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Queensland Police Union of Employees v HS First Inc.[2023] QIRC 30

Queensland Police Union of Employees v HS First Inc.[2023] QIRC 30

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Police Union of Employees v HS First Inc. [2023] QIRC 030

PARTIES: 

Queensland Police Union of Employees

(Applicant)

v

HSFirst Inc. trading as Sworn Officers' Association of Australia (SOPAA)

(First Respondent)

and

HSFirst Inc. trading as Sworn Officers' Association of Queensland (SOPAQ)

(Second Respondent)

CASE NO.:

B/2022/49

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

31 January 2023

HEARING DATE:

8 December 2022

MEMBERS:

Merrell DP

Pidgeon IC

Power IC

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [135] of these reasons for decision.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL ORGANISATIONS – Applicant is an organisation registered under the Industrial Relations Act 2016 with the right to represent the industrial interests of certain employees of the Queensland Police Service – the Respondent is an incorporated association which trades under various business names – Applicant applied for declaratory relief, final injunctive relief and other orders including that the Respondent does not have right to represent employees who are eligible for membership of the Applicant – Directions Orders that the Applicant file and serve a statement of facts and contentions and that the Respondent file and serve a response – statement of facts and contentions and response filed and served – application in existing proceedings by the Applicant for summary judgment or, in the alternative, for the Respondent's response to be struck out and a further response filed and served – source of power for the Commission to grant summary judgment and strike out a statement of facts and contentions – whether Applicant should be granted summary judgment – whether Respondent's response should be struck out and Respondent ordered to file a further response – Applicant's application for summary judgment dismissed – order striking out Respondents' response – orders that the Respondent file and serve a further response, that the Applicant files and serves a reply and that the matter be mentioned

LEGISLATION:

Fair Work (Registered Organisations) Act 2009, s 137A

Industrial Relations Act 1988, s 118A

Industrial Relations Act 1990, s 45

Industrial Relations Act 2016, s 9, s 279, s 447, s 451, s 463, s 464, s 473, s 474, s 478, s 479, s 481, s 482, s 483, s 531, s 541, s 1100 and sch 1, item 20, item 23 and item 30.

Industrial Relations and Other Legislation Amendment Act 2022, s 48, s 49, s 50 and s 65

Industrial Relations (Tribunals) Rules 2011, r 6, r 41 and r 45

CASES:

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278

Bentzen v Hinchinbrook Shire Council [2021] QIRC 158; (2021) 309 IR 118

Clancy v Butchers' Shop Employees Union, James John News Secretary, and the President and Members of the Court of Arbitration N.S.W [1904] HCA 9; (1904) 1 CLR 181

Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255

Local Government Association of Queensland v Queensland Services, Industrial Union of Employees [2020] QIRC 068

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

Mutual Life & Citizens Assurance Co Ltd v Attorney-General for the State of Queensland [1961] HCA 51; (1961) 106 CLR 48

Pennington v Jamieson [2022] ICQ 22

Queensland Teachers' Union of Employees v State Public Services Federation, Queensland Union of Employees (1997) 154 QGIG 70

Re Australian Education Union [1996] AIRC 2010

Re CSR Ltd (1996) 65 IR 341

Rich v GCU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856

Shop Distributive and Allied Employees Association v National Union of Workers [2012] FWAFB 461; (2012) 28 IR 370

Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Together Queensland Industrial Union of Employees v Scales & Anor (No. 3) [2022] QIRC 024

United Firefighters' Union of Australia, Union of Employees v Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 066

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Workers' Compensation Regulator v Carr [2023] ICQ 001

APPEARANCES:

Mr P. McCafferty KC and Mr. H Clift of Counsel instructed by Hall Payne Lawyers for the Applicant.

Ms P. Willoughby of Counsel instructed by Saines Legal for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    The Queensland Police Union of Employees ('the QPUE') is an organisation registered under ch 12 of the Industrial Relations Act 2016 ('the IR Act'). The QPUE, by virtue of its registration under the Act, entitles it to represent the industrial interests of certain employees of the Queensland Police Service ('the Service') including Non‑Commissioned Officers, Constables, Police Support Officers and Police Liaison Officers.
  1. [2]
    HSFirst Inc. ('HSFirst') is an association registered and incorporated under the Associations Incorporations Act 1981 ('the AI Act'). On 27 October 2021, its rules were amended to provide that HSFirst was a not-for-profit professional body representing interests of police officers in Australia, and that its ordinary members may include police officers and such other classes of employees, as determined by the executive of the state management committee of HSFirst from time to time, who provide or intend to provide ancillary services to police operations. HSFirst also holds a number of registered business names, including 'Sworn Officers' Professional Association of Australia' and 'Sworn Officers' Professional Association of Queensland.'[1]
  1. [3]
    By application filed on 17 June 2022, the QPUE applies for:
  • pursuant to s 473 of the IR Act, a declaration that HSFirst '… in respect of either business name, or at all' is not an employee organisation or an industrial association for the purposes of the IR Act or a trade union;
  • pursuant to s 473 of the IR Act, injunctions to restrain HSFirst, and its officers, employees, servants and/or agents, '… in respect of either business name, or at all', from holding itself out:
  1. –
    as an employee organisation or an industrial association for the purposes of the IR Act, or a trade union; and
  1. –
    as an alternative union to the QPUE in respect of its eligibility;
  • pursuant to s 479(c) of the IR Act, an order that HSFirst does not have the right to represent employees who are eligible for membership of the QPUE; and
  • pursuant to s 483(1)(c) of the IR Act, an ancillary order prohibiting HSFirst from holding out membership on the basis of it being able to provide representation in stated industrial matters as defined in the IR Act.
  1. [4]
    As a consequence of a Directions Order issued by Industrial Commissioner Power dated 30 June 2022:
  • on 22 July 2022, the QPUE filed and served its statement of facts and contentions in support of its application ('the QPUE's contentions'); and
  • on 12 August 2022, HSFirst filed and served its response to the QPUE's contentions ('HSFirst's response').
  1. [5]
    By application in existing proceedings filed on 23 August 2022, the QPUE applies for the following relief:
  • pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') or pursuant to s 451 or s 541 of the IR Act, that it be granted the relief sought in its substantive application; or, alternatively
  • pursuant to r 45 of the Rules or s 451 or s 541 of the IR Act:
  1. –
    HSFirst's response filed on 12 August 2022 be struck out; and
  1. –
    HSFirst file and serve a further response to the QPUE's contentions ('the QPUE's summary judgment application').
  1. [6]
    The issues for our determination are:
  • should summary judgment be granted to the QPUE in respect of the relief sought in its substantive application? or, in the alternative
  • should HSFirst's response be struck out and HSFirst be ordered to file and serve a further response?
  1. [7]
    For the reasons that follow:
  • we decline to grant summary judgment to the QPUE in respect of the relief sought in its substantive application;
  • pursuant to s 451(1) of the IR Act, HSFirst's response filed on 12 August 2022 is struck out; and
  • pursuant to r 41 of the Rules, we will order that HSFirst files and serves a further response to the QPUE's contentions and that the QPUE files and serves a reply.

