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Queensland Teachers Union of Employees v TAFE Queensland[2024] QIRC 159

Queensland Teachers Union of Employees v TAFE Queensland[2024] QIRC 159

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Teachers Union of Employees v TAFE Queensland [2024] QIRC 159

PARTIES:

Queensland Teachers Union of Employees

Applicant

v

TAFE Queensland

Respondent

CASE NO:

GP/2024/26

PROCEEDING:

Application for an interlocutory injunction

DELIVERED ON:

25 June 2024

HEARING DATE:

20 June 2024

MEMBER:

Pratt IC

HEARD AT:

Brisbane

ORDER:

  1. The application is dismissed

CATCHWORDS:

INDUSTRIAL LAW – GENERAL PROTECTIONS – urgent application for interlocutory injunction to maintain the status quo and to withdraw warnings issued to members of the applicant – where respondent sought to introduce a new course in "fire" training – where applicant and its members raised a dispute – where respondent issued direction to develop a new timetable – where respondent issued warnings to members of the applicant for not complying with direction to develop a new timetable – where applicant says the respondent deviated from the status quo – where dispute process ongoing from November 2023 to date – consideration of dispute procedure in TAFE Queensland Educators Certified Agreement 2023 – consideration of discretion to order interlocutory injunction under section 473(1)(a) of the Industrial Relations Act 2016 (Qld) – held prima facie case made out for breach of status quo obligation but not for adverse action claims – held balance of convenience favours respondent – application dismissed.

LEGISLATION AND INDUSTRIAL INSTRUMENTS:

TAFE Queensland Educators Certified Agreement 2023

Industrial Relations Act 2016 (Qld) s 282, s 283, s 284, s 285, s 473

CASES:

ABC v O'Neill (2006) 227 CLR 57

Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd ('Coal and Allied Operations') (1999) 140 IR 131

Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134

Dalley & Ors v Kelsey & Ors [2018] ICQ 6

Kestrel Coal Pty Ltd & Anor v Construction Forestry Mining and Energy Union & Ors (2000) QSC 150

Kucks v CSR Ltd (1996) 66 IR 182

National Tertiary Education Industry Union v University of Sydney (2020) 302 IR 272

Queensland Department of Health v Dr Julian Fidge [2003] QIRComm 204

Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 49

Queensland Nurses’ Union of Employees v RSL (Qld) War Veterans Homes Limited trading as RSL Care [2003] QIRComm 431

APPEARANCES:

Mr C Wood and Mr D Terauds for the applicant in person.

Ms P Silvestri and Ms L Nugent of counsel for the respondent in person.

Reasons for Decision

  1. [1]
    This is an interlocutory application by the Queensland Teachers Union of Employees ('the Applicant') for orders pursuant to s 473(1)(a) of the Industrial Relations Act 2016 ('the IR Act').

