Clarke v State of Queensland (Department of Education)
[2025] QIRC 300
•5 November 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Clarke v State of Queensland (Department of Education) [2025] QIRC 300 |
PARTIES: | Clarke, Nathan v State of Queensland (Department of Education) |
CASE NO: | D/2025/70 |
PROCEEDING: | Application to strike out proceedings |
DELIVERED ON: | 5 November 2025 |
MEMBER: HEARD AT: | Pratt IC On the papers |
ORDERS: | 1. The Respondent's application in existing proceedings is granted. 2. The matter is dismissed pursuant to s 541 of the Industrial Relations Act 2016 (Qld). |
| CATCHWORDS: | INDUSTRIAL LAW – DISPUTE – APPLICATION IN EXISTING PROCEEDINGS – where applicant in substantive matter notified Commission of dispute relating to use of lunchtimes for detentions – where respondent argues the Commission should dismiss the cause or refrain from hearing the matter pursuant to s 541 of the Industrial Relations Act 2016 because the applicant has not genuinely attempted to settle the dispute in accordance with s 261 of the Industrial Relations Act 2016 – consideration of ss 261, 262, 541 of the Industrial Relations Act 2016 and clause 7.2 of the Teaching in State Education Award – State 2016 – consideration of meaning of "genuinely attempt to settle" – held no genuine attempt to settle – matter dismissed. |
| LEGISLATION & INDUSTRIAL INSTRUMENTS: CASES AND SECONDARY SOURCES: | Conciliation and Arbitration Act 1904 (Cth), s 41(1)(d)(iii) Directive 11/20: Individual Employee Grievances Industrial Relations Act 1999 (Qld), s 331(b)(ii) Industrial Relations Act 2016 (Qld) s 261, s 262, s 541 Teaching in State Education Award – State 2016, cl 7.2 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health) [2021] QIRC 59 BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 Campbell v Queensland [2019] ICQ 18 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 City of Wanneroo v Holmes (1989) 30 IR 362 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575 Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 81 Herzfeld & Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) Kucks v CSR Ltd (1996) 66 IR 182 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 O'Sullivan v Farrer (1989) 168 CLR 210 Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27 Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Minister for Industrial Relations and Retailers' Association of Queensland Limited, Union of Employers [2003] ICQ 33 State of Queensland v Lockhart [2014] ICQ 6 Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 |
Reasons for Decision
This decision concerns an application within existing proceedings filed by the Respondent to a notice of industrial dispute filed by Mr Clarke, who is employed by the Respondent as an "Experienced Senior Teacher – Humanities/English" at Gladstone State High School ('School').
By way of brief background, the dispute is over the construction of an assessment policy and student code of conduct that Mr Clarke says has the effect of impermissibly obliging teachers to supervise lunchtime detentions. The Respondent denies any such impermissible obligation.
I held a conciliation conference in this matter on 7 August 2025. The matter did not resolve, and the Respondent filed this application shortly after. The Respondent seeks an exercise of the power under s 541 of the Industrial Relations Act 2016 (Qld) ('IR Act') to dismiss the cause or refrain from hearing the matter.
The Respondent argues that the Commission should exercise this power because s 261(1)(b) of the IR Act requires the parties to have genuinely attempted to settle the dispute before bringing a dispute to the Commission, and Mr Clarke has not genuinely attempted to settle the dispute. The Respondent says Mr Clarke has made no genuine attempt to settle because he has not followed the dispute resolution procedure contained in the Teaching in State Education Award – State 2016 ('Award'), and he has not lodged an individual employee grievance pursuant to Directive 11/20: Individual Employee Grievances and the Department of Education's individual employee grievances procedure.
The questions to be decided
There are two key questions to be decided. The first is whether s 261(1)(b) of the IR Act contains, as the Respondent asserts, a threshold requirement that parties must have genuinely attempted to settle a dispute before the Commission can conciliate and arbitrate the dispute. If the answer to the first question is 'no', then the matter can proceed by way of further conciliation conferences or arbitration. If the answer is 'yes', then I must determine whether Mr Clarke has genuinely attempted to resolve the dispute.