The QPUE's substantive application

  1. [8]
    The QPUE's substantive application was supported by two detailed affidavits, both filed on 17 June 2022, being:
  • an affidavit of Mr Christopher Robin Fraser, an employee of the QPUE's solicitors, which, amongst other documents, exhibited the relevant rules of HSFirst and the various business names registered by HSFirst ('Mr Fraser's affidavit'); and
  • an affidavit of Mr Shane Allan Prior, a sworn police officer and General Vice President of the QPUE, by which Mr Prior exhibited, amongst other documents, the rules of the QPUE and by which he gives evidence about various publications and representations said to be made by HSFirst about its ability to represent the industrial interests of police officers ('Mr Prior's affidavit').
  1. [9]
    The grounds for the relief sought by the QPUE in its substantive application are the allegations that:
  • HSFirst holds itself out as being an employee organisation and an industrial association for sworn police officers when it is not a registered organisation under the IR Act, or is not an employee organisation or an industrial association for the purposes of the IR Act;
  • HSFirst holds itself out as being a trade union for sworn police officers when it is not a trade union because it is not an organisation formed by workers to further the interests of the workers in their employment;
  • HSFirst holds itself out as an alternative union to the QPUE, in respect of the eligibility of the QPUE, when HSFirst is not an alternative union to the QPUE in respect of its eligibility; and
  • HSFirst and further, or in the alternative, its officers, members, employees, servants and/or agents, have made and are making representations directed at employees of the Service about HSFirst having rights, functions or powers in relation to employees under the IR Act that HSFirst does not have.[2]

The parties' statements of facts and contentions and material

The QPUE's contentions

  1. [10]
    The QPUE first makes allegations about the legal basis of its registration under the IR Act and that of HSFirst under the AI Act, the relevant rules of both organisations, the relationship of HSFirst to what the QPUE defines as the 'Red Group' and the various offices in other companies held by the office holders of HSFirst.[3]
  1. [11]
    The QPUE then makes detailed allegations of fact that HSFirst and its officers, employees and/or agents have made, and continue to make, representations by various means to various persons, including to employees of the Service, which include that HSFirst is:
  • an employee union;
  • an alternative to the QPUE;
  • an industrial association of employees, whose principal purpose is to protect and promote the interests of its members in matters concerning their employment;
  • a group of police officers wanting an alternative voice to the QPUE; and
  • run by practising police officers.[4]
  1. [12]
    The QPUE then relevantly contends:
  1. HS First Inc has represented to employees (as defined under the Industrial Relations Act) employed by the Queensland Police Service (an employer for the purposes of the Industrial Relations Act) that it is:
    1. (a)
      a union;
    2. (b)
      a national police union; and
    3. (c)
      an alternative to the QPUE.
  1. HS First Inc, either in its own name or trading as SOPAA or SOPAQ or variation thereof, is not:
    1. (a)
      a body registered or recognised under the Industrial Relations Act;
    2. (b)
      a trade union; or
    3. (c)
      an alternative to the QPUE.
  1. The QPUE disputes the ability of HS First Inc to represent the industrial interests of employees. There is consequently a demarcation dispute between the QPUE and HS First Inc.
  1. HS First Inc, or an officer, member or employee of HS First Inc, is making representations directed at employees about HS First Inc having rights, functions and/or powers in relation to employees under the Industrial Relations Act that it does not have.
  1. In the premises, the representations made by HS First Inc and its officers, employees and/or agents are false or misleading.
  1. The applicant has a reasonable apprehension that, as a consequence of those false or misleading representations, its members and employees who are eligible for membership, will be confused or misled about the ability of HS First Inc to represent their industrial interests.

HSFirst's response

  1. [13]
    The response of HSFirst to paragraph 39 of the QPUE's contentions is:
  1. As to paragraph 39, says as follows:
  1. It does not admit or deny the allegation as QPUE has not articulated this concern to the Respondent prior to these pleadings;
  2. It denies that there is a demarcation dispute between the QPUE and HS First Inc.
  1. [14]
    Further, part of the response of HSFirst to the relief sought in the QPUE's contentions is:
  1. As to Paragraph 44, states that the Applicant's request for relief from the Commission is misconceived as the Commission does not have Jurisdiction to hear such matters
  1. There is no demarcation dispute; or
  2. Any other industrial matter for the Commission's consideration.

The parties' material

  1. [15]
    The Directions Order made by Industrial Commissioner Power on 30 June 2022 also ordered, in respect of the QPUE's substantive application, that:
  • the QPUE, by 26 August 2022, file and serve any further affidavits and supporting material upon which it intended to rely; and
  • HSFirst, by 9 September 2022, file and serve any affidavits and supporting material upon which it intended to rely.
  1. [16]
    However, following an application in existing proceedings filed by the QPUE on 18 August 2022, by which it sought disclosure of particular documents from HSFirst, a Further Directions Order, dated 19 August 2022, was made by Industrial Commissioner Power. That Directions Order vacated the earlier order that HSFirst file and serve any affidavits and supporting material, upon which it intended to rely, in respect of the QPUE substantive application.
  1. [17]
    As a consequence, there was no order directing HSFirst to file and serve any affidavits or supporting material in response to Mr Fraser's affidavit and Mr Prior's affidavit. We were told that was the main reason why HSFirst did not file and serve any such material.[5] Therefore, at the date we heard the QPUE's summary judgment application, HSFirst had not filed any material in response to Mr Fraser's affidavit and Mr Prior's affidavit.
  1. [18]
    The QPUE's summary judgment application was supported by an affidavit of Mr John Payne, a Consultant to its lawyers, filed on 23 August 2022. In addition, the QPUE also relied upon the statement of Assistant Commissioner Shane Leslie Chelepy filed on 6 December 2022. HSFirst read an affidavit of its solicitor, Mr Nigel Earl Saines, filed on 23 September 2022.

Should summary judgment be granted to the QPUE in respect of the relief sought in its substantive application?

The relevant power and principles

  1. [19]
    In its written submissions, the QPUE submitted that pursuant to r 45 of the Rules or, in the alternative, either s 451 or s 541 of the IR Act, the Commission has power to grant summary judgment in respect of its substantive application.[6]
  1. [20]
    The QPUE also referred to r 6 of the Rules which provides that the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimal of expense. The QPUE submitted that such a purpose is relevant because, in its submission, its case has been made clear and is based on a foundation of evidence that has already been filed.[7]
  1. [21]
    In its written submissions, HSFirst accepted that the Commission has, pursuant to s 451 of the IR Act, power to grant summary judgment, as well as power to strike out its response.[8]
  1. [22]
    The circumstances of the present case do not require us to make a detailed analysis of whether r 45 of the Rules or s 541 of the IR Act confer power on the Commission to grant summary judgment to the QPUE. This is because:
  • in respect of r 45 of the Rules, HSFirst did in fact file and serve a response;
  • we were not addressed in any detail about s 541 of the IR Act; and
  • as stated, HSFirst accepted that s 451 of the IR Act was a source of power for the Commission to grant summary judgment.
  1. [23]
    Chapter 11, pt 2, div 3 of the IR Act sets out the functions, jurisdiction and general powers of the Commission. Section 451 of the Act is contained in that division and relevantly provides:

451 General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1), the commission in proceedings may-
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.
  1. [24]
    Section 447 of the IR Act sets out the Commission's functions which relevantly include resolving disputes over union coverage by making representation orders[9] and any other function conferred on the Commission under the IR Act.[10]
  1. [25]
    In the performance of its functions, the general powers conferred on the Commission, by s 451(1) and (2) of the IR Act, are very wide. This includes conferring power to:
  • permit an amendment to an agreed statement of facts;[11]
  • at any stage of proceedings, on application by any party or of the Commission's own motion, order that any document in the proceedings be amended, or order that any party have leave to amend any document in the proceedings in such a manner as the Commission thinks fit;[12] and
  • summarily dismiss an adverse action application if the Commission has no jurisdiction to hear it.[13]
  1. [26]
    Nevertheless, the width of the general powers bestowed by s 451 of the IR Act may be restricted by the statutory scheme.[14] In particular, while a power to do all things 'necessary or convenient' is one of considerable latitude, such a power will not support the doing of a thing which departs from the scheme of the enactment of which the power is conferred.[15]
  1. [27]
    Having regard to the powers sought to be enlivened by the QPUE in its substantive application, namely s 463, s 473, s 479(c) and s 483(1)(c) of the IR Act, we do not think that the general power conferred by s 451(1) and (2) of the IR Act, if enlivened to grant summary judgment, would involve the exercise of power inconsistent with those statutory powers. Indeed, if the general power conferred by s 451(1) and (2) of the IR Act is broad enough to confer power on the Commission to summarily dismiss an adverse action application in the absence of the Commission having jurisdiction to determine such an application, then, in our view, it is not unreasonable to conclude that the same general power confers power to grant summary judgment in an appropriate case.
  1. [28]
    Similarly, it seems to us, having regard to the cases we have cited in paragraph [25] of these reasons, the general power conferred by s 451(1) and (2) of the IR Act is also broad enough to confer power on the Commission to strike out the statement of facts and contentions of a party and to order that the same party file and serve a further statement of facts and contentions.
  1. [29]
    However, the conferring of such a power to grant summary judgment, and the circumstances in which such a power may be exercised, are different matters.
  1. [30]
    In Agar v Hyde,[16] Gaudron, McHugh, Gummow and Hayne JJ relevantly stated:
  1. [57]
    It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[17]
  1. [31]
    Similarly in Spencer v The Commonwealth,[18] French CJ and Gummow J stated:
  1. [24]
    The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”[19]