Relevant background

  1. [2]
    The Respondent provides vocational education services in the form of theory and practical training, assessment and accreditation. The Applicant represents a number of teachers employed by the Respondent.
  1. [3]
    In November 2023, a dispute arose over changes that the Respondent wanted to introduce into its course offerings for semester two, 2024. The changes that were proposed were by way of introducing a new "Fire" stream of vocational plumbing training, assessment and accreditation for students. That stream of training was in relation to fire extinguishing systems that are installed in the buildings, such as overhead sprinkler systems.
  1. [4]
    One of the issues in dispute was the delivery of the timetable for the new course by semester two, 2024. There were other issues of dispute, including whether there existed sufficient infrastructure to meet 28:1 ratio class sizes for theory, the integration of theory and practical into the training packages, the yearly plan for the new offering, sufficiency of toilet facilities where increased student numbers were expected, failure rates of students, sufficient hot water systems and deep fryers in the gas area, resourcing, and meeting times.
  1. [5]
    On 15 November 2023, the dispute was the subject of a referral into "Stage 1" of the disputes procedure contained in clause 15(b) of the TAFE Queensland Educators Certified Agreement 2023 ('Agreement'). I have set out that procedure in full later in these reasons.
  1. [6]
    By 21 November 2023, both parties had commenced engaging in discussions pursuant to "Stage 2" of the disputes procedure. The relevant subcommittee had been assembled for Stage 2, and, by 28 November 2023, two meetings of that subcommittee had occurred. The matter was not resolved at Stage 2.
  1. [7]
    Consequently, on 29 November 2023, the dispute was referred to "Stage 3" of the dispute procedure, which comprised referring the matter to the TAFE Queensland Consultative Committee for "consideration and action".
  1. [8]
    By 28 March 2024, there was talk of escalating the matter to this Commission for "Stage 4" conciliation, arbitration, or both. That never eventuated.
  1. [9]
    During April 2024, discussion between the parties ensued over what constitutes "the status quo existing before the emergence of the dispute".
  1. [10]
    By 8 May 2024, the focus on "status quo" became intense. On behalf of the Applicant, the view expressed was that the new program would not be implemented and that going forward, terms three and four of 2024 would run identically to terms one and two of 2024. In other words, that the proposed new program would not be introduced or taught.
  1. [11]
    On 14 and 15 May 2024, the Respondent's view as to what "status quo" meant was expressed as being that the new course would be introduced and taught whilst maintaining student/teacher ratios of 28:1 for theory classes and 14:1 for practical classes, which was as they had previously been.
  1. [12]
    By 16 May 2024, the Respondent highlighted that it was running out of time and noted that the plan was to implement the new offering for semester two, 2024. At that point in time there was only 7 weeks remaining until the commencement of term three and there existed an obligation to give both employers and apprentices a minimum of six weeks' notice.
  1. [13]
    Some discussions and meetings occurred during the latter weeks of May 2024. However, by then, both sides to the dispute openly expressed frustrations about the length of time that the dispute had remained unresolved.
  1. [14]
    On 27 May 2024, the Respondent issued instructions and set timeframes directing relevant employees to carry out several tasks which included, most significantly, development of a timetable for delivery of the new course in semester two of 2024.
  1. [15]
    On 31 May 2024, the Respondent provided the nominated team members and leader with programming parameters to work within and instructions to develop a "draft delivery timetable" for the proposed new course to occur in the second semester of 2024. The relevant deadline was close of business, 5 June 2024.
  1. [16]
    The team leader, and the employees who were members of that team, failed to produce the draft delivery timetable by close of business on 5 June 2024. All thirteen were issued with written warnings on 6 June 2024.
  1. [17]
    Whilst only one written warning appears on the material before me, I am told that thirteen employees received a virtually identical written warning. The parties agree that the warning was different as between names and addresses for each employee and that it was worded differently as between the team leader and members of the team regarding the nature of the failure to carry out the task directed.
  1. [18]
    On 10 June 2024, the Applicant filed this application.

Issue

  1. [19]
    This application seeks interlocutory orders pursuant to s 473(1)(a) of the IR Act. The substantive matters are alleged to be that the written warnings constituted both an unlawful breach of the Agreement's status quo obligation and unlawful adverse action. In its Form 10, under the heading of "Details of decision sought", the Applicant said:

The [Applicant] seeks the urgent assistance of the Queensland Industrial Relations Commission to make the following interlocutory orders:

  1. Pursuant of clause 15(b) of the Agreement, the status quo existing before the emergence of the dispute is to continue whilst the dispute resolution procedure is being followed.
  1. TAFE Queensland writes a letter to the thirteen employees who received the D/CHRO letter (dated 6 June), and that the letter formally cancels the letter of warning.
  1. TAFE Queensland writes, by letter or email, to the thirteen employees and the General Secretary of the QTU, assuring the parties that the letter of warning is cancelled on all employee records.
  1. [20]
    As to the first proposed order, there is some indication as to the duration, or the temporary nature of the order sought, in the words "whilst the dispute resolution procedure is being followed". The second and third proposed orders appear to seek final relief, however, in the sense that the second would compel the Respondent to "cancel" all of the warnings and the third comprises a letter to employees saying that the warnings are expunged from all employee records.
  1. [21]
    This is clearly not an application for final relief, however. There is no capacity to determine contested facts on an application for an urgent interlocutory injunction. Section s 473(1)(a) of the IR Act, on which this application relies, contains a power to issue interim injunctions in order to compel compliance with an industrial instrument, a permit or the IR Act. Accordingly, the issue before the Commission is whether the orders sought should be granted on the basis that the Respondent is not complying with an industrial instrument or the IR Act.

