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Together Queensland Industrial Union of Employees v Scales[2021] QIRC 364

Together Queensland Industrial Union of Employees v Scales[2021] QIRC 364

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland Industrial Union of Employees v Scales & Anor [2021] QIRC 364

PARTIES:

TOGETHER QUEENSLAND INDUSTRIAL UNION OF EMPLOYEES

(applicant)

v

NEIL SCALES

(first respondent)

STATE OF QUEENSLAND (DEPARTMENT OF TRANSPORT AND MAIN ROADS)

(second respondent)

FILE NO/S:

B/2021/27, B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/32, B/2021/33

PROCEEDING:

Application

DELIVERED ON:

27 October 2021

HEARING DATE:

21 October 2021

MEMBER:

Davis J, President

ORDERS:

  1. Applications B/2021/27, B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/32, and B/2021/33 are referred to the Full Bench of the Queensland Industrial Relations Commission.
  2. The President sit on the Full Bench.
  3. The applications are set for hearing on 10 and 11 February 2022.
  4. The applicant’s application to dismiss the application for referral to the Full Bench is dismissed.
  5. The applications are to be mentioned before Vice President O'Connor for further directions on 15 November 2021 at 9.15 am.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – INDUSTRIAL RELATIONS COMMISSION – JURISDICTION – where seven applications were filed by Together Queensland, Industrial Union of Employees (the Union) alleging contravention of the Queensland Public Service Officers and Other Employees Award – State 2015 (principal applications) – where the principal applications seek pecuniary penalties – where the second respondent filed a further application seeking referral (referral application) of the principal applications to the Full Bench of the Queensland Industrial Relations Commission (the Commission) – where the Union filed an application for dismissal of the referral application (dismissal application) – where the first respondent supports the referral application and opposes the dismissal application – where the Union alleges that there is no jurisdiction vested in the President of the Commission to refer the principal applications to the Full Bench of the Commission in the circumstances of this matter – where, alternatively, the Union submits that, if the President is vested with the relevant jurisdiction, then the discretion ought not be exercised in favour of granting the application for referral – whether the President is vested with the relevant jurisdiction to refer the matter to the Full Bench of the Commission – if the jurisdiction exists, whether the discretion to grant the referral application ought to be exercised

Queensland Public Service Officers and Other Employees Award - State 2015

Fair Work Act 2009 (Cth)

Industrial Relations Act 2016, s 151, s 448, s 451, s 486, s 554, s 557, s 570, s 571, s 572, s 573, s 574, s 575

Public Service Act 2008, s 26C

CASES:

Giorgianni v The Queen (1985) 156 CLR 473, cited

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 , followed

Re Variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103, cited

The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106, followed

Together Queensland Industrial Unions of Employees v State of Queensland (Queensland Health) [2021] ICQ 016, cited

Yorke v Lucas (1985) 158 CLR 661, cited

REPRESENTATION:

K McKay for the applicant Union, responding to the referral application

A Lane-Mullins for the first respondent being an employee of the Department of Transport and Main Roads

LH Grant for the second respondent instructed by GR Cooper Crown Solicitor

  1. [1]
    Seven applications were filed by the Together Queensland, Industrial Union of Employees (the Union) on 9 April 2021 (the principal applications).  Those applications all allege contravention of the Queensland Public Service Officers and Other Employees Award - State 2015 (the Award).  The principal applications were amended on 5 May 2021.
  2. [2]
    Each of the amended principal applications seeks orders in these terms:

“1. That the Commission issue a Civil Penalty Order that Mr Neil Scales, the Director-General of the Department of Transport and Main Roads, pay [the employee] up to 27 penalty units for the contravention of a Modern Award contrary to section 151 of the Industrial Relations Act 2016.

2. In the alternative to the relief sought above, that the Commission issue a Civil Penalty Order that the State of Queensland pay [the employee] up to 135 penalty units for the contravention of a Modern Award contrary to section 151 of the Industrial Relations Act 2016 and that the Commission issue a Civil Penalty Order that Mr Neil Scales, the Director-General of the Department of Transport and Main Roads, pay [the employee] up to 27 penalty units for his involvement in the contravention of a Modern Award contrary to section 151 of the Industrial Relations Act 2016.”

