opened on 13 October 2017 and closed on 23 October 2017. This Commission granted the applicant’s interim injunction on 10 October 2017 and the substantive matter was then heard on 27 November 2017. To date there is no agreement between the parties.

The Legislative Scheme

  1. [22]
    The legislative scheme of the Act, so far as this matter is concerned, is primarily contained within Chapter 4. The purpose of the Act, as outlined in s 3, is two-fold: to provide for a framework for cooperative industrial relations that is fair and balanced; and, supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.  The way in which those purposes are achieved is set out in s 4, which, relatively, provides:

 "(h) promoting collective bargaining, including by—

  1. (i)
    Providing for good faith bargaining; and
  1. (ii)
    Establishing the primacy of collective agreements over individual agreements….

 …

 (n) encouraging representation of employees and employers by organisations that are registered under this Act…"

  1. [23]
    The legislative scheme established under Chapter 4 is set out in s 163 provides as follows:

"163 Purpose of chapter

The purpose of this chapter is—

  1. (a)
    to facilitate collective bargaining by employees and employers, in good faith and with a view to the reaching agreement, as the primary basis under this Act on which wages and employment conditions are decided; and
  1. (b)
    if the negotiating parties can not reach agreement, to provide for the commission to—
  1. (i)
    help the parties reach agreement or, if agreement can not be reached, reduce the matters in dispute;

 and

  1. (ii)
    arbitrate the matter if conciliation is not successful;

and

  1. (c)
    if the negotiating parties reach agreement, to enable the parties to—
  1. (i)
    make an agreement and apply to the commission for the agreement to be certified; or
  1. (ii)
    in particular circumstances, apply to the commission for the making of a bargaining award and revocation of the modern award that covers the negotiating parties; and
  1. (d)
    to recognise the right of negotiating parties to take protected industrial action, if particular requirements are satisfied, as part of the collective bargaining process."
  1. [24]
    Section 165 outlines who may make a certified agreement:

"165 Who may make certified agreements

A certified agreement may be made between—

  1. (a)
    an employer; and
  1. (b)
    either—
  1. (i)
    1 or more employee organisations that represent, or are entitled to represent, any employees of the employer who are, or are eligible to be, members of the organisation; or
  1. (ii)
    if subparagraph (i) does not apply, the employees of the employer at the time the agreement is made."
  1. [25]
    Section 168 relevantly defines, for Chapter 4, "negotiating party" as being:
  1. " (a)
     a person who is negotiating under this chapter; or
  1. (b)
    a person who has received a notice of intention under section 169 and refuses to negotiate…."
  1. [26]
    Section 169 falls under Part 2 "Collective bargaining process" of Chapter 4 and is in the following terms:

 "169 Notice of intention to bargain

  1. (1)
    This section applies if a person (the proposer) proposes to negotiate with a view to a bargaining instrument being made.
  1. (2)
    The proposer must give each of the following persons a written notice (a notice of intention) of the proposer’s intention to start negotiating—
  1. (a)
    the other proposed parties to the negotiations;
  1. (b)
    if the negotiations relate to a project agreement—all relevant employee organisations and the commission.
  1. (c)
    The proposer must give the notice of intention at least 14 days before the negotiations are proposed to start.
  1. (d)
    If an existing bargaining instrument or arbitration determination applies to the parties, the proposer must not give the notice of intention more than 6 months before the nominal expiry date.
  1. (e)
    Subsection (4) applies subject to the provisions of the bargaining instrument."
  1. [27]
    When there is a proposed bargaining instrument s 171 operates. Section 171 is, relevantly, in the following terms:

"171 Proposed bargaining instrument to be given to employees for approval

  1. (1)
    This section applies if, during negotiations under this chapter, the negotiating parties propose to—
  1. (a)
    make a certified agreement, other than an excluded instrument; or
  1. (b)
    seek the making of a bargaining award.
  1. (2)
    The employer must take reasonable steps to ensure—
  1. (a)
    each relevant employee has, or has ready access to, the proposed bargaining instrument or a copy of the proposed instrument at least 14 days before the day the relevant employees are asked to approve the proposed instrument; and
  1. (b)
    the terms of the proposed instrument, including the procedures for preventing and settling disputes, and the effect of the terms are explained to each relevant employee before approval is given; and
  1. (c)
    for an agreement with employees—each relevant employee is informed that the employee may ask a relevant employee organisation of which the employee is a member to represent the employee in negotiating with the employee about the agreement.
  1. (3)
    The employer must not ask relevant employees to approve the proposed instrument until 21 days after the latter of the following—
  1. (a)
    the day the notice of intention for the negotiation was given;
  1. (b)
    the day a scope order in relation to the proposed instrument came into effect.
  1. (4)
    If a relevant employee asks a relevant employee organisation of which the employee is a member to represent the employee, the employer must give the organisation a reasonable opportunity to represent the employee in negotiating with the employer about the proposed instrument before—
  1. (a)
    for a proposed agreement—the agreement is made; or
  1. (b)
    for a proposed bargaining award—an application is made under part 5 for the making of the bargaining award.
  1. (5)
    Subsection (4) stops applying if, after the request is made—
  1. (a)
    the relevant employee withdraws the request; or
  1. (b)
    the employee stops being a relevant employee.

