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CITE

Unreported Judgment

Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 2)[2022] QIRC 11Davis J and President and O'Connor VP and Hartigan IC
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Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 2)[2022] QIRC 11

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No 2) [2022] QIRC 011
PARTIES:	MACKAY REGIONAL COUNCIL (applicant) v QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES AND OTHERS (respondent)
FILE NO/S:	CB/2021/10
PROCEEDING:	Application for help to make a certified agreement
DELIVERED ON:	Orders made 19 January 2022, reasons delivered on 24 January 2022
HEARING DATE:	19 January 2022
MEMBER:	Davis J, President, O'Connor VP, Hartigan IC
ORDERS:	The Full Bench heard argument on a preliminary question, namely: “Should Mackay Regional Council employees under the *Queensland Local Government Industry (Stream* *B) Award - State* 2017 and *Queensland Local Government Industry (Stream C) Award - State* 2017 have their own agreement?” The Full Bench answers that question in these terms: “As the arbitration has commenced, the Full Bench has no power to order that the Stream B and Stream C employees have their own agreement.”
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – where the applicant is an employer of workers covered by State awards and by the Mackay Regional Council Certified Agreement 2017 (the 2017 Certified Agreement) – where the 2017 Certified Agreement covers workers in Stream A, Stream B and Stream C – where the 2017 Certified Agreement expired – where the negotiation for a new agreement stalled – where the applicant sought the assistance of the Queensland Industrial Relations Commission (QIRC) to reach agreement – where conciliation failed – where the dispute was referred to the Full Bench of the QIRC for arbitration – where employees in Stream B and Stream C sought a separate agreement from the workers in Stream A – whether the QIRC had power to order two agreements Queensland Local Government Industry (Stream A) Award – State 2017 Queensland Local Government Industry (Stream B) Award – State 2017 Queensland Local Government Industry (Stream C) Award – State 2017 Industrial Relations Act 2016, s 163, s 168, s 169, s 171, s 173, s 174, s 175, s 176, s 177, s 178, s 179, s 180, s 181, s 182, s 183, s 184, s 451 Native Title Act 1993 (Cth)
CASES:	In an application filed by Mackay Regional Council [2021] QIRC 418, related Mackay Regional Council v Queensland Services Industrial Union of Employees & Ors [2021] QIRC 373, related Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, cited Northern Land Council v Quall (2020) 94 ALJR 904, followed Palmer v Australian Electoral Commission (2019) 93 ALJR 947, cited Shanahan v Scott (1957) 96 CLR 245, cited SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106, followed
REPRESENTATION:	A Bigby (Mackay Regional Council), N Henderson and M Robertson (Queensland Services, Industrial Union of Employees), G Harradine (Construction, Forestry, Mining and Energy Union, Industrial Union of Employees, Queensland), T Fernandez (Plumbing and Gasfitters Employees’ Union), T McQuillan (The Australian Workers’ Union of Employees, Queensland)

[1]
Before the Full Bench of the Queensland Industrial Relations Commission (the Commission) is the arbitration of the terms of a proposed industrial agreement.^[1]
[2]
A preliminary issue arose, and on 19 January 2022, the Full Bench made the following orders:

“The Full Bench heard argument on a preliminary question, namely:

‘Should Mackay Regional Council employees under the Queensland Local Government Industry (Stream B) Award - State 2017 and Queensland Local Government Industry (Stream C) Award - State 2017 have their own agreement?’

The Full Bench answers that question in these terms:

‘As the arbitration has commenced, the Full Bench has no power to order that the Stream B and Stream C employees have their own agreement.’”

[3]
These are the reasons for making those orders.