  1. [3]
    Before me are two applications brought in the principal applications.  The first was filed by the second respondent on 29 September 2021 and seeks referral of the principal applications to the Full Bench of the Commission (the referral application).  The referral application is founded in s 486(4) of the Industrial Relations Act 2016 (the IR Act) which confers power on me as President of the Commission to refer matters to the Full Bench.  The second application was filed by the Union also on 29 September 2021.  That application alleges that there is no jurisdiction vested in me to refer the principal applications to the Full Bench in the circumstances currently prevailing.  Orders are sought dismissing the referral application for want of jurisdiction.
  2. [4]
    The Union’s opposition to the referral application is twofold:
  1. there is no jurisdiction to make the referral.  That is the point made in the dismissal application; and
  2. if there is jurisdiction, then the discretion ought not be exercised in favour of making the referral.  The Union points to various discretionary issues to which I refer below.
  1. [5]
    The first respondent supports the referral application and opposes the dismissal application.

Is there jurisdiction in the President to refer the principal applications to the Full Bench?

  1. [6]
    Section 486 of the IR Act provides as follows:

“486 Referring matter to full bench

  1. (1)
    The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.
  1. (2)
    A commissioner may refer the matter only with the president’s approval.
  1. (4)
    Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench.
  1. (6)
    The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.” (emphasis added)
  1. [7]
    Section 486(1) and (2) provide that the Commission may, with the President’s approval, refer a matter which is before the Commission to the Full Bench.  Importantly for present purposes, that power exists “at any stage of proceedings”.[1]
  2. [8]
    The power under s 486(4) only exists “before the hearing of a matter by the commission starts”.  The Union submits that here, the Vice President has already embarked upon “the hearing”.  Consequently, the Vice President could, pursuant to s 486(1), refer the principal applications to the Full Bench with my approval pursuant to s 486(2), but I cannot refer the principal applications to the Full Bench pursuant to s 486(4).
  3. [9]
    Vice President O'Connor had the seven principal applications before him on each of 29 April 2021, 9 July 2021, 2 August 2021, and 30 September 2021.  Argument was heard on each of those occasions and various orders made.  The orders that were made were intended to be “directions” and therefore, made pursuant to the power under s 451(2)(a) of the IR Act to which I will later refer.  All the orders are headed “Directions”.
  4. [10]
    On 29 April 2021, leave was given to the Union to amend the applications.  A directions order issued on 12 May 2021.
  5. [11]
    Consent directions were issued on 8 June 2021.
  6. [12]
    On 9 July 2021, there was a directions hearing but no orders were made.
  7. [13]
    Directions were made on 2 August and 30 September 2021.
  8. [14]
    On 6 October 2021, I made directions for the hearing of the referral application which I heard on 21 October 2021.
  9. [15]
    The orders which were made by the Vice President were:

12 May 2021

“DIRECTIONS ORDER

FURTHER TO the Amended Application filed in the Industrial Registry in the above matter on 5 May 2021, IT IS ORDERED:

  1. 1.
    That the Respondents to this matter be named as above.
  2. 2.
    That the Respondents file in the Industrial Registry and serve on the Applicant a reply to the Amended Application by 4.00pm on Monday, 31 May 2021.
  3. 3.
    That the matter be mentioned before Vice President O'Connor at a date to be fixed by the Commission in consultation with the parties.”

8 June 2021

“DIRECTIONS ORDER

BY CONSENT OF THE PARTIES, IT IS ORDERED:

  1. 1.
    That the Directions Order dated 12 May 2021 be vacated.
  2. 2.
    That by 4.00pm on 17 June 2021, the Applicant file in the Industrial Registry and serve on the Respondents a Statement of Further and Better Particulars which includes the further and better particulars requested in the Respondents’ Reply to the amended Application.
  3. 3.
    That by 4.00pm on 1 July 2021, the Respondents file in the Industrial Registry and serve on the Applicant an Amended Reply to the Statement of Further and Better Particulars.
  4. 4.
    That the matter be mentioned before Vice President O'Connor at a date to be fixed by the Commission in consultation with the parties.
  5. 5.
    Either party has liberty to apply on two (2) days’ notice.”