…"

  1. [28]
    Part 3 of Chapter 4 outlines the process for conciliation and arbitration, it is not necessary to outline the sections enumerated within that part here.
  1. [29]
    Section 189 provides that if a proposed union party does not sign the agreement and does not agree, then the Commission cannot certify the agreement. Additionally, s 200 requires that the Commission be satisfied that all relevant unions are a party to the proposed agreement, unless they do not wish to be a party to the agreement. Section 200 is, relevantly, in the following terms:

"200 Agreements—requirements about parties

  1. (1)
    The commission must be satisfied—

…

  1. (b)
    for an agreement to be made with an employee organisation, other than an agreement for a new business—each relevant employee organisation is a party to the agreement; or

…

  1. (6)
    Subsection (1)(b) does not apply if the commission is satisfied a relevant employee organisation—
  1. (a)
    has been given the opportunity to be a party to the agreement, but does not want to be a party; or
  1. (b)
    has no members who are to be covered by the agreement.

…"

Submissions

Applicants’ Submissions

  1. [30]
    The applicants argue that the task before the Commission is not to seek some sort of prohibition in the words of the statute, but rather to ask whether the proposed conduct is consistent with the means of agreement making prescribed by the statute.
  2. [31]
    It is the contention of the applicants that the approval of a proposed bargaining instrument can only be sought from employees with agreement of all of the negotiating parties. They further contend that this proposition can be established from the text and structure of Chapter 4 which provides for the making of collective agreements.
  1. [32]
    The applicants also submit that the correct construction of s 165 is clear from the words of the section, namely, that a certified agreement is made between an employer and either an industrial organisation, or, if there is no industrial organisation, then employees of the employer. The applicants stress that s 165 does not proffer a choice between making an agreement with industrial organisations or employees directly. Rather, agreements can only be made with employees if there is no industrial organisation.
  1. [33]
    As for s 171, the applicant submitted that the plural "negotiating parties" and the definite article "the" in s 171(1) suggests that s 171 is not engaged until all of the negotiating parties propose to make a certified agreement.
  1. [34]
    The applicant submitted that the construction is supported by the use of the phrase the "negotiating parties" in contradistinction to the use of "the employer" in (2) and following. It is argued that s 171 does not operate on the basis that the employer may unilaterally seek the approval of its employees for a proposed instrument. Rather, the section proceeds on a basis that all of the negotiating parties must be in agreement to seek the approval of the employees.
  1. [35]
    It was submitted by the applicants that if the employer could decide who is to be a negotiating party, it would enable the employer to circumvent the requirement to deal with the relevant unions and commence direct dealing with the employees. Such a course is, in the applicants' submission, contrary to the plain meaning of the words used and the scheme in Chapter 4.

Respondent’s Submissions

  1. [36]
    The submissions of the respondent are premised on a construction of s 165 which would permit an employer to choose or elect whether it makes an agreement with the relevant employee organisation or directly with the respondent’s employees.
  1. [37]
    It is submitted that the use of the definite article in s 171 means that it is referring to something which has already been established or defined, namely, the negotiating parties.
  1. [38]
    The respondent argues that the definition of "negotiating party" is important in determining the meaning of s 171. The respondent submits that the tense of the definition in 168 is present, not past, tense. The respondent argues that s 171(1) underscores the present tense by the use of the words:

"This section applies if, during negotiations under this chapter, the negotiating parties propose to … make a certified agreement." (Emphasis in original)

