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The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council[2019] QIRC 57

The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council[2019] QIRC 57

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council [2019] QIRC 057

PARTIES:

The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees

(Applicant)

v

Brisbane City Council

(Respondent)

CASE NO:

D/2019/30

PROCEEDING:

Application for an injunction

DELIVERED ON:

16 April 2019

HEARING DATE:

12 April 2019

MEMBERS:

HEARD AT:

Pidgeon IC

Brisbane

ORDERS:

  1. Application Dismissed

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR INJUNCTION – where the applicant seeks to restrain the respondent from terminating employment - unfair dismissal - whether the Commission has jurisdiction to grant injunction.

LEGISLATION:

CASES:

Industrial Relations Act 1999 (Qld), s 277.

Industrial Relations Act 2016 (Qld), s 121, s 123, s 127, s 316, s 317, s 473.

Brisbane City Council Salaried Staff Award – State 2016.

Irene Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 020

Anderson v Umbakumba Community Council (1994) 126 ALR 121

Kirsten Dale v Hatch Pty Ltd [2016] FWCFB 922

Lindquist v Redland City Council [2018] QIRC 141

APPEARANCES:

Ms S Vassallo and Ms M Anthony for the Applicant via telephone

Mr N Lamere and Ms K Brewster for the Respondent.

Ex Tempore Reasons for Decision

Background

  1. [1]
    Susan MacMinn is currently employed as a Senior Network Engineer with the Brisbane City Council (the Respondent).  She is employed on a Renewable Employment Agreement for a fixed term of three years from 11 April 2016 to 12 April 2019.
  1. [2]
    On 7 February 2019, the Respondent wrote to Ms MacMinn advising her that it did not intend to renew her employment contract.
  1. [3]
    The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (the Applicant) subsequently filed a notice of industrial dispute stating that:

Brisbane City Council has issued a notice of termination to our member Susan MacMinn.  We assert that in doing so, the Council are attempting to terminate Susan in a manner that is harsh, unreasonable and unfair.  We have requested that the Council withdraw their notice of termination.  BCC have not withdrawn their notice of termination.

  1. [4]
    A conciliation conference was held on 21 March 2019 and the matter was not resolved.
  1. [5]
    The Applicant seeks the Commission to exercise its discretion to grant an injunction pursuant to s 473 of the Industrial Relations Act 2016 (the IR Act) to restrain the Respondent from terminating Ms MacMinn.  The Applicant writes that the decision sought is

That the Respondent is restrained from terminating Ms Susan MacMinn in contravention of Brisbane City Council Salaried Staff Award – State 2016 subclause 9.1 and clause 10 and the Industrial Relations Act 2016 (Qld) sections 121(1), 123(1) and 127(1).

This injunction is sought on the basis that the termination of Ms MacMinn would prejudice her position.  There is an ongoing industrial dispute brought under clause 7 of the Brisbane City Council Salaried Staff Award – State 2016.  Termination of employment at this stage would be contrary to clause 7.1(b) of the Brisbane City Council Salaried Staff Award – State 2016, as it would result in the Respondent disrupting the status quo.

  1. [6]
    In relation to the power to grant injunctions, section 473 of the IR Act relevantly provides:

473Power to grant injunctions

(1)On application by a person under section 474, the commission may grant an injunction—

(a)to compel compliance with an industrial instrument, a permit or this Act; or

(b)to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.

…..

(9)The commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.

(10)In this section—

injunction includes an interim injunction.

organisation includes a branch of the organisation.

  1. [7]
    I first turn to the relief sought by the Applicant, that is, that in injunction is sought because   Ms MacMinn's position would be prejudiced if her role is terminated today and that termination of employment would be contrary to the dispute resolution clause 7.1(b) of the Brisbane City Council Salaried Staff Award – State 2016 (the Award) as it would result in the Respondent disrupting the status quo.

Prejudice to Ms MacMinn's position

  1. [8]
    The Applicant argues that the termination of Ms MacMinn's position today will prevent her from moving into other roles with Brisbane City Council and that an undertaking given by the Council to support Ms MacMinn to find alternative positions to apply for has not been genuinely enacted.  They point to two positions Ms MacMinn applied for with Council, was told were not going to be filled and were subsequently advertised on Seek.com.
  1. [9]
    In applying for the roles with Council in the knowledge that the Council had written to her to say that her employment contract would not be renewed beyond 12 April, I believe Ms MacMinn has an understanding that a successful application for an advertised position will result in either an appointment to a permanent position or entering a new contract different to her current role.
  1. [10]
    Even if Ms MacMinn were to be commencing in a different role with Council from Monday 15 April 2019, it would not be under the Renewable Employment Agreement she signed on 24 March 2016.

Dispute resolution and maintaining the status quo

  1. [11]
    There is no question that the Applicant currently has an unresolved dispute lodged with the Commission.
  1. [12]
    Clause 7.1(b) of the Award states that

During any dispute, other than a workplace health and safety matter, the status quo existing immediately prior to the matter giving rise to the dispute will remain and work shall continue as it was prior to the dispute without stoppage or the imposition of any ban, limitation or restriction.