  1. [32]
    Further, nowhere '… is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.'[20]
  1. [33]
    These general law principles are a sound guide for the Commission, in respect of the exercise of the broad discretion given to the Commission in s 451(2)(b) and (c) of the IR Act to make a decision or an order '… it considers appropriate' when considering an application for summary judgment.
  1. [34]
    Another relevant provision is s 531 of the IR Act. That section provides:

531 Decisions of the commission and magistrates

  1. (1)
    Subsections (2) and (3) do not apply to proceedings for-
  1. (a)
    the recovery of amounts, other than a relevant amount; or
  1. (b)
    an offence against this Act.
  1. (2)
    In proceedings, the commission or Industrial Magistrates Court-
  1. (a)
    is not bound by rules of evidence; and
  1. (b)
    may inform itself in the way it considers appropriate in the exercise of its jurisdiction.
  1. (3)
    Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of-
  1. (a)
    the persons immediately concerned; and
  1. (b)
    the community as a whole.
  1. [35]
    In Bentzen v Hinchinbrook Shire Council,[21] it was said in respect of s 531(3) of the IR Act:
  1. [90]
    The phrase '… good conscience and the substantial merits of the case' means that the Commission must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met and permits resort to a common sense judgment in all the circumstances, but does not allow the making of new law.[22]
  1. [36]
    The principles to which we have referred provide sound guidance in respect of whether or not, having regard to all the relevant circumstances of the present proceeding, making an order granting summary judgment to the QPUE, in respect of its substantive application, is appropriate.

The parties' arguments

The QPUE

  1. [37]
    The decision that the QPUE seeks is for all the relief, contained in part 4 to the schedule of its substantive application, to be granted on a summary basis.[23]
  1. [38]
    In written submissions, the QPUE submitted that HSFirst, by its filed response, has not advanced a case in defence of its (the QPUE's) claims. The QPUE further submitted that HSFirst does not have a case to advance in light of the substantial evidence the QPUE has already filed; and that any such case would have been articulated in its response and that no such case has been articulated. For this reason, the QPUE submitted that it was in the public interest, from the point of view of the expense of the trial and the prompt resolution of its substantive application, that it should be granted summary judgment.[24]
  1. [39]
    A somewhat different case for the QPUE was developed in oral submissions. Mr McCafferty KC who, with Mr Clift, appeared on behalf of the QPUE, submitted that the Commission's discretion to grant summary judgment in favour of the QPUE should be exercised. This is because:
  • HSFirst has not filed any affidavit material in opposition to the affidavit material it (the QPUE) has filed in support of its substantive application, the only question HSFirst raises (in its response) is whether a demarcation dispute exists, and HSFirst's response is inadequate;[25]
  • there has been ample opportunity for HSFirst to put on a more adequate document in light of all the material it (the QPUE) has put on;[26] and
  • of the absence of opposing material from HSFirst or an indication from HSFirst of what its affidavit material might be or what its further response might be, particularly in light of the period of time over which HSFirst has had the QPUE's affidavit material, including Mr Prior's affidavit about the representations said to have been made by HSFirst about its nature, rights, functions or powers.[27]
  1. [40]
    The QPUE then took the Commission to particular parts of its affidavit material, including the parts of Mr Prior's affidavit about the representations said to have been made by HSFirst about its nature, rights, functions or powers.[28] It was submitted that in respect of the statements made in documents published by HSFirst about its nature, rights, functions or powers, there can be no real factual issue that those statements were in fact made.[29]
  1. [41]
    It was further submitted by the QPUE that, in the absence of any opposing material from HSFirst, the Commission is in as good a position now to deal with the considerations, including the relevant discretionary considerations, in respect of the relief it seeks under s 463, s 473, s 479(c) and s 483(1)(c) of the IR Act.[30]
  1. [42]
    The QPUE, by reference to the material it has filed and to case law, then:
  • in respect of its application for declaratory relief, addressed the elements of s 463 of the IR Act; and
  • in respect of its application for a s 479 order, addressed the matters the Commission must consider under s 482 of the IR Act.[31]

Section 463

  1. [43]
    The QPUE submitted that there was an 'industrial matter' so as to enliven the Commission's jurisdiction to make the declarations it seeks. This is because, in respect of s 463(1) of the IR Act, the Commission may make a declaration '… about an industrial matter'. It was further submitted that:
  • pursuant to s 9(1)(b) of the IR Act, a matter is an industrial matter if it affects or relates to the privileges, rights or functions of employees; and
  • pursuant to s 9(3) of the IR Act, a matter is an industrial matter if it relates to a matter mentioned in sch 1 to the IR Act, in particular:
  1. –
    item 20 of sch 1 which relevantly provides '… a matter that has caused, or the court or commission considers is likely to cause, disagreement or friction between employers and employees';[32]
  1. –
    item 23 of sch 1 which is 'a demarcation dispute';[33] and
  1. –
    item 30 of sch 1 which are '… matters relating to the relationship between employers and organisations.'[34]
  1. [44]
    The QPUE submitted that HSFirst:
  • is not an 'employee organisation' because, having regard to the definition of 'organisation' in sch 5 to the IR Act, HSFirst is not a body registered under ch 12 of the IR Act;
  • is not an 'industrial association' because:
  1. –
    having regard to the definition of the phrase 'industrial association' in s 279 of the IR Act,[35] HSFirst is not an association of employees having, as a principal purpose, the protection and promotion of their interests in matters concerning their employment; and
  1. –
    in reliance on the decision of Vice President O'Connor in Gilbert v Metro North Hospital Health Service & Ors ('Gilbert'),[36] it is a single corporate or similar entity as opposed to a group of individual employees;[37] and
  • is not a 'trade union' because, again citing Gilbert,[38] the term 'trade union' does not mean an entity with some distinct corporate personality from that of its individual members.[39]
  1. [45]
    The QPUE submitted that because HSFirst has held itself out as being an employee organisation, an association of employees or a trade union, when it does not meet the description of any of these bodies, that gives rise to an industrial matter of the kind to which it specifically referred.[40]

Section 479

  1. [46]
    Section 479 of the IR Act provides:
  1. 479
    Power of full bench to make orders about rights of associations or employee organisations to represent

On application by an entity under section 480, the full bench may make the following orders about a demarcation dispute-

  1. (a)
    an order that an employee organisation has the right, to the exclusion of an association or another organisation, to represent a particular group of employees who are eligible for membership of the organisation;
  1. (b)
    an order that an employee organisation that does not have the right to represent a particular group of employees has the right;
  1. (c)
    an order that an association or employee organisation does not have the right to represent a particular group of employees who are eligible for membership of the organisation.
  1. [47]
    The QPUE submitted that the Commission has jurisdiction to make the s 479 order it seeks because there is a 'demarcation dispute' as that phrase is defined in sch 1 to the IR Act, namely, a dispute about the representation under this Act of the industrial interests of employees by an association.[41]
  1. [48]
    The QPUE further submitted that in making an order of the kind referred to in s 479 of the IR Act, the Commission may make such an order only if:
  • pursuant to s 481(1)(a) of the IR Act, it considers conciliation proceedings would not help in the prevention or settlement of the dispute; and
  • pursuant to s 481(2) of the IR Act, the Commission is satisfied of one of the circumstances referred to in paragraphs (a), (b), (c) or (d).
  1. [49]
    The QPUE then submitted that:
  • the Commission could make an order of the kind referred to in s 479 of the IR Act because HSFirst was an 'association' as defined in s 478 of the IR Act;[42]
  • having regard to s 481(1)(a) of the IR Act, conciliation would not help the prevention of the dispute because the dispute is about the very nature and existence of HSFirst;[43] and
  • having regard to s 481(2)(c) of the IR Act, the Commission should be satisfied that HSFirst has made representations directed to employees (of the Service) about its rights, functions and powers under the IR Act which it does not have.[44]
  1. [50]
    In addition, s 482(a)-(g) of the IR Act sets out other matters the Commission must consider in making a s 479 order.
  1. [51]
    The QPUE then addressed each of those matters having regard to the material it read.[45] Relevantly to a later submission made by HSFirst, the QPUE submitted that in respect of s 482(a) of the IR Act, Mr Prior's evidence at paragraphs 103 and 104 of his affidavit[46] was sufficient evidence for the Commission to consider and form a view about the wishes of employees who will be affected by the order.[47]
  1. [52]
    Finally, the QPUE submitted that what it outlined provided an overwhelming basis for the Commission to make an order under s 479(c) of the IR Act and, for that order to be effective, the ancillary order it seeks pursuant to s 483(1)(c) of the IR Act should also be made.[48]
  1. [53]
    In conclusion, the QPUE submitted that:
  • there has been no defence offered by HSFirst, notwithstanding that its summary judgment application has been on foot since July 2022[49] and most of its affidavit material was served months ago;
  • other than a legal dispute in its submissions, HSFirst has not identified a positive case and the necessary inference is, because HSFirst has not put on any contrary evidence, that it has no positive case to advance; and
  • the only case HSFirst raises is a legal or jurisdictional issue such that, in that circumstance, it is entirely appropriate that the matter be dealt with on a summary judgment basis.[50]