Relevant law

The relevant disputes procedure

  1. [22]
    The disputes procedure in the Agreement says:

15. Prevention and settlement of disputes

  1. The objective of this procedure is the resolution of any disputes over matters covered by this Agreement, including matters associated with programming, class sizes and workload management, by measures based on the provision of information and explanation, consultation, co-operation and negotiation.
  1. Subject to legislation, while the dispute procedure is being followed, normal work is to continue except where the employee has a reasonable concern about an imminent risk to the employee’s health or safety. The status quo existing before the emergence of a dispute is to continue whilst the procedure is being followed. No party will be prejudiced as to the final settlement by the continuation of work.
  1. There is a requirement for management to provide relevant information and explanation and consult with the appropriate employee representatives.
  1. In the event of any disagreement between the parties as to the interpretation or implementation of this Agreement (including those related to programming and workload management), the following procedures will apply:

Stage 1: The matter will be referred by the employee/s and/or their representative e.g. Union representative, to the appropriate management representative who will arrange a conference of the parties to discuss and attempt to resolve the matter. This process should not extend beyond five business days.

Stage 2: If the disagreement is unable to be resolved using Stage 1 of this process, the matter should be referred for consideration to a sub-committee of the Local Consultative Committee. The sub-committee is to be comprised of educational employee representatives and management representatives as required, which may include the General Manager and/or a HR representative. The appointed sub-committee is to provide recommendations to the employee/s (and their Union representative, if applicable) and management within five business days.

Stage 3: If the disagreement is unable to be resolved using Stage 2 of this process, the matter may be referred by either party to the TAFE Queensland Consultative Committee for consideration and action within ten business days.

Stage 4: If the matter is not resolved using Stage 3 of this process, then either party may refer it to the Queensland Industrial Relations Commission. In terms of section 262 of the Act, the Commission is empowered to do all things necessary to prevent and/or settle the dispute and determine any matter in dispute.

Relevant legislation

  1. [23]
    Section 473 of the IR Act relevantly says:

(1) On application by a person under section 474, the commission may grant an injunction—

  1. to compel compliance with an industrial instrument, a permit or this Act; or

…

(10) In this section—

“injunction” includes an interim injunction.

  1. [24]
    Section 282(1) of the IR Act says:

(1) "Adverse action" is taken by an employer against an employee if the employer—

(a) dismisses the employee; or

(b) injures the employee in the employee’s employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

  1. [25]
    Section 283(h) of the IR Act relevantly says:

Each of the following is a "process or proceedings under an industrial law or industrial instrument" —

…

(h) dispute settlement for which provision is made by, or under, an industrial law or industrial instrument;…

  1. [26]
    Section 284 of the IR Act says:

(1) A person has a "workplace right" if the person—

(a) has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or

(b) is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or

(c) is able to make a complaint or inquiry—

(i) to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or

(ii) if the person is an employee—in relation to the person’s employment.

(2) In this section—

"industrial body" means—

(a) the commission; or

(b) the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.

  1. [27]
    Section 285 of the IR Act says:

(1) A person must not take adverse action against another person—

(a) because the other person—

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note—

This subsection is a civil penalty provision.

(2) A person must not take adverse action against another person (the "second person") because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person’s benefit or for the benefit of a class of persons to which the second person belongs.

Note—

This subsection is a civil penalty provision.