Background

[4]
The Mackay Regional Council (the Council) employs various workers under State awards which categorise the workers under Stream A, Stream B and Stream C.^[2]
[5]
Different unions have coverage over the different categories of workers. Generally, the Queensland Services, Industrial Union of Employees (QSU) has coverage over Stream A employees and some Stream B employees, while other unions, the Australian Workers’ Union of Employees, Queensland (AWU), the Plumbing and Gasfitters Employees’ Union (PGEU), the Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland (AMEPKU), the Electrical Trades Union of Employees, Queensland (ETU) and the Construction, Forestry, Mining and Energy Union, Industrial Union of Employees, Queensland (CFMEU) have coverage over the remaining Stream B and Stream C employees. The AMEPKU and the ETU did not appear on the arbitration.
[6]
The Mackay Regional Council Certified Agreement 2017 (the 2017 Certified Agreement) was certified on 8 December 2017. It expired on 30 June 2020.
[7]
Negotiations for a replacement agreement commenced on 7 November 2019.^[3]
[8]
The 2017 Certified Agreement concerned all the Council’s employees; that is all of those in Streams A, B and C.
[9]
As will become apparent, a central question is the existence or otherwise of a “proposed bargaining instrument” and whether that instrument was one which purported to cover all of the Council’s employees, that is those in Stream A, Stream B and Stream C.
[10]
It appears to be uncontroversial that since the commencement of negotiations on 7 November 2019, the parties have exchanged logs of claim which have been formulated by reference to the terms contained in the 2017 Certified Agreement.
[11]
Further, the affidavit of Ms Kathleen Cotter filed 8 October 2021 exhibits a proposed agreement put forward by the Council at a negotiation meeting on 21 June 2021. It is apparent by the marked-up changes to that proposed agreement that the 2017 Certified Agreement was used as the basis for the proposed agreement.
[12]
It follows that the proposed bargaining instrument being negotiated by the parties at various stages during the negotiation and later in conciliation was formulated by reference to the 2017 Certified Agreement. The instrument being negotiated covered all the employees, namely those in Stream A, Stream B and Stream C.
[13]
On 29 April 2021, the Council filed an application seeking help for the parties to reach agreement. That application was authorised by s 175 of the Industrial Relations Act 2016 (the IR Act).
[14]
A matter of contention in the negotiations was whether the Stream B and Stream C employees ought to have a separate agreement to the Stream A employees (the two agreements issue).
[15]
Industrial Commissioner Pidgeon conciliated the dispute and then referred the matter to arbitration pursuant to s 177(2) of the IR Act.
[16]
It became apparent that the two agreements issue was a major matter of contention between the Council and unions representing the Stream B and Stream C workers. Those unions had largely agreed terms with the Council. The QSU still had many matters in contention. The unions representing Stream B and Stream C workers considered that it was in their members’ interests to extract them from the negotiations concerning the Stream A workers. They wished to do this by securing a separate agreement.
[17]
Directions were made by the Commission on 13 August 2021 with a view to determination of the two agreements issue. The question was defined as:

“Should Mackay Regional Council employees under the Queensland Local Government Industry (Stream B) Award - State 2017 and Queensland Local Government Industry (Stream B) Award - State 2017 and Queensland Local Government Industry (Stream C) Award - State 2017 have their own agreement?”

[18]
An interim wage increase was awarded to Stream A and Stream B employees on 4 November 2021.^[4] The Council subsequently granted a wage increase to Stream C employees.
[19]
The arbitration of the dispute was listed for three days in Mackay commencing on 19 January 2022 with directions that the two agreements issue would be determined as a preliminary issue.^[5]
[20]
Pursuant to directions given on 13 August 2021, submissions on the two agreements issue were exchanged. That raised, relevantly:

whether the order sought that there be two agreements was, as a matter of law, a “scope order”, as provided by Part 4 of Chapter 4 of the IR Act; and
if so, whether the Full Bench had jurisdiction to determine the two agreements issue given the terms of s 184(2)(b) of the IR Act which prohibits the making of scope orders after referral of the dispute to arbitration.

The statutory provisions

[21]
Chapter 4 of the IR Act concerns collective bargaining. Section 163 describes the purpose of the chapter. In essence:

the aim is for parties to reach agreement if possible; but
the Commission may, if the parties are unable to reach agreement, assist by conciliation; and
if conciliation fails, the Full Bench may arbitrate the dispute.

