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CITE

Unreported Judgment

The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council[2022] QIRC 5O'Connor VP and Hartigan IC and Power IC
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The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council[2022] QIRC 5

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council [2022] QIRC 005
PARTIES:	The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (Applicant) v Brisbane City Council (Respondent)
CASE NO:	CB/2020/80
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	13 January 2022
HEARING DATES:	7 October 2021
MEMBERS:	O'Connor VP Hartigan IC Power IC
HEARD AT:	Brisbane
ORDERS:	Pursuant to s 541(b)(ii) of the IR Act, the Full Bench will refrain from hearing the application CB/2020/80 filed by The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (APESMA) on 27 October 2020.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – OTHER EMPLOYMENT CONDITIONS – application in existing proceedings by Respondent – where Respondent seeks an order to dismiss application – where application for help to make a certified agreement – where Applicant opposes application to dismiss – where Applicant seeks full bench to arbitrate under s 180 of Industrial Relations Act 2016 – where Applicant purports to impose obligations on employer to agree to 'a process' for employees whose employment is expressly excluded from the coverage of the proposed agreement – whether Full Bench of commission has the power or jurisdiction to insert the clause into the proposed agreement –
LEGISLATION:	Industrial Relations Act 2016 (Qld) ss 175, 180, 541
CASES:	Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 059 Campbell v Queensland [2019] ICQ 018
APPEARANCES:	Mr T. Whibley and Ms J. Baulch for The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees, the Applicant. Mr G. Evans and Ms A. Grendon for the Brisbane City Council, the Respondent.

Reasons for Decision

[1]
Application CB/2020/80 was filed by The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (APESMA) on 27 October 2020. APESMA was seeking the Queensland Industrial Relations Commission's (the Commission) assistance in negotiations with Brisbane City Council (the Respondent/Council) relating to the Transition Arrangements for Specialist and Senior Professionals (SSP) and Professional Service Employees (PSE) in the proposed Brisbane City Council 2020 Certified Agreement ('Proposed Agreement').

[2]
Conciliation Conferences in relation to the application were held before his Honour Deputy President Merrell on 30 October 2020, 16 and 18 November 2020. As no resolution was reached the matter was subsequently referred to the President for approval to proceed to arbitration before the Full Bench.

[3]
On 6 September 2021 the Respondent filed an application in existing proceedings to dismiss the application by APESMA.

[4]
At a hearing of the application to dismiss before the Full Bench on 7 October 2021 and following submissions of the parties, it was agreed the substantive application proceed to further conciliation. The Full Bench ordered as follows:

O'CONNOR VP: Yes. Well, unless there's any objection, it would be - the order would be, in effect, pursuant to section 451, subparagraph (4)(a)(ii) of the Industrial Relations Act 2016, that the Full Bench directs the parties, in particular the Brisbane City Council and APESMA, to appear before his Honour Deputy President Merrell for the purposes of undertaking conciliation in regard to the matters that are set out in particular at paragraph 22 and associated issues of the submissions of APESMA, which were dated the 27th of September 2021.

Now, those matters will form the basis for any discussions regarding the conciliation, I would have thought. But if we narrow it down to those matters and if some agreement can be reached, it would be a matter between the parties, of course, where an agreement can be reached outside of the necessity to have a clause within the proposed agreement as set out in clause 16, well, then we'll ask the Deputy President to come back and report to us on that, if a resolution can be reached.^[1]

[5]
Further conciliation conferences were held before his Honour Deputy President Merrell on 12 and 22 October 2021 and 17 November 2021, without success.

[6]
Accordingly, the Full Bench will now proceed to issue a decision in the application in existing proceedings to dismiss the substantive application.

Orders sought

[7]
By this application the Council seeks the following orders:

(a)
the direction for Council to file material in response to APESMA's material in matter CB/2020/80, including its Outline of Submissions filed on 20 August 2021 and the Affidavit of Sean Kelly affirmed on 19 August 2021, be stayed until Council's application to dismiss is heard and determined by the Full Bench of the Commission; and

(b)
the APESMA application for a determination be dismissed.

