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Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) and Ors[2023] QIRC 291

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) and Ors[2023] QIRC 291

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) and Ors [2023] QIRC 291

PARTIES:

TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES

(applicant)

v

STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE)

(first respondent)

AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND

(second respondent)

QUEENSLAND NURSES AND MIDWIVES UNION OF EMPLOYEES

(third respondent)

THE ELECTRICAL TRADES UNION OF EMPLOYEES, QUEENSLAND

(fourth respondent)

TRANSPORT WORKERS’ UNION OF AUSTRALIA, UNION OF EMPLOYEES (QUEENSLAND BRANCH)

(fifth respondent)

UNITED WORKERS UNION OF AUSTRALIA, UNION OF EMPLOYEES, QUEENSLAND

(sixth respondent)

FILE NO:

CB/2023/21

PROCEEDING:

Application for scope order

DELIVERED ON:

Order 1 made on 6 July 2023, others on 9 October 2023, reasons delivered on 9 October 2023

HEARING DATE:

29 and 30 May 2023, 1 June 2023, 15 June 2023, 6 July 2023

MEMBER:

Davis J, President, Hartigan DP, Knight IC

ORDERS:

  1. The application filed on 22 March 2023 is granted.
  2. The Scope Order is issued in terms attached to these reasons.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – OTHER MATTERS – where a union had members employed by the Queensland Police Service (QPS) – where some members were covered by a certified agreement specific to the QPS – where some were covered by the Government Entities Certified Agreement 2019 (the Core CA) – where the Union applied for a scope order – where the Union sought to have QPS employees scoped out of the Core CA – whether those employees were “fairly chosen” – whether they are geographically, operationally or organisationally distinct – whether it was reasonable to make the order

Fair Work Act 2009 (Cth), s 109, s 143, s 172, s 173, s 184, s 185, s 228, s 229, s 230, s 231, s 238

Industrial Relations Act 2016, s 3, s 4, s 163, s 169, s 170, s 171, s 172, s 173, s 174, s 176, s 177, s 178, s 180, s 181, s 182, s 183, s 184, s 185, s 186, s 187, s 188, s 228

Police Powers and Responsibilities Act 2000, s 29, s 31

Police Service Administration Act 1990, s 1.4, s 4.9

Public Sector Act 2022

CASES:

AMIEU v Woolworths Ltd [2009] FWA 849, cited

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2017] QIRC 087, followed

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union and Anor v Qantas Airways Ltd, Fair Work Commission, 4 April 2017, cited

Brasell-Dallow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356, followed

Edgington v Fitzmaurice (1885) 29 Ch D 459, cited

George v Rockett (1990) 170 CLR 104, cited

Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No 2) [2022] QIRC 011, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited

Norbis v Norbis (1986) 161 CLR 513, cited

Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383, followed

O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1, cited

Police Service Board v Morris (1985) 156 CLR 397, followed

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited

R v A2 (2019) 269 CLR 507, followed

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2010) 193 IR 293, considered

COUNSEL:

K McKay for the applicant

H Blattman KC with L Grant for the respondent

SOLICITORS:

Together Queensland, Industrial Union of Employees being the applicant

GR Cooper, Crown Solicitor for the respondent

The application

  1. [1]
    Together Queensland, Industrial Union of Employees (Together) applied for a scope order in relation to the replacement to the Government Entities Certified Agreement 2019 (the Core CA).  Relevantly, Together seeks to exclude certain Queensland Police Service employees (QPS staff employees) from coverage under the Core CA (the application).
  2. [2]
    The application was heard by the Full Bench on 29, 30 May and 1 June 2023.  On 6 July 2023 the Full Bench informed the parties that it would allow the application and make a scope order.  The parties were invited to make submissions as to the final form of the orders.
  3. [3]
    On 13 September 2023, the parties submitted a form of orders to which all parties are in agreement. Those orders are attached to these reasons and form part of the orders made in this proceeding.
  4. [4]
    The orders were made by consent to the extent that the form of orders were agreed.  The parties were in disagreement as to whether the QPS staff employees should be scoped out of the Core CA.
  5. [5]
    The parties have proceeded on the basis that a scope order was made on 6 July 2023 and that was the appropriate date for the calculation of relevant time limits prescribed by the Industrial Relations Act 2016 (IR Act).  That was correct.
  6. [6]
    These are the reasons of the Full Bench for deciding to make a scope order.
  7. [7]
    The application was filed on 22 March 2023, following the State issuing a notice of intention to bargain a replacement to the Core CA.[1]  It is not in contention that the application was filed in order to identify the scope of employees to be covered by the proposed Core CA before substantive negotiations commenced.
  8. [8]
    The structure of the Core CA is that it has provisions common to all employees that fall within Parts 1-28.  These common provisions include entitlements with respect to, for example, employment security, permanency and consultation arrangements.  Appendices 5-20 of the Core CA addresses agency specific entitlements.  Currently, Appendix 16 to the Core CA is the agency specific appendix for the Queensland Police Service (QPS).
  9. [9]
    The application applies to those QPS staff employees who are not presently covered by the Queensland Police Service Certified Agreement 2022 or Queensland Police Service Protective Services Officers Certified Agreement 2019 but who are covered by the Core CA.
  10. [10]
    The State estimates that there are approximately 4,119 employees that fall within this group of employees.[2]
  11. [11]
    The current Core CA was certified by the QIRC on 9 June 2020 and has a nominal expiry date of  31 August 2023.[3]  The Core CA will continue to operate until terminated pursuant to s 228(3)(a) of the IR Act.
  12. [12]
    The first Core CA was negotiated in 1994.  The QPS staff employees were not included in the first round of the Core CA.  They were included for the first time in the 2000 Core CA and have intermittently been covered by the Core CA and other certified agreements up until approximately 2015.[4]
  13. [13]
    The Core CA covers approximately 30,000 employees across approximately 40 government entities.[5]  It was accepted that there are a number of state government entities that have a certified agreement separate from the Core CA.
  14. [14]
    Together contends that it is concerned[6] that the proposed replacement to the Core CA will cover employees of the QPS whom it is inappropriate for the proposed replacement agreement to cover.

Relevant statutory provisions

  1. [15]
    Scope orders fall within Part 4, Chapter 4 of the IR Act.  Chapter 4 is entitled, “Collective Bargaining”, and prescribes a regime for collective bargaining.
  2. [16]
    Before turning to the provisions in Part 4 of Chapter 4, it is right to observe the purposes of the IR Act and the way those purposes are achieved.  Those things are prescribed by ss 3 and 4 which relevantly provide:

“3 Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that—

  1.  is fair and balanced; and
  1.  supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.

4 How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by—

…

  1.  promoting collective bargaining, including by—
  1.  providing for good faith bargaining; and
  1.  establishing the primacy of collective agreements over individual agreements; and …
  1. providing for effective, responsive and accessible mechanisms to support negotiations and resolve industrial disputes; and
  1. establishing an independent court and tribunal to facilitate fair, balanced and productive industrial relations; and …” (emphasis added)
  1. [17]
    Part 1 of Chapter 4 is entitled “Preliminary”.  Section 163 of the IR Act identifies the purpose of the chapter which relevantly includes:

“163 Purpose of chapter

The purpose of this chapter is—

  1.  to facilitate collective bargaining by employees and employers, in good faith and with a view to reaching agreement, as the primary basis under this Act on which wages and employment conditions are decided; and
  1.  if the negotiating parties can not reach agreement, to provide for the commission to—
  1.  help the parties reach agreement or, if agreement can not be reached, reduce the matters in dispute; and
  1.  arbitrate the matter if conciliation is not successful; and
  1.  if the negotiating parties reach agreement, to enable the parties to—
  1.  make an agreement and apply to the commission for the agreement to be certified; or
  1.  in particular circumstances, apply to the commission for the making of a bargaining award and revocation of the modern award that covers the negotiating parties; and
  1.   to recognise the right of negotiating parties to take protected industrial action, if particular requirements are satisfied, as part of the collective bargaining process.” (emphasis added)
  1. [18]
    The remainder of Part 1 of Chapter 4 identifies some basic concepts about collective bargaining[7] and some definitions.[8]
  2. [19]
    Part 2 of Chapter 4 concerns the collective bargaining process.[9]  Section 169 provides that any party may serve a notice of intention to bargain.  By s 170, parties give a notice of intention to be party to bargaining, which is the formal way in which they enter the process.  Section 171 concerns employer participation in the process.  Section 172 has no relevance here, nor does s 174.  Section 173 obliges the parties to negotiate in good faith.
  3. [20]
    Part 3 of Chapter 4 governs the involvement of the Queensland Industrial Relations Commission (the QIRC) in the process.  Part 3 provides for conciliation and arbitration.  Section 176 identifies the QIRC’s role in conciliation and it provides:

“176 Commission’s role in conciliation

  1.  The commission’s objective in conciliating the matter under this division is to help the negotiating parties—
  1.  reach agreement on all matters or as many matters as possible; and
  1.  comply with the requirement under section 173 to negotiate in good faith.
  1.  To achieve the objective, the commission may—
  1.  give advice or make recommendations to the parties about the conduct of the negotiations; or
  1.  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
  1.  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.
  1.  A person given an attendance notice must comply with the notice.