[22]
Section 168 contains important definitions for Chapter 4. Of significance here:

“bargaining instrument means—

(a)
a certified agreement; or

(b)
a bargaining award.”

“part 5 application—see section 191.” Where section 191 provides that a ‘part 5 application’ means an application under section 189 or 190.

“proposed bargaining instrument—

(a)
in relation to a part 5 application, means the agreement or proposed bargaining award that is the subject of the application; or

(b)
generally, means a proposed agreement or bargaining award being negotiated under this chapter.”

[23]
Part 5 of Chapter 4, relevantly here, concerns the certification by the Commission of concluded agreements. Here, there is no concluded agreement as the parties have failed to reach agreement and are in arbitration.
[24]
Section 169 provides for a party to give notice of intention to bargain. It provides:

“169 Notice of intention to bargain

(1)
This section applies if a person (the proposer) proposes to negotiate with a view to a bargaining instrument being made.

(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—

(a)
the other proposed parties to the negotiations;

(b)
if the negotiations relate to a project agreement—all relevant employee organisations and the commission.

(3)
The proposer must give the notice of intention at least 14 days before the negotiations are proposed to start.

(4)
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.

(5)
Subsection (4) applies subject to the provisions of the bargaining instrument.”

[25]
The Council gave notice pursuant to s 169.
[26]
Section 170 is not relevant here. Section 171 provides as follows:

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

(1)
This section applies if, during negotiations under this chapter, the negotiating parties propose to—

(a)
make a certified agreement, other than an excluded instrument; or

(b)
seek the making of a bargaining award.

(2)
The employer must take reasonable steps to ensure—

(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

(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

(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 employer about the agreement.

Note—

See section 242 in relation to certificates about requested representation.

(3)
The employer must not ask relevant employees to approve the proposed instrument until 21 days after the later of the following—

(a)
the day the notice of intention for the negotiations was given;

(b)
the day a scope order in relation to the proposed instrument came into effect.

(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—

(a)
for a proposed agreement—the agreement is made; or

(b)
for a proposed bargaining award—an application is made under part 5 for the making of the bargaining award.

(5)
Subsection (4) stops applying if, after the request is made—

(a)
the relevant employee withdraws the request; or

(b)
the employee stops being a relevant employee.

(6)
If the proposed instrument is amended for any reason, the steps in subsections (2) and (3) must be taken again for the instrument as amended.

(7)
If the proposed instrument is amended only by adding an employer (a new employer) as a party, the steps need only be taken in relation to the new employer’s employees.

(8)
However, the steps need not be taken if the commission is satisfied the proposed bargaining instrument was amended only—

(a)
for a formal or clerical reason; or

(b)
in another way that does not adversely affect a relevant employee’s interests.

(9)
In this section—

excluded instrument means—

(a)
a certified agreement to be made with an employee organisation for employees proposed to be employed in a new business; or

(b)
a project agreement to be made before the project commences.”

[27]
Section 172 is not relevant here. Section 173 requires the parties to negotiate in good faith and s 174 restricts industrial action while negotiations continue.
[28]
Part 3 of Chapter 4 concerns the Commission’s role in the conciliation and arbitration processes. Division 1 of Part 3 concerns conciliation and Division 2 concerns arbitration. Sections 175, 176, 177 and 178, constitute Division 1 of Part 3. Sections 175, 176 and 177 provide as follows:

“175 Application of division

(1)
This division applies if—

(a)
the peace obligation period has ended; and

(b)
a negotiating party asks the commission to help the parties reach agreement.

(2)
However, this division stops applying if the negotiating parties notify the commission that the parties intend to resume negotiating without the commission’s help.

176 Commission’s role in conciliation

(1)
The commission’s objective in conciliating the matter under this division is to help the negotiating parties—

(a)
reach agreement on all matters or as many matters as possible; and

(b)
comply with the requirement under section 173 to negotiate in good faith.