Application to dismiss

[8]
In support of its application, the Council relies on the affidavit of Ms Hastie, Principal Officer Employee Relations, Human Resources filed on 6 September 2021,^[2] which, relevantly, identifies the clause sought by APESMA in the Proposed Agreement (the APESMA Clause) as follows:

[APESMA] is seeking the insertion of a new clause 16 into Schedule 8 of the Proposed Agreement. The proposed clause is as follows:

16 Transition Arrangements - Specialist and Senior Professionals and Professional Service Employees

16.1 Brisbane City Council and the relevant unions will develop an agreed process for transition of Specialists and Senior Professionals (SSP) and Professional Service Employees (PSE) from individual contracts to coverage under this agreement.

16.2 This process will include the creation of a classification structure and pay scale reflective of the value of their positions.

16.3 This process will ensure no staff member is worse off as a consequence of transferring to the Agreement.

16.4 This process will be finalised within 3 months of the certification of the agreement.

16.5 Any dispute relating to the development of this process may be dealt with in accordance with clause 9 Dispute resolution of the agreement.

16.6 If an individual SSP or PSE employee has a dispute or grievance regarding their proposed transition arrangements to the Agreement it may be dealt with in accordance with clause 9 Dispute resolution of the Agreement.^[3] (referred to herein as the APESMA Clause)

[9]
The Council submits the APESMA Clause has two broad components:

(a)
the APESMA Clause purports to impose obligations on Council to agree to 'a process' in relation to the employment of SSPs and PSEs, who are employees of Council whose employment is expressly excluded from the coverage of the Proposed Agreement; and

(b)
the APESMA Clause purports to grant access to the dispute resolution procedures of the Proposed Agreement to persons who are not employed in a classification covered by the Proposed Agreement.^[4]

[10]
In relation to the first component, the Council submits the APESMA Clause cannot be inserted in the Proposed Agreement as substantive parts of the clause purport to compel agreement by the parties to an unspecified future set of terms and conditions, which is not a determination of a disputed provision, but rather a direction that the parties resolve such a dispute in a specified manner which may not be possible.

[11]
Further, the process to which Council will be required to agree concerns existing employees whose employment is not now, and may not be at any time, covered by the Proposed Agreement. A determination cannot impose any obligations on Council in respect of persons whose employment is not covered by the Proposed Agreement.

[12]
It is the contention of the Council that the Commission does not have the power or the jurisdiction to insert the APESMA Clause into the Proposed Agreement.

[13]
As to the second component, the Council submits the APESMA Clause cannot be inserted as it purports to impose obligations on Council in respect of persons who are not employed in a classification covered by the Proposed Agreement and to grant equivalent entitlements to those persons. If the Proposed Agreement does not cover those employees, they cannot be entitled to any benefit under it.

[14]
Further, or alternatively, Council submits that any further hearing of APESMA's application is not necessary or desirable in the public interest, and the Commission should exercise its discretionary power to dismiss the cause, or refrain from hearing, further hearing, or deciding the cause pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (IR Act) because the determination sought by APESMA:

(a)
is not a matter which the Full Bench can arbitrate under s 180 of the IR Act;

(b)
seeks to impose an obligation on the parties to reach agreement on an unspecified future process, and does not thereby resolve the dispute constituted by the refusal of Council to accede to this claim; and

(c)
purports to permit access to the dispute resolution procedures of the Proposed Agreement to persons whose employment is not, and may never be, covered by the Proposed Agreement.^[5]

Application to dismiss or refrain from hearing

[15]
The Council argues that APESMA effectively is seeking the Full Bench to make a determination requiring the parties to develop an unspecified process to 'transition' a group of employees to whom the current Brisbane City Council Certified Agreement 2018 (EBA9) does not apply, and whom the Proposed Agreement expressly excludes. This is clear from the words of the APESMA Clause, including:

Brisbane City Council and the relevant unions will develop an agreed process for transition of Specialists and Senior Professionals (SSP) and Professional Service Employees (PSE) from individual contracts to coverage under this agreement.^[6]

[16]
Relevantly, clause 4.1 of EBA9 provides:

Application

This Agreement applies to the employment of all employees of Brisbane City Council who are engaged in roles classified under the Awards listed in Schedule 2 or within other Schedules to this Agreement. This Agreement shall not apply to an employee who is engaged in accordance with a written contract of employment, namely Specialist and Senior Professionals (SSP), Professional Services Employment (PSE), Senior Executive Stream (SES), and Senior Officer Stream (SOS).^[7]