Note—

This subsection is a civil penalty provision.

  1.  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.
  1.  Things said or done in the conciliation may not be admitted into evidence for any proceeding or otherwise disclosed.” (emphasis added)
  1. [21]
    By s 177, the conciliating member of the QIRC may refer the negotiation to arbitration and s 178 provides a mechanism for the matter to be referred to arbitration with the consent of the parties.
  2. [22]
    Division 2 of Part 3 of Chapter 4 concerns arbitration.  Of some significance here are ss 180, 181 and 182.  They are as follows:

“180 Commission to arbitrate disputed matters

  1.  The commission must determine the matters in dispute by arbitration.
  1.  To determine the matters in dispute, the commission—
  1.  may give directions or make orders of an interlocutory nature; and
  1.  without limiting paragraph (a), before making an arbitration determination may order an increase in wages payable to employees; and
  1.  may make any other order, or exercise another power, the commission considers appropriate to determine the disputed matters.

Note—

A negotiating party may not be represented by a lawyer in the proceeding before the commission—see section 530(2).

  1.  The commission must ensure an arbitration determination—
  1.  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
  1.  includes any increase in wages ordered by the commission under subsection (2)(b) or agreed by the parties during the arbitration.
  1.  In determining the matters in dispute, the commission must consider at least the following—
  1.  the merits of the case;
  1.  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 commission may include provision for a matter agreed between the negotiating parties before or during the arbitration.
  1.  However, the commission may not exercise any powers under this division in relation to a matter mentioned in subsection (1).

182 Commission must publish reasons

  1.  The commission must publish its reasons when determining the disputed matters under this division.
  1.  The reasons must address each of the things the commission considered under section 180(4).”
  1. [23]
    Part 4 of Chapter 4 provides for scope orders.  That part is in these terms:

“Part 4  Scope orders

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—
  1.  will not cover appropriate employees; or
  1.  will cover employees whom it is inappropriate for the instrument to cover.
  1.  The application—
  1.  may be made any time after the notice of intention for the negotiations has been given; but
  1.  may not be made after part 3, division 2 starts applying in relation to the negotiating parties.[10]

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—
  1.  an application for the order has been made under section 184; and
  1.  the negotiating party who made the application has not contravened the requirement to negotiate in good faith under section 173; and
  1.  the group of employees to be covered by the proposed bargaining instrument to be stated in the scope order was fairly chosen; and
  1.  it is reasonable in all the circumstances to make the order.
  1.  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.
  1.  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—

  1.  the employer, or employers, to be covered by the instrument; and
  1.  the employees to be covered by the instrument; and
  1.  the employee organisations to be parties to the instrument.

187 Power to make or vary other orders etc.

  1.  This section applies if the commission makes a scope order in relation to a proposed bargaining instrument.
  1.  The commission may take the action it considers appropriate to give effect to the scope order, including, for example—
  1.  making other orders, determinations or instruments;
  1.  varying other orders, determinations or instruments made by the commission;
  1.  taking any other action.

188 Duration of scope order

A scope order in relation to a proposed bargaining instrument—

  1.  takes effect on the day the order is made; and
  1.  continues in force until the earliest of the following times—
  1.  if the order is revoked by the commission—the time stated in the instrument revoking the order;
  1.  when the proposed bargaining instrument is certified or made by the commission under part 5;
  1.  when an arbitration determination covering the employees stated in the scope order is made;
  1.  when the negotiating parties agree the negotiations have ended.” (emphasis added)
  1. [24]
    Relevantly here, in order for the QIRC to exercise its discretion to issue a scope order three conditions are to be met:[11]
  1. the party making the application must not have contravened the obligation of negotiating in good faith;
  1. the employees must be “fairly chosen” and in determining whether the group was fairly chosen, consideration is given to whether the group is geographically, operationally or organisationally distinct; and
  2. it is reasonable to make the order.
  1. [25]
    The parties do not allege any contravention of the obligation to negotiate in good faith.
  2. [26]
    The bestowal of power to make a decision where it is “reasonable” to do so is a bestowal of discretionary power.[12] The scope of the discretion and identification of the factors relevant to that exercise are questions of construction of the IR Act.[13]
  3. [27]
    As noted above, the legislature identified the purpose of the chapter in s 163.  Relevantly, that purpose includes, inter alia, to facilitate collective bargaining in good faith.
  4. [28]
    Accordingly, provided that employees are fairly chosen in that they are “geographically, operationally or organisationally distinct”, whether or not it is “reasonable to make the scope order” will require consideration as to whether doing so advances the objective purpose of Chapter 4 which is “to facilitate collective bargaining … in good faith”.
  5. [29]
    Several issues arose as to the proper construction of the relevant provisions.

The construction issues

The relevant “concerns”

  1. [30]
    Section 184 of the 2016 IR Act empowers a negotiating party to make application for a scope order.  That empowerment is subject to the party applying for the order having “concerns” as identified in s 184(1)(a) and (b).  In summary, those concerns are as to the appropriateness of the coverage of the proposed agreement.
  2. [31]
    By s 238 of the Fair Work Act 2009 (Cth), a party seeking a scope order must also have concerns.  The concerns are significantly different to the ones articulated in s 184 of the 2016 IR Act.  Section 238 provides:

“238 Scope orders

Bargaining representatives may apply for scope orders

  1.  A bargaining representative for a proposed single‑enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if:
  1.  the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
  1.  the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

Bargaining representative to give notice of concerns

  1.  The bargaining representative may only apply for the scope order if the bargaining representative:
  1.  has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
  1.  has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
  1.  considers that the relevant bargaining representatives have not responded appropriately.

When the FWC may make scope order

  1.  The FWC may make the scope order if the FWC is satisfied:
  1.  that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
  1.  that making the order will promote the fair and efficient conduct of bargaining; and
  1.  that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
  1.  it is reasonable in all the circumstances to make the order.

Matters which the FWC must take into account

(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

  1.  The scope order must specify, in relation to a proposed single‑enterprise agreement:
  1.  the employer, or employers, that will be covered by the agreement; and
  1.  the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

  1.  The scope order:
  1.  must be in accordance with this section; and
  1.  may relate to more than one proposed single‑enterprise agreement.