2 August 2021

“FURTHER DIRECTIONS ORDER (2)

FURTHER to the mention in the matters above on 2 August 2021, IT IS ORDERED:

  1. 1.
    That the parties file in the Industrial Registry by 4.00pm on Monday 16 August 2021, an agreed Statement of Facts.
  2. 2.
    That the parties file in the Industrial Registry by 4.00pm on Monday 6 September 2021, agreed documents to be relied upon in the proceedings.
  3. 3.
    That the parties file in the Industrial Registry by 4.00pm on Monday 20 September 2021 a statement setting out:
  • Each matter in dispute between the parties, specifying whether the matter is a disputed fact or a disputed point of law
  1. 4.
    That the matter be listed for mention before Vice President O'Connor at 10.00am on Thursday 30 September 2021.”

30 September 2021

“FURTHER DIRECTIONS ORDER (3)

FURTHER to the mention in the matters above on 30 September 2021, IT IS ORDERED:

  1. 1.
    That matters B/2021/27, B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/32 and B/2021/33 be adjourned until the determination of the Second Respondent’s application to refer the matters to the Full Bench of the Queensland Industrial Relations Commission.
  2. 2.
    There be liberty to apply on three days’ notice.”
  1. [16]
    The directions I made were:

6 October 2021

“FURTHER DIRECTIONS ORDER (4)

FURTHER to the mention in the matters above on 30 September 2021, IT IS ORDERED:

  1. 1.
    The applicant for orders referring the principal applications to the Full Bench (the referral application) (who is the second Respondent in the primary application) file and serve any written submissions on the referral application together with any supporting material by 4pm on 11 October 2021.
  2. 2.
    The Respondents to the referral application (which includes the first Respondent to the primary application) file and serve any written submissions on the referral application together with any supporting material by 4pm on 15 October 2021.
  3. 3.
    The Applicant in the referral application file and serve any written submissions in reply on the referral application and any supporting material by 4pm on 19 October 2021.
  4. 4.
    The referral application is listed for hearing at 9:00am on 21 October 2021.”
  1. [17]
    Whether the “hearing” of the principal applications has “started” because directions hearings have been conducted and orders made, turns on the proper construction of s 486 of the IR Act.  The provision must be considered in the context of the IR Act as a whole and having regard to its proper purpose.[2]
  2. [18]
    Section 448 of the IRAct confers the Commission’s general jurisdiction.  It provides, relevantly:

“448 Commission’s jurisdiction

  1. (1)
    The commission may hear and decide the following matters—
  1. (a)
    a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;
  1. (b)
    all questions—
  1. (i)
    arising out of an industrial matter; or
  1. (ii)
    involving deciding the rights and duties of a person in relation to an industrial matter; or
  1. (iii)
    it considers expedient to hear and decide about an industrial matter;
  1. (c)
    an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached;
  1. (d)
    all appeals properly made to it under this Act or another Act;
  1. (e)
    all matters referred to the commission under this Act or another Act. …
  1. (7)
    No provision of this Act or another Act limits, by implication, the commission’s jurisdiction. …”
  1. [19]
    The jurisdiction to make civil penalty orders is provided by the IR Act.  It is a jurisdiction acknowledged by s 448(1)(e).  Sections 570 to 575 of the IR Act provide:

“570 Definitions for part

In this part—

civil penalty order see section 574(2).

civil penalty provision means a subsection, or a section that is not divided into subsections, if a note to the subsection or section states it is a civil penalty provision.

Note—

See schedule 3, column 1 for a list of civil penalty provisions in this Act.

industrial tribunal means—

  1. (a)
    the commission; or
  1. (b)
    a magistrate.

relevant industrial tribunal, for a civil penalty provision, means the industrial tribunal mentioned for the provision in column 3 of schedule 3.