[17]
Clause 4.1 of the Proposed Agreement states:

Application

This Agreement applies to the employment of all employees of Council who are engaged in roles classified under the Awards listed in Schedule 2 or within other Schedules to this Agreement. This Agreement shall not apply to an employee who is engaged in accordance with a written contract of employment, namely Specialist and Senior Professionals (SSP), Professional Services Employment (PSE), and Executive Services stream (ES).^[8]

[18]
The Council submits that no application has been made, or can now be made, to alter the scope of the Proposed Agreement.

[19]
APESMA submits that it is, 'in agreement with all aspects of the proposed new agreement except for one matter' which appears to be the inclusion of the APESMA Clause. The Council submits this suggests that APESMA agrees with the scope of the Proposed Agreement which provides that it does not apply to SSP and PSE employees.

[20]
The Council argues that the APESMA Clause does not seek to create actual entitlements and impose obligations in relation to employees to whom the Proposed Agreement will not apply, but rather purports to impose an obligation on the parties to reach agreement in that respect. As such, the clause provides no definite outcome concerning classification structures and pay scales. It is entirely unclear what the terms and process could or would be, and even whether agreement could actually be reached.

APESMA's submissions in response

[21]
The position of APESMA is that the Commission should reject the Council's application to dismiss and proceed to hear APESMA's application for the following reasons:

ss 175-180 of the IR Act provide for the Commission to undertake conciliation and arbitration if a 'negotiating party asks the commission to help the parties reach agreement'.^[9] APESMA is a negotiating party for the Proposed Agreement and has sought the assistance of the Commission to reach agreement. Agreement was unable to be achieved in conciliation and the matter has now been referred to arbitration. APESMA contends that the IR Act requires the Commission to hear and determine the APESMA application;

the parties to the Proposed Agreement include the Council, APESMA and the Council employees on SSP and PSE contracts. SSP and PSE employees who do not have contracts are covered by the Proposed Agreement. APESMA contends that there is no barrier to including a provision in the proposed agreement that provides for parties to the proposed agreement to enter into a process regarding consultation and on how employees will become covered by that agreement; and

s 180(2)(c) of the IR Act provides for the Full Bench to issue Orders other than in the terms sought by an application. APESMA sees no reason why the Full Bench could not issue orders in terms other than those sought in the originating application as a means for resolving the dispute.^[10]

[22]
APESMA submits that s 177 of the IR Act provides that a conciliating member may refer a matter for arbitration under s 180 of the IR Act. Section 180 of the IR Act states:

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.

[23]
APESMA submits that in light of the legislative requirement for bargaining parties to agree before a proposed agreement can go to a vote of employees, these sections of the Act were inserted to allow parties a means of finalising any bargaining disagreements. APESMA will not agree to have this Proposed Agreement go to a vote of employees without the APESMA application being fully heard and determined by the Full Bench.^[11]

[24]
APESMA submits that to reject an application for assistance under these provisions of the IR Act without hearing full submissions, witnesses and arguments on the merits of the application would be premature and in contravention of the intent of these sections of the Act.

[25]
APESMA submits that s 180 of the IR Act clearly states the Full Bench must consider at least the merits of the application, 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 before it determines the applications.

Reply Submissions of the Council

[26]
In their application and supporting affidavit, the Council submits that:

(a)
APESMA submitted on 20 August 2021 that it is, 'in agreement with all aspects of the proposed new agreement except for one matter' which is the inclusion of the APESMA Clause (Clause 16 at Schedule 8); and

(b)
as a consequence, APESMA is in apparent agreement with the scope of the Proposed Agreement, which expressly states that it does not apply to SSP and PSE employees, and seeks no alteration to that scope clause; and

[27]
The Council states that none of these submissions have been contradicted in the APESMA reply submissions and they must now be taken to be uncontested in this proceeding.

[28]
In their application and as already outlined, Council relied upon two broad components requesting that the Commission dismiss the arbitration proceedings sought by APESMA.^[13]

[29]
In response to APESMA's submission that the Council's application be rejected, the Council submits as follows in relation to APESMA's position.