Relevant law
Interpretation of statutes
I have applied the following principles to my interpretation of the IR Act in this case.
The interpretation of a statute should focus on the natural and ordinary meaning of the words of the provision read as a whole. The text must also be considered in its context, which includes consideration of the statute as a whole. The purpose of a provision and the Act within which it appears is also a key consideration.[1] When considering context, the court or tribunal is not limited to just the words of the relevant statute and may consider extrinsic material such as the history of the legislation.[2] The meaning arrived at must be reasonably open on the natural and ordinary meaning of the words read in the context in which they appear.[3]
[1] Herzfeld & Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) [1.150] ('Interpretation').
[2] Ibid.
[3] Ibid [1.160], citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 305 (Gibbs CJ), 320 (Mason and Wilson JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [11] (French CJ, Kiefel and Bell JJ), [76], [79]–[80] (Gageler J); Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551, [52] (Kiefel CJ, Keene, Nettle and Edelman JJ); Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575, [15] (Kiefel CJ, Gageler, Gleeson and Jagot JJ; Steward J agreeing).
Interpretation of industrial awards
I have applied the following principles to my interpretation of the Award in this case.
When it comes to interpreting awards, the primary aim is to establish the objective meaning of the words used.[4] The natural and ordinary meaning of the relevant words must also be considered.[5] Context should be derived by considering the award as a whole.[6] Unless there is genuine ambiguity in an award, the use of extrinsic material to interpret the words should be discouraged.[7] A liberal construction should be applied having regard to the fact that awards are not legislation, but rather, often instruments of compromise between competing purposes drafted by non-lawyers, and strict adherence to technical or literal approaches should give way to construing the instrument more broadly.[8]
[4] Ibid [16.110], citing Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, [22].
[5] Ibid [16.120], citing City of Wanneroo v Holmes (1989) 30 IR 362, 378 ('Holmes'); Kucks v CSR Ltd (1996) 66 IR 182, 184; BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124, [23] ('BHP Billiton').
[6] Ibid [16.130], citing Holmes (n 5) 378.
[7] Ibid, citing BHP Billiton (n 5) [20].
[8] Ibid [16.150], citing George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498, 503-504.
Relevant legislation and award clauses
Section 451 of the IR Act provides broad powers to the Commission. Section 451(1) gives the Commission the power to do all things necessary or convenient to be done for the performance of its functions. Section 447(2)(a) of the IR Act requires, however, that the Commission must perform its functions in a way that is consistent with the objects of the IR Act. Section 3 provides that the main purpose of the IR Act is to facilitate a framework of cooperative industrial relations that is fair and balanced, and supports the delivery of high quality services, economic prosperity and social justice for Queenslanders. Section 4(p) of the IR Act notes that the main purpose is to be achieved, in part, by providing for effective, responsive and accessible mechanisms to support negotiations and resolve industrial disputes.
Section 541 of the IR Act provides the Commission powers to make decisions. Section 541(b) allows the Commission to dismiss a cause, or refrain from hearing, further hearing, or deciding a cause, if the Commission considers the cause is trivial or further proceedings by the Commission are not necessary or desirable in the public interest.
Section 261 provides a power for parties to bring an industrial dispute. The combined operation of subsections 261(1)-(3) of the IR Act relevantly is that if an industrial dispute exists between an employee and employer and remains unresolved "after the parties to the dispute have genuinely attempted to settle the dispute" then each party to the dispute must notify the Registrar of the Commission ('Registrar') in writing of the industrial dispute.
Section 262 of the IR Act empowers the Commission to take steps to deal with an industrial dispute. It provides two alternate methods by which the Commission can take action on an industrial dispute. The first is if there a notice of dispute given under s 261(2). The second is where the Commission considers it is in the public interest to take action in relation to the dispute regardless of whether a notice has been filed pursuant to s 261(2).