(2)
To achieve the objective, the commission may—

(a)
give advice or make recommendations to the parties about the conduct of the negotiations; or

(b)
give directions about action to be taken, or not to be taken, to ensure a party complies with the requirement mentioned in subsection (1)(b); or

(c)
if the commission considers that holding a conference is desirable—by attendance notice, require a person to attend a conference at a stated time and place.

(3)
A person given an attendance notice must comply with the notice.

Note—

This subsection is a civil penalty provision.

(4)
To remove any doubt, it is declared that the commission may suspend or terminate protected industrial action taken during conciliation only under part 8, division 4.

(5)
Things said or done in the conciliation may not be admitted into evidence for any proceeding or otherwise disclosed.

177 Referral to arbitration by conciliating member

(1)
This section applies if—

(a)
the commissioner conciliating the matter (the conciliating member) considers—

(i)
a negotiating party has tried to negotiate with the other parties; or

(ii)
if the negotiating parties have been negotiating—the parties have tried to reduce the scope of the matters at issue between the parties; and

(b)
the conciliating member—

(i)
is satisfied the negotiating parties have been negotiating for at least the minimum period; and

(ii)
does not consider there is a reasonable likelihood of further conciliation or negotiation resulting in the parties reaching agreement on the matters at issue within a reasonable period.

(2)
The conciliating member may refer the matter to arbitration by giving written notice of the referral to the president and each negotiating party.

(3)
The notice of the referral must not include any information other than—

(a)
the names of the negotiating parties; and

(b)
a statement that conciliation has not been successful and the matter is referred to arbitration.

(4)
In this section—

minimum period means the later of the following periods to end—

(a)
6 months from the nominal expiry date of a certified agreement or bargaining award that applies to the parties;

(b)
3 months from the day conciliation of the matter started.” (emphasis added)

[29]
Section 178 enables the negotiating parties to consent to the referral of the matter to arbitration. There is no need to consider s 178.
[30]
Sections 179, 180, 181, 182 and 183 are contained within Division 2.^[6] They provide:

“179 Application of division

This division applies if—

(a)
the matter is referred to arbitration by the conciliating member under section 177; or

(b)
an application for arbitration of the matter made under section 178 is granted by the commission.

Note—

Industrial action organised, or engaged in, while the full bench is arbitrating the matter under this division is not protected industrial action—see section 234.

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.

181 Arbitration determination may include agreed matters

(1)
An arbitration determination by the full bench may include provision for a matter agreed between the negotiating parties before or during the arbitration.

(2)
However, the full bench may not exercise any powers under this division in relation to a matter mentioned in subsection (1).

182 Full bench must publish reasons

(1)
The full bench must publish its reasons when determining the disputed matters under this division.

(2)
The reasons must address each of the things the full bench considered under section 180(4).

183 Operation of arbitration determinations

(1)
An arbitration determination must state, as its nominal expiry date, a date that is—

(a)
agreed by the negotiating parties or, if the parties can not agree, ordered by the full bench; but

(b)
no later than 4 years after the date on which the determination is made.

(2)
The arbitration determination has effect subject to any conditions stated in the determination.

(3)
The arbitration determination operates until it is terminated under part 7, division 3.

(4)
While the arbitration determination operates, the determination—

(a)
prevails, to the extent of any inconsistency, over an award or an order made under section 136; and

(b)
can not be amended.” (emphasis added)

[31]
Part 4 of Chapter 4 concerns scope orders. Relevant here are ss 184, 185 and 186. They provide:

“184 Applications for scope orders

(1)
A negotiating party may apply to the commission for an order under section 185 (a scope order) in relation to a proposed bargaining instrument if the negotiating party has concerns the instrument—

(a)
will not cover appropriate employees; or

(b)
will cover employees whom it is inappropriate for the instrument to cover.

(2)
The application—

(a)
may be made any time after the notice of intention for the negotiations has been given; but

(b)
may not be made after part 3, division 2^[7] starts applying in relation to the negotiating parties.

