In an application filed by Mackay Regional Council
[2021] QIRC 418
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- In an application filed by Mackay Regional Council[2021] QIRC 418
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In an application filed by Mackay Regional Council[2021] QIRC 418
In an application filed by Mackay Regional Council[2021] QIRC 418
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | In an application filed by Mackay Regional Council [2021] QIRC 418 |
PARTIES: | MACKAY REGIONAL COUNCIL (applicant) v QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES AND OTHERS (respondents) |
FILE NO/S: | CB/2021/10 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 23 November 2021 |
HEARING DATE: | 23 November 2021 |
MEMBER: | Davis J, President, O'Connor VP, Hartigan IC |
ORDER/S: |
“Should Mackay Regional Council employees under the Queensland Local Government Industrial (Stream B) Award - State 2017 and Queensland Local Government Industrial (Stream C) Award - State 2017 have their own agreement?”
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – where there is an award covering the applicant’s employees – where there was a certified agreement – where the certified agreement provided for different streams of employees – where the certified agreement expired – where a new agreement could not be achieved by negotiation – where the matter was sent to arbitration – where the interests of workers in some streams are different from the interests of workers in others – where a question arose as to whether there ought to be two agreements – where that issue features as a central issue – whether that issue ought to be determined separately and first – whether the whole dispute ought to be arbitrated – what directions ought to be given to conveniently hear the matter Industrial Relations Act 2016, s 177, s 180, s 451 |
APPEARANCES: | E Nicholson, R Francisco, J Everett and S McKendry for the Mackay Regional Council N Henderson and M Robinson for the Queensland Services Industrial Union of Employees G Taylor and T McQuillan for the Australian Workers Union of Employees P Dunbar for the Construction, Forestry, Mining and Energy Union T Fernandez for the Plumbers’ Union |
- [1]The Mackay Regional Council (Mackay Council) is an employer of workers under the Queensland Local Government Industry Award 2017 (the Award). Up until the agreement expired, the employment of the workers was subject also to the Mackay Regional Council Certified Agreement. That expired last year.
- [2]Negotiations for a new agreement commenced but the parties could not reach consensus. On 29 April 2021, the Mackay Council filed an application under s 175(1)(b) of the Industrial Relations Act 2016 (the IR Act) to help the parties reach agreement with a view to a bargaining instrument being made.
- [3]As the parties were unable to negotiate a bargain, the matter was referred to arbitration. By s 180 of the IR Act, the Full Bench must arbitrate the dispute.
- [4]On 2 August 2021, Vice President O'Connor heard a directions hearing where it appeared that one matter in dispute, perhaps the only matter from the point of view of some employees, is whether different certified agreements ought to be entered into for different streams of employees under the Award (the one or more agreement issue). Directions were given for the arbitration to be heard and it was set down for hearing by the Full Bench in Mackay on 19, 20 and 21 January 2022 in Mackay.
- [5]Disagreement has now arisen as to what disputed matters are before the Full Bench, in particular, what is to be heard in January 2022. This is our ruling on that point.
General background
- [6]The Award, as we have already observed, contains different streams. They are Stream A, Stream B and Stream C. The workforce is broadly broken into two parts; those who can be described as working indoors (Stream A) and those who are working outdoors (Streams B and C). The Queensland Services, Industrial Union of Employees (the QSU) largely represent Stream A employees. Other unions have coverage over Stream B and Stream C employees.
- [7]The QSU sees the dispute as involving not only the one or more agreement issue, but other issues. The other unions have no issues or different issues than the QSU beyond the one or more agreement issue. The Mackay Council takes the view that the only issue which has been sent to arbitration is the one or more agreement issue.
- [8]The QSU seeks to arbitrate all issues in Mackay in January 2022. The other unions and the Mackay Council seek the arbitration of only the one or more agreement issue.
- [9]The QSU submits that the “matter” which is before the Full Bench are the “matters in dispute” which must mean all matters of dispute concerning the bargaining instrument sought to be made. That would include matters in dispute beyond the one or more agreement issue.
- [10]In our view, the QSU is correct about that. That is made clear by s 177 and Division 2 of Part 3 of Chapter 4 of the Industrial Relations Act 2016. In particular, s 180, which is in these terms:
“180 Full bench to arbitrate disputed matters
- (1)The full bench must determine the matters in dispute by arbitration.
- (2)To determine the matters in dispute, the full bench—
- (a)may give directions or make orders of an interlocutory nature; and
- (b)without limiting paragraph (a), before making an arbitration determination may order an increase in wages payable to employees; and
- (c)may make any other order, or exercise another power, the full bench considers appropriate to determine the disputed matters.
Note—
A negotiating party may not be represented by a lawyer in the proceeding before the full bench—see section 530(2).
- (3)The full bench must ensure an arbitration determination—
- (a)includes the provisions and other matters it would be required to include if the determination were a proposed bargaining instrument the subject of a part 5 application; and
- (b)includes any increase in wages ordered by the full bench under subsection (2)(b) or agreed by the parties during the arbitration.