Relevant case law

  1. [28]
    In Queensland Nurses’ Union of Employees v RSL (Qld) War Veterans Homes Limited trading as RSL Care,[1] Commissioner Asbury (as her Honour was then) considered an application for an interim injunction under s 277 of the predecessor to the IR Act, which was relevantly cast in similar terms to s 473(1)(a) of the IR Act. Commissioner Asbury observed that the discretionary power to order such injunctions will not arise unless an applicant establishes that the relevant respondent is not complying with an industrial instrument or the Act.[2] Commissioner Asbury went on to observe that the breach must be continuing or anticipated.[3] Observing the general law that the purpose of an interim injunction is to protect the subject matter of proceedings for final relief, Commissioner Asbury identified the relevant test being whether there is a serious question to be tried, and if so, whether the balance of convenience favours granting the relief sought.[4]
  1. [29]
    In Queensland Health v Dr J Fidge ('Fidge'),[5] Commissioner Blades dealt with a matter where the applicant was seeking an injunction against the respondent, Queensland Health, enjoining the respondent from requiring the applicant to take leave in accordance with the practices at Princess Alexandra Hospital ('PA Hospital'). However, the application for the injunction was sought when the applicant was days away from leaving the PA Hospital to take up work with the respondent at the Queen Elizabeth II Hospital ('QEII Hospital'). Despite still being employed by respondent at the QEII Hospital, there was no evidence suggesting that the QEII Hospital's practices around when it required employees to take leave would be the same as the PA Hospital's practice around when it required employees took leave. Additionally, the scope of the injunctive relief sought was limited to restraining the respondent from enforcing the practices at the PA Hospital, but did not seek to restrain the respondent from enforcing its practices at the QEII Hospital. The effect of the injunction would, therefore, temporarily restrain the respondent for only a few days.[6] Commissioner Blades struck out the matter while citing and following a judgement of his Honour Chesterman J in Kestrel Coal Pty Ltd & Anor v Construction Forestry Mining and Energy Union & Ors,[7] in which his Honour held that an injunction must be of some practical utility.[8]
  1. [30]
    In Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads),[9] his Honour Vice President O'Connor was considering an application for an injunction pursuant to s 473 of the IR Act.  His Honour cited the test that was followed by his Honour, President Martin, as his Honour then was, in Dalley & Ors v Kelsey & Ors,[10] which followed their honours, Gummow and Hayne JJ in ABC v O'Neill.[11] His Honour, the Vice President, went on to summarise the test as follows:[12]

In an interlocutory application of this nature, having regard to the facts, the Commission is required to consider:

  1. whether there exists a prima facie case; in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held entitled to relief. It is to be recalled that the test does not require that the Court reach a determination that it will be more probable than not that the applicant for an injunction will succeed at trial but merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and
  1. whether the inconvenience or injury that an applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury that the Respondent will suffer if an injunction were granted.
  1. [31]
    The jurisprudence for the federal analogues of the IR Act's adverse action sections is of great benefit. The relevant prohibitions, rights and tests are virtually identical as between the IR Act and the Fair Work Act 2009 (Cth).
  1. [32]
    In National Tertiary Education Industry Union v University of Sydney ('University of Sydney'),[13] his Honour Thawley J, provided a useful summary of the federal position around whether warnings constitute adverse action and concluded that warnings constituted adverse action as defined. Citing Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) ('Visy Packaging')[14] and Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd ('Coal and Allied Operations'),[15] his Honour observed:[16]

The applicants submitted that the first warning made Dr Anderson’s position less secure. That submission should be accepted. It was accepted as true of a final warning by Murphy J in [Visy Packaging] at [119]. It was accepted as true of warnings more generally by Branson J in [Coal and Allied Operations] at [95], to which Murphy J referred in [Visy Packaging] at [118]. Of course it ultimately depends on the particular facts, but in my view the first warning made Dr Anderson’s position less secure because, as at 2 August 2017, it was more likely by reason of the first warning that his employment would be terminated should he engage in further conduct about which the University took issue. In the circumstances of this case, and without the benefit of hindsight, that was reasonably likely.