185 Making scope orders

(1)
The commission may make an order providing for the matters mentioned in section 186 in relation to a proposed bargaining instrument if satisfied—

(a)
an application for the order has been made under section 184; and

(b)
the negotiating party who made the application has not contravened the requirement to negotiate in good faith under section 173; and

(c)
the group of employees to be covered by the proposed bargaining instrument to be stated in the scope order was fairly chosen; and

(d)
it is reasonable in all the circumstances to make the order.

(2)
For subsection (1)(c), if the group of employees does not include all employees of each employer who will be covered by the proposed bargaining instrument, in deciding whether the group was fairly chosen the commission must consider whether the group is geographically, operationally or organisationally distinct.

(3)
The scope order may relate to more than 1 proposed bargaining instrument.

186 Matters to be stated in scope orders

A scope order in relation to a proposed bargaining instrument must state—

(a)
the employer, or employers, to be covered by the instrument; and

(b)
the employees to be covered by the instrument; and

[32]
Of some significance to the arguments before us is s 451 of the IR Act which bestows general powers on the Commission. It provides:

“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

(3)
The commission may, by general order or for a particular case, delegate to the registrar—

(a)
the working out of a decision of the commission to implement the decision; or

(b)
a function relating to the decision, including, for example—

(i)
the giving of directions; or

(ii)
the making of orders; or

(iii)
the preparation of rosters and schedules; or

(iv)
a similar function 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” (emphasis added).

The issues

[33]
It is common ground that no formal application was made by any party for a scope order under ss 184 and 185. By s 184(2), no application can now be made as the arbitration pursuant to Part 3, Division 2 of Chapter 4 has commenced.
[34]
The Council submits that:

the determination of the two agreements issue would result in the making of a scope order;
the making of a scope order is now prohibited by s 184(2)(b);
given the prohibition in s 184(2)(b), any general powers of the Commission to make orders are construed so as not to empower the making of a scope order;
therefore, the time for determining the two agreements issue has passed and the Commission has no jurisdiction to now determine that issue.

[35]
The unions’^[8] position is:

no application has been made for a scope order;
therefore, ss 184, 185 and 186 of the IR Act, including specifically the prohibition in s 184(2)(b), have no relevance;
the two agreements issue is a “matter in dispute” referred to arbitration, so the Commission has power to resolve it under s 180 and, if necessary, resort can be had to s 451.