[30]
In paragraph 6.1, APESMA seeks the Commission to hear and determine their application but does not address the powers of the Commission under s 541(b)(ii) of the IR Act to consider only so much of the application as is necessary to determine whether the grounds have been made out. Section 541 of the IR Act provides:

541 Decisions generally

The court or commission may, in an industrial cause do any of the following -

(a)
make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;

(b)
dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -

(i)
the cause is trivial; or
(ii)
further proceedings by the court or commission are not necessary or desirable in the public interest;

[31]
Council submits it is not correct to assert in the first sentence of paragraph 6.2 that the parties to the Proposed Agreement include, 'BCC employees on SSP contracts and PSE contracts' as such employees are excluded from the uncontested scope of the Proposed Agreement by clause 4.1. Further, an employee who does not have an SSP or PSE contract is not, by definition, an SSP or PSE employee. In the third sentence where APESMA claim there is no barrier to including a provision in the Proposed Agreement for parties to enter into a particular process, Council state the terms are required to be agreed between the parties and the Commission cannot direct any party to consent to any particular proposal.^[14]

[32]
Council submits in response to paragraph 6.3, the APESMA Clause states that the determination sought to be made was one in which the Commission directed the parties to agree on certain outcomes, notwithstanding that this is the very thing that they were unable to do and which caused this matter to be referred to arbitration. The APESMA submission does not address the primary proposition by Council that the rights and entitlements sought to be created by the determination relate to persons whose employment is expressly excluded from the coverage of the Proposed Agreement. The problem is not remedied by s 180 of the IR Act.

[33]
Paragraphs 7-9 and 11 of the APESMA submissions repeat the erroneous contention that ss 175-180 of the IR Act prevent the Commission from considering and determining a matter summarily under s 541 of the IR Act, and rejecting it on the basis that it has no prospects of success or it is not in the public interest for the application to be heard. Council submits it is plainly not in the public interest for the Full Bench and the parties to be taken up by a full evidentiary hearing seeking a variation to the Proposed Agreement which cannot be granted.

[34]
In paragraph 10, the Council submits that APESMA makes a completely inappropriate and erroneous submission that unless the Commission conduct the hearing APESMA will not agree to allow this Proposed Agreement to go to a vote of employees. Council submits that the making of a determination does not require the ballot of employees in order for it to come into force and effect, and that this assertion can have no effect on the outcome of this matter.

[35]
The Council submits paragraph 12 of the APESMA submission repeats the earlier error of referring to SSP and PSE employees who do not have SSP or PSE contracts and appears to be an attempt to blur and confuse the issue upon which this entire claim rests.

[36]
In response to paragraphs 13 and 14 of the APESMA submission, Council submits that the correspondence, and all of the evidence adduced, and submissions made by APESMA demonstrate that the process by which any PSE or SSP employee can become employed under the Proposed Agreement is exactly the same process as is required of any person who has not previously been a PSE or SSP employee. That is to say, when their fixed term employment comes to an end by their election or by effluxion of time, their employment with Council ceases, unless they are offered and accept alternative employment. APESMA has previously expressed its agreement to the terms and conditions of the Proposed Agreement and a claim for different terms and conditions for some employees, who do not perform any different role, is wholly inconsistent with that agreement.^[15]

[37]
In support of its proposed arbitration claim and in opposition to the Council application, APESMA has mischaracterised the employment of persons in a classification covered by the Proposed Agreement as being a separate or distinct class of employment, by reason only of the fact that, before and unrelated to, their engagement in the agreement classification, they were employed under a SSP or PSE contract which has expired or been terminated.^[16]

[38]
The Council submits the nature of a prior expired or terminated contract under which an employee previously worked before being engaged under the Proposed Agreement, cannot be a lawful or appropriate basis for discriminating in favour of particular employees in comparison to all other Council employees in the same classification under the same Proposed Agreement. The complete lack of rationale for this proposition is compounded by the fact that APESMA has agreed to the EBA terms and conditions as being appropriate to all roles under the Proposed Agreement in which the formerly contracted employees might be engaged.^[17]