The dispute resolution procedure in the Award for matters such as this is set out at clause 7.2:
Employee grievance procedures - other than Award matters
(a) The objectives of the procedure are to promote the prompt resolution of grievances by consultation, co-operation and discussion to reduce the level of disputation and to promote efficiency, effectiveness and equity in the workplace.
(b) The following procedure applies to all industrial matters within the meaning of the Act:
Stage 1: In the first instance the employee shall inform such employee's Principal, person in charge of the centre or immediate supervisor (as relevant) of the existence of the grievance and they shall attempt to solve the grievance. It is recognised that an employee may exercise the right to consult such employee's union representative during the course of Stage 1.
Stage 2: If the grievance remains unresolved, the employee shall refer the grievance to the representative from regional office or the next in line management where relevant ("the manager"). The manager will consult with the relevant parties. The employee may exercise the right to consult or be represented by such employee's union representative during the course of Stage 2.
Stage 3: If the grievance is still unresolved, the manager will advise the chief executive and the aggrieved employee may submit the matter in writing to the chief executive if such employee wishes to pursue the matter further. If desired by either party the matter shall also be notified to the relevant union.
(c) The chief executive shall ensure that:
(i)the aggrieved employee or such employee's union representative has the opportunity to present all aspects of the grievance; and
(ii)the grievance shall be investigated in a thorough, fair and impartial manner.
(d) The chief executive may appoint another person to investigate the grievance. The chief executive may consult with the relevant union in appointing an investigator. The appointed person shall be other than the employee's supervisor or manager.
(e) If the matter is notified to the union, the investigator shall consult with the union during the course of the investigation. The chief executive shall advise the employee initiating the grievance, such employee's union representative and any other employee directly concerned of the determinations made as a result of the investigation of the grievance.
(f) The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise:
Stage 1: Discussions should take place between the employee and such employee's Principal, person in charge of the centre or immediate supervisor (as relevant) within 24 hours and the procedure shall not extend beyond 7 days.
Stage 2:Not to exceed 7 days.
Stage 3:Not to exceed 14 days.
(g) If the grievance is not settled the matter may be referred to the Commission by the employee or the union.
(h) Subject to legislation, while the grievance procedure is being followed normal work is to continue except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work.
(i) Where the grievance involves allegations of sexual harassment an employee should commence the procedure at Stage 3.
Relevant case law
I am guided by the following decisions in formulating these reasons.
In Campbell v Queensland,[9] his Honour, Martin P, as his Honour then was, relevantly observed that the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act and is therefore a power which is to be exercised with due circumspection on a proper consideration of the relevant materials.
[9] [2019] ICQ 18, [28]-[29].
In Hennessy v Gold Coast Hospital and Health Service ('Hennessy'),[10] McLennan IC declined to hear a matter that was determined to be a reagitating of an earlier dispute over classification, which had been the subject of an arbitrated decision years before.[11] McLennan IC in that decision referred to a decision by his Honour, O'Connor DP, as his Honour then was, in State of Queensland v Lockhart,[12] wherein his Honour relevantly considered authorities discussing the expression 'in the public interest'.[13] His Honour cited with approval the observation of their Honours Mason CJ and Brennan, Dawson and Gaudron JJ in O'Sullivan v Farrer[14] that the power to dismiss proceedings pursuant to the public interest is a discretionary one.[15] His Honour also cited with approval the observation in Farrer that the term "in the public interest", when used in a statute, "classically imports a discretionary value judgement to be made by reference to undefined factual matters" but confined by the objects of the legislation in question.[16]
[10] [2020] QIRC 81 ('Hennessy').
[11] Ibid [138]-[146].
[12] [2014] ICQ 6.
[13] Hennessy (n 10) [35]; Ibid [21]-[22] ('Lockhart').
[14] (1989) 168 CLR 210 ('Farrer').
[15] Lockhart (n 13) [21], citing Farrer (n 14) 216.
[16] Ibid.
