Pennington v Jamieson[2020] QIRC 200

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   The Industrial Relations Act 2016 ('the Act') provides a discretionary power for the Commission to refer a question of law to the Industrial Court.^[1]

2. [2]
   Mr Adrian Pennington ('the Applicant') seeks the referral of questions posed in the following terms:^[2]

1. Whether the termination of employment of a health executive is an 'excluded matter' within the meaning of s 74(4) of the Hospital and Health Boards Act 2011?

2. Whether an excluded mater, or a matter affecting or relating to an excluded matter, may not be the subject of an application to the Queensland Industrial Relations Commission pursuant to s 309 of the Act because of:

1. s 75(1) of the Hospital and Health Boards Act 2011; and

2. s 75(3) of the Hospital and Health Boards Act 2011.

3. Whether the dismissal of a health executive is not capable of constituting adverse action within the meaning of s 282 of the Hospital and Health Boards Act 2011 because it is authorised by s 74(4) and s 74(5) of the Hospital and Health Boards Act 2011.

Referral of a Question of Law

3. [3]
   Section 487 of the Act provides:

3. (1)
   The commission may, at any stage of proceedings and on the terms it considers appropriate, refer in writing a question of law relevant to the proceedings for the court's opinion.

3. (2)
   The court may—

(a)hear and decide the question of law; and

(b)remit the question of law, with its opinion, to the commission.

3. (3)
   The commission must give effect to the court's opinion.

Submissions

4. [4]
   The three primary arguments proffered by the Appellant in support of the referral of the above questions to the Industrial Court concern:

• the nature of the questions;
• the public interest in having an authoritative determination in respect of the questions, which are relevant to a significant group of employees within Queensland Health; and
• the desirability of eliminating the cost and delay involved in any appeal against the determination of those questions.

5. [5]
   Both Respondents oppose the application, collectively arguing:

• the applicant identifies no proper basis for the application;
• a referral of the jurisdictional questions to the Industrial Court would delay their resolution and the resolution of the proceedings as a whole;
• jurisdictional questions and decisions with significant consequences are commonly dealt with by the Commission. Neither is a proper basis for referral;
• in the event the Industrial Court were to determine that the questions were not pure questions of law, they would be remitted back to the Commission; and
• the questions as framed would not, even if determined, fully dispose of the jurisdictional dispute between the parties.

Consideration

Consequences of the Decision

6. [6]
   The Applicant argues that, given there are some 129 health executives employed under the Hospital and Health Boards Act 2011 in respect of whom the outcome is relevant, it is in the public interest that the questions be determined authoritatively.

7. [7]
   While I accept health executives are part of a distinct cohort spread across health services presently operating throughout the State of Queensland, I agree with the Respondents in that they, comparatively, represent 'but a tiny sliver of tens of thousands of persons employed by entities under the Hospital and Health Boards Act 2011'.

8. [8]
   It is the case that the construction and interpretation of legislative instruments is one of the regular functions of an Industrial Commissioner^[3]. The decisions that follow can, at times, result in significant and far reaching consequence for large numbers of employees across and within various industry sectors. In fact, the third jurisdictional question posed by the Applicant has already been considered without referral to the Industrial Court.^[4]

9. [9]
   While the remaining questions are novel in the sense they have not previously arisen for determination, and novelty can be a compelling reason for referral,^[5] I tend to agree with the Full Bench when it held:

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.^[6]

Further Costs

10. [10]
    Should his jurisdictional arguments succeed, the Applicant contends that an appeal by the Respondents is unescapable, therefore resulting in further costs. The Respondents do not concede this expectation.

11. [11]
    Even if this were not the case, intimation by one party of an intention to appeal is generally not sufficient to warrant referral. In this regard, I respectfully adopt the reasoning of Heerey J in Dexcam Australia Pty Ltd v Deputy Commissioner of Taxation:

The Commissioner has indicated that if a decision at first instance were adverse to him he would probably appeal. In this event the applicants would be severely disadvantaged in terms of resources. I sympathise with their position, but I think it would be contrary to the spirt of s 25(6) to have the decision as to reference to a full court in effect transferred to one of the parties who can by the unilateral declaration of an intent to appeal effectively bypass a trial at first instance. Therefore I decline to refer the matter to a full court.^[7]

12. [12]
    Here, the proposition that referral will minimise the Applicant's costs relies upon the assumption the Respondents are guaranteed to appeal. This remains speculation. While I am certainly not insensitive to the cost implications for the Applicant of an appeal, it is the case that referral to the Industrial Court does not foreclose an appeal from that decision to the Court of Appeal.^[8]

Delay

13. [13]
    Another argument pressed by the Applicant is that referral will allow the matter to be dealt with more expeditiously and without delay.

14. [14]
    I am inclined to think the opposite. The parties have already filed written submissions and oral argument is listed for 27November 2020 – merely days away. The listing has been in place for over a month.

15. [15]
    Moreover, it is unknown when a Member of the Industrial Court would be available to hear and decide the jurisdictional questions if they were referred. The President, for instance, is scheduled to sit in the week commencing 30 November 2020 and then not again until 1 February 2021.

16. [16]
    The Full Bench has previously held:

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 the maters before it.^[9]

17. [17]
    Likewise, Martin J wrote:

The BCC also argues that referral to the Full Bench has the potential to save time because it will obviate the possibility of appeals. If a referral is made then, obviously, an avenue of appeal is lost. There is still, though, the possibility of appeal to the Industrial Court. In any event, the elimination of a level of appeal is not an attractive argument in favour of referral. It may, though, confine the time needed for the matter to be finalised.^[10]

Conclusion

18. [18]
    Blades C once opined that referral cannot be on a whim; there must be 'some benefit readily apparent, or otherwise I am just avoiding my responsibility to adjudicate in what is clearly a controversial matter'.^[11]

19. [19]
    On balance, I am not persuaded that there exist sufficient discretionary considerations favouring referral of the jurisdictional questions to the Industrial Court.

20. [20]
    The most expeditious course, I think, is to allow the jurisdictional hearing to proceed on 27 November 2020.

21. [21]
    It is unnecessary, considering my foregoing reasons, to consider whether the questions for referral are properly framed.