  1. [39]
    The respondent further contends that the applicants' interpretation of s 171 ought to be rejected as there has been an inadvertent error in the terms in which s 171 has been drafted. To support that contention, reference is made to the consequences which the respondent said would flow should the applicants’ construction of s 171 be adopted if an employer elects to enter into an agreement with their employees under s 165(1)(b)(ii). In that circumstance it is submitted that the employer must give all other proposed parties to the negotiations a written notice of intention under s 169 that being each of its employees. In particular, they argue that the efficiency of the bargaining process would be affected if it was accepted that the balloting procedure can only be commenced if all of the employees unanimously propose to make an agreement. Instead, s 171 should be construed so as to mean the "currently negotiating parties."
  1. [40]
    In short, the respondent contends that negotiations have ceased and as a consequence the applicants are not, for the purposes of s 168, "negotiating parties". The respondents refer to the affidavit of Mr Cruwys and the meeting of 22 September where it is deposed that the respondent advised the applicants that there was nothing further to negotiate and that accordingly negotiations were terminated. The respondent contends that the applicants are not "negotiating parties" and have not been so since either 22 September or 28 September 2017. They further submit that the applicants are wrong to assert that they are negotiating parties. On the argument of the respondent, s 171(1) underscores their argument by the use of the present tense in the words "during negotiations" to qualify the words "the negotiating parties propose to …make". The negotiations, they argue, need to be ongoing and not at an end.
  1. [41]
    The respondent goes on to submit at paragraph [48] of their submissions:

"The applicants point to no right under the Act to maintain a permanent and immutable roles as a "negotiating party", the removal of which is a contravention of the Act that can or should be restrained. If the respondent did not do so effectively on 22 or 28 September or 6 October, it need only wait until sufficient time has passed to constitute a withdrawal as a matter of fact in order to support their right to proceed to ballot without the applicants' veto."

Conclusions

  1. [42]
    The issues in this matter, and the submissions themselves, can be reduced to the respective constructions of ss 165 and 171. The proper statutory construction of those sections is determinative of the applications.  The respondent directed the Full Bench to some "germane" approaches to statutory interpretation:

"Legislation must be construed as a whole and on a basis that its provisions give effect to [an] harmonious goal.[3]

A court must give "close attention to the words of the statute and the statutory scheme in general."[4]"

  1. [43]
    A helpful overview of the principles of be adopted in order to ascertain legislative intent was restated by the High Court in Certain Lloyd's Underwriters v Cross:

"It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute". That is, statutory construction requires deciding what the legal meaning of the relevant provision is "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have". And as the plurality went on to say in Project Blue Sky:

"Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

To similar effect, the majority in Lacey v Attorney-General (Qld) [39] said:

"Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts."

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

"Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case." (Emphasis added)

And as the plurality said in Australian Education Union v Department of Education and Children's Services:

"In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose."[5]  (Footnotes omitted)"

  1. [44]
    The purpose of the Industrial Relations Act 2016 is spelled out unambiguously in s 3 and s 4 sets out the way in which the purposes are to be achieved.

Section 165

  1. [45]
    Section 165 is clear in its wording. It is not a section which allows an employer to choose whom it will make an agreement with. It is, in our view, evident from the wording s 165(b)(ii) that it only comes into operation if subparagraph (i) of s 165(b) does not apply. It is not, as contended by the respondent, a case that "if that option is not selected" then a certified agreement can be made between an employer and its employees. The submission of the respondent, in our view, misconstrues the clear meaning of s 165.
  1. [46]
    As the applicants correctly identify, s 165(b)(i) would have no application in circumstances where there is no union coverage or where there is union coverage but the union does not wish to be involved in making an agreement. In those circumstances, an employer could commence dealing directly with its employees.
  1. [47]
    The prospect of employees within the jurisdiction of this Commission where there is no union coverage would be rare.
  1. [48]
    We do not accept the submission of the respondent that to adopt the above construction of s 165 would leave ss 171(2)(c), 171(4) and 242 with nothing to do. As the applicants submitted, ss 171(2)(c) and (4) deal with the circumstance where a union does not wish to be involved in negotiations but are later requested to by one of their members who is a relevant employee. Those sections oblige the employer to give the union a reasonable opportunity to involve itself after the request. Likewise, s 242 is a mechanism for proving that such a request has been made by the employee.  
  1. [49]
    Section 200 reinforces the operation of s 171(2)(c) and (4), and this is evidenced by s (200)(2) providing for the non-application of s 200(1)(b) if the Commission is satisfied that a relevant employee organisation has been given the opportunity to be a party to the agreement, but does not want to be a party, or (b) has no members who are to be covered by the agreement. We accept that the purpose of s 200(2) when read together with ss 165 and 189 is to permit an employee organisation to opt out of the bargaining process. The "opt out" is different to a "refusal" to negotiate in that the union does not become a party to the instrument once it is finalised.