HSFirst

  1. [54]
    HSFirst submitted that it will be inappropriate to grant summary judgment to the QPUE.[51] This was said to be the case for a number of reasons.
  1. [55]
    First, the QPUE did not have standing to make its application for declaratory relief because, having regard to s 464(d) of the IR Act, the QPUE would not be '… directly affected' by the declaration if it was made, and, having regard to s 464(c) of the IR Act, there is no evidence that the QPUE has made its application for declaratory relief, acting with a person's written consent, where that person may be directly affected by the declaration.[52]
  1. [56]
    Secondly, there is no demarcation dispute necessary to give rise to the discretion of the Commission to make a declaration. This was said to be the case because:
  • in sch 5 to the IR Act, the noun 'association' is defined to mean '… generally, means an unincorporated body or entity formed or carried on to protect and promote its members' interests' which, properly construed, means an unincorporated body or unincorporated entity formed or carried on to protect and promote its members' interests; and
  • as HSFirst is incorporated, there can be no demarcation dispute about representation under the IR Act of the industrial interests of employees by '… an association', the consequence of which is that there can be no industrial matter about which a declaration may be made.[53]
  1. [57]
    HSFirst also submitted that there was no evidence that:
  • the matter has caused or is likely to cause disagreement or friction between an employer and employees such that there is an industrial matter within the meaning of item 20 of sch 1 to the IR Act; or
  • the matter is one relating to the relationship between employers and organisations within the meaning of item 30 of sch 1 to the IR Act.[54]
  1. [58]
    Thirdly, the Commission has no jurisdiction to grant an injunction as sought by the QPUE because s 473(2)(a) and (b) provide that an injunction may apply to, respectively, '… the officers or members of an organisation generally' or '… particular officers or members of an organisation' and HSFirst is not an 'organisation' as defined in sch 5 to the IR Act.[55]
  1. [59]
    In addition, having regard to s 474(1)(a), (b) or (c) of the IR Act, for the same reasons advanced by HSFirst earlier as to why there is no demarcation dispute, there can be no industrial matter; and a further consequence of that is that there can be no industrial dispute as defined in sch 5 to the IR Act, which means the QPUE did not have standing to apply for an injunction.[56]
  1. [60]
    Fourthly, for the same reasons advanced by HSFirst earlier as to why there is no demarcation dispute, the Commission's jurisdiction to make an order of the kind referred to in s 479(c) of the Act is not enlivened.[57]
  1. [61]
    Fifthly, in respect of the application for a s 479 order, it was submitted that having regard to one matter the Commission must consider, namely, the wishes of the employees who would be affected by the order as referred to in s 482(a) of the IR Act, there is no evidence of the relevant wishes of the employees. It was also submitted that it is not appropriate for the Commission to consider that matter having regard to the evidence of Mr Prior, being an officer of the QPUE.[58] It was also submitted that if an order was to be made under s 479 of the IR Act, then the Commission has no jurisdiction to make an ancillary order under s 483(c) of the IR Act.[59]
  1. [62]
    Finally, HSFirst submitted that:
  • the reasons why HSFirst did not file affidavits in response to the affidavits of Mr Fraser and Mr Prior were those referred to earlier in paragraph [17] of these reasons and, in particular, it was submitted that, for those reasons, it was inefficient and a waste of resources for HSFirst to file material '… in circumstances where the Commission, to our view, agreed that we ought not';[60]
  • it filed its statement of facts and contentions on time and in accordance with the relevant Directions Order, such that it was compliant;[61] and
  • there is a serious question to be tried and, in circumstances where there has been compliance with the Commission's Directions Order, the Commission should only take the step to deprive it of the opportunity to be heard in clear circumstances.[62]

Is an order for summary judgment appropriate?

  1. [63]
    As referred to earlier, the power to grant summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
  1. [64]
    The QPUE's application for summary judgment, as was made clear during the course of the hearing, is for all the relief contained in part 4 of the schedule to its substantive application. For this reason, while noting that the Commission may make a decision it considers appropriate, irrespective of the relief sought by a party,[63] we will consider its application for summary judgment in relation to the whole of the relief sought by it in its substantive application.
  1. [65]
    We will consider each of the issues that were contested.

Is the reason HSFirst filed and served no material in response to the affidavits of Mr Fraser and Mr Prior meritorious?

  1. [66]
    We do not accept, as meritorious, the reason given by HSFirst for not filing and serving any material in response to the affidavits of Mr Fraser and Mr Prior. That material was served on 17 June 2022 along with the QPUE's substantive application.
  1. [67]
    The fifth order of the Directions Order dated 30 June 2022 required HSFirst to file and serve its affidavit and supporting material, in response to the QPUE's substantive application, by 9 September 2022. It was not disputed that order was vacated by the subsequent Directions Order dated 19 August 2022 which was made because of an application in existing proceedings, filed by the QPUE on 18 August 2022, by which it sought disclosure of certain documents.[64]
  1. [68]
    The QPUE made its summary judgment application on 23 August 2022. HSFirst submitted that the QPUE's earlier application in existing proceedings seeking disclosure was, by consent, vacated until the resolution of the present summary judgment application.[65]
  1. [69]
    However, by notice of listing dated 21 September 2022, the hearing of the QPUE's summary judgment application was set down for hearing on 6 December 2022. By amended notice of listing dated 29 September 2022, the hearing date was changed to 8 December 2022. The QPUE's outline of submissions, in respect of its summary judgment application, was filed on 7 September 2022 and it refers to the evidence contained in the affidavits of Mr Fraser and Mr Prior. Indeed, in those submissions, the QPUE submitted that the foundation for its claims in its statement of facts and contentions '… is drawn from the affidavit material filed by the applicant in support of the application.'[66]
  1. [70]
    As a consequence, knowing that the QPUE was seeking summary judgment from 23 August 2022, and knowing that, from 29 September 2022, that summary judgment application was to be heard on 8 December 2022, HSFirst made the decision not to file any material in response to Mr Fraser's and Mr Prior's affidavits.
  1. [71]
    Whether HSFirst put on any such material and, if it did, the content of that material, was a matter for it. It put on no such material.
  1. [72]
    For these reasons, there is justification to the criticism made by the QPUE that while HSFirst did not have to put on what it described as 'perfect evidence', it could have put on an affidavit from its solicitor setting out the material it intended to file.[67]
  1. [73]
    HSFirst made the decision not to put on any material in response to the affidavits of Mr Fraser and Mr Prior. The result is that there is no evidence from HSFirst disputing the evidence contained in their affidavits.

Does the QPUE have standing to make the application for declaratory relief?