A Full Bench of this Commission also noted in Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Department of Health)[17] that ascertaining where thepublic interest lies will often depend on a balancing of interests, including competing public interests, and will very much be a question of fact and degree.[18] The Full Bench went on to accept that s 541(b)(ii) of the IR Act recognises that thepublic interest may displace a litigant's normal right to have a case heard and determined.[19]
[17] [2021] QIRC 59.
[18] Ibid [10] citing Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27 [7] (Mason CJ, Wilson and Dawson JJ), regarding provisions similar to s 541 of the Industrial Relations Act 2016, being s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth).
[19] Ibid [11] citing Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Minister for Industrial Relations and Retailers' Association of Queensland Limited, Union of Employers [2003] ICQ 33 (Hall P), which dealt with s 331(b)(ii) of the Industrial Relations Act 1999 (Qld).
The parties' arguments
Both parties agree that this dispute had only gone as far as Stage 1 under the disputes procedure in the Award before Mr Clarke lodged the notice of an industrial dispute with the Registrar.
In summary, the Respondent argues that on the correct construction of s 261, the parties must have genuinely attempted to settle a dispute before that dispute can be referred to the Commission. The Respondent submits that where an industrial dispute remains unresolved, but the parties have not genuinely attempted to settle it, "the matter cannot be considered by the Commission under section 261 of the IR Act". The Respondent further submits that an exercise of the discretion to dismiss the matter would allow Mr Clarke to go back and properly progress the matter in accordance with the disputes procedure.
In response, Mr Clarke argues that the Award's disputes procedure is a convoluted and lengthy way of facilitating the shielding of decision-makers from accountability. Mr Clarke posits that the Respondent's internal process is "long, complex and structured to protect the Department while exhausting complainants" and that "[i]n practice, pursuing it further would have been futile". Mr Clarke also argues that escalating the dispute "only to high-ranking Departmental officers while shielding local decision-makers such as the principal from accountability, the Department frustrates the purpose of the Act and undermines good faith resolution." Mr Clarke further submits that this also denies procedural fairness and renders the mechanism neither effective nor accessible, which is contrary to the above-mentioned s 4(p) of the IR Act. Mr Clarke adds that he has satisfied the requirements of s 261 of the IR Act by raising the matter internally and, after having lodged the notice of dispute, participated in conciliation in good faith.
In support of those arguments, Mr Clarke referred to three decisions of the Commission and cited quotes from each relevant decision. Those quoted passages of judgements cited included that "a real engagement with the issues in dispute is required, not a mechanical reliance on process". As well, Mr Clarke quoted a passage in another judgement cited stating that "overreliance on procedural objections cannot defeat the resolution of an arguable industrial matter". Mr Clarke also quoted from another decision the following: "excluding decision-makers with authority undermines the integrity of conciliation and is inconsistent with genuine dispute resolution".
However, for each of the above-mentioned decisions that Mr Clarke cited, whilst they contained party names, and portions of a medium neutral citation, they were absent case numbers and paragraph references. None of these authorities could be found. In its reply submissions, the Respondent took issue with this, suggesting that the references were not real.
Mr Clarke sought permission to put on further submissions in response to that submission, which was granted. In those further submissions Mr Clarke noted that the Respondent attacked his citation style and queried whether the authorities were real. Mr Clarke submitted that the authorities were drawn "from publicly accessible summaries and secondary sources".
In preparing these reasons, I too was unable to locate any of those decisions that Mr Clarke referred to. I was also unable to locate any of the quoted passages. I called the matter on for mention and inquired of Mr Clarke as to what he meant by "publicly accessible summaries and secondary sources" and where the authorities for the arguments he had raised could be found. Mr Clarke admitted that his submissions, and indeed the authorities referred to in them, were the product of artificial intelligence. Mr Clarke advised that he relied on "Chat GPT" in preparing not only his submissions but also those in reply.
That would explain why Mr Clarke's reply submissions placed reliance on s 139 of the IR Act, a provision that the Respondent points out deals with reinstatement of apprentices, for support in his argument that the IR Act guarantees uninterrupted meal breaks. It would also explain why reference was made in the submissions to subsections that do not actually exist in the IR Act, such as "s 139(6)". That section, which is irrelevant to these proceedings, only has three subsections to it.
