McIlroy-Ranga v Torres Strait Island Regional Council
[2022] QIRC 448
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- McIlroy-Ranga v Torres Strait Island Regional Council[2022] QIRC 448
- Add to List
McIlroy-Ranga v Torres Strait Island Regional Council[2022] QIRC 448
McIlroy-Ranga v Torres Strait Island Regional Council[2022] QIRC 448
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McIlroy-Ranga v Torres Strait Island Regional Council [2022] QIRC 448 |
PARTIES: | McIlroy-Ranga, Luke Ashley (Applicant) v Torres Strait Island Regional Council (Respondent) |
CASE NO.: | B/2022/64 |
PROCEEDING: | Recovery of unpaid wages Application to refer matter to Full Bench |
DELIVERED ON: | 18 November 2022 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | That matter B/2022/64 not be referred to the Full Bench. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – DEFINITIONS AND INTERPRETATION – interpretation of s 38(4) of the Industrial Relations Act 2016 (Qld) – consideration of the meaning of the term worked under s 38(4) of the Industrial Relations Act 2016 (Qld) INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – INDUSTRIAL RELATIONS TRIBUNAL – POWERS GENERALLY – where respondent applied to the Commission to refer the matter to the Full Bench – whether matter appropriate to be referred to the Full Bench |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 32, 38 and 486 |
CASES: | Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31 Mackenzie v State of Queensland (Queensland Health) [2022] QIRC 205 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103 Together Queensland Industrial Union of Employees v Scales & Anor [2021] QIRC 364 |
Reasons for Decision
- [1]Mr Luke Ashley McIlroy-Ranga ('the Applicant') filed an application in the Queensland Industrial Relations Commission ('the Commission'), seeking payment of annual leave entitlements.
- [2]The Applicant was employed with the Torres Strait Island Regional Council ('the Respondent') until 13 May 2022 when he was terminated from his employment with the Respondent.
- [3]The parties filed written submissions in accordance with directions issued by the Commission, following which the Applicant sought leave to provide further oral submissions. By correspondence to the Industrial Registry on 23 September 2022, the Respondent indicated that the matter 'may be best referred to the full bench' pursuant to s 486 of the Industrial Relations Act 2016 (Qld) ('the Act').
- [4]A directions order was subsequently issued to parties, directing inter alia the Respondent to advise whether they intended to request the matter to be referred to a full bench for determination.
- [5]On 31 October 2022, the Respondent, in accordance with the directions order, confirmed its request that the matter be referred to the full bench. Submissions were filed in support of the Respondent's request.
- [6]On 4 November 2022, the Applicant, in accordance with the directions order, filed submissions objecting for the matter to be referred to the full bench.
- [7]The question for determination is whether I consider this matter to be appropriate to be referred to the full bench, pursuant to s 486 the Act.
Legislative framework
- [8]Section 486 of the Act provides the Commission the power to refer a matter to the full bench as follows:
486 Referring matter to full bench
- (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.
- (2)A commissioner may refer the matter only with the president's approval.
- (3)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.
- (4)The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.
- [9]Importantly, the matter can only be referred to the full bench with the President's approval in accordance with s 486(2) of the Act.
- [10]Consideration of whether a matter need be of 'substantial industrial significance' to be referred to the full bench was considered in Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015.[1] In this matter, President Davis J stated the following regarding s 486 of the Act:
Section 486(2) bestows a discretion which is not subject to any express limitations. There is, though, no statutory discretion in Australia which is unlimited. All statutory discretions are limited to the achievement of the purpose for which the power was granted.
Section 486's predecessor was s 281 of the Industrial Relations Act 1999 (the 1999 IR Act) which was in these terms:
"281 Reference to full bench
- (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.
- (2)A commissioner, other than the president, may refer the matter only with the vice president’s approval.
- (3)Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the vice president for the matter to be referred to the full bench.
- (4)The vice president may approve the referral of a matter to the full bench under subsection (2) only if the vice president is satisfied the matter is of substantial industrial significance.
- (5)On application under subsection (3), the vice president may refer the matter to the full bench only if the vice president is satisfied the matter is of substantial industrial significance.
- (6)The full bench may hear and decide a matter referred to it and make the decision it considers appropriate."