  1. [74]
    Section 464(d) of the IR Act relevantly provides an organisation of employees who may be directly affected by the declaration may apply for a declaration. HSFirst contends that the QPUE could not make the application for declaratory relief because it is not an organisation of employees who may be directly affected by the declaration. HSFirst submits that only it would be so directly affected.
  1. [75]
    The QPUE submitted that it would be positively affected by the declarations if made and therefore it may be so directly affected.[68]
  1. [76]
    In Local Government Association of Queensland v Queensland Services, Industrial Union of Employees,[69] a Full Bench of the Commission, after referring to how the phrase '… directly affected' has been construed in some other statutory contexts, considered that the phrase 'directly affected' in s 464(d) of the IR Act meant the declaration having an immediate causal effect, other than an indirect or remote causal effect, on the applicant.[70]
  1. [77]
    That construction is persuasive, particularly having regard to the purpose of s 463 of the IR Act, which is to make a declaration to resolve genuine controversies about industrial matters.[71]
  1. [78]
    One of the industrial matters about which the declarations are sought is said to be a demarcation dispute between the QPUE and HSFirst. It seems to us that it is self‑evident that, at a practical, industrial representation level, there would be an immediate causal effect on the QPUE if the declarations were made. This is because a direct effect on the QPUE would be that HSFirst would not be a rival to it in terms of its (the QPUE's) ability to represent police officers under the IR Act.
  1. [79]
    For this reason, the QPUE may be directly affected by the declaration.

Is there an 'industrial matter' so as to enliven the Commission's discretion to make a declaration pursuant to s 463(1) of the IR Act?

  1. [80]
    As referred to earlier in these reasons, HSFirst, in paragraph [44] of its response, contended that the Commission does not have jurisdiction to grant the relief sought by the QPUE because there is no demarcation dispute and there is no other industrial matter for the Commission's consideration.
  1. [81]
    In relation to the QPUE's application for declaratory relief, the Commission's discretion is to make a declaration about '… an industrial matter.' The QPUE submits that the matter before the Commission is an industrial matter because, amongst other reasons, having regard to the meaning of 'industrial matter' in s 9(3) of the IR Act and item 23 of sch 1 to the IR Act, the matter relates to a demarcation dispute of the kind referred to in paragraph (c) of the definition of 'demarcation dispute' in sch 5 to the IR Act. That paragraph defines a demarcation dispute to be a dispute about '… representation under this Act of the industrial interests of employees by an association or employee organisation.'
  1. [82]
    HSFirst submitted that there is no demarcation dispute necessary to give rise to the discretion of the Commission to make a declaration. In part, this was said to be the case because in sch 5 to the IR Act, the noun 'association' is defined to mean '… generally, means an unincorporated body or entity formed or carried on to protect and promote its members' interests.' HSFirst submitted that, properly construed, this refers to an unincorporated body or unincorporated entity, and because HSFirst is incorporated, there can be no demarcation dispute.
  1. [83]
    Schedule 5 to the IR Act defines 'association' in the following manner:

association-

  1. (a)
    generally, means an unincorporated body or entity formed or carried on to protect and promote its members’ interests; and
  1. (b)
    for chapter 11, part 2, division 4, subdivision 10, see section 478.
  1. [84]
    Leaving aside the relief sought by the QPUE under s 479 of the IR Act, in our view, there is a real question about whether HSFirst is an 'association' within the meaning of paragraph (a) of the definition of 'association' in sch 5 to the IR Act properly construed.[72]
  1. [85]
    If it is not, then the matter before the Commission cannot relate to a 'demarcation dispute' as defined in paragraph (c) of the definition of 'demarcation dispute' in sch 5 to the IR Act. Therefore, the matter cannot be an industrial matter. If there is no industrial matter, then the Commission may not grant a declaration.
  1. [86]
    Further, in our view there are real questions as to whether the matter before us:
  • is a matter that affects or relates to the privileges, rights or functions of employees;[73] and, or in the alternative
  • relates to a matter that has caused or the Commission considers is likely to cause disagreement or friction between employers and employees;[74] and, or in the alternative
  • relates to matters relating to the relationship between employers and organisations.[75]
  1. [87]
    In the course of argument,[76] we were taken to Assistant Commissioner Chelepy's statement in which, relevantly to the above matters, he stated:

In my role as the Acting Deputy Commissioner Strategy and Corporate Services overseeing the most recent Enterprise Bargaining agreements as well as my role through COVID I am not aware of these organisations engaging with the QPS to achieve mutual outcomes for QPS members or the organisation. The QPS does not recognise the Red Group or associated entities as having any standing under the Industrial Relations system and were not involved in the most recent Enterprise Bargaining negotiations with the QPS. I am aware that during the COVID response when the QPS issued a Commissioners [sic] Direction to all staff regarding vaccine requirements to ensure a 'ready workforce' through the reduction of absence from the workplace that the Red Group either via SOPAA or other affiliated entities generally promoted resistance to vaccination in other jurisdictions and through the provision of material on their websites.

This approach during the most challenging times of responding to a pandemic was in stark contrast to the approach taken by all the aforementioned Union bodies that represent their members and were willing to engage with the QPS at high levels to ensure that the QPS could maintain workforce readiness to keep the community safe as well as ensuring the overall safety of their workforce and families.

The QPS has a concern regarding the approaches that the Red Group and associated entities such as SOPAA have taken, particularly during the COVID response, that appear to be focused on disputation rather than working with the QPS to achieve resolution in the best interest of all parties including the Queensland community.

  1. [88]
    The Service's concern, as stated by Assistant Commissioner Chelepy, does not persuade us that the conduct of HSFirst has caused, or is likely to cause, disagreement or friction between the Service and its employees. The evidence is vague. At most, it is evidence that the Service has 'a concern' about HSFirst's public position '… in other jurisdictions and through the provision of material on their websites' in relation to the direction that certain of the Service's employees had to be vaccinated against COVID-19.
  1. [89]
    Neither Mr Prior or Assistant Commissioner Chelepy gave any clear evidence that tends to prove that the alleged conduct of HSFirst has caused, or is causing, disputation or any kind of issue between the Service and the QPUE. Mr Prior's evidence in paragraphs 103 and 104 of his affidavit (referred to in footnote 46 of these reasons) goes to the alleged misrepresentations made by HSFirst and his concern that police officers may be misled about the effectiveness of the QPUE and about misinformation and miscommunication, to eligible employees (to join the QPUE), about HSFirst's rights, functions and powers under the IR Act.
  1. [90]
    While we were not addressed specifically about this, in our view, the phrase '… the privileges, rights or functions' of employees in s 9(1)(b)(i) of the IR Act concerns such privileges, rights or functions of employees in respect of their obligations to, and relationship with, their employer.[77] Neither Mr Prior or Assistant Commissioner Chelepy gave any clear evidence that tends to prove that the alleged conduct of HSFirst affects or relates to any specific privilege, right or function of police officers, as employees, in respect of their relationship with the State of Queensland.
  1. [91]
    These issues we have identified are triable issues in relation to the QPUE's application for declaratory relief.

Is there a 'demarcation dispute' within the meaning of s 479 of the IR Act?

  1. [92]
    For the reasons referred to in paragraphs [56] and [60] of these reasons for decision, HSFirst submitted that there was no demarcation dispute enlivening the Commission's jurisdiction to make an order of the kind referred to in s 479(c).
  1. [93]
    The QPUE submitted that the noun 'association', for the purposes of ch 11, pt 2, div 4, sub-div 10 of the IR Act, is given a specific definition in that subdivision, namely, the definition in s 478. The QPUE also submitted that the phrase 'demarcation dispute' in s 479 takes its meaning from the definition of 'demarcation dispute' in sch 5 to the IR Act.[78]
  1. [94]
    HSFirst did not dispute that it was an association within the meaning of s 478 of the IR Act.[79]
  1. [95]
    Clearly, for the purposes of ch 11, pt 2, div 4, sub-div 10 of the IR Act, the noun 'association' is given the definition as contained in s 478.
  1. [96]
    It is open to conclude that the reference to 'association' in paragraph (c) of the definition of 'demarcation dispute' in sch 5 to the IR Act is only to an association of the kind referred to in paragraph (a) of the definition of 'association' in sch 5. This is the contention of HSFirst as we understand it.
  1. [97]
    However, assuming that to be correct, our view is that the purpose of s 479 is best achieved by construing the phrase 'demarcation dispute' in s 479 of the IR Act as including a dispute about the representation of the industrial interests of employees under the IR Act by an association, as defined in s 478 of the IR Act, and an employee organisation. That is, if an order can be made that an association, as defined in s 478, does not have the right to represent a particular group of employees who are eligible for membership of an organisation, then it seems clear that the requisite demarcation dispute, necessary to make such an order, can be between such an association (as defined in s 478) and such an organisation.[80]
  1. [98]
    In coming to this view, we note that the definition of 'demarcation dispute' in sch 5 to the IR Act is not an exhaustive definition.