  1. [13]
    It is not in question that Ms MacMinn's employment agreement states that the term of her employment ends today, 12 April 2019 and that the contract was signed on 24 March 2016. 
  1. [14]
    The dispute notice was lodged on 18 March 2019.  Essentially, the Applicant argues that until such time as the dispute has been arbitrated, the status quo should remain in place.
  1. [15]
    A relevant question to be asked here is: what is the status quo?
  1. [16]
    The Applicant argues that Ms MacMinn has been employed by Council for 20 years and as such is a permanent employee.  They argue that the Employment Agreement made on 24 March 2016 was not a fixed term contract and referred to Lindquist v Redland city Council (Lindquist) in arguing this

An employment contract will not be one for a specified period of time if it gives either party an unqualified right to terminate the contract on notice or with payment in lieu of notice within any specified term.  The basis for this proposition is that a specified period of time is a period of employment that has certainty as to its commencement and time of completion, and where a contract provides a broad or unconditional right of termination during its term, the period of the contract is indeterminate and thus not for a specific period of time.[1]

  1. [17]
    In response, the Respondent states that in Lindquist, Black IC did not accept the proposition, due to the requirement that an employer could only end the employment relationship by paying six months wages. This requirement constitutes a serious limitation on the capacity of an employer to end a fixed term contract before its expiry date. 
  1. [18]
    On the current facts, the Respondent submits that

While the contract provides for a termination on notice by the Respondent, this right is seriously limited by the requirement to pay notice and early severance totalling 24 weeks' pay. This too constitutes a serious limitation on the Respondent's capacity to end the Contract before its end date and therefore this is for a specified period of time, which ends today.

  1. [19]
    I note that in the affidavit of Jessica Hensman that Ms MacMinn has been employed on a series of fixed term contracts since 2009.
  1. [20]
    Reference is made to a conversation Ms MacMinn had with Mr Lindsey Enright in March 2016 where she raised concerns regarding the maximum term nature of the position and that Mr Enright said that the position is permanent and that there was an expectation it would be renewed.
  1. [21]
    While the Applicant maintains that Ms MacMinn's employment was permanent, the history of fixed term contracts and the fact that Ms MacMinn raised with Mr Enright her concerns regarding the maximum term nature of the position indicate that on the evidence before me, she had an awareness that she was being employed on a fixed term contract.
  1. [22]
    I do not have detailed or further evidence before me of the conversation or any assurances provided by Mr Enright regarding ongoing employment for Ms MacMinn beyond the end of agreement made on 24 March 2016.
  1. [23]
    I am persuaded that Ms MacMinn was employed for a fixed period of time and that as indicated in the Employment Agreement, her current period of employment with the Council ends today 12 April 2019.
  1. [24]
    This means that any status quo position to be maintained in the event of issuing an injunction would be that which exists today, that the employment relationship has ended today in line with the employment agreement.

Is there a termination in contravention of subclause 9.1 and clause 10 of the Award, and the IR Act?

  1. [25]
    The Respondent states in their outline of evidence

there can be no contraventions of those provisions of the Award or the Act as alleged by the Applicant.  Ms MacMinn's employment will not be terminated on notice (nor in lieu of notice nor a combination of both), nor by way of redundancy.  As such the termination and redundancy provisions referred to in the Application are not applicable.

  1. [26]
    If, as I have already explored, the nature of the employment was one of a fixed term of employment, then there is no contravention of the Award or Act as argued by the Applicant. 
  2. [27]
    The argument between the parties essentially goes back to the matter in the initial dispute notified on 18 March 2019, and that is that as previously stated, the Applicant submits that the Council is terminating Ms MacMinn's employment and that this is "harsh, unreasonable and unfair."
  1. [28]
    If the employment was found to be permanent and ongoing and was being terminated in contravention of the Award or the Act, it could be found to be an unfair dismissal.
  1. [29]
    I have formed a view that despite the argument that the injunction is sought to maintain the status quo in line with the dispute resolution procedure in the Award, the overwhelming purpose of the injunction sought in the Commission today is to prevent the termination of employment of Ms McMinn in circumstances that based on their arguments, the Applicant states are unfair. 
  1. [30]
    While it refers to sections of the Industrial Relations Act 1999, I refer to the decision of President Martin in Darlington v State of Queensland (Queensland Police Service) as it maintains relevance to the relevant sections of the IR Act 2016:

There is no doubt that the Respondent is bound by the award and it was not contended otherwise. But to grant this order, in the guise of enforcing a grievance procedure, would, at the same time contravene s 277(11).  The power to grant injunctions conferred by s 277(1) is confined by s 277(11) and those sub-sections must be read together.  The fact that the same set of circumstances may be viewed from different perspectives does not insulate those circumstances if they otherwise come within s 277(11).  If the appellant's argument were to be accepted, it would mean that, through the mechanism of seeking to enforce the terms of an award, a party could override the provisions of the Act.[2]

  1. [31]
    Section 473(9) of the current IR Act 2016 specifically precludes me from using my discretionary power to grant an injunction in respect of section 316 of the IR Act.
  1. [32]
    Having considered the submissions of the Applicant and the Respondent, I have determined to not grant the injunction sought.
  1. [33]
    I note that it is open to Ms MacMinn to pursue an application for reinstatement under s 317 of the Act following the end of her employment agreement today.  At this time, the Applicant would be able to further explore some of the matters raised today regarding the nature of her employment, the agreement and any undertakings that may have been given to her by the Council regarding ongoing employment or support to find a new role.
  1. [34]
    I dismiss the application.

Footnotes

[1] [2018] QIRC 141, citing Kirsten Dale v Hatch Pty Ltd [2016] FWCFB 922 and Anderson v Umbakumba Community Council (1994) 126 ALR 121.

[2] [2016] ICQ 020 [25].

Close

Editorial Notes

  • Published Case Name:

    The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council

  • Shortened Case Name:

    The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council

  • MNC:

    [2019] QIRC 57

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    16 Apr 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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