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  4. Together Queensland, Industrial Union of Employees v State of Queensland (Department of Education and Queensland Police Service) - [2023] QIRC 112

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Together Queensland, Industrial Union of Employees v State of Queensland (Department of Education and Queensland Police Service)[2023] QIRC 112

Together Queensland, Industrial Union of Employees v State of Queensland (Department of Education and Queensland Police Service)[2023] QIRC 112

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland, Industrial Union of Employees v State of Queensland (Department of Education and Queensland Police Service) [2023] QIRC 112

PARTIES:

Together Queensland, Industrial Union of Employees

(Applicant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

CB/2023/20

PARTIES:

Together Queensland, Industrial Union of Employees

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

CB/2023/21

PROCEEDING:

Referral to a Full Bench

DELIVERED ON:

21 April 2023

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

Pursuant to s 486(1) of the Industrial Relations Act 2016 (Qld), I refer proceedings CB/2023/20 and CB/2023/21 to be heard by a Full Bench.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where the applicant filed an application seeking scope orders to be made regarding replacement certified agreement – whether matters CB/2023/20 and CB/2023/21 should be referred to a full bench – where the applicant objects to the matters being referred to a full bench – whether the matters raised go beyond these proceedings being a ''routine case'' – matters referred to a full bench.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 486

CASES:

In the making of the State Government Entities Certified Agreement 2019 [2020] QIRC 088

Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 [2021] QIRC 103

Reasons for Decision

Introduction

  1. [1]
    Together Queensland, Industrial Union of Employees ('the Union') initially filed three applications in separate proceedings, being CB/2023/13, CB/2023/20 and CB/2023/21, seeking, inter alia, scope orders with respect to a replacement agreement ('the replacement CA') for the State Government Entities Certified Agreement 2019 (' the Core CA').
  1. [2]
    In proceeding CB/2023/20, the Union seeks to add a group of employees to be covered by the replacement CA in the following terms:

That the Commission make appropriate scope orders for the bargaining instrument to replace the State Government Entities Certified Agreement 2019, so as to include the following employees:

  1. (i)
    Employees employed by the State of Queensland in the unit QBuild (and any successor unit) in the Department of Energy and Public Works (and any successor agency) previously covered by the QBuild Office Staff Certified Agreement 2019
  1. (ii)
    Community Visitors employed pursuant to the Public Guardian Act 1990
  1. (iii)
    Mediators employed pursuant to the Disputes Resolution Act 1990
  1. (iv)
    Employees engaged pursuant to the Ministerial and Other Office Holder Staff 2010
  1. [3]
    In proceedings CB/2023/21, the Union seeks to remove a group of employees from the replacement CA and also include orders to create a new bargaining instrument as follows:
  1. That the Commission make appropriate scope orders to exclude from the bargaining instrument to replace the State Government Entities Certified Agreement 2019 those employees of the State of Queensland employed in the Queensland Police Service currently covered by the State Government Entities Certified Agreement 2019. 
  1. That the Commission make appropriate scope orders so that the employees outlined in 2 above would be covered by a separate bargaining instrument.

…

  1. [4]
    On 31 March 2023, the Union filed a Notice of Discontinuance with respect to proceeding CB/2023/13.
  1. [5]
    Prior to the Notice of Discontinuance being filed in CB/2023/13, the three separate proceedings were allocated to three separate members of the Commission.
  1. [6]
    I was initially allocated proceeding CB/2023/20 which was listed for mention on 29 March 2023. Prior to the mention, the State filed an application seeking that the three proceedings be joined.  That application was resolved by consent whereby the parties agreed that the matters not be joined, but, instead, that the proceedings be listed to be heard consecutively before the same constituted Commission with the evidence and submissions in one proceeding comprising, where appropriate, the evidence and submissions in the other proceeding.
  1. [7]
    During the course of the mention of the matters on 29 March 2023, I indicated that I would hear the parties with respect to whether or not the proceedings should be referred to a full bench.  Direction orders were subsequently issued with respect to the filing of written submissions and the parties filed submissions in accordance with those directions[1]. 
  1. [8]
    The Union is opposed to the proceedings being referred to a full bench whereas the State supports the hearing of the proceedings being referred to a full bench.

Discretion to refer proceedings to a full bench

  1. [9]
    Section 486 of the Industrial Relations Act 2016 (Qld) ('the IR Act') sets out the terms by which a matter may be referred to a full bench as follows:

486Referring matter to full bench

  1. (1)
    The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.
  1. (2)
    A commissioner may refer the matter only with the president’s approval.
  1. (4)
    Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench.
  1. (6)
    The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.
  1. [10]
    In Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015[2] His Honour Davis J, President, after considering the legislative history of s 486, and its predecessor, s 281 of the Industrial Relations Act 1999[3], determined[4] that the purpose of the power bestowed by s 486(2) of the IR Act is the same as that bestowed by s 281(2), namely, to manage the business of the QIRC. His Honour continued as follows:

“… 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.”[5]

…

  1. [11]
    Accordingly, the starting point is to assume that routine cases remain to be decided by a single commissioner, and, further, if a case is to be referred there must be something extra in the case.