Consideration

[36]
Section 184 assumes the existence of a “proposed bargaining instrument”. Paragraph (a) of the definition of “proposed bargaining instrument” refers to Part 5 applications. Part 5 applications concern the certification of concluded agreements. There is no agreement here and, therefore, that part of the definition is irrelevant. Paragraph (b) of the definition is very general and of no real assistance here.
[37]
Apart from s 171, s 174 and s 180(3), the term “proposed bargaining instrument” is not mentioned in either Parts 2 or 3 of Chapter 4. Section 171 does not assist the resolution of the present issues. Section 171 applies where negotiations are successful and arbitration is unnecessary. The parties agree to the terms of a “proposed bargaining instrument” which they then seek to have certified under Part 5. The issue here concerns unconcluded bargains where arbitration is required. Section 174 concerns the peace obligation period and is irrelevant for present purposes. Section 180 concerns the content of an arbitration agreement. It is not relevant here.
[38]
There is nothing in Part 3, Division 1 to suggest that a bargaining instrument must be prepared and then “proposed” for the purposes of conciliation. What is referred to arbitration under s 177 is “the matter” which, in context, must be the dispute as to the terms of the unconcluded agreement. There is nothing to suggest that a “proposed bargaining instrument” is what is referred to arbitration.
[39]
However, as already observed, s 184 contemplates the existence of a “proposed bargaining instrument”. That document must, given the terms of s 184(2)(b), be in existence, at least for the purposes of s 184, during the conciliation process at the latest.
[40]
The proposed bargaining instrument is critical to the operation of s 184. For the purposes of s 184, one starts with the “proposed bargaining instrument”.^[9] Then one considers whether the “proposed bargaining instrument” covers employees which it should not, or fails to cover employees that it should.^[10] The scope order then addresses the relevant inadequacy.^[11]
[41]
Here, if the “proposed bargaining instrument” is one which covers all of Streams A, B and C and the unions contend that it should only cover Streams A, or B and C, with a separate agreement covering other employees, then it is upon the unions to apply for a scope order.^[12] Conversely, if the “proposed bargaining instrument” does not cover all employees and the Council says it should, then the Council should bring such an application.
[42]
Because neither of Part 2 or 3 of Chapter 4 requires the production of a proposed bargaining instrument, it is simply a matter of evidence to determine whether one exists. Here, it does. The evidence is explained at paragraphs [10]-[12] of these reasons.
[43]
It is evident that the parties were negotiating from a particular joint position, namely the 2017 Certified Agreement. That, as amended, was the “proposed bargaining instrument”.
[44]
The “proposed bargaining instrument” provides for the coverage of all employees in Streams A, B and C. Therefore, if any union wishes to obtain an order under s 184, it must apply for such an order. However, s 184(2)(b) prohibits the making of such an order now that the arbitration has commenced. Sections 184, 185 and 186 cannot, in the present circumstances, be the source of power to make orders resolving the two agreements issue.
[45]
The unions must identify some other source of power to make an order resolving the two agreements issue. There is no doubt that the two agreements issue is part of the matters in dispute between the parties. Prima facie then the Commission has the jurisdiction to determine it by s 180. However, the scope of an agreement is always a potential point of dispute. Section 184(2)(b) limits the jurisdiction of the Commission to deal with that aspect of the dispute. A scope order can only be made before the matter proceeds to arbitration.
[46]
There are good policy reasons for this. The structure of Chapter 4 encourages the parties to agree if they can. This occurs firstly through negotiation, then conciliation. Only where agreement cannot be reached, through either negotiation or conciliation does the matter then proceed to arbitration. Unless scope issues are resolved before arbitration, parties to the negotiation and conciliation may not have even been identified. The negotiation and conciliation is hardly likely to be satisfactorily conducted where there is dispute as to who the proper parties to the agreement are. Arbitration cannot finally resolve the dispute while that issue is outstanding.
[47]
The two agreements issue is an issue as to whether the proposed bargaining instrument (which covers all of Stream A, Stream B and Stream C employees) covers “employees whom it is inappropriate for the instrument to cover”.^[13] However the two agreements issue is styled, the resolution of it will determine scope.
[48]
What must be determined is whether ss 184 to 186 are the sole sources of power to make a scope order or, in other words, whether the prohibition in s 184(2)(b) limits the more general powers such as those conferred by ss 180 and 451.
[49]
That is a matter of construction of the words of the relevant provisions read in the context of the statute as a whole and having regard to the legislative purpose.^[14]
[50]
The width of general powers such as bestowed by ss 180 and 451 of the IR Act may be restricted by the statutory scheme. In Northern Land Council v Quall,^[15] a question arose as to the power of the Northern Land Council to delegate functions conferred upon it by the Native Title Act 1993 (Cth). One source of power to delegate was argued to be a general provision “to do all things necessary …”. Of that provision, the High Court said:

“[33] The power conferred on a representative body by s 203BK(1) in the familiar terms of a power ‘to do all things necessary or convenient to be done for or in connection with the performance of its functions’, though ‘broad’, is ‘strictly ancillary’, authorising ‘the provision of subsidiary means of carrying into effect what is enacted in the statute itself’ and encompassing ‘what is incidental to the execution of its specific provisions’. The power does ‘not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred’.”^[16]

[51]
The scope order provisions^[17] are contained within Chapter 4 which provides for collective bargaining and the involvement in that process by the Commission through conciliation and arbitration. The scheme of Chapter 4 is, as already explained, to encourage agreement but with resort to formal conciliation and ultimately arbitration. That system is facilitated by scope issues being determined before arbitration. That is the policy and purpose behind s 184(2)(b).
[52]
It is, therefore, inconsistent with the scheme of collective bargaining established by the IR Act to construe either s 180 or s 451 so as to empower the Commission to determine which “employees whom it is inappropriate for the [proposed bargaining instrument] to cover”^[18] after the matter has been referred to arbitration.
[53]
It follows then that:

the resolution of the two agreements issue is a scope issue;
the only power to determine scope is s 184;
that section limits the jurisdiction so that scope orders may only be made before referral to arbitration;
no application was made before referral to arbitration;
the Commission has no jurisdiction to determine the two agreements issue.