Is the application for injunctive relief competent?

  1. [99]
    For the reasons given by HSFirst in its submissions as summarised in paragraph [58] of these reasons for decision, there is a real issue as to whether or not the Commission can grant the injunctive relief sought by the QPUE.
  1. [100]
    The QPUE applies for injunctions to restrain HSFirst, and its officers, employees, servants and/or agents, '… in respect of either business name, or at all', from holding itself out as an employee organisation or an industrial association for the purposes of the IR Act, a trade union and as an alternative union to the QPUE in respect of its eligibility.
  1. [101]
    Having regard to s 473(2)(a) and (b) of the IR Act, there is an real issue as to whether those provisions, properly construed, confer discretion on the Commission to grant injunctions of the kind sought by QPUE.
  1. [102]
    At the time of the QPUE's substantive application, s 474 of the IR Act relevantly provided:

474Who may apply for an injunction

  1. (1)
    An application for an injunction under section 473 may be made by-
  1. (a)
    a party to industrial action or an industrial dispute; or
  1. (b)
    an applicant for an industrial matter other than a party mentioned in paragraph (a);
  1. (c)
    a person who is, or is likely to be, directly affected by industrial action or an industrial dispute; or
  1. (d)
    the registrar; or
  1. (e)
    the chief inspector; or
  1. (f)
    an inspector.
  1. [103]
    The phrase 'industrial dispute' is defined in sch 5 to the IR Act, namely:

industrial dispute means-

  1. (a)
    a dispute, including a threatened or probable dispute, about an industrial matter; or
  1. (b)
    a situation that is likely to give rise to a dispute about an industrial matter.
  1. [104]
    If there is no demarcation dispute and, therefore, no matter relating to a demarcation dispute, there can be no industrial matter. The consequence is that there can be no dispute, threatened or probable, about an industrial matter, and no situation that is likely to give rise to a dispute about an industrial matter. In that case, there can be no industrial dispute. For these reasons, there is a real question about whether the QPUE could validly apply for the injunctions it seeks having regard to s 474(1)(a), (b) or (c) of the IR Act.
  1. [105]
    These are triable issues in relation to the QPUE's application for injunctive relief.

Is there material before the Commission by which it can be informed of the wishes of employees who would be affected by the 479 order as sought?

  1. [106]
    Section 482(a) of the IR Act provides that in considering whether to make an order under s 479 of the IR Act, the Full Bench must consider '… the wishes of employees who would be affected by the order.'
  1. [107]
    There must be some evidence for the Commission to be informed of the wishes of the employees who would be affected by the s 479 order.[81]
  1. [108]
    The evidence the QPUE relies upon, to inform the Commission of the wishes of employees who would be affected by the order, is the evidence of Mr Prior at paragraphs 103 and 104 of his affidavit. That evidence is about the misinformation by HSFirst, the resultant confusion of police officers about the effectiveness of the QPUE and about what HSFirst can do.[82]
  1. [109]
    HSFirst submits there is no such evidence and it is inappropriate to have regard to Mr Prior's evidence given he is an office holder of the QPUE.
  1. [110]
    In the present case, the issue is the wishes of police officers and other persons employed by the Service, who are eligible for membership of the QPUE, who would be affected by an order that HSFirst does not have the right to represent them.
  1. [111]
    In our view, the evidence of Mr Prior in paragraph [103] of his affidavit, that police officers are confused about what HSFirst does, his concerns that police officers may be misled by HSFirst about the ability of the QPUE to represent the interests of employees, and that there will be a decrease in the effectiveness of the QPUE in terms of its ability to resolve disputes and bargain collectively with the Service, is not evidence about the relevant wishes of employees who would be affected by the s 479 order. Similar evidence about confusion amongst employees has been held by a Full Bench, in respect of s 482(a) of the IR Act, to be of little assistance.[83] Further, Mr Prior's evidence in paragraph [104] of his affidavit is not evidence about the relevant wishes of employees who would be affected by the s 479 order. In any event, while having due regard to the office in the QPUE held by Mr Prior, his evidence in paragraphs [103] and [104] of his affidavit is, nevertheless, a combination of hearsay and opinion.
  1. [112]
    There is authority - having regard to the preference of employees to be considered in making orders under similar provisions to that of s 479 of the IR Act - that the number of members in the competing organisations, and, or in the alternative, the results of a ballot or petition amongst employees, is evidence to which regard may be had in giving consideration to the relevant preferences or wishes of employees.[84]
  1. [113]
    There is no evidence of any relevant petition or ballot that tends to prove the wishes of the employees who would be affected by the order.[85] There is no such evidence before us as to the number of members of the QPUE. From our collective experience, we think it is more likely than not that the vast number of police officers, who are eligible to join the QPUE, are members of that organisation. HSFirst has not put on any evidence of the numbers of its members who are police officers.
  1. [114]
    The current state of the evidence about this issue is not satisfactory.
  1. [115]
    This is a reason why it is not appropriate to make an order granting summary judgment to the QPUE.

Other matters

  1. [116]
    As referred to earlier, the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole.
  1. [117]
    The QPUE applied for summary judgment in respect of all the relief it seeks in its substantive application. Assuming (without deciding) that all the relief sought by the QPUE is available to it under the IR Act, each of the orders sought involve discretionary relief.
  1. [118]
    There may be a range of discretionary considerations relevant to granting the relief sought, including, for example, whether the declarations sought would be made if the s 479 order was to be made.
  1. [119]
    In our view, the fact that HSFirst did not put on any substantive material in response to the QPUE's material is not an answer to such considerations. The relief sought by the QPUE is significant and its substantive application requires proper consideration. This is a further reason why we do not consider making an order granting summary judgment to the QPUE to be appropriate.

Conclusion

  1. [120]
    Because of the issues we have identified, we are not persuaded that an order, granting summary judgment to the QPUE in respect of its substantive application, is appropriate.
  1. [121]
    The question of whether HSFirst's response should be struck out is another matter.

Should HSFirst's response be struck out and it be ordered to file and serve a further response?

  1. [122]
    In our view, HSFirst's response, in most respects, does not meet the purpose of a party's statement of facts and contentions as required to be filed and served by the Commission.
  1. [123]
    A party's statement of facts and contentions (or response to such) must be drawn so as to allow the other party or parties, and the Commission, to know what the case is about, and to know, before the trial starts, the real issues that remain in dispute and that must be resolved.[86]
  1. [124]
    The QPUE's statement of facts and contentions, in our view, adequately sets out the alleged facts[87] and the relevant contentions in respect of the substantive relief it seeks.
  1. [125]
    HSFirst's response, in the main, was drawn in a way that obfuscates the matters in dispute that must be resolved.
  1. [126]
    Three material issues arise in HSFirst's response that demonstrate this.
  1. [127]
    First, in respect of the QPUE's reasonably detailed allegations of fact, as summarised in paragraph [11] of these reasons,[88] the response of HSFirst is, in general, to object on the basis that each allegation is vague, general, lacking particulars, is embarrassing and should be struck out for those reasons.[89]
  1. [128]
    Secondly, in response to paragraph 37 of the QPUE's contentions, where it contends (after earlier alleging the foundation facts in paragraphs 32 to 36) that HSFirst has represented to employees employed by the Service that it is a union, a national police union and an alternative to the QPUE, HSFirst states that it objects to the paragraph on the basis that it is vague, general, lacking particulars and is embarrassing and should be struck out on each of those bases.[90]
  1. [129]
    Thirdly, while HSFirst relevantly responds by contending that there is no relevant demarcation dispute, it does not state why that is the case.[91]
  1. [130]
    HSFirst did not seriously contest that its response should be struck out and that it should be ordered to file and serve a response that meets the purpose of a party's statement of facts and contentions as referred to earlier.[92]
  1. [131]
    That is the appropriate course. We also are of the view that the parties and the Commission will be further assisted if the QPUE files and serves a reply.