  1. [33]
    In Coal and Allied Operations, her Honour Branson J, explained why written warnings constituted adverse action in the following terms:[17]

I accept the contention of the applicant that the issuing to an employee of a “written warning” of a “serious or major breach” within the meaning of the document “Disciplinary Procedure” has the effect of making the employee’s continuing employment less secure.  Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment.  In a sense, written warnings under the respondent’s disciplinary procedures may be regarded as analogous to the receipt of driving demerit points.  It seems to me that few holders of driving licences would doubt that the advantage enjoyed by them in holding driving licences is adversely affected by the accumulation of demerit points close to, but less than, the number required to trigger cancellation of their licences.

  1. [34]
    In Visy Packaging, his Honour Murphy J, after agreeing with Branson J's observations in Coal and Allied Operations,[18] made the following observations about the nature of a warning:

The Final Written Warning stated that Mr Zwart was given a “final opportunity” apparently in lieu of summary termination, advised that his conduct could have warranted summary dismissal and noted that Visy had considered dismissing him.  He was warned that one more misstep would lead to termination of his employment.  To my mind, there can be no doubt that the security of his future employment was therefore reduced.  In fact, that is one of the main points of the warning.  I consider that the issuing of the Final Written Warning to Mr Zwart constitutes adverse action.

  1. [35]
    As to the meaning of "status quo", it is important to also note that when interpretating industrial instruments such as awards or certified agreements, a narrow or pedantic approach should be avoided. It should be borne in mind that the drafters of such instruments were likely of a practical bent of mind and more concerned with expressing an intention in ways likely to be understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.[19]

Submissions

Applicant's submissions

  1. [36]
    The Applicant's submission is that this application seeks orders compelling the Respondent to comply with the Agreement's clause 15 obligation to maintain the status quo whilst parties are following the disputes procedure. A secondary element is the orders relating to alleged adverse action, which is said to be in the form of the written warnings.
  1. [37]
    The "status quo" is said by the Applicant to be normal work and the programming arrangements that existed before the dispute emerged. I construe that to be working as though the proposed new course of study were not introduced. That is clarified in the Applicant's submissions as being the timetable or work program as it was in terms three and four of 2023.
  1. [38]
    The allegation that the written warnings constitute adverse action also forms part of the breach of "status quo" argument. The status quo argument in respect of the warnings seems to be that the warnings have a compelling effect on the relevant employees to facilitate the introduction and delivery of the new course. That would constitute a departure from the work program as it was in terms three and four of 2023 and thus a breach of the status quo obligation within clause 15 of the Agreement.
  1. [39]
    As noted previously, the Applicant also alleges that the act of issuing the warnings constitutes a contravention of section 285(1) of the IR Act, namely, the taking of unlawful "adverse action" against the relevant employees. The allegation is that the written warnings were issued because the relevant employees were engaging in the Agreement's dispute resolution process, which was the exercise of a workplace right by those thirteen employees. However, other than some submissions and some emails concerning the team leader who received a warning, little to no evidence is before me as to how each of the other twelve employees are said to have engaged in the disputes procedure or exercised the alleged workplace rights.
  1. [40]
    The Applicant has not addressed in its written submissions the necessary elements pertaining to the exercise of the discretion to grant an interim injunction. That is – a prima facie case and the balance of convenience. At the hearing of this matter, I invited the Applicant to make submissions on this fundamental issue. As to a prima facie case, the Applicant's submissions were focused on the substantive matters in dispute, including the impact that introducing the new course would have on teachers and quality of training. The Applicant also sought to focus attention on the ability of the relevant subcommittee to issue the direction that the warnings related to.
  1. [41]
    As to the balance of convenience, the Applicant's primary submission is that the balance of convenience favours making the orders. It supports that submission by arguing that there will be a significant impact on both teachers and students if the proposed course of training in fire extinguishing systems is implemented as planned.