Orders etc. that the FWC may make

  1.  If the FWC makes the scope order, the FWC may also:
  1.  amend any existing bargaining orders; and
  1.  make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.” (emphasis added)
  1. [32]
    Under s 238 of the Fair Work Act, the party must firstly have concerns that the agreement “is not progressing efficiently or fairly”.  There then must be a specific concern that the reason for that first concern is as to coverage of the proposed agreement. 
  2. [33]
    Section 238(3) provides a procedure where the party with the initial concerns must formally articulate those concerns in a written notice.  The party is then only empowered to make the application if they “consider that the relevant bargaining representatives have not responded appropriately”. 
  3. [34]
    At least partially in reliance upon the broadly analogous provisions under the Fair Work Act, two submissions were made by the State about the operation of s 184 of the IR Act, namely:
  1. There is an objective element to the “concerns” in that they must be reasonably held.
  2. The failure to articulate the concerns prior to filing the application is a factor telling against the making of a scope order.
  1. [35]
    Both submissions ought to be rejected.
  2. [36]
    The reference to a negotiating party having concerns is clearly a reference to the negotiating party’s subjective state of mind, held no doubt, by a human representative.  It is commonplace for statutory powers to arise on subjective and/or objective considerations.[14]  Police powers are a classic example.  Often coercive powers are granted upon the “reasonable suspicion” or “reasonable belief” of a police officer.[15]  The suspicion or belief must be subjectively held and then be judged objectively to be reasonable or otherwise. 
  3. [37]
    Here, there is no objective element.  There is just a requirement of a particular state of mind; “concerns”.
  4. [38]
    That is not to say that s 184(1) has no practical operation.  There may be a challenge to the assertion that the negotiating party subjectively holds that state of mind.  The state of a person’s mind is as much a fact as is the state of his digestion.[16]  Secondly, a party may not hold the state of mind in good faith or may hold it for some ulterior motive.[17]
  5. [39]
    While concerns must be specifically articulated pursuant to s 238(3) of the Fair Work Act, there is no reason to import such a requirement into the IR Act.  The failure to articulate concerns, in itself, has no statutory relevance.

Significance of the status quo

  1. [40]
    The State submits that the starting point in the consideration of an application for a scope order ought to be the Core Agreement as representing the status quo.[18]  The State submits Together should only achieve the scope order if there is good reason to shift the status quo.  Again, analogies are drawn with the Fair Work Act.
  2. [41]
    The Fair Work Act draws a distinction between existing enterprise bargains and “greenfield” bargains.[19]  Greenfield bargains are those about which there is not an existing bargain. 
  3. [42]
    The IR Act is different in its structure.  The negotiation commences when a party gives notice of intention to negotiate under s 169.  Section 169 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.
  1.  The proposer must give each of the following persons a written notice (a notice of intention) of the proposer’s intention to start negotiating—
  1.  the other proposed parties to the negotiations;
  1.  if the negotiations relate to a project agreement—all relevant employee organisations and the commission.
  1.  The proposer must give the notice of intention at least 14 days before the negotiations are proposed to start.
  1.  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.
  1.  Subsection (4) applies subject to the provisions of the bargaining instrument.
  1. [43]
    On a proper construction of ss 169, 184 and 185,[20] a party proposes a negotiation[21] and therefore proposes a scope.  Under ss 184 and 185, another party can then move the QIRC to scope out, or scope in, employees.
  2. [44]
    In this case, Together may have initiated the negotiations by giving notice of intention to negotiate a bargain on behalf of the group of employees they are now seeking to scope out of the Core CA.  If that had occurred and the State wanted those employees to be part of the Core CA, then it would give notice of intention to negotiate the Core CA and then seek to have the employees who had already given a s 143 notice to be scoped into the Core CA.
  3. [45]
    Except in relation to greenfield bargains, the Fair Work Act acknowledges a status quo.  Under the IR Act, there is no status quo.  The bargaining process simply commences by notice under s 169.
  4. [46]
    That does not mean that the Core CA is irrelevant.  It is the agreement that has governed the relationship between the State and the employees covered by it.  In the forensic consideration of whether it is reasonable to scope employees either in or out of the Core CA, it is appropriate to consider how the Core CA has operated and whether any advantages or disadvantages have been identified.
  5. [47]
    Further, Together is the moving party.  Together seeks the scope order.  Therefore, Together must prove[22] that the making of the scope order is reasonable.  Beyond that though there is no onus.

Whether the Full Bench should be loath to intervene with the negotiations

  1. [48]
    An enterprise bargain is the result of negotiation between the employer and employees.  Various provisions of the Fair Work Act establish the role of the Fair Work Commission as one to facilitate negotiation and it follows then that the parties should be left to negotiate themselves.  Therefore, by analogy, intervention ought to be rare under the IR Act so submits the State. 
  2. [49]
    There are fundamental differences between the Fair Work Act and the IR Act in relation to enterprise bargains.  
  3. [50]
    Section 228 of the Fair Work Act imposes upon bargaining representatives “the good faith bargaining requirements”.  Those requirements are defined by s 228(1).
  4. [51]
    If the good faith bargaining requirements are allegedly not being met by one of the sides to the negotiation, the other side to the negotiation may apply for a “bargaining order” under s 229.  A bargaining order may then be made if the requirements of s 230 are fulfilled (not particularly relevant here).  Section 231 of the Fair Work Act provides:

“231 What a bargaining order must specify

  1.  A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
  1.  the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
  1.  requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
  1.  the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
  1.  such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.
  1.  The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:
  1.  an order excluding a bargaining representative for the agreement from bargaining;
  1.  an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;
  1.  an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);
  1.  an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).
  1.  The regulations may:
  1.  specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and
  1.  provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.”
  1. [52]
    Section 240(1) of the FW Act provides that a bargaining representative for a proposed enterprise agreement may apply to the FWC for the FWC to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute. However, s 240(4) of the FW Act operates so that the FWC may only arbitrate the dispute upon the agreement of the bargaining representatives.
  2. [53]
    The QIRC has a much more general function.  By s 180 of the IR Act,[23] the QIRC arbitrates disputes which arise in collective bargaining and effectively imposes terms upon the negotiating parties. Under s 177 a referral to arbitration may be made by the member of the QIRC conciliating the matter, or, under s 178 on application by the negotiating parties.[24]
  3. [54]
    With respect to scope orders, a comparison of s 184 of the IR Act and s 238 of the Fair Work Act emphasises this difference between the  Federal and State jurisdictions.  Under s 238 of the Fair Work Act, a scope application can only be made after bargaining has commenced and “the bargaining for the agreement is not proceeding efficiently or fairly”.  This is consistent with the limited role of the Fair Work Commission generally in relation to enterprise bargaining.  The Fair Work Commission becomes involved only where a problem has arisen and a dispute will only be arbitrated in circumstances where the parties agree that the FWC may arbitrate the dsipute.
  4. [55]
    On the other hand, by s 184 of the IR Act, the application for a scope order can be made at any time after the bargaining has commenced.  There is no requirement for the bargaining to have reached a particular stage or for it to have encountered problems.  Once the limited prerequisites prescribed by s 184 are fulfilled, the QIRC then has a broad discretion to do what is reasonable.  There is no justification for limiting the circumstances in which the jurisdiction of the QIRC might be engaged.

Relevance of views of the employees

  1. [56]
    Together submitted, in apparent reliance upon United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board[25] that “unless there are issues in existence that would give support to a decision at odds with the views of the employees, then the QIRC should grant the application for a scope order”.
  2. [57]
    In the United Firefighters’ Union[26] case, Fair Work Australia observed:

“As recorded above, it was submitted by the UFUA and the ACTU that particular weight should be given to the views of employees because of, for example, legislative policy imperatives concerning freedom of association. While we generally agree with that submission it requires some qualification. The power to make a scope order is predicated on disagreement between bargaining representatives. The discretion to resolve that disagreement is to be exercised as provided for in s 238(4) and (4A). While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context. The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in s 238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected.”[27] (emphasis added)

  1. [58]
    As already observed, ss 184 and 185 of the IR Act differ significantly from the scope order provisions in the Fair Work Act.  However, the United Firefighters’ Union case stands for the proposition that at least under the Fair Work Act the views of employees is a relevant consideration.  It is not though the only, or for that matter, dominant consideration as the Fair Work Act itself prescribes matters relevant to the determination of the scope order. 
  2. [59]
    Under the IR Act, once the preconditions to the discretion to make a scope order arise, the application is determined on what is “reasonable”.  In determining what is reasonable, the views of each interested party is relevant.  The submission made by Together ought to otherwise be rejected.  There is no presumption or fetter upon the determination of what is reasonable other than what is inherent from the objects and context of the relevant provisions.[28]

Conclusions on the construction issues

  1. [60]
    Consistently with the objects of the IR Act, the specific objects of Part 4 and the significance which the IR Act places on enterprise bargaining, a broad discretion has been reposed upon the QIRC which, once the discretion arises, determines what is “reasonable”.  In determining what is reasonable, the QIRC must be mindful to exercise the discretion for the purposes of facilitating collective bargaining in good faith.[29]  There are no other fetters upon the exercise of the discretion.