[39]
In their submissions the Council expresses the view that APESMA has adopted a clear change in position by suggesting the Commission could, on its own initiative, include a completely different provision. However, Council state such a path is not open to the Commission and also it is not open for the Commission, as suggested by APESMA, for them to file an 'amended application'.^[18]

[40]
As a matter of comment in response to APESMA's four principles (as part of its mooted new claim) set out in paragraph 22, the Council submits they purport to confer rights and entitlements on persons who are not covered by the Proposed Agreement and apply those rights to those persons before they can become covered by the Proposed Agreement. Such a claim could never rationally be granted in bargaining and could never form part of a determination.^[19]

[41]
For the reasons outlined Council submit that no part of the arbitration of the APESMA Clause has any prospects of success; the submissions by APESMA should be rejected and the proceedings directed towards obtaining a determination in terms of the APESMA Clause should be dismissed without further hearing.^[20]

Consideration

[42]
It appears not to be in dispute that APESMA accepts the terms of the proposed new agreement with the exception of the insertion of the APESMA Clause. In light of that fact the Full Bench is not being called upon to arbitrate a question in respect of the scope of the proposed agreement, nor has any objection been taken by APESMA in that respect.

[43]
The Council has in its submissions identified that the APESMA Clause goes to the rights and entitlements of persons whose employment is expressly excluded from coverage in Clause 4.1, of the Proposed Agreement.^[21]

[44]
In this application, the Council relies on the powers conferred on the Commission under s 541(b)(ii) of the IR Act. It is contended by Council that APESMA's prospects of success in convincing the Full Bench to make a determination in the terms sought are, poor. Accordingly, it would not be in the public interest to permit the matter to proceed.

[45]
APESMA relies on sections 175 to 180 of the IR Act to contend that the Commission is prevented from determining the matter summarily under s 541 of the IR Act. They reject the Council's argument that s 541 of the IR Act gives the Commission the power to dismiss the application without hearing the substance of their claim. APESMA submit that s 541 details the general powers of the Commission and that specific sections of the Act detail the powers and obligations of the Commission in relation to those specific provisions.^[22]

[46]
It is asserted by APESMA that s 180 of the IR Act imposes an obligation on the Full Bench to consider the matters in dispute by arbitration.

[47]
In support of that submission, Ms Baulch referred the Full Bench to the Explanatory Notes accompanying the Industrial Relations Bill which states:

The clause also provides that in determining matters, the Full Bench must at least consider the merits of the case; and the likely effect of … on any matters agreed between the negotiating parties …^[23]

[48]
What is contended by APESMA is that the Full Bench should, at least deal with the merits of the application, 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 before it determines the application.^[24]

[49]
However, the APESMA submission does not deal with the relevant application of s 541 of the IR Act in any meaningful way. Section 541(b)(ii) provides that the Commission may, in an industrial cause, dismiss the cause, or refrain from hearing, further hearing, or deciding the cause if the Commission considers further proceedings by it are not necessary or desirable in the public interest.

[50]
In Campbell v Queensland,^[25] Martin J considered what is involved in the concept of the public interest for the purposes of s 541(b)(ii). His Honour wrote:

[28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the Applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

[29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case. [footnotes omitted].^[26]

[51]
Section 541(b)(ii) of the IR Act is not a novel provision, it recognises that in a particular case, the public interest may displace a litigant’s prima facie right to have a case heard and determined.^[27] This point was illustrated in Agforce Queensland Industrial Union of Employers v. The Australian Workers’ Union of Employees, Queensland 167 QGIG 297 at 297 to 298 where the Full Bench of the Commission in dealing with the analogist provision in the 1999 IR Act said:

There is scant authority upon s. 331(b)(ii). However it is not dissimilar to s. 43(1)(d)(iii) of the (now repealed) Conciliation and Arbitration Act 1904 (Cwth). It is similar, though in a very different statutory setting, to s. 111(1)(g)(iii) of the Workplace Relations Act 1996 (Cwth). We consider the decisions upon the Commonwealth provision to be a useful point of reference.