Respondent's submissions

  1. [42]
    The Respondent submits that it had authority to issue the instructions to prepare the above-mentioned timetable for implementation of the new course in "Fire". The Respondent rejects the Applicant's contention that the issuing of the warnings constituted unlawful adverse action. However, part of the basis for that submission appears to be that the issuing of a written warning does not, by itself, constitute "adverse action" as defined. Underpinning that submission is the argument that a written warning does not constitute a dismissal, injure the employee in his or her employment, alter the position of the employee to their prejudice or discriminate between the employee and other employees of the employer.
  1. [43]
    The Respondent submits that the status quo has not been departed from, nor will it. Rather, the Respondent submits that "normal work" has continued since the emergence of the dispute. The Respondent further submits that it is not, and has not been, seeking to disturb the conditions of employment. Instead, the Respondent submits, the introduction of the new course was an exercise of managerial prerogative which was within the scope of Stage 3 of the dispute resolution, which relevantly provides that the dispute is referred to the Consultative Committee for consideration "and action".
  1. [44]
    The Respondent also submits that issuing of the warning letters was an exercise of managerial prerogative, through reasonable management action taken in a reasonable way. I construe that submission, and those made at the hearing of the matter, to be that no unlawful purpose or reason (such as the exercise by relevant employees of a workplace right in the form of engaging in the disputes procedure) was substantially behind any of the decisions to issue the thirteen respective written warnings.
  1. [45]
    In its written submissions, the Respondent also failed to address whether there is prima facie case and whether the balance of convenience element favours granting or refusing to grant the interim orders sought. At the hearing of this matter, I sought submissions from the Respondent addressing these fundamental issues. The Respondent's submissions as to a prima facie case are essentially that the Applicant fails to make out such a case. That is supported by the argument that all of the evidence the Applicant refers to proves that what motivated the Respondent to issue the warnings was the failure of the relevant employees to produce the work they were directed to produce. Not the least of the relevant evidence is said to be the warning letters themselves. Those warning letters are said to state that the warning was a result of a failure to follow a lawful and reasonable direction.
  1. [46]
    As to the balance of convenience, the Respondent puts forward a persuasive point. That is that the introduction of this proposed new stream of training is part of a national vocational accreditation scheme to ensure that apprentices who are ultimately certified as competent have completed the fire module training. Completing this module is essential for completion of the relevant apprenticeship training. The Respondent argues that it will be unable to certify many apprentices seeking to be qualified by the end of this year if the orders are made as the Applicant proposes.

Consideration

The two cases for each of the thirteen employees

  1. [47]
    The various alleged breaches all arise from issuing thirteen written warnings. The warnings are said to, in each case, constitute both a breach of the Agreement's obligation to maintain status quo whilst the disputes procedure is being followed and a breach of the IR Act's general protections provisions by taking adverse action against each of the thirteen employees because they utilised the Agreement's disputes procedure.
  1. [48]
    What is required then is that in each case the Applicant demonstrate a prima facie case exists for the claims as to thirteen breaches of the Agreement's disputes procedure and the thirteen alleged contraventions of the IR Act's general protections provisions.

Prima facie case with respect to the breach of the status quo obligation

  1. [49]
    Whether a party has departed from the "status quo" requires first establishing what that phrase means. A general meaning such as "the state affairs existing before the present or some given date" is of some use.[20]  But each case will depend on any definition that appears within the relevant instrument.  In this case, the drafters of the Agreement have provided some guidance. That is that "normal work" is to continue as described in clause 15(1)(b) of the Agreement. The parties agree that the "normal work" in this case is the normal teaching duties prior to the dispute being raised, which significantly means that "normal work" does not include delivering the proposed course of training in "Fire".
  1. [50]
    The disputes procedure is unclear as to how long the status quo obligation lasts. Its four stages are not locked together in a single process that must be followed from Stage 1 right through until the end of Stage 4. Stage 1 requires the matter to "be referred" to a conference. However, Stage 2 uses the much less prescriptive wording of "should be referred for consideration". Stage 3 and Stage 4 are entirely optional, as both only provide for ways the matter may be dealt with at either stage.
  1. [51]
    I enquired at the hearing of this matter as to whether Stage 3 had run its course. The parties agreed that they are still very much engaged in Stage 3 of the disputes procedure.  In fact, there was a meeting scheduled in the afternoon of the hearing of this application to attempt to progress the dispute. Consequently, I find that there was a status quo obligation in force because the parties were still in the process of following Stage 3 of the procedure. I find that the status quo in this case was normal teaching duties that do not include delivering the proposed course of training in "Fire". Once Stage 3 ends, however that might be determined, there is no longer any obligation to maintain the status quo, as long as the end of Stage 3 is not signalled by a referral of the dispute to Stage 4.
  1. [52]
    The warnings being issued is argued by the Applicant to effectively constitute a form of force being applied by the employer to bring about the proposed change – introducing and teaching the new course of training in "Fire". It is in that sense that the Applicant argues that the warnings can be addressed by an order under s 473(1)(a) of the IR Act – to compel compliance with the Agreement's disputes resolution procedure's status quo obligation.
  1. [53]
    I accept the agreed fact that work has not changed yet. The claim, though, is that the warnings are designed to, and do have an effect of, forcing in the proposed new training program that is the subject of the dispute. And that because of that, the warnings constitute a departure from the status quo. If that case comes up to proof at a trial then there is a probability that the Applicant would prove a departure from the status quo and thus be entitled to relief. On that basis, I find that a prima facie case is made out in respect of the status quo claims.

