The Australian Workers' Union of Employees, Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial Union of Employees & Anor

The Court of Appeal dealt with a challenge by the AWU to the validity of amendments to the Industrial Relations Act 1999 (the IRA) by the Public Service and Other Legislation Amendment Act 2012 (the Amending Act). The Court found it unnecessary to decide whether the Queensland Industrial Relations Commission (QIRC) and the Industrial Court are courts of a State within the meaning of s 77(iii) of the Commonwealth Constitution but concluded that the Constitution of Queensland 2001 does not contain any constitutional principle of separation of powers. Accordingly, to the extent that s23B of the Amending Act inserts ss 691C(1) and 691E(2) into the IRA, it is not invalid on the ground that it is contrary to any separation of powers doctrine. It concluded that the substance of the QIRC’s role in relation to certified agreements was administrative in nature with executive and legislative aspects. Sections 691C, D and E do not impinge on the decision making independence or impartiality of the QIRC or the Industrial Court and the legislation does not infringe the Kable principle. Further, it rejected the contention that s 23B of the Amendment Act, to the extent that it inserts s 619D into the IRA is inconsistent with Part 6-4 of the Fair Work Act 2009 (Cth).