At the mention, Mr Clarke was invited to reconsider his position on the argument as to whether he has properly invoked the disputes notification procedures under the IR Act given his case authorities could no longer be relied upon. Mr Clarke advised the Commission that he wished to pursue the matter nonetheless, relying generally on the purpose of the IR Act arguments advanced.
Mr Clarke also submits that the Respondent refused to allow the principal of the School to attend conciliation. That fact is not conceded and, in my opinion, it is also not relevant because the issue of who attended conciliation has no impact on whether, in the first instance, the dispute notice could lawfully be lodged with the Registrar.
Consideration
Does s 261 of the IR Act require a "genuine attempt to settle" before lodging a notice?
In my opinion, the answer to this question is 'yes' for the following reasons.
On a plain reading of the words in subsection 261(1), it clearly sets a prerequisite for when subsection (2) (filing a notice of dispute with the Registrar) applies. It does so by saying that subsection (2) applies "if" certain preconditions are in place. Those preconditions are the existence of an industrial a dispute between, in this case, an employer and employee "and" the dispute remains unresolved "after" the parties have genuinely attempted to settle the dispute.
I note the conjunctive "and" is used in each of subsection 261(1)'s parts. The opening phrase "Subsection (2) applies if…" indicates to me that subsection (2) will not apply unless those preconditions are satisfied. In subsection 261(1)(b), the use of the word "after" is a very strong indication to me that the drafters intend that the precondition to lodging a notice of dispute with the Registrar is first having "genuinely attempted" to settle the matter.
I find that subsection 262(1) provides only for two instances where the Commission has power to intervene in an industrial dispute. They are alternatives. This case does not involve the second alternative: where the Commission considers it is in the public interest to take action under that section even if a notice of dispute has not been lodged by a party. The first alternative is if a notice of dispute has been given by a party under s 261(2). As to the first alternative, based on my reasons set out above, the only way that a party to an industrial dispute can lodge a notice with the Registrar is where the parties have first genuinely attempted to settle that dispute before lodging a notice.
Has Mr Clarke genuinely attempted to settle the dispute?
There is no definition for this phrase in the IR Act. I do not consider it appropriate to attempt to formulate a rigid list of conditions that constitute a "genuine attempt to settle an industrial dispute". However, some general guidance can be gleaned from the abovementioned principles of interpreting legislation and, in this case, the Award's relevant terms relating to disputes resolution.
The Shorter Oxford English Dictionary relevantly defines "genuine" as:
1.having the character claimed for it;
2.real;
3.true;
4.not counterfeit.[20]
[20] Shorter Oxford English Dictionary (5th ed, 2003) 'genuine' (def 1-4).
The Respondent's argument is premised on the notion that the phrase "genuinely attempted to settle the dispute" means compliance with the Award disputes procedure by way of a lineal progression from Stage 1 through to Stage 3, and only after holding discussions at all of those levels does that constitute genuinely attempting to settle the dispute in the s 261(1)(b) IR Act sense.
Mr Clarke disagrees. He argues that he has genuinely attempted to settle the dispute at Stage 1 and then after filing a notice with the Commission, in conciliation conference. So, as a matter of construction, whether the Award disputes procedure is something that can be departed from, and a notice triggering the involvement of the Commission can be lodged at any stage of it, will go a long way towards resolving this issue for this particular application.
The first thing I note is that the Award disputes procedure is described both in its title and in numerous places within itself as a "procedure". The Shorter Oxford English Dictionary relevantly defines "procedure" as:
1.the fact or manner of proceeding;
2.a system of proceeding;
3.a particular mode or course of action.[21]
[21] Shorter Oxford English Dictionary (5th ed, 2003) 'procedure' (def 1-3).