Section 281(4) of the 1999 IR Act achieved at least two purposes. Firstly, it limited the discretion created by s 281(2). Only when the President was satisfied that the matter was of "substantial industrial significance" could the approval be given pursuant to s 281(2). Secondly, s 281(4) otherwise informed the limits of the s 281(2) discretion. The clear purpose of s 281(2) was to manage the business of the QIRC so that matters, other than those of particular significance should be dealt with by a single commissioner.
Section 486 of the 2016 IR Act does not contain a limitation equivalent to s 281(4) so a discretion exists to approve the referral, notwithstanding that the matter might not be one "of substantial industrial significance". In construing s 486, it is necessary to consider the text of the section in the context of the legislation as a whole, including its legislative history, and its purpose.
Here, the legislative history is of some significance. On 1 September 2016, the Industrial Relations Bill 2016 was introduced into the Queensland Parliament. It proposed the repeal of the 1999 IR Act and the amendment of various other pieces of legislation, including the Anti-Discrimination Act 1991. Upon the introduction of the Bill, the Minister for Employment and Industrial Relations, Minister for Racing and Minister for Multicultural Affairs, the Honourable Grace Grace, told the Parliament:
"In regard to strengthening Queensland's industrial tribunals, the bill provides the QIRC with exclusive jurisdiction to deal with all workplace related anti-discrimination matters, including those taken under the Anti-Discrimination Act 1991. These matters will still go to the Anti-Discrimination Commission Queensland in the first instance but, if they cannot be resolved through conciliation and they are work-related, the matter will be referred to the Queensland Industrial Relations Commission."
The Minister was there referring to what ultimately became ss 164A and 174B of the Anti-Discrimination Act 1991. The effect of those sections (and others) is that if a discrimination complaint concerns "a work related matter" and the complaint is not resolved by conciliation, then the complaint could be referred to the QIRC to be ultimately heard and determined.
Section 486, as it originally appeared in the Industrial Relations Bill 2016, was in the same form as s 281 of the 1999 IR Act, so that the power to approve a referral to the Full Bench could only be exercised where the matter was of "substantial industrial significance".
The Bill was referred to the Finance and Administration Committee and ultimately amendments were proposed. Amendment to clause 486 was proposed to remove the necessity for the President to be satisfied that the matter was of "substantial industrial significance” before an approval could be given. In the Explanatory Memorandum to the amendments, this appeared:
"Amendment 14 amends clause 486 (Referring matter to full bench) by removing subclauses (3) which provides that the president may approve the referral of a matter from the commission to the full bench under subsection (2) only if satisfied the matter is of 'substantial industrial significance'. This amendment is necessary to reflect the expanded jurisdiction of the commission under the Bill.
Amendment 15 amends clause 486 (Referring matter to full bench) by removing subclause (5) which provides that on application under subsection (3), the president may refer a matter to the full bench only if satisfied the matter is of 'substantial industrial significance'. This amendment is necessary to reflect the expanded jurisdiction of the commission under the Bill."
The reference to "the expanded jurisdiction of the commission under the Bill" is obviously a reference to the jurisdiction of the QIRC bestowed in relation to anti-discrimination matters. 5 The removal of the restriction to approve only a referral to the Full Bench of matters "of substantial industrial significance" recognises that important matters might arise under the Anti-Discrimination Act which ought to be decided by a Full Bench but may not be ones "of substantial industrial significance".
The purpose of the power bestowed by s 286(2) is, though, in my view, the same as that bestowed by s 281(2), namely to manage the business of the QIRC. The structure of the QIRC, as provided in the 1999 IR Act, is basically equivalent to its structure provided in the 2016 IR Act and it must be that the starting point is an assumption that routine cases remain to be decided by a single commissioner. There must be something extra in a case before it is referred to the Full Bench. However, notwithstanding the repeal of s 281(4), if a matter is one of substantial industrial significance, that is a relevant consideration in favour of exercising the discretion under s 486(2) to approve the referral of the matter to the Full Bench. It is clearly desirable that such a matter is decided by a Full Bench with the authority that such a decision brings.[2]
Respondent's submissions
- [11]The Respondent contends that the issue to be determined in this matter is the statutory interpretation of s 38(4) of the Act. The Respondent submits that the issue is novel as there is no identifiable authority in the Industrial Court of Queensland or the Commission which have interpreted the provisions of this section. The Respondent further submits that this matter is similar to the circumstances in Together Queensland Industrial Union of Employees v Scales & Anor ('Scales').[3]
- [12]The Respondent acknowledges that, although this matter only deals with one particular employee, the ultimate interpretation of s 38(4) of the Act has significant consequences for the calculation of annual leave entitlements upon termination of employment for every public sector employee covered by the Act. The Respondent notes that this would require the interpretation of an entitlement which forms part of the Queensland Employment Standards.