Consideration

The Core CA

  1. [12]
    The Core CA was certified by O'Connor VP on 9 June 2020[6] and has a nominal expiry date of 31 August 2023.
  1. [13]
    The Core CA applies to 46 government agencies of the State and has coverage of approximately 30,000 employees of the State.
  1. [14]
    On 22 March 2023, the State wrote to the Union and other employee organisations who are parties to the Core CA indicating its intention to initiate bargaining for the replacement for the Core CA.

Exercise of discretion

  1. [15]
    The Union's opposition to the proceedings being referred to a full bench may be summarised as follows:
  1. (a)
    applications for scope orders are routine cases that have previously been heard and determined by single commissioners;
  1. (b)
    there has previously been a referral to a full bench of a proceedings seeking scope orders on the basis that such proceedings were novel and, consequently, as that matter has been heard and determined, there is no longer an element of novelty with respect to applications for scope orders;
  1. (c)
    the scope orders sought are consistent with the policy aim contained in the second reading speech relating to legislative amendments introduced in 1995 to devolve the responsibility of managing industrial relations for the State of Queensland from central agencies to individual government entities;
  1. (d)
    the number of employees affected by a potential decision as a single commissioner does not constitute a ground to conclude that there is something special about the proceedings that warrants a referral to a full bench; and
  1. (e)
    a referral to a full bench would be a detriment to the parties because:
  1. (i)
    appeals from a full bench constituted with the President of the Industrial Court of Queensland lie to the Court of Appeal which is a costs jurisdiction;
  1. (ii)
    placing the first decision before a Full Bench comprising the President places oppression on a party aggrieved by the outcome in that any appeal from the first decision in the matter enters a costs jurisdiction; and
  1. (iii)
    any referral of a matter to the Full Bench with the President as a member imposes constraints in a matter being heard quickly and expeditiously.
  1. [16]
    The State submits that the proceedings, taken together, warrant a referral to a full bench on the following basis:
  1. (a)
    the consequences that any finding about the coverage of the Core CA arising in connection with these applications could have on its future as a pillar bargaining instrument for the State which has direct consequences for the State administering its future collective bargaining responsibilities effectively and efficiently;
  1. (b)
    there is one decision in the jurisdiction about the complex application of Chapter 4, Part 4 of the IR Act however, it involved a different employer and workforce and was decided six years ago; and
  1. (c)
    not only are the applications complex and pose significant industrial consequences for the State and its workforce, but are time sensitive because they impede current bargaining - a full bench would dispose of the complex and significant applications in both an efficient and authoritative manner.
  1. [17]
    The State argues that the Core CA represents a pillar of the State's collective bargaining framework over a significant period of time.  It states that as a result, the State's resourcing, timetabling, representation and bargaining agenda has been moulded around the Core CA. The State further contends that the coverage of the Core CA is what makes it a fair, efficient and reliable instrument for the State in upholding its commitment to collective bargaining.
  1. [18]
    The State argues that there are legal and practical consequences that could potentially flow if the ''long-held coverage'' of the Core CA is altered by the Commission.
  1. [19]
    The State foreshadows the following two legal consequences of a decision being made as sought by the Union:
  1. (a)
    such a decision would open the way for further scope orders to be sought by groups of employees covered by the Core CA; and
  1. (b)
    it may mean the Commission must refuse the Core CA pursuant to s 209 of the IR Act on the basis that the appropriateness of the coverage of employees of the State may be in doubt.
  1. [20]
    The State contends that the practical consequences of a decision being made as sought by the Union include, the potential to significantly shift the State's collective bargaining framework and strategy. Relevantly, the State contends that any significant change to, or dilution of, the coverage of the Core CA may have an impact on the overall outcomes for the workforce which may have the potential to flow on to other agreement outcomes.
  1. [21]
    The State also contends that the proceedings raise complex issues involving statutory interpretation. Relevantly, the State contends that there is ''a live issue'' as to whether the Ministerial and Other Holders Office Staff Act 2010 (Qld) is drafted to preclude the operation of the IR Act's industrial instrument provisions from applying to people employed under that Act.
  1. [22]
    In reply, the Union submitted that there are no complex issues or extra issues that warrant referral of the proceedings to a full bench and that the submissions made by the State has raised ''a school of red herrings'' in an attempt to generate issues of complexity where none exist.
  1. [23]
    Relevantly, the Union contends that:
  1. (a)
    there is no such thing as a pillar bargaining instrument;
  1. (b)
    there can be no implication that any remaining employees (if the scope orders applied for were made) are not fairly chosen; and
  1. (c)
    the statutory interpretation issue regarding the application and effect of the IR Act provisions on employees employed pursuant to the Ministerial and Other Officer Holder Staff Act 2010 (Qld) can be resolved by consideration of the relevant provisions including s 28 of that Act.
  1. [24]
    The parties raise a number of contested contentions in support of their respective positions as to whether the proceedings should be referred to a full bench or not. It is not for me to make a determination with respect to those contested contentions at this juncture, but, rather, to determine whether the matters raised by the parties are relevant to my consideration as to whether the discretion should be exercised.
  1. [25]
    Relevantly, I must consider whether the matters raised go beyond the parameter of these proceedings being a ''routine case''.
  1. [26]
    The State argues that the Core CA and the coverage of employees by it makes it the ''core'' bargaining instrument for a large part of the State's workforce. It contends that the Core CA reflects the State's collective bargaining framework over a significant period of time. The Union argues that the scope orders it seeks are consistent with the policy aim contained in Minister Foley's 1995 second reading speech relating to legislative amendments to devolve the responsibility of managing industrial relations for the State of Queensland from central agencies to individual government activities. The Union does not at this time, submit how such historical policy aims could be relevant to the proceedings, but it is clear by the Union raising such matters that there is a potential complexity in both fact and law with respect to each of the parties respective positions with respect to the intent and effect of the scope orders sought. Further, I consider that the matters raised by the parties, including with respect to the role of the Core CA within the State's collective bargaining framework and the potential effect of the scope orders sought by the Union in both proceedings has potential significance to the State's collective bargaining framework.
  1. [27]
    I also consider that there are further factual complexities that arise given that there are two scope proceedings on foot to be heard consecutively seeking broad ranging orders regarding the replacement CA.
  1. [28]
    Relevantly, the scope orders sought has the potential to affect employees engaged in several agencies performing diverse roles including:
  1. (a)
    employees employed by the State in QBuild;
  1. (b)
    community visitors employed pursuant to the Public Guardian Act 1990;
  1. (c)
    mediators employed pursuant to the Dispute Resolution Act 1990;
  1. (d)
    employees engaged pursuant to the Ministerial and Other Officer Staff Act 2010; and
  1. (e)
    employees employed by Queensland Police Service currently covered by the Core CA.
  1. [29]
    Depending on the arguments raised at the hearing, it is assumed evidence will be called that is relevant to questions of coverage regarding this diverse group of employees.
  1. [30]
    The matters raised by the parties in their submissions also indicates that there are disputed matters of potential legal complexity including with respect to coverage of the Replacement CA, including whether it applies to employees employed pursuant to the Ministerial and Other Officer Holder Staff Act 2010 (Qld).
  1. [31]
    I consider that the totality of the legal and factual matters raised by the parties in their submissions are such that the proceedings go beyond a routine case and weighs in favour of the exercise of the discretion to refer the proceedings to a full bench. Such a referral would allow an efficient and authoritative disposition of the proceedings. The objection raised by the Union in relation to the avenue of appeal and the constitution of the Full Bench[7] are not matters that weigh against the exercise of the discretion.
  1. [32]
    For these reasons, I refer proceedings CB/2023/20 and CB/2023/21 to a full bench pursuant to s 486(1) of the IR Act. The President has approved the referral pursuant to s 486(2) of the IR Act.