571 Contraventions of civil penalty provision

  1. (1)
    A contravention of a civil penalty provision is not an offence.
  1. (2)
    A person involved in a contravention of a civil penalty provision is taken to have contravened the provision.
  1. (3)
    For this section, a person is involved in a contravention of a civil penalty provision only if the person—
  1. (a)
    has aided, abetted, counselled or procured the contravention; or
  1. (b)
    has induced the contravention, whether by threats, promises or otherwise; or
  1. (c)
    has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention; or
  1. (d)
    has conspired with others to effect the contravention.

572 Applications for orders in relation to contraventions of civil penalty provisions

A person mentioned in column 2 of schedule 3 for a civil penalty provision may apply to the relevant industrial tribunal for an order in relation to a contravention, or alleged contravention, of the provision.

573 When applications must be made

An application under section 572 must be made within 6 years after the day on which the contravention of the civil penalty provision occurred or allegedly occurred.

574 Power of relevant industrial tribunal to make civil penalty orders

  1. (1)
    The relevant industrial tribunal for a civil penalty provision may, on an application under section 572, order a person to pay a penalty the tribunal considers is appropriate if satisfied the person has contravened the provision.
  1. (2)
    An order made under subsection (1) is a civil penalty order.
  1. (3)
    To remove any doubt, it is declared that the relevant industrial tribunal may make a civil penalty order in addition to 1 or more orders under another provision of this Act unless otherwise provided.
  1. (4)
    This section applies subject to section 575.

575 Amount of penalty

A penalty payable under a civil penalty order must not be more than—

  1. (a)
    if the person is an individual—the maximum number of penalty units mentioned in column 4 of schedule 3 for the civil penalty provision; or
  1. (b)
    if the person is a corporation—5 times the maximum number of penalty units mentioned in column 4 of schedule 3 for the civil penalty provision.”
  1. [20]
    Section 151 of the IRAct is a civil penalty provision.[3]  It provides:

“151 Contravention of modern awards

A person must not contravene a provision of a modern award.

Notes—

1 This section is a civil penalty provision.

2 A person does not contravene a provision of a modern award unless the award applies to the person—see section 152.”

  1. [21]
    In order for the Commission (whether a Full Bench or otherwise) to “hear and decide” the principal applications, the Commission must determine:
  1. whether or not there has been a breach of the relevant award;[4]
  2. whether the first or second respondent contravened the award;[5]
  3. whether the first or second respondent was involved in the contravention;[6]
  4. if so, determine whether to impose a civil penalty.
  1. [22]
    The Vice President has not embarked on any of these inquiries.  Neither have I.
  2. [23]
    Section 451 confers specific powers on the Commission.  It provides, relevantly:

“451 General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1), the commission in proceedings may—
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate. …”
  1. [24]
    Section 486(1) uses the term “proceedings” but in s 486(4) the critical term is “the hearing of a matter”.  The term “proceedings” encompasses a broader part of the litigation than does the term “the hearing of a matter”.  “Proceedings” encompasses everything from the filing of an application or other process to the point of its disposal.  “The hearing of a matter” refers only to the hearing of the substance of the application or process.
  2. [25]
    This is made clear by s 451.  By s 451(2)(a), directions may be given “about the hearing of a matter”, clearly some smaller part of the “proceedings”.  It is also obvious from s 486(1).  The Full Bench is to “hear and decide” the matter once referred to it. 
  3. [26]
    Section 530 is also consistent with this construction.  It provides:

“530 Legal representation

(1A) This section applies in relation to proceedings other than a proceeding for a public service appeal.