Prima facie case with respect to the breach of general protections

  1. [54]
    The claim here is that each of the employees who received a written warning did so because they exercised the workplace right in the form of engaging in the Agreement's disputes procedure. There is some evidence presented as to the team leader's engagement in that process but little to nothing in relation to how each of the other twelve employees exercised that right or those rights. I therefore have difficulty in seeing any case for a breach by the Respondent of the general protections provisions of the IR Act with respect to the team leader or the twelve other members of the team. 
  1. [55]
    I reject the Respondent's argument that a written warning does not constitute a prejudicial alteration to an employee's position. In rejecting that argument, I am persuaded by the federal position laid out in University of Sydney, Visy Packaging and Coal and Allied Operations. In my view a warning will almost always constitute "adverse action", in the sense that it alters the employee's position to his or her detriment. Whether the warning is issued because of a proscribed reason is a different question entirely. It is that case that the Applicant must demonstrate at this stage that it has a prima facie case in respect of. In this instance, there are thirteen potentially unique cases depending on whether, and if so, to what extent, each employee exercised the relevant rights.
  1. [56]
    Everything before me, even in the Applicant's materials focusing mainly on the team leader's conduct, points towards a conclusion that the warnings were issued for a lawful reason related to making the relevant course available to students in semester two, 2024. That is a long way from the alleged mindset of issuing warnings to the relevant employees just because, or substantially because, they took part in the disputes procedure. I conclude that the Applicant has not made out a prima facie case for the general protections claim.

Balance of convenience

  1. [57]
    I do not see a prima facie case for the general protections claims.  Even if a prima facie case had been made out, perhaps if only for the team leader, remedies such as compensation are available to the relevant employees should they succeed in the proposed adverse action claims. I am not satisfied that such remedies would be inadequate.
  1. [58]
    Whilst a prima facie case is made out for the status quo breach claims, if the relevant employees were to succeed at a trial of those claims, they too have remedies available in the form of compensation and penalties. I am not satisfied that those remedies would be inadequate.  Conversely, if the orders sought were granted, then the Respondent would be unable to provide training in the "Fire" stream that is essential for accreditation. The Respondent therefore could not accredit its students, and there is no remedy that would allow the Respondent to retroactively accredit its students for a training stream that they did not complete. Therefore, should the Respondent succeed in defending both claims, nothing the Commission can order will be able to restore it to its current position, where it could offer that training to students enrolled or wishing to enrol in semester two, 2024.
  1. [59]
    Whilst I accept that there exists some prejudice to the relevant employees in having the written warnings on their record for the time being, they do have remedies available should they succeed in either claim. The same cannot be said in reverse for the Respondent. On that basis, I'm of the view that the balance of convenience favours refusing the application.

Conclusion

  1. [60]
    For the foregoing reasons, I conclude that the Applicant has not made out a prima facie each case for the general protections claims but has made out a prima facie case for the status quo claims.  I conclude, however, that the balance of convenience strongly favours the application being refused.
  1. [61]
    Accordingly, I do not see this case as an appropriate one for the exercise of the discretion to order an interim injunction pursuant to s 473(1)(a) of the IR Act. I order that the application is dismissed.