The seminal decision is of course the decision of the High Court of Australia in Re: Queensland Electricity Commission; ex parte Electrical Trades Union (1987) 72 ALR 1. At 5, the majority of the Court (Mason CJ, Wilson and Dawson JJ) while acknowledging that the settlement of industrial disputes was a fundamental concern of the Commonwealth Commission observed ‘. . . it is necessary to remember that the importance the Act places upon the settlement of industrial disputes cannot of itself dictate the exercise of the discretion given by s. 41(1)(d)(iii). That paragraph itself recognises that it may be in the public interest to leave an industrial dispute unresolved.’. Similarly, s. 331(1)(b)(ii) recognises that in a particular case the public interest may displace a litigant’s normal right to have a case heard and determined.

In all the circumstances of the case we do not find it necessary to determine whether, as the majority in Re: Queensland Electricity Commission; ex parte Electrical Trades Union (1987) 72 ALR 1 held, that the discretion is all about balancing the interests (often competing public interests in the circumstance of a particular case) or, whether as Deane J (at 13) held an applicant seeking to induce the Commission not to exercise jurisdiction carries an onus. In the circumstances of this case we are affirmatively of the view that we should for the time being, compare Health Inspectors Association of Australia v Freemantle Corporation (1953) 762 CAR 32 at 40 to 41, refrain from hearing the application filed 28 February 2001.

[52]
The view expressed in Agforce were expressly followed by Hall P in Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees AND Minister for Industrial Relations AND Retailers’ Association of Queensland Limited, Union of Employers (No. C45 of 2003).

[53]
The argument advanced by APESMA is built on the assumption that existing SSP and PSE employees engaged in accordance with a written contract of employment will be transitioned to coverage under the proposed agreement.

[54]
It was asserted by APESMA that the Council had confirmed in correspondence that SSP and PSE employees who are currently employed under fixed term employment contracts will be transferred to the enterprise agreement when their fixed term employment contracts expire, or those employees can request to transfer to the enterprise agreement at a date earlier than the date of their expiry of their contracts if they so wish.^[28] However, the APESMA submission overstates the Council's position in respect of SSP and PSE employees.

[55]
In the affidavit of Sean Kelly reference is made to the correspondence between APESMA and Luke Cruwys, the Council's Workplace Relations Manager dated 29 January 2020 concerning "...the proposal to transfer SSP and PSE employees across to the enterprise agreement...". In that correspondence, Mr Cruwys relevantly states that:

Existing SSP employees will continue to be able to request to convert from their SSP employment arrangements to an equivalent EBA covered position at any time, should they choose to do so, through the well-established process. Such requests are considered on a case-by-case basis with business needs taken into account.

...

For existing SSP Continuing employees, Council will continue to honour the clauses and conditions of their contract. There is no requirement for SSP Continuing employees to revert to the EBA. If an SSP Continuing employee applies for and accepts an EBA position, the conditions will be in accordance with the EBA. If an SSP Continuing employee applies for and accepts an EBA role, the conditions will be in accordance with the EBA.

...

For a PSE employee, if the work they are performing continues to be required at the end of their contract and the work being performed by is not covered by the Brisbane City Council Salaried Staff Award – State 2016, a new PSE contract will be offered. If the work they are performing is covered by the Brisbane City Salaried Staff Award – State 2016, an EBA role will be offered. If the EBA role is offered and accepted, the conditions will be in accordance with the EBA.

[56]
It is clear that a PSE or SSP employee's contract of employment comes to an end and their employment with Council ceases as a consequence of an election, termination or alternatively through the effluxion of time or unless they are offered and accept alternative employment. As Council noted in its submissions, an employee who does not have an SSP or PSE contract is not, by definition, an SSP or PSE employee. Moreover, what is evident from the correspondence of Mr Cruwys and from the submissions of Council is that it no longer offers SSP contracts and existing SSP employees can request a conversion to an equivalent EBA covered position at any time.^[29] If an SSP Continuing employee applies for and accepts an EBA position, the conditions will be in accordance with the EBA.

[57]
We accept the argument advanced by the Council that the application made by APESMA seeks the Full Bench to make a determination to require the parties to develop an unspecified process to 'transition' a group of employees to whom the current EBA9 does not apply, and whom the Proposed Agreement expressly excludes.

[58]
Further, we accept the argument that the APESMA clause would impose upon the Council a process to transition employees in circumstances where existing employees whose employment is not now, and may not be at any time, covered by the Proposed Agreement.