Adding to the description of itself as a "procedure", the relevant part of the Award disputes procedure looks to me to be a process of progression on my reading of it. For one thing, it starts at "Stage 1" then escalates in levels, both managerially and numerically, through "Stage 2" and then "Stage 3". That is an indication that upward linear progression is a characteristic of this process.
The use of the word "stage" also seems to me to add context. It indicates a number of progressive stages are to be taken, one after the other. That is, as opposed to a list of options that one can pick up or drop out of at any point. I find support in that interpretation by virtue of the fact that Sage 1 starts with the words "in the first instance". That indicates to me that the drafters intended this to be a linear progression starting at Stage 1 and moving forward through Stages 2 and 3, unless the dispute is resolved before then. As well, each of Stages 2 and 3 start with the words "If the matter is not resolved…", which indicates to me that each of Stages 2 and 3 are intended to be a progression from the previous stage of the procedure.
Only where a dispute involves allegations of sexual harassment does the procedure allow the matter to commence at Stage 3. Nowhere in the procedure is there an express provision stating that at any stage a party to the dispute can refer the matter for conciliation or arbitration to the Commission.
At subclause (g) the procedure says that if the grievance is not settled, the matter may be referred to the Commission by the employee or the union. I construe that as meaning that if the grievance is not settled after going through the process of the Stages 1, 2 and 3, only then can it be referred to the Commission. On that subclause alone, I find that it would be at odds with the Award itself for a dispute or grievance to be referred to the Commission until it has progressed, lineally, through each of the three stages of the disputes procedure. That is of course with the exception of sexual harassment related grievances.
For the above reasons, on my reading of the disputes procedure, I find that it imposes a duty upon those captured by it to follow the procedure, one stage at a time, until all of the stages are exhausted, before referring the matter to the Commission.
Mr Clarke has lost faith in the process and chosen not to escalate the dispute to Stage 2. Does that mean automatically that he has not genuinely attempted to settle the dispute in the s 261(1)(b) IR Act sense? Perhaps not in every case but in this case, I accept the Respondent's submissions that it does for the following reasons. The Award is a statutory instrument, which has the force of law. The disputes procedure within it, I find for the above reasons, requires linear progression where a grievance like this one is raised locally, then progressed if not resolved, upwards through Stages 2 and 3.
Mr Clarke seeks to move to arbitration because the matter has not been resolved at a local level and he anticipates a long and frustrating process otherwise. Proceeding to arbitration as Mr Clarke proposes would be at odds with the Award's disputes procedure in my opinion. In this case, "genuinely attempting to settle" a dispute of this nature means following the disputes procedure which applies to this dispute. That means taking part in each level of discussion in a true, real or not counterfeit way.
For the foregoing reasons, I find that Mr Clarke's departure from the disputes procedure, or refusing to follow it, constitutes his not genuinely attempting to resolve the dispute.
Conclusions
The Award's disputes procedure is a lawful mechanism for attempting to resolve industrial disputes of this nature. For a matter such as this one (not involving sexual harassment allegations), it commences at Stage 1 and requires linear progression obliging parties to work through each of the three stages of discussions before a matter can be referred to the Commission.
Section 261(1) of the IR Act does set a precondition to lodging a dispute with the Registrar. Parties to the dispute must first have genuinely attempted to resolve the dispute before a notice of dispute can be lodged with the Registrar and the Commission can become involved, unless it is a case where the Commission acts of its own motion, which this matter is not.
Mr Clarke's departure from the Award disputes procedure means he has not genuinely attempted to settle the dispute in my opinion. The procedure says that it applies to all industrial matters pursuant to the IR Act. It is not something that can be bypassed and it is not in the public interest to facilitate doing so.
I find that Respondent has made out a case for enlivening and exercising the abovementioned discretion in s 541 of the IR Act. My conclusion is that the matter should be dismissed because it is not in the public interest to hear it in the circumstances. I order accordingly.
Orders
1. The Respondent's application in existing proceedings is granted.
2. The matter is dismissed pursuant to s 541 of the Industrial Relations Act 2016 (Qld).
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