The parties’ contentions

  1. [61]
    Together contends that the QIRC should exercise its discretion to make a scope order excluding QPS employees from the proposed replacement Core CA on the basis that:
    1. the QPS is operationally distinct;
    2. the QPS employees are organisationally distinct; and
    3. the group of employees has been fairly chosen.
  2. [62]
    Relevantly, Together contends that it and its members hold a concern that bargaining will not proceed efficiently or effectively for the QPS staff employees because they are operationally and organisationally distinct from the majority of the Core CA cohort.
  3. [63]
    The State resists the application and contends that the QIRC cannot be satisfied that the scope order sought by Together is reasonable in all of the circumstances.  The State argues that the QPS staff employees are neither operational nor organisationally distinct and consequently are not fairly chosen.  The State also argues that it is not reasonable to issue the scope order in all the circumstances.
  4. [64]
    The State relies on the following matters to argue that it is not reasonable to make the scope order:
    1. that the concerns identified are subjective;
    2. the QIRC should not fragment the Core CA; and
    3. the QIRC should be loath to interfere with the status quo in the negotiation.

The evidence before the QIRC

  1. [65]
    Mr Alex Scott, State Secretary, Together, and Mr Michael Thomas, Assistant Branch Secretary, Together, gave evidence on behalf of Together.
  2. [66]
    Mr Anthony James, Assistant Director General, Office of Industrial Relations, and Ms Paterson, Executive Director, Human Resources Division, QPS gave evidence on behalf of the State.
  3. [67]
    Each of Mr Scott, Mr Thomas and Mr James gave evidence in person while Ms Paterson was not required for cross-examination on her affidavit which was admitted into evidence.
  4. [68]
    Mr Scott's evidence was that members of Together feel strongly about seeking to have an agreement that provides the opportunity for their work environment to be genuinely considered without being limited by other government agencies, policies and procedures.
  5. [69]
    Mr Scott gave evidence that in March 2023, members were balloted on the proposal to seek a standalone agreement, with 92.92% indicating they supported a separate agreement.
  6. [70]
    Mr Scott gave evidence with respect to the work performed by Together’s members. His evidence was that QPS staff members worked in roles that required them to work a 24 hour, 7 day (24/7) shift work roster cycle, including those employees who worked in the Police Communications Centre and Policelink.  Mr Scott’s view was that the 24/7 roster presents complex considerations to rosters, leave management, training, fatigue management and management of organisational change.
  7. [71]
    Adding to the complexity, Mr Scott pointed to the fact that QPS staff members work alongside sworn officers performing the 24/7 roster but who are covered by different industrial instruments.  QPS staff members also work interchangeably with uniformed officers in areas such as Police Prosecutions and, as already mentioned, in the Police Communications Centre and Policelink.
  8. [72]
    Mr Scott's evidence was that the organisational structure at the QPS is such that the majority of staff members either directly or indirectly, report to sworn or commissioned officers who, in Mr Scott's view, have a limited knowledge of the terms of the Core CA.
  9. [73]
    Under cross-examination, Mr Scott also gave evidence with respect to the machinations of Together including the ways in which the union operated on a democratic basis with a majority rule approach.  The practical impact of this, from a bargaining perspective, is that if smaller groups of workers have issues that may not be issues of the majority of workers then the voices of the minority may not be heard. In this regard, Mr Scott noted that there are approximately 30,000 employees covered by the Core CA with approximately 4,000 of those being QPS staff members. Of the QPS staff members, the majority of those workers are classified as A03 whereas the predominant classification of workers at, for instance 1 William St (the Queensland Executive Building), are A05 to A08 policy officers.  Mr Scott relevantly stated:

“If we make that decision as part of the core, the other 26,000 people in the core, who are 1 William Street, white-collar workers, will have one view and they will out vote the 4000 workers in the Police Service who are predominantly, kind of, the AO3s, as opposed to the AO5s to AO8s, which is exactly the same reason we sought to take education out a few years ago, which wasn’t opposed by the Government, but that allowed our members in schools to have control of the bargaining process – because the bargaining process is two-sided.”[30]

  1. [74]
    Mr Scott’s evidence with respect to Together’s members’ position and Together’s position for seeking the scope order was as follows:

“So theoretically, if the – we can bargain anywhere under any agreement and we might get an outcome, but in a practical sense, the reason that our members have so strongly supported this process is it gives them a greater control and allows them to priorities their issues, rather than being caught up in a very broad core EB process, which is far more likely to be concerned just about the money and far more likely to be concerned about issues that are relevant to an AO6 or an AO7 or an AO8, not an AO3 in police. So, yes, anything can be bargained, but in a practical sense, the reason that I recommended this process to members and the reason it was so overwhelmingly supported was that, up till now, they haven’t had their address – issues addressed bargain after bargain in the core – because it’s not just about what you can put in the appendix; it’s about what industrial pressure you can apply and where your priorities do. So the structure of the agreement changes fundamentally – their power to get that – that outcome, compared to a much larger group where they’re a much smaller voice, with almost no – the – the issues facing these workers is vastly different to the issues facing most core EB workers. So, yes, but it’s impractical.”[31]

  1. [75]
    Mr Thomas gave evidence with respect to the historical context of the inclusion of QPS staff members into the 2000 Core CA.  Prior to that entitlements and conditions of QPS staff members were contained in the Queensland Police Certified Agreement 1997.
  2. [76]
    Mr Thomas also gave evidence that an aspect unique to QPS staff members was that many of the roles they performed arose out of the “civilianisation” of the QPS following the recommendations from the Report on the Service Delivery and Performance Management Review of the Queensland Police Service released in June 2018.
  3. [77]
    Under cross-examination[32] Mr Thomas did not accept the proposition that the civilianisation process has led to an increase in the number of roles within the QPS that are common in nature to the roles performed by other core CA employees.  Mr Thomas’ response was as follows:

“No, I – I think – I think it would – if you’re talking proportionally, I think it would be a reduction because before civilianisation it would be absolutely the sort of AO staff or PO or whatever. What civilianisation has done has taken roles that are probably unique to police, that police were doing, and training up people that aren’t sworn to do those roles. So if you actually think about the proportion of work per capita in police that would be similar to other government departments, it’s probably reduced because of civilianisation mathematically.”[33]

  1. [78]
    Mr James gave evidence on behalf of the State.  Mr James emphasised that it was the State’s position that the coverage of the Core CA be maintained.  Mr James stated that the primary purpose and rationale of the Core CA is to ensure consistency in employment conditions.  His evidence was that ensuring consistency of employment conditions across the employee cohort is important to the State because it delivers:
    1. fairness and consistency as between a substantial proportion of the State’s employees engaged in supporting the delivery of frontline services and across a large number of government agencies;
    2. ease of mobility for a large proportion of employees across entities without impacting their conditions of employment in consequence of moving. This in turn supports career development and knowledge and skills sharing across these entities; and
    3. efficiency in bargaining and industrial relations.
  2. [79]
    Relevantly, Mr James’ evidence was that competition within and between the employment conditions of Government agencies for the Core CA cohort of employees does not promote fairness, consistency or good governance.  Under cross-examination Mr James was asked what he meant by this statement, and he explained:

“---Yes. That paragraph should be read in the context of my explanation of the – the – the reason for the core or the purpose of the core and – and that is to ensure that over a reasonably large number of entities, as I said, I think it’s 47 entities, which are named at appendix 1, that there is consistency both in the wages of those – at those large administrative, operational, professional and technical stream staff and there is consistency in some of what we would call the core and common arrangements or – or obligations of entities – of – of agencies and staff that are identified in paragraphs – in parts 5 to 28 of the core agreement. What I meant by that was if the core is fractured or continues to fracture or fragment, the – there is opportunity for wage – for wages amongst those particular entities to become – to diversify, to become disparate and also for those conditions from sections 1 to 28 to also to become different and that may lead to shifts in employment patterns within that group of – of – within that – that group of – of entities and that may cause some concerns and issues for mobility and also the attractiveness of some of those – of departments compared to others.”[34]