[54]
For those reasons, the orders were made.

Footnotes

[1] Industrial Relations Act 2016, Chapter 4, s 180.

[2] Queensland Local Government Industry (Stream A) Award - State 2017, Queensland Local Government Industry (Stream B) Award - State 2017 and Queensland Local Government Industry (Stream C) Award - State 2017.

[3] Industrial Relations Act 2016, s 169.

[4] Mackay Regional Council v Queensland Services Industrial Union of Employees & Ors [2021] QIRC 373, Industrial Relations Act 2016, s 180(2)(b).

[5] In an application filed by Mackay Regional Council [2021] QIRC 418.

[6] Arbitration.

[7] The arbitration provisions.

[8] Except the Queensland Services Union, Industrial Union of Employees who took no position in relation to the two agreements issue.

[9] Section 184(1).

[10] Section 184(1)(a) and (b).

[11] Section 185(1).

[12] Section 184(1).

[13] Section 184(1)(b).

[14] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 and The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106.

[15] (2020) 94 ALJR 904.

[16] At [33]. See also Shanahan v Scott (1957) 96 CLR 245 at 250, Palmer v Australian Electoral Commission (2019) 93 ALJR 947 at [65] and Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410.

[17] Sections 184 to 188.

[18] Section 184(1)(b).

Editorial Notes

Published Case Name:
Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 2)
Shortened Case Name:
Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 2)
MNC:
[2022] QIRC 11
Court:
QIRC
Judge(s):
Davis J, President, O'Connor VP, Hartigan IC
Date:
24 Jan 2022

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
In an application filed by Mackay Regional Council	[2021] QIRC 418	2 citations Jump To Cite 1 - [2021] QIRC 418 Cite 2 - [2021] QIRC 418
Mackay Regional Council v Queensland Services, Industrial Union of Employees	[2021] QIRC 373	2 citations Jump To Cite 1 - [2021] QIRC 373 Cite 2 - [2021] QIRC 373
Morton v Union Steamship Co of New Zealand Ltd	View on:JADE(1951) 83 CLR 402	2 citations Jump To Cite 1 - (1951) 83 CLR 402 Cite 2 - (1951) 83 CLR 402
Northern Land Council v Quall	(2020) 94 ALJR 904	2 citations Jump To Cite 1 - (2020) 94 ALJR 904 Cite 2 - (2020) 94 ALJR 904
Palmer v Australian Electoral Commission	(2019) 93 ALJR 947	2 citations Jump To Cite 1 - (2019) 93 ALJR 947 Cite 2 - (2019) 93 ALJR 947
R v A2	(2019) 93 ALJR 1106	2 citations Jump To Cite 1 - (2019) 93 ALJR 1106 Cite 2 - (2019) 93 ALJR 1106
Shanahan v Scott	View on:JADE(1957) 96 CLR 245	2 citations Jump To Cite 1 - (1957) 96 CLR 245 Cite 2 - (1957) 96 CLR 245
SZTAL v Minister for Immigration and Border Protection	View on:JADE(2017) 262 CLR 362	2 citations Jump To Cite 1 - (2017) 262 CLR 362 Cite 2 - (2017) 262 CLR 362

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 3)	[2022] QIRC 98	2 citations
Queensland Police Union of Employees v HS First Inc.	[2023] QIRC 30	2 citations
Robertson v McDonald's Australia Limited (No. 6)	[2023] QIRC 93	2 citations
Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) and Ors	[2023] QIRC 291	2 citations

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Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 2)[2022] QIRC 11