  1. (1)
    A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if—
  1. (a)
    for proceedings in the court—
  1. (i)
    all parties consent; or
  1. (ii)
    the court gives leave; or
  1. (iii)
    the proceedings are for the prosecution of an offence; or
  1. (b)
    for proceedings before the full bench—the full bench gives leave; or
  1. (c)
    for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or
  1. (d)
    for other proceedings before the commission, other than the full bench—
  1. (i)
    all parties consent; or
  1. (ii)
    for a proceeding relating to a matter under a relevant provision—the commission gives leave; or
  1. (e)
    for proceedings before an Industrial Magistrates Court—
  1. (i)
    all parties consent; or
  1. (ii)
    both of the following apply—
  1. (a)
    the proceedings relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; and
  1. (b)
    an Industrial Magistrates Court gives leave; or
  1. (iii)
    the proceedings are for the prosecution of an offence; or
  1. (f)
    for proceedings before the registrar, including interlocutory proceedings—
  1. (i)
    all parties consent; or
  1. (ii)
    the registrar gives leave; or
  1. (g)
    for proceedings before a conciliator—the conciliator gives leave.
  1. (2)
    However, the person or party must not be represented by a lawyer—
  1. (a)
    if the party is a negotiating party to arbitration proceedings before the full bench under chapter 4, part 3, division 2; or
  1. (b)
    in proceedings before the commission under section 403 or 475; or
  1. (c)
    in proceedings remitted to the Industrial Magistrates Court under section 404(2) or 475(2).
  1. (3)
    Despite subsection (1), a party or person may be represented by a lawyer in making a written submission to the commission in relation to—
  1. (a)
    the making or variation of a modern award under chapter 3; and
  1. (b)
    the making of a general ruling about the Queensland minimum wage under section 458.
  1. (3)
    An industrial tribunal may give leave under subsection (1) only if—
  1. (a)
    it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or
  1. (b)
    it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or
  1. (c)
    it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Examples of when it may be unfair not to allow a party or person to be represented by a lawyer—

• a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy

• a person is from a non-English speaking background or has difficulty reading or writing

  1. (5)
    For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
  1. (a)
    an employee or officer of the party or person; or
  1. (b)
    an employee or officer of an entity representing the party or person, if the entity is—
  1. (i)
    an organisation; or
  1. (ii)
    an association of employers that is not registered under chapter 12; or
  1. (iii)
    a State peak council.
  1. (6)
    In proceedings before the Industrial Magistrates Court for the prosecution of an offence under subsection (1)(e), the person represented can not be awarded costs of the representation.
  1. (7)
    In this section—

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

proceedings—

  1. (a)
    means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and
  1. (b)
    includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.

relevant provision, for a proceeding before the commission other than the full bench, means—

  1. (a)
    chapter 8; or
  1. (b)
    section 471; or
  1. (c)
    chapter 12, part 2 or 16.” (emphasis added)
  1. [27]
    The Union raised important questions as to the construction of s 530 in Together Queensland, Industrial Unions of Employees v State of Queensland (Queensland Health).[7]  There it was held that s 530 limited a party’s right to representation “in the proceedings”.  It followed then that if “the proceedings” have been referred to the Full Bench, only the Full Bench had power to make orders in relation to a party’s representation.  That included legal representation in any interlocutory steps in the proceedings and any directions made pursuant to s 451 after the matters had been referred.[8]
  2. [28]
    That there is a different power to make “directions” than to “hear the matter”, is an important distinction.  If when making directions the Vice President was “hearing the matters” (being the principal applications), then he would be seized of the matters and, having embarked upon them, would have to preside over the final hearing.  It is not the case that a Commissioner is bound to hear the entire proceeding once he or she has embarked upon a directions hearing.
  3. [29]
    It follows then that the Vice President has not begun to hear the matters of the seven principal applications.  The Vice President has heard applications for directions “about the hearing of the matter[s]”,[9] and the matters are to be “heard and decided”[10] by a Commissioner, or if a referral order is made, by the Full Bench, in due course.  I have heard an interlocutory application for referral to the Full Bench.  The “hearing” of the principal applications has not “started” before me.  The second respondent has therefore made application under s 486(4) “before the hearing of [the principal applications] by the Commission starts” and jurisdiction exists for me under s 486(4) of the IR Act to refer the matter to a Full Bench.