  1. [80]
    Under cross-examination Mr James properly accepted that in the process of bargaining, there will be local issues for particular cohorts.[35]  In response to a proposition[36] that a smaller cohort with a specific problem may have their views drowned out by the majority who do not have the same problem, Mr James responded as follows:

“---Okay. My response to that is, that’s a matter for the union to bring those concerns to the table. The government doesn’t extinguish those concerns. And if Mr McKay, or any of the union delegates, were particularly, and acutely – and I know that there are very narrow sectional interests that often – that – that hit the table – the negotiation table – regularly. And in the big scheme of things, they’re really quite small.”[37]

  1. [81]
    Ms Paterson gave evidence with respect to what she considered to be the commonality between the QPS staff members and the other employees covered by the Core CA.  In this regard, Ms Paterson observed that QPS staff members’ roles and duties do not appear to her to be unique to QPS.
  2. [82]
    Ms Paterson expressed a view that the inclusion of an appendix into the Core CA dealing with the local issues of QPS was the preferred position for QPS.
  3. [83]
    Ms Paterson expressed a concern that should the scope order be granted, there would be additional cost, time and resourcing implications for the QPS in negotiating and drafting a full agreement rather than focusing on a single appendix as is currently done with respect to the Core CA.

Was the group of employees fairly chosen?

  1. [84]
    As earlier observed, s 186(2) provides that in deciding whether the group was fairly chosen, the QIRC must consider whether the group is geographically, operationally or organisationally distinct.  On the material before us, the relevant considerations are limited to whether the group is operationally or organisationally distinct.  It follows, that if the QIRC were to find that the QPS staff employees are either operationally or organisationally distinct, then such a finding would support a conclusion that the group was not fairly chosen.

Operationally distinct

  1. [85]
    Together argues that the QPS staff employees are operationally distinct.
  2. [86]
    The term “operational” refers to an “industrial or productive activity and concerns” how the work is carried out and what actual work is undertaken.[38]  To determine whether the QPS staff employees are operationally distinct, a comparison between the work they undertake and the work of the remainder of the employee cohort must be undertaken.
  3. [87]
    The State argues that the QPS staff employee members are not operationally distinct.  The State submits that Together has relied on a “sub-set” of the cohort who performs roles that police officers do or have historically done, rather than considering the group as a whole to establish if the group is operationally distinct.  Further, the State contends that Together has failed to identify, either in submissions or by way of evidence, the characteristics which make the group of employees operationally distinct.
  4. [88]
    The evidence of Together was that QPS Staff employees worked in a variety of roles, some of which required them to work alongside sworn officers performing a 24/7 roster.  Those QPS staff employees who typically worked a 24/7 roster included employees working in the Police Communication Centre and Policelink.  There was also evidence of QPS staff employees who worked in Police Prosecution interchangeably with sworn or commissioned officers.
  5. [89]
    With respect to the QPS staff employees who worked a 24/7 roster cycle, it is accepted that operational distinctiveness can be established when compared to workers who are covered by the Core CA and who do not work a 24/7 roster cycle.
  6. [90]
    However, there was no evidence with respect to what proportion of the cohort of QPS staff employees worked a 24/7 roster or operationally worked side by side with a sworn or commissioned officer.  It is accepted that the evidence which includes that of those QPS staff employees who worked a 24/7 roster have distinct roster and leave management considerations and training and fatigue management issues which may be relevant to a consideration as to whether the group of employees is operationally distinct.  Similarly, evidence with respect to some of the QPS staff employees performing their work interchangeably with commissioned or sworn officers are also matters which may be relevant to our consideration of operational distinctiveness.
  7. [91]
    However, in order to establish operational distinctiveness, the evidence must address the way in which all workers within the QPS staff employee cohort perform their work to enable a comparison with the work performed by those workers covered by the Core CA. 
  8. [92]
    The evidence is limited to providing examples as to how some of the QPS staff employees perform work in an operationally distinct way.  We are not satisfied that the evidence established, with enough particularity, the type of work performed by the whole of the QPS staff employee cohort to establish that they are operationally distinct.  The evidence must go beyond the provision of examples of the type of work performed and provide cogent and clear evidence of the work undertaken by all of the QPS staff employee cohort to enable a proper and meaningful analysis to take place.  In the circumstances, Together has not established that the QPS staff employees are operationally distinct.

Organisationally distinct

  1. [93]
    Together argues that the way in which the QPS conducts its operations is organisationally distinct.
  2. [94]
    When determining whether a group of workers are organisationally distinct, regard will be had to the manner in which the employer has organised its enterprise to conduct those operations.[39]
  3. [95]
    The State contends that the QPS is not organisationally distinct on the following bases:
    1. that despite the operation of the Police Service Administration Act 1990 (the PSA Act) nothing in the Public Sector Act 2022 (the PS Act) defines the relationship between the Commissioner and Minister other than one within the ordinary framework of responsible government and ministerial responsibility; and
    2. while the special and distinct status of sworn officers is accepted, parliament has determined that QPS staff employees are public sector employees employed under the PS Act and as such, they are not organisationally distinct from other employees covered by the Core CA.
  4. [96]
    The States’ submissions, however, do not withstand careful analysis of the organisation of the QPS and how the PSA Act operates to regulate the organisation of the QPS.  The relevant provisions of the PSA Act were considered in Brasell-Dallow & Ors v State of Queensland (Queensland Police Service) & Ors as follows:[40]

“[67] Section 1.3 states the objects of the PSA Act.  It provides:

1.3 Objects

The objects of this Act are to provide for the following—

  1.  the maintenance of the Queensland Police Service;
  1.  the membership of the service;
  1.  the development and administration of the service.

[68] Section 2.1 requires the maintenance of the QPS.  It provides:

2.1 Maintenance of service

There is to be maintained at all times in the State a body of persons under the name and style ‘Queensland Police Service’.

[69] Section 2.2 defines the membership of the QPS as:

2.2 Membership of service

  1.  The Queensland Police Service consists of police officers, police recruits and staff members.
  1.  Police officers are—
  1.  the commissioner of the police service;
  1.  the persons holding appointment as an executive police officer;
  1.  the persons holding appointment as a commissioned police officer;
  1.  the persons holding appointment as a noncommissioned police officer;
  1.  the persons holding appointment as a constable.

[70] Section 2.3 prescribes the functions of the QPS as:

2.3 Functions of service

The functions of the police service are the following—

  1.  the preservation of peace and good order—
  1.  in all areas of the State; and
  1.  in all areas outside the State where the laws of the State may lawfully be applied, when occasion demands;
  1.  the protection of all communities in the State and all members thereof—
  1.  from unlawful disruption of peace and good order that results, or is likely to result, from—
  1.  actions of criminal offenders;
  1.  actions or omissions of other persons; (ii) from commission of offences against the law generally;
  1.  the prevention of crime;
  1.  the detection of offenders and bringing of offenders to justice;
  1.  the upholding of the law generally;
  1.  the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of—
  1.  the provisions of the Criminal Code;
  1.  the provisions of all other Acts or laws for the time being committed to the responsibility of the service;
  1.  the powers, duties and discretions prescribed for officers by any Act;
  1.  the provision of the services, and the rendering of help reasonably sought, in an emergency or otherwise, as are—
  1.  required of officers under any Act or law or the reasonable expectations of the community; or
  1.  reasonably sought of officers by members of the community.

[71] Section 2.5 provides that other staff are subject to the Commissioner’s directions. It provides:

2.5 Administration of staff members

  1.  Staff members are—
  1.  officers of the public service assigned to perform duties in the police service; and
  1.  persons appointed as staff members by the commissioner under—
  1.  section 8.3(5); or
  1.  the Public Service Act 2008, chapter 5, part 5.
  1.  While performing duties in the service, a staff member is subject to the commissioner’s directions.