Conclusion

  1. [132]
    The issue in this matter was whether making an order granting summary judgment to the QPUE was appropriate.
  1. [133]
    For the reasons we have given, it is not appropriate and we refuse that relief.
  1. [134]
    However, we will order that HSFirst's response be struck out, that it files and serves a further response, that the QPUE files and serves a reply, and that the matter then be mentioned by the Full Bench.

Orders

  1. [135]
    We make the following orders:
  1. The Applicant's application in existing proceedings filed on 23 August 2022, for an order that the Full Bench grant the relief sought in part 4 of the Schedule to the Applicant's application filed on 17 June 2022, is dismissed.
  1. Pursuant to s 451 of the Industrial Relations Act 2016, the Respondent's response to the Applicant's Statement of Facts and Contentions, filed on 12 August 2022, is struck out.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011, the Respondent files and serve a further response to the Applicant's Statement of Facts and Contentions by 4.00 pm on Tuesday, 21 February 2023 ('the Respondent's further response').
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011, the Applicant file and serve, by 4.00 pm on Tuesday, 7 March 2023, a reply to the Respondent's further response.
  1. That the matter be mentioned before the Full Bench on Tuesday, 14 March 2023 at 9.00 am.

Footnotes

[1]The affidavit of Mr Christopher Fraser filed on 17 June 2022 ('Mr Fraser's affidavit'), para. 16 and exhibit 'CRF‑2', pages 1‑2. HSFirst does not appear to have the registered business names 'Sworn Officers' Association of Australia' or 'Sworn Officers' Association of Queensland', as set out in the application filed by the QPUE on 17 June 2022 ('the QPUE's substantive application'). However, it seems, having regard to Mr Fraser's affidavit, 'SOPAA' and 'Sworn Officers' Professional Association of Queensland (SOPAQ)' are business names registered by HSFirst.

[2]The QPUE's substantive application, part 5 of the schedule, paras. 4-12.

[3]The QPUE's Statement of facts and contentions filed on 22 July 2022 ('the QPUE's contentions'), paras. 1-31.

[4]The QPUE's contentions, paras. 32-36.

[5]T 1-30, ll 27-48.

[6]The written submissions of the QPUE filed on 7 September 2022 ('the QPUE's submissions'), paras. 8-9.

[7]The QPUE's submissions, para. 10.

[8]The written submissions of HSFirst filed on 21 September 2022 ('HSFirst's submissions'), para. 3.

[9]Industrial Relations Act 2016 s 447(1)(k).

[10]Industrial Relations Act 2016 s 447(1)(p).

[11]Together Queensland Industrial Union of Employees v Scales & Anor (No. 3) [2022] QIRC 024 ('TQ'), [15] (Davis J, President, Vice President O'Connor and Industrial Commissioner Power).

[12]Ibid [16].

[13]Pennington v Jamieson [2022] ICQ 22, [18] (Davis J, President).

[14]Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No. 2) [2022] QIRC 011, [50] (Davis J, President, Vice President O'Connor and Industrial Commissioner Hartigan).

[15]TQ (n 11), [17]-[18].

[16][2000] HCA 41; (2000) 201 CLR 552.

[17]Citations omitted. Cited with approval in Rich v GCU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856, [18] (Gleeson CJ, McHugh and Gummow JJ).

[18][2010] HCA 28; (2010) 241 CLR 118.

[19]Citations omitted.

[20]Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 603 (Mason CJ, Deane and Dawson JJ).

[21][2021] QIRC 158; (2021) 309 IR 118 (Deputy President Merrell).

[22]Citations omitted.

[23]T 1-9, ll 4-11.

[24]The QPUE submissions, paras. 25-26.

[25]T 1-8, ll 7-49.

[26]T 1-9, ll 11-15.

[27]T 1-10, l 6 to T 1-12, l 8 and T 1-15, l 26 to T 1-16, l 35.

[28]T 1-12, l 12 to T 1-15, l 19.

[29]T 1-15, ll 28-30.

[30]T 1-15, l 36 to T 1-18, l 6.

[31]T 1-18, l 12 to T 1-23, l 23.

[32]T 1-18, ll 17-34.

[33]Schedule 5 to the IR Act provides the following non-exhaustive definition of 'demarcation dispute':

demarcation dispute includes-

  1. (a)
    a dispute arising between 2 or more organisations, or within an organisation, about the rights, status or functions of members of the organisations or organisation in relation to the employment of the members; and
  1. (b)
    a dispute arising between employers and employees, or between members of different organisations, about the demarcation of functions of employees or classes of employees; and
  1. (c)
    a dispute about the representation under this Act of the industrial interests of employees by an employee organisation.

[34]T 1-18, ll 34-35.

[35]Which defines the phrase 'industrial association' for the purposes of ch 8, pt 1 of the IR Act. Chapter 8, pt 1 of the IR Act deals with general protections.

[36][2021] QIRC 255.

[37]Ibid [93].

[38]Ibid [103]-[104].

[39]T 1-18, l 40 to T 1-20, l 6.

[40]T 1-20, ll 6-7.

[41]This refers to paragraph (c) of the definition of 'demarcation dispute' in sch 5 to the IR Act. See T 1-20, ll 10‑13 and T 1-40, l 23 to T 1-41, l 15.

[42]T 1-20, ll 14-16.

[43]T 1-20, ll 26-28.

[44]T 1-20, ll 30-35.

[45]T 1-20, l 38 to T 1-23, l 23.

[46]Mr Prior's evidence was:

  1. 103.
    In my role as General Vice President of the QPUE, I have become aware of police officers who have become aware of the existence of HSFirst but are confused about what exactly it does. Based on this and the various publications annexed to this affidavit, I am concerned that if HSFirst keeps promoting itself as an alternative to the QPUE in terms of its ability to effectively represent the interests of employees, then police officers may be misled and the effectiveness of the QPUE, in terms of its ability to resolve disputes and bargain collectively with the QPS, will decrease.
  1. 104.
    A consequence of not obtaining the relief sought by the QPUE is that there will continue to be misinformation or miscommunication to eligible employees about HSFirst's rights, functions and powers under the IR Act.

[47]T 1-20, l 38 to T 1-21, l 11.

[48]T 1-23, ll 20-24.

[49]The QPUE's summary judgment application was filed on 23 August 2022.

[50]T 1-23, l 25 to T 1-24, l 11.

[51]T 1-24, ll 46-47.

[52]T 1-25, l 44 to T 1-26, l 6.

[53]T 1-26, l 26 to T 1-28, l 44.

[54]T 1-28, l 44 to T 1-29, l 9.

[55]T 1-29, l 40 to T 1-30, l 5. 

[56]T 1-30, ll 5-10.

[57]T 1-30, ll 14-16.

[58]T 1-30, ll 19-27.

[59]T 1-33, ll 4-9.

[60]T 1-30, ll 46-48.

[61]T 1-34, l 32.

[62]T 1-35, ll 4-8.

[63]Industrial Relations Act 2016 s 451(2)(b).

[64]T 1-30, ll 35-40.

[65]T 1-31, ll 1-10.

[66]The QPUE's submissions, para. 6.

[67]T 1-38, l 42 to T 1-39, l 8.

[68]T 1-41, ll 33-36.

[69][2020] QIRC 068.

[70] Ibid [40]-[46] (Vice President O'Connor, Industrial Commissioner Hartigan and Industrial Commissioner McLennan).

[71]Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278, [26]-[27] (Deputy President Merrell).

[72]This was not a specific question that Vice President O'Connor was required to answer in Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255, [53]-[95].

[73]Industrial Relations Act 2016 s 9(1)(b)(i).

[74]Industrial Relations Act 2016 sch 1, item 20.

[75]Industrial Relations Act 2016 sch 1, item 30.

[76]This was, however, in relation to s 482(b) of the IR Act: T 1-21, ll 11-37.

[77]See Clancy v Butchers' Shop Employees Union, James John News Secretary, and the President and Members of the Court of Arbitration N.S.W [1904] HCA 9; (1904) 1 CLR 181, 121 (Griffith CJ) and see Mutual Life & Citizens Assurance Co Ltd v Attorney-General for the State of Queensland [1961] HCA 51; (1961) 106 CLR 48, 56-57 (Dixon CJ), 58 (Kitto J) and 59 (Taylor J).

[78]T 1-39, ll 16-39.

[79]T 1-28, ll 25-26.