Section 171

  1. [50]
    As outlined above, the respondent submitted that s 171 contains a drafting error and, if read in the manner contended by the applicants, result in an absurdity. In short, the absurdity as submitted by the respondent is as follows: Section 171 provides that "the negotiating parties propose" the making of an agreement; negotiating parties are defined in s 168 as those in receipt of a s 169 notice; the definite article in "the negotiating parties propose" means that all negotiating parties must propose to make a certified agreement; consequently, if an employer has chosen under s 165(b)(ii) to make an agreement with its employees directly then those employees, who must also be negotiating parties by operation of ss 169 and 168, must unanimously propose to make the agreement and work through the balloting procedures that follow. That scheme, it was submitted, would be absurd in situations where there were large numbers of employees. That may well be a consequence of the scheme of Chapter 4.
  1. [51]
    However, the respondent’s argument then proceeded to conclude that as consequence of the "absurdity" s 171 must contain a drafting error and that the "the" should be read down. The respondent drew support for that line of reasoning from the explanatory notes for the Industrial Relations Bill 2016:

"Clause 171 sets out what must happen if during negotiations parties propose to make a certified agreement (other than an excluded instrument) or a bargaining award, including providing a copy or access to a copy of the proposed bargaining instrument to employee…"

  1. [52]
    Whilst the notes contain much the same wording as s 171, the definite article is absent. The note to clause 171 demonstrates, it was submitted, a parliamentary intention not to mean "all negotiating parties" but just "negotiating parties" so that some, not necessarily every, party at the negotiating table can propose the agreement. The respondent further argues that the words "during negotiations" qualify the words "the negotiating parties propose to make - a certified agreement." The respondent contends that the negotiations need to be ongoing and not at an end.
  1. [53]
    As a consequence, and as an application of that interpretation, the respondent submits that as there are at least three negotiating parties, including the respondent and two significant unions, who propose to make an agreement s 171 is engaged and the ballot can be held. The Full Bench does not agree.
  1. [54]
    The respondent referred to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation to support its contention that there has been an inadvertent error in the terms in which s 171 has been drafted. That case is a long standing authority for the proposition that a literal reading of a statute may be displaced by another construction where the literal meaning would lead to an absurd or inconvenient result. In arriving at that conclusion the High Court said this:

"Quite obviously questions of degree arise.  If the choice is between two strongly competing interpretations … the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.  If however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."[6]

  1. [55]
    Further, the use of extrinsic materials, such as explanatory notes, as an aid to interpretation has led the High Court to caution that the search for meaning in a statute must always begin with the text of the relevant provisions.  In Northern Territory v Collins, Crennan J wrote:

"Secondary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision, not least because such material may confuse what was 'intended … with the effect of the language which in fact has been employed'".[7] (Footnotes omitted)

  1. [56]
    Additionally, s 14A(1) of the Acts Interpretation Act 1954 provides the following guidance:

"In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation."

  1. [57]
    In this case it cannot be said that the literal meaning of the words would result in something which was contrary to the objects of the Act, "incongruous" or "capricious and irrational".[8] The scheme of Chapter 4 is clear and consequently the Full Bench will not depart from the words of s 171. There is no error in the drafting of s 171, it reflects the intention of the legislature and the purposes of the Act, that being that collective bargaining is the primary way through which agreements are reached.
  1. [58]
    As the Full Bench said in Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane City Council [2017] QIRC 087 at [28]:

"It is tolerably clear that an important purpose of the [Chapter 4] is to facilitate and encourage collective bargaining and to give the process primacy in the setting of wages and conditions of employment."[9]

  1. [59]
    If there was any doubt in relation to the primacy of collective bargaining then one need only look to the Parliamentary Debates where the Minister observed:

"Our bill's collective bargaining model supports the primacy of collective bargaining and the right to be represented in bargaining and has been drafted to ensure that the collective representation through an industrial organisation cannot be sidestepped."[10]