- [13]The Respondent submits that such a determination has substantial industrial significance. Further, the outcome will have wide implications for all public service workers as well as cost implications for all employers in the Queensland public sector.
- [14]The Respondent submits that the referral to the full bench has the potential to avoid time, cost and inefficiencies as it will both obviate the possibility of an appeal and avoid the same question being decided again by a single Member.
Applicant's submissions
- [15]The Applicant submits that the subject matter does not warrant the matter being referred to the full bench and that the matter will be dealt with more efficiently by a single Member of the Commission.
- [16]The Applicant submits that the issue regarding annual leave accrual under the Act might be novel, however, the resolution of the matter requires application of the usual principles of statutory interpretation.
- [17]The Applicant submits that the Respondent omits any reference to s 32 of the Act which deals with how annual leave accrues while on different types of leave. The Applicant further outlines the following regarding the Respondent's interpretation of s 38(4) of the Act:
The respondent's case is that the applicant is not entitled to the benefit of annual leave accrual for part of a year unless he is engaged in work. Put simply, the respondent says that when an employee is on leave or directed to stay home on pay without performing any work there is no accrual of pro rata annual leave in the event that the period under consideration is less than a year. This proposition is based on the provisions of s38 (4) of the Industrial Relations Act.
…
The respondent bases their argument on a narrow interpretation of the word "worked" as used in s 38. The word is not defined and "worked" is a word which has a variety of meanings including employment. There is no reason why the term should be read narrowly…
Consideration
- [18]A Commissioner has a discretionary power to refer a matter to the full bench pending the President's approval, pursuant to s 486 of the Act.
- [19]I firstly note the consideration in Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015,[4] in which President Davis stated that the starting point in these matters is an assumption that routine cases remain to be decided by a single Member. Although no longer a legislative requirement, a relevant consideration in favour of exercising the discretion under s 486(2) of the Act is if a matter is one of substantial industrial significance.[5] The substantive issue in this matter relates to a single employee, and whilst I accept the argument put forward may be novel, this position does not escalate the industrial significance of the matter.
- [20]I am not persuaded that this matter has a comparable level of industrial significance to that of Scales. The matter of Scales involved considerations of the recently introduced provisions incorporating a civil penalty regime into the Act. This matter does not involve the complexity of that in Scales and can be distinguished on the basis that it involves the relatively straightforward interpretation of long existing provisions within the Act.
- [21]The matter in question requires consideration of the relevant statutory provisions as they relate to the entitlement to annual leave in particular circumstances under the provisions of the Act. Applying the principles of statutory interpretation to any particular provision is a task routinely undertaken by single Members of the Commission, sometimes in circumstances where there is no existing case law. The simple fact that a particular argument has not previously been considered does necessitate a referral to the full bench for determination.
- [22]The Respondent submits that referral to the full bench has the potential to avoid time, cost and inefficiencies on the basis that it will both obviate the possibility of an appeal and avoid the same question being decided 'over and over again' by a single Member. On the basis that there is no case law reflecting consideration of the parties' positions on the substantive matter, it appears unlikely that this question will need to be decided 'over and over again' by a single Member of the Commission.[6] If this issue was to be the subject of future application, the general principle in Nevistic v Minister for Immigration and Ethnic Affairs[7] regarding consistency would apply in the absence of an available appellate decision. Appeal rights exist from decisions of both single Members and those of the full bench. An appeal against a decision of the full bench is unlikely to be any more advantageous in terms of time, cost and efficiency than an appeal against the decision of a single Member.
- [23]For the foregoing reasons, I have determined to not exercise my discretion pursuant to s 486(1) of the Act to refer this matter to the full bench.
Order
- [24]I make the following order:
That matter B/2022/64 not be referred to the Full Bench.
Footnotes
[1] [2021] QIRC 103.
[2] Ibid [7]-[16].
[3] [2021] QIRC 364.
[4] [2021] QIRC 103.
[5] Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31.
[6] Unlike the issue in Mackenzie v State of Queensland (Queensland Health) [2022] QIRC 205 which required consideration of failure to follow a COVID-19 Directive, an issue giving rise to numerous appeals.
[7] (1981) 51 FLR 325.