Order

  1. [33]
    Accordingly, I make the following order:

Pursuant to s 486(1) of the Industrial Relations Act 2016 (Qld), I refer proceedings CB/2023/20 and CB/2023/21 to be heard by a Full Bench.

Footnotes

[1] Although the Union objected to the State's submissions running to five pages in length as opposed to the directed three pages. Subsequent to filing the written submissions, the State wrote to the Industrial Registry and indicated that the State's failure to follow the directions with respect to the length of submissions was an oversight and due to ''representative error''. Whilst objecting to the oversight the Union did have an opportunity, and indeed took the opportunity, to reply to the State's submissions. In the circumstances, I have had regard to the State's submissions despite the length of those submissions exceeding the directed three page limit.

[2]Re variation of Hospital and Health Service General Employees (Queensland Health) Award – State 2015 [2021] QIRC 103.

[3]Ibid [11]-[15].

[4]Ibid [16].

[5]Ibid.

[6]In the making of the State Government Entities Certified Agreement 2019 [2020] QIRC 088.

[7]The constitution of the Full Bench, if the referral is approved by the President, will be determined at that time.

Close

Editorial Notes

  • Published Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Department of Education and Queensland Police Service)

  • Shortened Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Department of Education and Queensland Police Service)

  • MNC:

    [2023] QIRC 112

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    21 Apr 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
In the making of the State Government Entities Certified Agreement 2019 [2020] QIRC 88
2 citations
Jump To
Cite 1 - [2020] QIRC 88
Cite 2 - [2020] QIRC 88
Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103
4 citations
Jump To
Cite 1 - [2021] QIRC 103
Cite 2 - [2021] QIRC 103
Cite 3 - [2021] QIRC 103
Cite 4 - [2021] QIRC 103

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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