- (4)In determining the matters in dispute, the full bench must consider at least the following—
- (a)the merits of the case;
- (b)the likely effect of the proposed arbitration determination, and any matters agreed between the negotiating parties before or during the arbitration, on employees and employers to whom the proposed arbitration determination will apply.” (emphasis added)
- [11]The practical issue though is that the Stream B and Stream C employees, by their unions, are not involved in many of the disputed matters which are of concern to the QSU. The other unions are happy to have only one issue determined by the Full Bench, namely the one or more agreement issue which has been formulated into the following proposed question:
“Should Mackay Regional Council employees under the Queensland Local Government Industrial (Stream B) Award - State 2017 and Queensland Local Government Industrial (Stream C) Award - State 2017 have their own agreement?”
- [12]Section 451 of the IR Act gives the Commission general powers. That provides, relevantly:
“451 General powers
- (1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
- (2)Without limiting subsection (1), the commission in proceedings may—
- (a)give directions about the hearing of a matter; or
- (b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
- (c)make an order it considers appropriate. …
- (4)The full bench may, to assist it in the resolution of proceedings—
- (a)refer the whole or part of a question or matter before it to the commission—
- (i)for investigation by the commission and the preparation of a report on the investigation; or
- (ii)for another action it decides; or
- (b)direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection.
- (5)The commission or member must comply with the reference or direction.”
- [13]The general powers must be read consistently with Division 2, Part 3 of Chapter 4, which includes s 180. Where a general power is inconsistent with the legislative command in that division, the power is not exercisable.
- [14]The power provided by s 451(4) of the IR Act to seek a report from a commissioner is not inconsistent with the requirement in s 180 that the Full Bench determine the dispute concerning the bargaining instrument. The Full Bench would decide the issue, with the help of the report. The Full Bench, by s 451(1), has the power to determine a separate question on an interlocutory hearing.
- [15]There are, therefore, a number of options. These are:
- determine the entire dispute in Mackay in January 2022;
- determine the one or more agreement issue in Mackay in January 2022 and seek a report from a single commissioner in relation to any outstanding matters;
- determine the one or more agreement issue in Mackay in January 2022, and if necessary adjourn all other issues to a later date when the Full Bench reconstitutes with the same members.
- [16]The appropriate course of action ought to be determined upon the balance of convenience.
- [17]It is clear that:
- the one or more agreement issue is a significant one;
- the one or more agreement issue concerns all employees and, therefore, all the unions;
- determination of the one or more agreement issue will remove one obstacle in the way of the parties reaching agreement and the inference can be drawn that further discussion might be fruitful in solving the whole dispute or at least narrowing the issues;
- there are issues involving Stream A employees and, therefore, the QSU, that do not concern Stream B or Stream C employees or unions representing them.
- [18]The Mackay Council submits that the only issue that has been referred to arbitration is the one or more agreement issue. In our view, that is not correct. The “matter”, as we have explained, encompasses all issues in dispute concerning the bargaining instrument sought to be made; in other words, all issues in the way of an agreement.
- [19]The Mackay Council submits that it has been denied the opportunity to negotiate issues in dispute beyond the one or more agreement issue. There is nothing in that submission, as the “matter”, as we have defined it, is before us. In fact, the dispute was referred by the Mackay Council. It is a question for case management as to how the dispute is now handled by the Full Bench.
- [20]We agree with the Mackay Council that all the issues must be properly identified. We will make directions for that to occur.
- [21]The Full Bench will hear argument (and evidence if necessary) on the one or more agreement issue in Mackay in January 2022. It will then, when in Mackay, hear further argument and make directions as to how the balance of the dispute will be dealt with. It may be that the balance of issues can be heard in Mackay when the Full Bench is sitting. It may be that the Full Bench will sit on some adjourned date. That will be determined by the Full Bench sitting in Mackay in January 2022. The parties should ready themselves to proceed to finally determine the matter in Mackay in January 2022.
- [22]However, in the event of an adjournment, remaining issues will be heard and determined by the Full Bench constituted by the present members. That is the appropriate course as it is most likely to progress the final resolution of the dispute.
Orders
- The Full Bench will hear the following issue in Mackay in the sittings on 19, 20, and 21 January 2022 (the Mackay sittings):
“Should Mackay Regional Council employees under the Queensland Local Government Industrial (Stream B) Award - State 2017 and Queensland Local Government Industrial (Stream C) Award - State 2017 have their own agreement?”
- The Full Bench will then hear, in the Mackay sittings, further argument as to the further conduct of the matter.
- By 4.00 pm on 30 November 2021, the Mackay Council shall file in the Commission and serve on all other parties a list of issues in dispute.
- By 4.00 pm on 9 December 2021, each of the respondent unions shall file in the Commission and serve on all other parties a list of issues in dispute.
- The Vice President will hear a further directions hearing at 9.00 am on 13 December 2021.