Order

  1. The application is dismissed

Footnotes

[1] [2003] QIRComm 431 ('RSL').

[2] Ibid 431.

[3] Ibid 431 citing Queensland Department of Health v Dr Julian Fidge [2003] QIRComm 204 ('Fidge').

[4] RSL (n 1) 431 citing Mount Isa Mines Limited v the Australian Workers’ Union of Employees, Queensland [2001] QIC 32.

[5] Fidge (n 3).

[6] Ibid 206.

[7] (2000) QSC 150, [17].

[8] Fidge (n 3) 205.

[9] [2022] QIRC 134, [16] ('DTMR').

[10] [2018] ICQ 6, [27].

[11] (2006) 227 CLR 57, [65].

[12] DTMR (n 9) [17].

[13] (2020) 302 IR 272 ('University of Sydney').

[14] (2013) 216 FCR 70 ('Visy Packaging').

[15] (1999) 140 IR 131 ('Coal and Allied Operations').

[16] University of Sydney (n 13) [200].

[17] Coal and Allied Operations (n 15) [95].

[18] Visy Packaging (n 14) [118].

[19] Kucks v CSR Ltd (1996) 66 IR 182 at 184, cited and followed by Kirby J in Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96].

[20] Concise Australian Legal Dictionary, LexisNexis Butterworths.

Close

Editorial Notes

  • Published Case Name:

    Queensland Teachers Union of Employees v TAFE Queensland

  • Shortened Case Name:

    Queensland Teachers Union of Employees v TAFE Queensland

  • MNC:

    [2024] QIRC 159

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    25 Jun 2024

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
Amcor Ltd v Construction (2005) 222 CLR 241
2 citations
Jump To
Cite 1 - (2005) 222 CLR 241
Cite 2 - (2005) 222 CLR 241
Australian Broadcasting Corporation v O'Neill (2006 ) 227 CLR 57
2 citations
Jump To
Cite 1 - (2006 ) 227 CLR 57
Cite 2 - (2006 ) 227 CLR 57
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70
2 citations
Jump To
Cite 1 - (2013) 216 FCR 70
Cite 2 - (2013) 216 FCR 70
Construction, Forestry Mining & Energy, Industrial Union of Employees v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134
2 citations
Jump To
Cite 1 - [2022] QIRC 134
Cite 2 - [2022] QIRC 134
Dalley v Kelsey [2018] ICQ 6
2 citations
Jump To
Cite 1 - [2018] ICQ 6
Cite 2 - [2018] ICQ 6
Janney v Carpentieri [2003] QIRC 204
2 citations
Jump To
Cite 1 - [2003] QIRC 204
Cite 2 - [2003] QIRC 204
Kestrel Coal Pty Ltd v Construction Forestry Mining and Energy Union[2001] 1 Qd R 634; [2000] QSC 150
2 citations
Jump To
Cite 1 - [2000] QSC 150
Cite 2 - [2000] QSC 150
Kucks v CSR Ltd (1996) 66 IR 182
2 citations
Jump To
Cite 1 - (1996) 66 IR 182
Cite 2 - (1996) 66 IR 182
Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
2 citations
Jump To
Cite 1 - (1999) 140 IR 131
Cite 2 - (1999) 140 IR 131
National Tertiary Education Industry Union v University of Sydney (2020) 302 IR 272
2 citations
Jump To
Cite 1 - (2020) 302 IR 272
Cite 2 - (2020) 302 IR 272
Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 49
1 citation
Jump To
Cite 1 - [2020] QIRC 49
RSL (n 1) 431 citing Mount Isa Mines Limited v the Australian Workers’ Union of Employees, Queensland [2001] QIC 32
1 citation
Jump To
Cite 1 - [2001] QIC 32

Cases Citing

Case NameFull CitationFrequency
Navathe v State of Queensland (Queensland Health) [2024] QIRC 2472 citations
1

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