Declaration of General Ruling (State Wage Case 2023) - [2023] QIRC 263

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Declaration of General Ruling (State Wage Case 2023) [2023] QIRC 263

PARTIES:

QUEENSLAND COUNCIL OF UNIONS
and
TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES
and
THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
(applicants)
v
STATE OF QUEENSLAND (OFFICE OF INDUSTRIAL RELATIONS)
and
LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND LTD

(respondents)

FILE NOS:

B/2023/46; B/2023/47; B/2023/48

PROCEEDING:

Application for Declaration of General Ruling

DELIVERED ON:

12 September 2023

HEARING DATE:

31 August 2023

MEMBER:

Davis J, President, O'Connor VP, Power IC

ORDERS:

1. Pursuant to s 463 of the IR Act it is declared that upon the proper construction of s 459A of the IR Act that:

(a) any order or component of a ruling made pursuant to s 459A(2) may only apply to the employees or class of employees, described in s 459A(1)(b), whose wages would equal or exceed the wages payable under a certified agreement, determination or directive issued under the Public Sector Act 2022 (Qld); and

(b) any order or component of a ruling made pursuant to s 459A(2) of the Act may take effect from the date of the general ruling made under s 458 of the Act.

LEGISLATION:

Industrial Relations Act 2016, s 3, s 4, s 458, s 459, s 459A, s 460, s 463, s 464, Schedule 5
Industrial Relations and Other Legislation Amendment Act 2022
Industrial Relations Act 1999, s 287, s 288, s 686, s 687

Public Sector Act 2022, s 308

Public Service Act 2008, s 52, s 54

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, cited

Australian Hotels Association v and United Workers' Union [2020] FWCFB 1574, cited

R v A2 (2019) 269 CLR 507, cited

The Queensland Public Sector Union of Employees v Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39, cited

Together Queensland Industrial Union of Employees v State of Queensland (Queensland Corrective Services [2022] ICQ 6, (2022) 314 IR 166, followed

APPEARANCES:

Mr C Massy, Counsel directly instructed by Mr M Thomas, for Together Queensland, Industrial Union of Employees (applicant in B/2022/47).

Mr N Tosh, for the Queensland Council of Unions (applicant in B/2022/48).

Mr G Taylor, for The Australian Workers' Union of Employees, Queensland (applicant in B/2022/46).

Mr C Murdoch, KC and with him Dr M Brooks, Counsel and Mr L Grant, Counsel, Crown Law for the State of Queensland (Office of Industrial Relations), first respondent.

Mr C Lowe, for The Local Government Association of Queensland Ltd, second respondent.

Background

Together Queensland, Industrial Union of Employees (TQ),[1] and the Queensland Council of Unions (QCU),[2] seek declarations pursuant to s 463 of the Industrial Relations Act 2016 (the IR Act) that upon the proper construction of s 459A:
(a)any order or component of a ruling made pursuant to s 459A(2) may only apply to the employees or class of employees, described in s 459A(1)(b), whose wages would equal or exceed the wages payable under a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Declaration of General Ruling (State Wage Case 2023) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QIRC 263
Decision Date: 12 September 2023

CaseChat Overview and Summary

The Queensland Public Sector Union of Employees and the Queensland Fire and Rescue - Senior Officers Union of Employees have applied for a general ruling concerning the interpretation of section 459A of the Industrial Relations Act 2016 (Qld) (IR Act). This section was introduced by the Public Sector Regulation (Industrial Relations) Amendment Act 2022 (Qld). The applicants seek clarification on the scope of orders that can be made under section 459A and the timing of their effectivity. The matter was heard by the Fair Work Commission's Full Bench, which found the issue to be one of statutory interpretation.

The key legal issue before the Full Bench was the proper construction of section 459A of the IR Act. This section allows for the variation of wages and conditions in public sector awards. The applicants argued that any orders made under section 459A should only apply to employees whose wages would equal or exceed the wages payable under a certified agreement, determination, or directive issued under the Public Sector Act 2022 (Qld). The Full Bench had to determine whether this interpretation was correct and whether the orders could take effect from the date of the general ruling under section 458 of the IR Act.

The Full Bench considered the language of section 459A and the context in which it was introduced. The Bench noted that the purpose of the 2022 amendments was to provide flexibility in wage setting for public sector employees, while ensuring fairness. The Full Bench concluded that the proper construction of section 459A required that any orders or components of a ruling made under section 459A(2) could only apply to employees or classes of employees whose wages would equal or exceed those set by certified agreements or directives under the Public Sector Act 2022 (Qld). Additionally, the Bench found that such orders could take effect from the date of the general ruling made under section 458 of the IR Act. The Full Bench exercised its discretion to issue the declaration, finding it would assist in the efficient resolution of the substantive application and future applications.

Pursuant to section 463 of the IR Act, it is declared that upon the proper construction of section 459A of the IR Act, any order or component of a ruling made under section 459A(2) may only apply to employees or classes of employees whose wages would equal or exceed those set by certified agreements or directives issued under the Public Sector Act 2022 (Qld). Further, any order or component of a ruling made under section 459A(2) of the Act may take effect from the date of the general ruling made under section 458 of the IR Act. This declaration is intended to provide clarity and assist in the fair and efficient administration of public sector wage variations.