[80]Section 479 of the IR Act was amended by s 48, s 49, s 50 and s 65 of the Industrial Relations and Other Legislation Amendment Act 2022. However, in relation to the QPUE's substantive application, s 479 of the IR Act continues to apply as if the Industrial Relations and Other Legislation Amendment Act 2022 had not been enacted: s 1100 of the Industrial Relations Act 2016.

[81]United Firefighters' Union of Australia, Union of Employees v Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 066 ('UFU'), [52]-[53] (Deputy President O'Connor, Deputy President Bloomfield and Industrial Commissioner Black).

[82]T 1-20, l 38 to T 1-21, l 11.

[83]UFU (n 81), [52].

[84]Re CSR Ltd (1996) 65 IR 341, 359-360 (Deputy President Williams) and Re Australian Education Union [1996] AIRC 2010, 65 (Munro J) both in respect of s 118A of the Industrial Relations Act 1988, Queensland Teachers' Union of Employees v State Public Services Federation, Queensland Union of Employees (1997) 154 QGIG 70, 76 (Commissioner Fisher, Commissioner Dempsey and Commissioner Nutter) in respect of s 45 of the Industrial Relations Act 1990 and Shop Distributive and Allied Employees Association v National Union of Workers [2012] FWAFB 461; (2012) 28 IR 370, [35]-[37] (Vice President Watson, Senior Deputy President Boulton and Commissioner Gooley) in respect of s 137A of the Fair Work (Registered Organisations) Act 2009.

[85]The QPUE submitted that given there are 17,000 police officers and '… approximately 12,500 members' of the QPUE, '… a survey of all those members' could not be conducted '… nor should that be expected for an application of this type.': T 1-20, ll 43-45. While we appreciate the potential scale and expense of such an exercise, how the QPUE decided, for the purposes of its summary judgment application, to prove the relevant wishes of the employees who would be affected by a s 479 order, was a matter for it.

[86]Workers' Compensation Regulator v Carr [2023] ICQ 001, [47] (Deputy President Merrell).

[87]Including, in respect of some of the facts alleged, by making footnote references to certain paragraphs of Mr Prior's affidavit.

[88]The QPUE's contentions, paras. 32-36.

[89]HSFirst's response, paras. 32-36.

[90]HSFirst's response, para. 37.

[91]HSFirst's response, paras. 39-44.

[92]T 1-35, ll 30-37 and T 1-36, ll 38-40.

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Union of Employees v HS First Inc.

  • Shortened Case Name:

    Queensland Police Union of Employees v HS First Inc.

  • MNC:

    [2023] QIRC 30

  • Court:

    QIRC

  • Judge(s):

    Merrell DP, Pidgeon IC, Power IC

  • Date:

    31 Jan 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
Agar v Hyde (2000) 201 CLR 552
2 citations
Jump To
Cite 1 - (2000) 201 CLR 552
Cite 2 - (2000) 201 CLR 552
Agar v Hyde [2000] HCA 41
2 citations
Jump To
Cite 1 - [2000] HCA 41
Cite 2 - [2000] HCA 41
Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278
2 citations
Jump To
Cite 1 - [2021] QIRC 278
Cite 2 - [2021] QIRC 278
Bentzen v Hinchinbrook Shire Council [2021] QIRC 158
2 citations
Jump To
Cite 1 - [2021] QIRC 158
Cite 2 - [2021] QIRC 158
Bentzen v Hinchinbrook Shire Council (2021) 309 IR 118
2 citations
Jump To
Cite 1 - (2021) 309 IR 118
Cite 2 - (2021) 309 IR 118
Clancy v Butchers Shop Employees Union (1904) 1 CLR 181
2 citations
Jump To
Cite 1 - (1904) 1 CLR 181
Cite 2 - (1904) 1 CLR 181
Clancy v Butchers' Shop Employees Union [1904] HCA 9
2 citations
Jump To
Cite 1 - [1904] HCA 9
Cite 2 - [1904] HCA 9
Distributive and Allied Employees Association v National Union of Workers [2012] FWAFB 461
2 citations
Jump To
Cite 1 - [2012] FWAFB 461
Cite 2 - [2012] FWAFB 461
Gilbert v Metro North Hospital Health Service [2021] QIRC 255
3 citations
Jump To
Cite 1 - [2021] QIRC 255
Cite 2 - [2021] QIRC 255
Cite 3 - [2021] QIRC 255
Local Government Association of Queensland v Queensland Services, Industrial Union of Employees [2020] QIRC 68
3 citations
Jump To
Cite 1 - [2020] QIRC 68
Cite 2 - [2020] QIRC 68
Cite 3 - [2020] QIRC 68
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
Mutual Life & Citizens Assurance Co Ltd v Attorney-General for the State of Queensland [1961] HCA 51
2 citations
Jump To
Cite 1 - [1961] HCA 51
Cite 2 - [1961] HCA 51
Mutual Life & Citizens Assurance Co. Ltd v Attorney-General (Q.) (1961) 106 CLR 48
2 citations
Jump To
Cite 1 - (1961) 106 CLR 48
Cite 2 - (1961) 106 CLR 48
Pennington v Jamieson [2022] ICQ 22
2 citations
Jump To
Cite 1 - [2022] ICQ 22
Cite 2 - [2022] ICQ 22
Queensland Teachers' Union of Employees v State Public Services Federation, Queensland Union of Employees (1997) 154 QGIG 70
2 citations
Jump To
Cite 1 - (1997) 154 QGIG 70
Cite 2 - (1997) 154 QGIG 70
Re Australian Education Union [1996] AIRC 2010
2 citations
Jump To
Cite 1 - [1996] AIRC 2010
Cite 2 - [1996] AIRC 2010
Re CSR Ltd (1996) 65 IR 341
2 citations
Jump To
Cite 1 - (1996) 65 IR 341
Cite 2 - (1996) 65 IR 341
Rich v CGU Insurance Ltd [2005] HCA 16
2 citations
Jump To
Cite 1 - [2005] HCA 16
Cite 2 - [2005] HCA 16
Rich v CGU Insurance Ltd (2005) 79 A.LJ.R. 856
2 citations
Jump To
Cite 1 - (2005) 79 A.LJ.R. 856
Cite 2 - (2005) 79 A.LJ.R. 856
Shop Distributive and Allied Employees Association v National Union of Workers (2012) 28 IR 370
2 citations
Jump To
Cite 1 - (2012) 28 IR 370
Cite 2 - (2012) 28 IR 370
Spencer v Commonwealth of Australia [2010] HCA 28
2 citations
Jump To
Cite 1 - [2010] HCA 28
Cite 2 - [2010] HCA 28
Spencer v The Commonwealth (2010) 241 CLR 118
2 citations
Jump To
Cite 1 - (2010) 241 CLR 118
Cite 2 - (2010) 241 CLR 118
Together Queensland Industrial Union of Employees v Scales (No 3) [2022] QIRC 24
4 citations
Jump To
Cite 1 - [2022] QIRC 24
Cite 2 - [2022] QIRC 24
Cite 3 - [2022] QIRC 24
Cite 4 - [2022] QIRC 24
United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 66
3 citations
Jump To
Cite 1 - [2018] QIRC 66
Cite 2 - [2018] QIRC 66
Cite 3 - [2018] QIRC 66
Webster v Lampard (1993) 177 CLR 598
2 citations
Jump To
Cite 1 - (1993) 177 CLR 598
Cite 2 - (1993) 177 CLR 598
Webster v Lampard [1993] HCA 57
2 citations
Jump To
Cite 1 - [1993] HCA 57
Cite 2 - [1993] HCA 57
Workers' Compensation Regulator v Carr [2023] ICQ 1
2 citations
Jump To
Cite 1 - [2023] ICQ 1
Cite 2 - [2023] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Crust v Flour & Chocolate Pty Ltd [2024] QIRC 2882 citations
Gill v Napranum Aboriginal Shire Council [2025] QIRC 792 citations
Queensland Police Union of Employees v HSFirst Inc. (No. 2) [2023] QIRC 2842 citations
Rae v State of Queensland (Queensland Treasury) [2024] QIRC 2002 citations
Robertson v McDonald's Australia Limited (No. 6) [2023] QIRC 932 citations
1

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