[72] Police officers are employees of the Crown by force of s 5.15, which provides:

5.15 Officer as employee of Crown

An officer, other than one who holds appointment on a contract basis, is taken—

  1.  to be an employee of the Crown; and
  1.  to be within the application of the Industrial Relations Act 2016 to employees of the Crown as provided by that Act.

[73] Part 4 establishes the office of the Commissioner,[41] and provides for her appointment and the conditions of her appointment.[42] Part 4 also provides for the removal or suspension of the Commissioner.[43]

[74] The Commissioner is subject to ministerial direction. That is provided by s 4.6, which provides:

4.6 Communications between Minister and commissioner

  1.  The commissioner—
  1.  is to furnish to the Minister reports and recommendations in relation to the administration and functioning of the police service, when required by the Minister to do so; and
  1.  may at any time furnish to the Minister such reports and recommendations as the commissioner thinks fit with a view to the efficient and proper administration, management and functioning of the police service.
  1.  The Minister, having regard to advice of the commissioner first obtained, may give, in writing, directions to the commissioner concerning—
  1.  the overall administration, management, and superintendence of, or in the police service; and
  1.  policy and priorities to be pursued in performing the functions of the police service; and
  1.  the number and deployment of officers and staff members and the number and location of police establishments and police stations.
  1.  The commissioner is to comply with all directions duly given under subsection (2).

[75] Section 4.8 concerns the Commissioner's responsibilities:

4.8 Commissioner’s responsibility

  1.  The commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law.
  1.  Without limiting subsection (1), a regulation may prescribe—
  1.  particular matters within the scope of the prescribed responsibility; or
  1.  additional responsibilities of the commissioner.
  1.  The commissioner is authorised to do, or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility.
  1.  In discharging the prescribed responsibility, the commissioner—
  1.  is to comply with all relevant industrial instruments and determinations and rules made by an industrial authority; and
  1.  subject to this Act, is to ensure compliance with the requirements of all Acts and laws binding on members of the police service, and directions of the commissioner; and
  1.  is to have regard to section 4.6 and ministerial directions duly given thereunder; and
  1.  is to discharge the responsibility in relation to such matters as are prescribed for the time being.

[76] Section 4.9 is the provision which gives the power pursuant to which the direction was made.  It provides, relevantly:

4.9 Commissioner’s directions

  1. In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service.
  2. A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act.
  3. Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction.
  4. A direction issued under subsection (1) to officers about functions, powers or responsibilities that are also functions, powers or responsibilities of watch-house officers is taken to be also issued to watch-house officers.

[77] Before turning to an analysis of ss 4.8 and 4.9 of the PSA Act, observations should be made as to the nature of the organisation which is the QPS. 

[78] Modern policing can be traced back in England to the first regular professional police service in London, the Thames River Police, which was founded in about 1798.  From that time, professional police forces began to emerge in those jurisdictions which follow the English justice system.  Sworn police officers in Queensland have statutory rights and obligations under the Police Powers and Responsibilities Act 2000 and thereby occupy a unique position.  The special powers bestowed on police officers are intended to be exercised to preserve the security, lives and property of the citizens of Queensland.[44]  The organisation of the QPS reflects that purpose.  It is a disciplined force which operates through a hierarchical chain of command.[45]

[79] By force of the PSA Act, any person, upon employment in the QPS becomes subject to any directions of the Commissioner made under s 4.9.

[80] Section 4.8(1) casts upon the Commissioner a responsibility for the operation of the QPS.  The Commissioner occupies the top position in the chain of command.  To enable her to fulfil those responsibilities, she is vested with general powers by s 4.8(3).  Those powers are to do “all lawful acts and things” to achieve a particular aim, namely the discharge of the “prescribed responsibility”, which is the responsibility cast upon the Commissioner by s 4.8(1).[46]

[81] Section 4.9 confers specific power upon the Commissioner, namely the power to give directions.  Again, that power, namely to give directions, is for the purpose of “discharging the prescribed responsibility”.[47]

[82] The limitations upon the Commissioner’s powers are contained with ss 4.8(3) and 4.8(4), namely:

  1. any act, including any direction, must be lawful;[48]
  1. any act, including any direction, must comply with:
  1.  “all relevant industrial instruments”.  The term “industrial instruments” is defined as it is defined in the IR Act[49] and includes an award or certified agreement;
  1.  any determination and rules made by an “industrial authority”.  An “industrial authority” means the Commission and the Queensland Industrial Court;[50]
  1.  legislation and other laws binding on members of the QPS;[51]
  1.  ministerial directions;[52]
  1.  the PSA Act.[53]

[83] Within those restrictions, the Commissioner’s directions are clearly binding upon employees of the QPS.  That is what s 4.9(3) expressly provides.  Part 7 of the PSA Act concerns disciplinary action.  Section 7.4 prescribes the grounds of disciplinary action.  It provides, relevantly:

7.4 Grounds for disciplinary action

  1.  The subject officer may be disciplined under this part if the subject officer has—
  1.  committed misconduct; or
  1.  been convicted—
  1.  in Queensland of an indictable offence; or
  1.  outside Queensland of an offence that, if it were committed in Queensland, would be an indictable offence; or
  1.  performed the subject officer’s duties carelessly, incompetently or inefficiently; or
  1.  been absent from duty without approved leave and without reasonable excuse; or
  1.  contravened, without reasonable excuse—
  1.  a provision of this Act or the Police Powers and Responsibilities Act 2000; or
  1.  a code of conduct that applies to the subject officer; or
  1.  a direction given to the subject officer by the commissioner under this Act or by a senior officer with authority to give the direction. (emphasis added)

[84] Therefore, on a proper construction of the PSA Act as a whole,[54] and taken in the context of the QPS being maintained as a disciplined force: …”[55]

  1. [97]
    It is clear from the above analysis of the PSA Act that, because of the work performed and the unique role of the QPS as a disciplined force, the QPS operates in a way which is organisationally distinct.
  2. [98]
    This can be compared to other departments of the State which are not established in such a way.  Relevantly, the PSA Act does not attempt to carve out QPS Staff employees from the operation of the PSA Act, but rather, by s 2.2, it includes them as members of the service. Accordingly, QPS staff employees are included in the structure and operation of the QPS.
  3. [99]
    Further, the above analysis of the PSA Act identifies the role and responsibility of the Police Commissioner including with respect to employment conditions.  Section 2.3 of the PSA Act confirms that QPS staff employees are subject to the Commissioner’s directions whilst performing duties.
  4. [100]
    It follows that the QPS is organisationally distinct. Consequently, we are satisfied that the organisational distinctiveness of the QPS supports a conclusion that the QPS staff employees were fairly chosen.  Having determined that the QPS staff employees are fairly chosen, we must then consider whether it is reasonable to make the scope orders.

Exercise of discretion to issue scope orders

  1. [101]
    A consideration of what is reasonable in all the circumstances will depend on the circumstances of the matter but must also be consistent with purpose of the Chapter to facilitate, inter alia, collective bargaining in good faith.
  2. [102]
    The basis of Together's concerns include that because of the relatively smaller number of the QPS staff employee cohort, the views  and interests of the QPS staff employees will be overshadowed by the vast number of other employees who are covered by the Core CA but who do not have the same views and interests of the QPS staff employees.  Relevantly, whilst there are approximately 4,000 QPS staff employees there are approximately 30,000 employees covered by the Core CA.
  3. [103]
    Together acknowledged, that because the union operates in a democratic manner, that when the views and interests of a smaller cohort differed to the views and interests of a greater cohort, then the smaller cohort were less likely to be heard during the negotiation process.
  4. [104]
    We consider that it is reasonable to grant the scope orders in the circumstances of this matter as it will allow issues relevant to the interests of the QPS staff employee cohort to be considered which will facilitate collective bargaining in good faith.
  5. [105]
    Further, some of the evidence relied on by Together with respect to its claim of operational distinctiveness is relevant to our consideration of whether the discretion is exercised,  as it also identifies the distinct nature of the type of workplace issues that are more likely to effect QPS staff employees For instance, the effects of working a 24/7 roster cycle and working alongside uniformed and commissioned officers are matters that are unique to the QPS staff employee cohort.
  6. [106]
    Accordingly, we consider that the type of work undertaken by the QPS staff employees is a factor that weighs in favour of  the exercise of the discretion to grant the scope orders.