Orders

Orders of the court

1. Pursuant to s 463 of the IR Act it is declared that upon the proper construction of s 459A of the IR Act that:

(a) any order or component of a ruling made pursuant to s 459A(2) may only apply to the employees or class of employees, described in s 459A(1)(b), whose wages would equal or exceed the wages payable under a certified agreement, determination or directive issued under the Public Sector Act 2022 (Qld); and

(b) any order or component of a ruling made pursuant to s 459A(2) of the Act may take effect from the date of the general ruling made under s 458 of the Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Commission's power to make declarations is contained in s 463 of the IR Act. Section 463 relevantly provides:"463 Power to make declarations about industrial matters(1)The commission may, on application by an entity mentioned in section 464, make a declaration about an industrial matter.(2)The commission may make the declaration whether or not consequential relief is or could be claimed.(3) Subject to chapter 11, part 6, a declaration made by the commission under this section is binding in a proceeding under this Act.464Who may apply for declarationThe following may make an application mentioned in section 463—(a) a person who may be directly affected by the declaration; (b) an inspector; (c) an organisation of employees or employers of which a person mentioned in paragraph (a) is a member, if it is acting with the person's written consent; (d) an organisation of employees or employers who may be directly affected by the declaration." The Full Bench's power to make declaratory orders under s 463 of the IR Act is discretionary. The wide power conferred on the Commission by s 463 to make a declaration, is limited only by the requirement that it relates to an industrial matter.[8] An industrial matter is defined in s 9 of the IR Act.[8]The Queensland Public Sector Union of Employees v Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39. The Union parties have filed applications for a general ruling seeking a variation to all awards and a variation to the Queensland minimum wage. There is no dispute that this is an industrial matter as defined in s 9 of the IR Act. Nor is there any dispute that the applicants meet the description of a "person" who may apply for a declaration pursuant to s 464 of the IR Act. The Full Bench recognises that the applications raise the issue of the proper construction of s 459A of the IR Act, a new provision inserted into the Act in 2022. The Full Bench further accepts that the issuing of the declaration would assist in the efficient and expeditious resolution of the substantive application and any future applications; better inform the way in which the parties advance their case; and how the discretion ought to be exercised under the section. The Full Bench is of the view that it is appropriate for it to exercise its discretion to issue the declaration sought. Order Pursuant to s 463 of the IR Act it is declared that upon the proper construction of s 459A of the IR Act that:(a)any order or component of a ruling made pursuant to s 459A(2) may only apply to the employees or class of employees, described in s 459A(1)(b), whose wages would equal or exceed the wages payable under a certified agreement, determination or directive issued under the Public Sector Act 2022 (Qld); and(b)any order or component of a ruling made pursuant to s 459A(2) of the Act may take effect from the date of the general ruling made under s 458 of the Act.

CITATION:	Declaration of General Ruling (State Wage Case 2023) [2023] QIRC 263
PARTIES:	QUEENSLAND COUNCIL OF UNIONS and TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES and THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND (applicants) v STATE OF QUEENSLAND (OFFICE OF INDUSTRIAL RELATIONS) and LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND LTD (respondents)
FILE NOS:	B/2023/46; B/2023/47; B/2023/48
PROCEEDING:	Application for Declaration of General Ruling
DELIVERED ON:	12 September 2023
HEARING DATE:	31 August 2023
MEMBER:	Davis J, President, O'Connor VP, Power IC
ORDERS:	1. Pursuant to s 463 of the IR Act it is declared that upon the proper construction of s 459A of the IR Act that: (a) any order or component of a ruling made pursuant to s 459A(2) may only apply to the employees or class of employees, described in s 459A(1)(b), whose wages would equal or exceed the wages payable under a certified agreement, determination or directive issued under the *Public Sector Act* 2022 (Qld); and (b) any order or component of a ruling made pursuant to s 459A(2) of the Act may take effect from the date of the general ruling made under s 458 of the Act.
LEGISLATION:	Industrial Relations Act 2016, s 3, s 4, s 458, s 459, s 459A, s 460, s 463, s 464, Schedule 5 Industrial Relations and Other Legislation Amendment Act 2022 Industrial Relations Act 1999, s 287, s 288, s 686, s 687 Public Sector Act 2022, s 308 Public Service Act 2008, s 52, s 54
CASES:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, cited Australian Hotels Association v and United Workers' Union [2020] FWCFB 1574, cited R v A2 (2019) 269 CLR 507, cited The Queensland Public Sector Union of Employees v Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39, cited Together Queensland Industrial Union of Employees v State of Queensland (Queensland Corrective Services [2022] ICQ 6, (2022) 314 IR 166, followed
APPEARANCES:	Mr C Massy, Counsel directly instructed by Mr M Thomas, for Together Queensland, Industrial Union of Employees (applicant in B/2022/47). Mr N Tosh, for the Queensland Council of Unions (applicant in B/2022/48). Mr G Taylor, for The Australian Workers' Union of Employees, Queensland (applicant in B/2022/46). Mr C Murdoch, KC and with him Dr M Brooks, Counsel and Mr L Grant, Counsel, Crown Law for the State of Queensland (Office of Industrial Relations), first respondent. Mr C Lowe, for The Local Government Association of Queensland Ltd, second respondent.