[59]
While we accept in applications such as this, the onus remains on the Council, APESMA is not relieved of any requirement to advance a case.^[30]

[60]
The submissions of APESMA have failed to address the primary proposition advanced by Council that the rights and entitlements sought to be created by the determination relate to persons whose employment is expressly excluded from the coverage of the Proposed Agreement by virtue of Clause 4.1 of EBA9 and Clause 4.1 of the Proposed Agreement. That omission cannot be remedied by s 180 of the IR Act.

[61]
The express exclusion contained in Clause 4.1 of EBA9 and Clause 4.1 of the Proposed Agreement is, in our view, fatal to APESMA's case.

Conclusion

[62]
For the reasons advanced above, the discretion conferred by s 541(b)(ii) of the Act, has, in our view been enlivened. The Full Bench considers that further proceedings in the industrial cause are not necessary or desirable in the public interest.

Order

Pursuant to s 541(b)(ii) of the IR Act, the Full Bench will refrain from hearing the application CB/2020/80 filed by The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees (APESMA) on 27 October 2020.

Footnotes

[1] TR1-23, LL17-30.

[2] Council's application in existing proceedings filed 6 September 2021, Attachment A, Affidavit of Ms Arifah Anne Hastie.

[3] Council's application in existing proceedings filed 6 September 2021, Attachment A, [2].

[4] Council's application in existing proceedings filed 6 September 2021, Attachment A, [3].

[5] Council's application in existing proceedings filed 6 September 2021, Attachment A, [8].

[6] Council's application in existing proceedings filed 6 September 2021, Attachment A, [9]-[10].

[7] Council's application in existing proceedings filed 6 September 2021, Attachment A, [12].

[8] Council's application in existing proceedings filed 6 September 2021, Attachment A, [13].

[9] Industrial Relations Act 2016 (Qld) s 175(1)(b).

[10] APESMA's submissions in response to Council's application in existing proceedings filed 28 September 2021, [6].

[11] APESMA's submissions in response to Council's application in existing proceedings filed 28 September 2021, [10].

[12] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [3].

[13] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [7].

[14] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [8].

[15] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [13], [15].

[16] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [16].

[17] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [17].

[18] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [20]-[21], [24].

[19] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [26]-[27].

[20] Council's submissions in reply to application in existing proceedings filed 5 October 2021, [28],[34].

[21] TR1-5, L34-TR1-6, L7.

[22] TR1-17, LL7-12.

[23] Explanatory Memorandum, Industrial Relations Bill 2016 (Qld) 39.

[24] TR1-16, L45-TR1-17, L24.

[25] [2019] ICQ 18.

[26] Ibid [28]-[29].

[27]Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 059.

[28] Affidavit of Sean Kelly filed 20 August 2021, Exhibit 26; APESMA's outline of submissions filed 20 August 2021.

[29] TR1-11, L37-TR1-12, L2.

[30] Campbell v Queensland [2019] ICQ 18.

Editorial Notes

Published Case Name:
The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council
Shortened Case Name:
The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council
MNC:
[2022] QIRC 5
Court:
QIRC
Judge(s):
O'Connor VP, Hartigan IC, Power IC
Date:
13 Jan 2022

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health)	[2021] QIRC 59	2 citations Jump To Cite 1 - [2021] QIRC 59 Cite 2 - [2021] QIRC 59
Campbell v State of Queensland (Department of Justice and Attorney-General)	[2019] ICQ 18	3 citations Jump To Cite 1 - [2019] ICQ 18 Cite 2 - [2019] ICQ 18 Cite 3 - [2019] ICQ 18
Health Inspectors Association of Australia v Freemantle Corporation	(1953) 762 CAR 32	1 citation Jump To Cite 1 - (1953) 762 CAR 32
Re Queensland Electricity Commission & Ors; ex parte Electrical Trades Union of Australia	(1987) 72 ALR 1	2 citations Jump To Cite 1 - (1987) 72 ALR 1 Cite 2 - (1987) 72 ALR 1

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Khalilidehkordi v Gold Coast Hospital and Health Service	[2022] QIRC 387	2 citations

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The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council[2022] QIRC 5