Fragmentation

  1. [107]
    The State’s position is that it has organised its industrial expertise and resources to prioritise the Core CA as a pillar bargaining instrument for a significant portion of its employees.  The State argues that fragmentation of the employees covered by the Core CA is something that is of significant concern to the State.
  2. [108]
    It further argues that with every government entity scoped out of the Core CA there is a devolution in resources to government entities to negotiate their own bargaining agreement.
  3. [109]
    It is trite to note that the QIRC must deal with the application before it.  Submissions about the potential effect of future scope orders are of little relevance to our consideration in this matter.
  4. [110]
    Whilst it is understood that it is the State's preference for the Core CA not to be fragmented by this scope order, such a position must be supported by cogent reasons.
  5. [111]
    It is not the case that the Core CA covers all employees of the State. Currently the Core CA has 45 government entities whose employees are covered by the Core CA.  There are a number of other government entities, including from within the QPS, whose employees are covered by stand alone agreements.
  6. [112]
    Accordingly, it is the case that the industrial coverage of employees of the State is already somewhat fragmented in so far as multiple agreements apply to employees of various government entities.
  7. [113]
    That the State has taken a policy position that it does not wish for further fragmentation to occur is, in and of itself, not a compelling reason to refuse the scope order.  
  8. [114]
    Similarly, the State’s concern that if this scope order is issued others may follow is also not a compelling reason to refuse the scope order.
  9. [115]
    The role of the QIRC is to consider the application before it. If other scope orders are made in the future, they will no doubt be dealt with on their respective merits.  Accordingly, the State’s policy position with respect to the further fragmentation of the Core CA is not a matter relevant to our consideration as to whether the discretion ought be exercised to grant the scope orders.

Reasonable to issue order

  1. [116]
    As already observed, the discretion to issue scope orders pursuant to the IR Act is much wider than under the FW Act.
  2. [117]
    As noted above, we have determined that the employees are fairly chosen.  The QPS staff employees are members of the QPS which is organisationally distinct from other government entities within the Core CA.
  3. [118]
    We have determined that it is reasonable in the circumstances of this matter to issue the scope orders.
  4. [119]
    In forming this conclusion, we have had regard to the evidence of Mr Scott and Mr Thomas of Together who, as representatives of a party to the proposed agreement, consider that QPS staff employees have separate views and issues to the majority of its members who are covered by the Core CA.  We have also considered the evidence relied on by Together that because of the smaller size of the QPS staff employees that its special views and issues will be outweighed by the views and issues of the larger cohort and we have also considered the nature of the work undertaken by the QPS staff employees.
  5. [120]
    These matters support a view that to facilitate bargaining, it is not reasonable for the QPS staff employees to be covered by the Core CA.

Order

  1. [121]
    Accordingly, we make the following order:
  1. The application filed on 22 March 2023 is granted.
  2. The Scope Order is issued in terms attached to these reasons.

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 2016

Matter No. CB/2023/21

Together Queensland, Industrial Union of Employees

AND

State of Queensland

AND

Others

ORDER

Pursuant to s. 185 of the Industrial Relations Act 2016 (the Act) the Queensland Industrial Relations Commission ORDERS:

  1. TITLE

This Order shall be known as the State of Queensland (Queensland Police Service) Scope Order for the proposed State Government Entities 2023 bargaining instrument (‘Proposed State Government Entities Bargaining Instrument’) and the proposed Queensland Police Service Staff Members 2023 bargaining instrument (‘Proposed Queensland Police Service Staff Members bargaining instrument’).

  1. EMPLOYER TO BE COVERED BY THE PROPOSED STATE GOVERNMENT ENTITIES BARGAINING INSTRUMENT

The employer to be covered by the Proposed State Government Entities Bargaining Instrument is the State of Queensland.

  1. EMPLOYER TO BE COVERED BY THE PROPOSED QUEENSLAND POLICE SERVICE STAFF MEMBER BARGAINING INSTRUMENT

The employer to be covered by the Proposed Queensland Police Service Staff Members Bargaining Instrument is the State of Queensland (Queensland Police Service).

  1. EMPLOYEES TO BE COVERED BY THE PROPOSED STATE GOVERNMENT ENTITIES BARGAINING INSTRUMENT

The employees to be covered by the Proposed State Government Entities Bargaining Instrument are:

  1. Employees employed by the State of Queensland in the following entities, or parts thereof, except for Chief Executives, Senior Executives and Senior Officers:
    1. Crime and Corruption Commission (employees appointed pursuant to section 254 of the Crime and Corruption Act 2001, other than employees appointed under a written contract of employment in accordance with section 254(4) of the Act);
    2. Department of Agriculture and Fisheries;
    3. Department of Child Safety, Seniors and Disability Services (only Seniors and Disability Services employees);
    4. Queensland Corrective Services (excluding those employees covered by the Queensland Corrective Services – Correctional Employees’ Certified Agreement 2021);
    5. Department of Environment and Science (including Multicultural Affairs);
    6. Department of Energy and Public Works (including QBuild Office staff, excluding all other commercialised business units)
    7. Department of Housing;
    8. Department of Justice and Attorney General;
    9. Department of Tourism, Innovation and Sport;
    10. Department of State Development, Infrastructure, Local Government and Planning;
    11. Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and Arts (including Family Responsibilities Commission, and the Office of the Commissioner under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020);
    12. Department of Regional Development, Manufacturing and Water;
    13. Department of Resources;
    14. Department of the Premier and Cabinet;
    15. Department of Youth Justice, Employment, Small Business and Training (only Employment, Small Business and Training employees);
    16. Electoral Commission Queensland;
    17. Gasfields Commission Queensland;
    18. Industrial Registry;
    19. Integrity Commission;
    20. Legal Aid Queensland;
    21. National Injury Insurance Agency, Queensland;
    22. Office of the Director of Child Protection Litigation;
    23. Office of the Energy and Water Ombudsman;
    24. Office of the Governor;
    25. Office of the Inspector General Emergency Management;
    26. Office of the Queensland College of Teachers;
    27. Office of the Queensland Parliamentary Counsel;
    28. Office of the Public Guardian (including Community Visitors employed pursuant to the Public Guardian Act 2014);
    29. Office of the Prostitution Licensing Authority;
    30. Public Service Commission;
    31. Public Trust Office;
    32. QLeave;
    33. Queensland Audit Office;
    34. Queensland Building and Construction Employing Office;
    35. Queensland Curriculum and Assessment Authority;
    36. Queensland Family and Child Commission;
    37. Queensland Fire and Emergency Services[56] (excluding staff to whom the Queensland Fire and Emergency Service Agreement 2022 or any agreement/determination that replaces this Agreement applies, and excluding Disaster Management employees who will transition to the Queensland Police Service consistent with the Functional Transition Agreement dated 15 June 2023);
    38. Queensland Human Rights Commission;
    39. Queensland Parliamentary Service (excluding Electorate Officers and Assistant Electorate Officers);
    40. Queensland Racing Integrity Commission;
    41. Queensland Reconstruction Authority;
    42. Queensland Rural and Industry Development Authority;
    43. Queensland Treasury (including Motor Accident Insurance Board, Queensland Productivity Commission and the Office of State Revenue);
    44. Residential Tenancies Employing Office;
    45. Resources, Health and Safety Queensland Employing Office;
    46. Safe Food Production Queensland; and
    47. Trade and Investment Queensland.
  2. Any other employees employed by the State of Queensland in entities or parts entities as negotiated and agreed by the parties in the making of the Proposed State Government Entities Bargaining Instruments, excepting those employees employed by the State of Queensland (Queensland Police Service) to be covered by the Proposed Queensland Police Staff Member Bargaining Instrument.
  1. EMPLOYEES TO BE COVERED BY THE PROPOSED QUEENSLAND POLICE SERVICE STAFF MEMBERS BARGAINING INSTRUMENT

The employees to be covered by the Proposed Queensland Police Service Staff Member Agreement are:

  1. Employees, other than Chief Executives, Senior Executive Service and Senior Officer employees and Executive Officers engaged under the Police Service Administration Act 1990, employed by the State of Queensland in the Queensland Police Service to whom the following awards apply:
    1. Queensland Public Service Officers and Other Employees Award- State 2015, except for those employees covered by the Queensland Police Service Protective Services Officers Certified Agreement 2019 and any successor agreements;
    2. Building, Engineering and Maintenance Services Employees (Queensland Government) Award-State 2016;
    3. General Employees (Queensland Government Departments) and other Employees Award State-2015; and
    4. Persons employed by the State of Queensland in the Queensland Police Service as QGAir operational employees not covered by any award.
  1. EMPLOYEE ORGANISATIONS THAT WILL BE PARTY TO THE PROPOSED STATE GOVERNMENT ENTITIES BARGAINING INSTRUMENT
  1. The employee organisations’ that will be a party to the Proposed State Government Entities Bargaining Instrument are as follows:
  1. The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees;
  2. Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District;
  3. Australian Maritime Officers Union Queensland, Union of Employees;
  4. The Australian Workers’ Union of Employees, Queensland;
  5. Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland;
  6. The Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland;
  7. The Electrical Trades Union of Employees Queensland;
  8. Plumbers and Gasfitters Employees’ Union Queensland, Union of Employees;
  9. Queensland Nurses’ and Midwives Union of Employees;
  10. Together Queensland, Industrial Union of Employees;
  11. Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees;
  12. Transport Workers’ Union of Australia, Union of Employees (Queensland Branch);
  13. United Workers’ Union of Employees, Queensland.
  1. EMPLOYEE ORGANISATIONS THAT WILL BE PARTY TO THE PROPOSED QUEENSLAND POLICE SERVICE STAFF MEMBERS BARGAINING INSTRUMENT
  1. The Employee Organisations’ that will be a party to the Proposed Bargaining Instrument are:
  1. Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland;
  2. The Electrical Trades Union of Employees, Queensland;
  3. Queensland Nurses’ and Midwives Union of Employees;
  4. Together Queensland, Industrial Union of Employees;
  5. Transport Workers’ Union of Australia, Union of Employees (Queensland Branch); and
  6. United Workers’ Union of Employees, Queensland.
  1. TERM AND DATE OF EFFECT OF ORDER

This order shall apply from 6 July 2023.

This order shall continue in force until the earliest of the following times –

  1. If the order is revoked by the commission- the time stated in the instrument revoking the order;
  2. when the proposed bargaining instrument is certified or made by the Commission;
  3. when an arbitration determination covering the employees stated in the Scope Order is made.

Footnotes

[1] Industrial Relations Act 2016, s 169.

[2]  Exhibit 10 – Affidavit of Anthony James dated 15 May 2023.

[3]  Clause 1.3.

[4]  The Affidavit of Mr Thomas dated 20 April 2023 gives a detailed chronology of the coverage of the QPS staff employees which includes periods after 2000 where the cohort was covered by other certified agreements (Exhibit 6).

[5]  Exhibit 10 – Affidavit of Anthony James dated 15 May 2023, [19].

[6]  “Concern” is relevant to s 184 of the Industrial Relations Act 2016.

[7]  Chapter 4, Part 1, Division 2.

[8]  Chapter 4, Part 1, Division 3.

[9]  Chapter 4, Part 2, Division 3.

[10]  See generally Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No 2) [2022] QIRC 011.

[11]  There is a fourth condition, namely, that an application has been made under s 184; here an application has been made.

[12] Norbis v Norbis (1986) 161 CLR 513 at 517-518.

[13] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.

[14]  For example, see George v Rockett (1990) 170 CLR 104.

[15] Police Powers and Responsibilities Act 2000, ss 29 and 31.

[16] Edgington v Fitzmaurice (1885) 29 Ch D 459 at 482.

[17] O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 48 and AMIEU v Woolworths Ltd [2009] FWA 849.

[18] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union and Anor v Qantas Airways Ltd, Fair Work Commission, 4 April 2017 at [180], [184].

[19] Fair Work Act 2009 (Cth), s 172(4) and s 173(1).

[20]  Sections 184 and 185 are set out at paragraph [23] of these reasons.

[21]  Section 143.

[22]  Assuming the preconditions to the exercise of the discretion are otherwise proved.

[23]  Which is set out at paragraph [22] of these reasons.

[24]  See s 177(d).

[25]  (2010) 193 IR 293.

[26]  (2010) 193 IR 293.

[27]  At [53].

[28] R v A2 (2019) 269 CLR 507 at [32]-[37].

[29]  Section 163.

[30]  T 2-12, ll 24-30.

[31]  T 2-12, l 40 to T 2-13, l 8.

[32]  T 1-49, ll 44-46.

[33]  T 1-49, l 46 –to T 1-50, l 6.

[34]  T 2-53, l 38 – T 2-54, l 5.

[35]  T 2-74, l 7.

[36]  T 2-74, ll 9-12.

[37]  T 2-74, l1 2-17.

[38] Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2017] QIRC 087.

[39] Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2017] QIRC 087 at [71].

[40]  [2021] QIRC 356 at [67]-[84].

[41]  Section 4.1.

[42]  Sections 4.2, 4.3 and 4.4.

[43]  Section 4.5.

[44] Police Service Board v Morris (1985) 156 CLR 397 at 409 and see Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383 at [3] and [43]-[67].

[45] Police Service Board v Morris (1985) 156 CLR 397; Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383, [43]-[67].

[46]  See definition of “prescribed responsibility” in s 1.4.

[47]  Section 4.9(1).

[48]  Section 4.8(3).

[49] Police Service Administration Act 1990, s 1.4 and Industrial Relations Act 2016, Schedule 5.

[50] Police Service Administration Act 1990, s 1.4.

[51]  Ibid, s 4.8(4)(b).

[52]  Ibid, ss 4.6 and 4.8(4).

[53] Police Service Administration Act 1990, s 4.9(2).

[54] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[55] Police Service Board v Morris (1985) 156 CLR 397 and Nugent v Stewart (Commissioner of Police) (2016) 261 A Crim R 383 and see generally R v A2 (2019) 269 CLR 507 at [32].

[56] Including employees previously employed by Public Safety Business Agency and covered by the State Government Entities Certified Agreement 2019.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2023] QIRC 291

  • Court:

    QIRC

  • Judge(s):

    Davis J

  • Date:

    09 Oct 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
AMIEU v Woolworths Ltd [2009] FWA 849
2 citations
Jump To
Cite 1 - [2009] FWA 849
Cite 2 - [2009] FWA 849
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2017] QIRC 87
3 citations
Jump To
Cite 1 - [2017] QIRC 87
Cite 2 - [2017] QIRC 87
Cite 3 - [2017] QIRC 87
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Edginton v Fitzmaurice (1885) 29 Ch D 459
2 citations
Jump To
Cite 1 - (1885) 29 Ch D 459
Cite 2 - (1885) 29 Ch D 459
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Mackay Regional Council v Queensland Services, Industrial Union of Employees (No 2) [2022] QIRC 11
2 citations
Jump To
Cite 1 - [2022] QIRC 11
Cite 2 - [2022] QIRC 11
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Nugent v Stewart (Commissioner of Police) (2016) 261 A Crim R 383
4 citations
Jump To
Cite 1 - (2016) 261 A Crim R 383
Cite 2 - (2016) 261 A Crim R 383
Cite 3 - (2016) 261 A Crim R 383
Cite 4 - (2016) 261 A Crim R 383
OReilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
2 citations
Jump To
Cite 1 - (1983) 153 CLR 1
Cite 2 - (1983) 153 CLR 1
Police Service Board v Morris & Martin (1985) 156 CLR 397
4 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
Cite 3 - (1985) 156 CLR 397
Cite 4 - (1985) 156 CLR 397
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 (2019) 269 CLR 507
3 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Cite 3 - (2019) 269 CLR 507
United Firefighters ’ Union of Australia v Metropolitan Fire & Emergency Services Board (2010) 193 IR 293
3 citations
Jump To
Cite 1 - (2010) 193 IR 293
Cite 2 - (2010) 193 IR 293
Cite 3 - (2010) 193 IR 293

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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