  1. [60]
    The respondent’s submission misapprehends the scheme created by Chapter 4. The employer cannot unilaterally determine who is a negotiating party, for the reasons given above. Such a course would be contrary to the purpose of the Act and would enable an employer to avoid dealing with an employee organisation and commence dealing directly with its employees instead.
  1. [61]
    Whether or not a union is a negotiating party is a question of fact; in this matter the applicants need to have received a notice under s 169 and they have done so. The applicants did not opt out of the process before it began and they wish to be a party to the eventual certified agreement.
  1. [62]
     There is no mechanism in the Act which allows for an employee organisation, or employer, to withdraw from the process once it has started and consequentially determine the status of other parties. Indeed, s 177 gives a member conciliating an impasse arising from Chapter 4 the ability to refer a matter to arbitration. Even in the circumstances where the conciliating member considers that there is no reasonable likelihood of further conciliation or negotiation resulting in the parties reaching agreement on the matters at issue, the mantle of "negotiating party" is still retained. It would appear as though "negotiating parties" is a designation which is indelibly applied to a party. The s 168 definition also indicates that those who refuse to negotiate are still deemed a "negotiating parties." The term has little relevance to whether any negotiations are still on foot.   
  1. [63]
    In our view, the negotiating parties did not propose to make a certified agreement and, as such, s 171 has not been engaged. Section 171 is only engaged when all the negotiating parties propose to make a certified agreement.
  1. [64]
    The applicants are "negotiating parties" for the purpose of s 171 and the respondent cannot exclude them from the process of certifying a new agreement. Chapter 4 is structured in a way which almost entirely prevents an employer dealing directly with its employees against the wishes of a relevant union. It is, in our view, contrary to the legislative intent of promoting collective bargaining, including by providing for good faith bargaining and establishing the primacy of collective agreements to permit an employer to unilaterally terminate the negotiating relationship. The respondent's conduct appears to us to be inconsistent with the scheme set out in the Act for the making of a certified agreements. It is clear that the negotiating parties could not reach agreement and sought the assistance of the Commission. If the parties cannot reach an agreement through conciliation then the mechanism in Chapter 4 provides that the matter should to be the subject of an arbitration.
  1. [65]
    For the reasons advanced above, the Full Bench makes the following orders:

Orders

  1. The Full Bench declares that pursuant to section 463 of the Industrial Relations Act 2016 that the applicants are negotiating parties within the meaning of s 171 of the Act for the purposes of the bargaining instrument proposed by the respondent; and
  1. Pursuant to section 451 of the Act, that pending the hearing and determination of this matter or further order of the Commission, the respondent be restrained from taking any further steps to have the bargaining instrument proposed by them voted on by employees.

Footnotes

[1] Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane city Council [2017] QIRC 087.

[2] See: Affidavit of Luke Francis Cruwys 9 October 2017.

[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [70]; Plaintiff S4/2014 v  Minister for Immigration and Border Protections (2014) 253 CLR 219, 236 [42]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, 20-21 [31]-[32].

[4] Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, 372 [19].

[5] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378, 388-390 [23]-[26].

[6] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321.

[7] Northern Territory v Collins (2008) 235 CLR 619, 642 [99]; see also Gummow ACJ and Kirby J, 624 [16].

[8] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320-1.

[9] Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane City Council [2017] QIRC 087, [28].

[10] Queensland, Parliamentary Debates, Legislative Assembly, 30 November 2016, 4771 (The Hon. Grace Grace MP).

Close

Editorial Notes

  • Published Case Name:

    The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council (No. 2)

  • Shortened Case Name:

    The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council (No. 2)

  • MNC:

    [2018] QIRC 15

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor DP, Member Swan DP, Member Black IC

  • Date:

    21 Feb 2018

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
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2017] QIRC 87
4 citations
Jump To
Cite 1 - [2017] QIRC 87
Cite 2 - [2017] QIRC 87
Cite 3 - [2017] QIRC 87
Cite 4 - [2017] QIRC 87
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
2 citations
Jump To
Cite 1 - (2006) 225 CLR 364
Cite 2 - (2006) 225 CLR 364
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
3 citations
Jump To
Cite 1 - (1981) 147 CLR 297
Cite 2 - (1981) 147 CLR 297
Cite 3 - (1981) 147 CLR 297
Electrical Trades Union of Employees Queensland v Brisbane City Council [2017] QIRC 90
3 citations
Jump To
Cite 1 - [2017] QIRC 90
Cite 2 - [2017] QIRC 90
Cite 3 - [2017] QIRC 90
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1
2 citations
Jump To
Cite 1 - (2015) 256 CLR 1
Cite 2 - (2015) 256 CLR 1
Northern Territory v Collins (2008) 235 CLR 619
2 citations
Jump To
Cite 1 - (2008) 235 CLR 619
Cite 2 - (2008) 235 CLR 619
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
2 citations
Jump To
Cite 1 - (2014) 253 CLR 219
Cite 2 - (2014) 253 CLR 219
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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