The Exercise of Discretion

  1. [30]
    The Award applies, relevantly here, to members of the Union working within the Department of Transport and Main Roads (the Department).  The Department is a department of the State of Queensland who is the employer of the relevant employees.  The first respondent, Mr Scales, is the Director-General of the Department.
  2. [31]
    As already observed, the principal applications seek pecuniary penalties against both respondents as the legal persons who either contravened the Award or were otherwise involved in the contravention.
  3. [32]
    The first respondent adopts the second respondent’s submissions on the referral application.  The second respondent submits that:
  1. the application is novel in that no applications for civil penalty orders have been previously made under the IR Act;
  2. while there is a similar civil penalty regime in the Fair Work Act 2009 (Cth), there are differences between the two legislative schemes so questions of law will arise in the principal applications which have not been previously considered;
  3. new and complex matters of law and principle ought to be determined with the authority of the Full Bench;
  4. the determination will involve:
  1. (a)
    findings which may impact upon the finances and reputation of the first respondent;
  1. (b)
    the findings against the first respondent may visit vicarious liability upon the second respondent;[11]
  1. (c)
    cases involving allegations of accessorial liability are inherently complicated because the knowledge which the party to the contravention has of the actor’s acts and intentions is relevant;[12]
  1. (d)
    civil penalty proceedings are quasi criminal in nature.
  1. [33]
    The Union resists the application on many detailed grounds which can be summarised as follows:
  1. The referral application is an abuse of process on the bases that:
  1. (a)
    as early as July 2021, the respondents flagged an intention to seek referral to the Full Bench;
  1. (b)
    no final instructions to that end were communicated until 29 September 2021;
  1. (c)
    the decision to seek referral is inconsistent with the position previously taken by the respondents in negotiations leading up to the mention of 30 September 2021;
  1. (d)
    the President has no jurisdiction to make the referral.
  1. The matter is not a complex one warranting referral because:
  1. (a)
    the factual issues are largely agreed;
  1. (b)
    as a civil penalty scheme exists under the Fair Work Act, no novel questions arise.
  1. The proceedings are not quasi criminal in nature.
  2. There is no benefit in referring the matter to the Full Bench.  This is because the Full Bench is at the same hierarchal level as a single commissioner.  Appeals from both the Full Bench and a single commissioner lie to the Industrial Court of Queensland.
  3. There is prejudice to the Union caused by:
  1. (a)
    delay;
  1. (b)
    cost, especially because, by s 530 of the IR Act, there is jurisdiction to grant the respondents leave to be legally represented before a Full Bench.

Discussion/conclusions

  1. [34]
    The approach to the exercise of discretion to refer a matter to the Full Bench was recently analysed in Re Variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015.[13]
  2. [35]
    The second respondent’s application is not an abuse of process.  For reasons already explained, there is jurisdiction for me to make the referral order.  While there have been delays in making the application, there is no mala fides and nothing to support a conclusion that the application is made for some improper purpose.  The dismissal application must be dismissed.
  3. [36]
    The principal applications raise novel legal issues.  Even accepting that there is a civil penalty regime in the Fair Work legislation, the IR Act provisions have not previously fallen for consideration.  There is, therefore, no jurisprudence from the Commission, the Industrial Court of Queensland, or the Court of Appeal dealing with:
  1. the operation and scope of the civil penalty provisions in the IR Act;
  2. the operation and scope of the accessorial provisions;
  3. whether s 942(2) of the IR Act avails the first respondent of a defence.
  1. [37]
    The principal applications brought by the Union raise important issues.  The Union has legitimate industrial reasons for seeing that benefits flow to its members under the Award pursuant to law.  One way of enforcing the award is through the pecuniary penalty regime.  Visiting liability directly upon a Director-General of a department is no doubt seen by the Union as a way of encouraging compliance with awards.  The Union seeks to test that avenue of enforcement.
  2. [38]
    The important issues raised by the Union by the principal applications ought to be determined authoritatively and expediently.
  3. [39]
    There is merit in the Union’s complaint that there has been delay in seeking referral to the Full Bench.  There is also merit in the submission that determination of the matter by the Full Bench may only lead to an appeal to the Industrial Court.  Any appeal from the Industrial Court then lies to the Court of Appeal.[14]
  4. [40]
    If a Full Bench is constituted by the President and two other members of the Commission, any appeal from the Full Bench decision lies directly to the Court of Appeal.[15]  The principal applications ought to be referred to a Full Bench.  However, in order to have the issues in dispute decided authoritatively as quickly as reasonably possible, I ought sit on the Full Bench.  Dates are available and the principal applications should be set down for hearing.
  5. [41]
    The second respondent in the referral application seeks further directions.  The Vice President sitting alone can give directions for a proceeding before the Full Bench.[16]  If orders are sought under s 530 of the IR Act for legal representation, the Full Bench can be convened to hear any applications.
  6. [42]
    The orders are:
  1. Applications B/2021/27, B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/32, and B/2021/33 are referred to the Full Bench of the Queensland Industrial Relations Commission.
  2. The President sit on the Full Bench.
  3. The applications are set for hearing on 10 and 11 February 2022.
  4. The applicant’s application to dismiss the application for referral to the Full Bench is dismissed.
  5. The applications are to be mentioned before Vice President O'Connor for further directions on 15 November 2021 at 9.15 am.

Footnotes

[1] Industrial Relations Act 2016, s 486(1); as to the appropriate procedure see Re Variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103.

[2] Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [78], The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106 at [32].

[3] Industrial Relations Act 2016, Schedule 3.

[4] Industrial Relations Act 2016, s 151.

[5] Industrial Relations Act 2016, s 151.

[6] Industrial Relations Act 2016, s 571.

[7] [2021] ICQ 016.

[8] Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 016 at [44].

[9] The principal applications.

[10] Industrial Relations Act 2016, s 448(1).

[11] Public Service Act 2008, s 26C.

[12] Giorgianni v The Queen (1985) 156 CLR 473 at 487, 488, 500, 506 and 507, Yorke v Lucas (1985) 158 CLR 661.

[13] [2021] QIRC 103; although that was a case concerning s 486(1).

[14] Industrial Relations Act 2016, s 557 and 554.

[15] Industrial Relations Act 2016, s 554(1).

[16] Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 016.

Close

Editorial Notes

  • Published Case Name:

    Together Queensland Industrial Union of Employees v Scales & Anor

  • Shortened Case Name:

    Together Queensland Industrial Union of Employees v Scales

  • MNC:

    [2021] QIRC 364

  • Court:

    QIRC

  • Judge(s):

    Davis J

  • Date:

    27 Oct 2021

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
Giorgianni v The Queen (1985) 156 CLR 473
2 citations
Jump To
Cite 1 - (1985) 156 CLR 473
Cite 2 - (1985) 156 CLR 473
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
R v A2 (2019) 93 ALJR 1106
2 citations
Jump To
Cite 1 - (2019) 93 ALJR 1106
Cite 2 - (2019) 93 ALJR 1106
Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103
3 citations
Jump To
Cite 1 - [2021] QIRC 103
Cite 2 - [2021] QIRC 103
Cite 3 - [2021] QIRC 103
Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 16
4 citations
Jump To
Cite 1 - [2021] ICQ 16
Cite 2 - [2021] ICQ 16
Cite 3 - [2021] ICQ 16
Cite 4 - [2021] ICQ 16
Yorke v Lucas (1985) 158 CLR 661
2 citations
Jump To
Cite 1 - (1985) 158 CLR 661
Cite 2 - (1985) 158 CLR 661

Cases Citing

Case NameFull CitationFrequency
McIlroy-Ranga v Torres Strait Island Regional Council [2022] QIRC 4482 citations
Together Queensland, Industrial Union of Employees v Scales (No 2) [2021] QIRC 4283 citations
Together Queensland, Industrial Union of Employees v Scales (No 5) [2022] QIRC 2251 citation
1

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