Declaration of General Ruling (State Wage Case 2023) (No 3) - [2024] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
Declaration of General Ruling (State Wage Case 2023) (No 3) [2024] QIRC 111

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:
Declaration of General Ruling

DELIVERED ON:
10 May 2024

HEARING DATE:
9, 10, 11 October 2023
23 November 2023
20 December 2023

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

ORDERS:
1. Except as otherwise provided in these orders, the wages or salaries for full time adult employees in all state awards shall be increased by 5.75%.

2. The above increases operate on and from 1 September 2023.

LEGISLATION:
Fair Work Act 2009, s 134

Industrial Relations Act 2016, s 3, s 4, s 458, s 459, s 459A, s 460

Industrial Relations and Other Legislation Amendment Act 2022

CASES:
Annual Wage Review 2022-23 [2023] FWCFB 3500
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane City Council [2017] QIRC 087
Declaration of General Ruling (State Wage Case) 2014 [2014] QIRC 129
Declaration of General Ruling (State Wage Case 2020) [2020] QIRC 131
Declaration of General Ruling (State Wage Case 2022) [2022] QIRC 340
Declaration of General Ruling (State Wage Case 2023) [2023] QIRC 263
New South Wales v Commonwealth (2006) 229 CLR 1
Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] 272 IR 88
Together Queensland Industrial Union of Employees v State of Queensland (Queensland Corrective Services [2022] ICQ 6; (2022) 314 IR 166

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 instructed by Crown Law for the State of Queensland (Office of Industrial Relations), first respondent.
Mr A Herbert, Counsel directly instructed by the Local Government Association of Queensland Ltd, second respondent.

Reasons for Decision

Background

Together Queensland, Industrial Union of Employees (TQ),[1] the Queensland Council of Unions (QCU),[2] and The Australian Workers' Union of Employees, Queensland (AWU)[3] have applied to the Queensland Industrial Relations Commission (the Commission) seeking the following:
(a)     a general ruling to amend all state awards to increase wages by 5.75 per cent;
(b)     a general ruling to amend all state awards to increase the existing allowances which relate to work conditions, which have not changed by 5.75 per cent;
(c)     an increase to the Queensland Minimum Wage (QMW) by 5.75 per cent; and
(d)     a determination that items (a) to (c) herein be operative from 1 September 2023.
[1] Application filed by Together Queensland, Industrial Union of Employees on 12 June 2023.
[2] Application filed by the Queensland Council…

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.

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Details

Case: [2024] QIRC 111
Decision Date: 10 May 2024

CaseChat Overview and Summary

The State Wage Case 2023 (No 3) involved a dispute regarding the appropriate wage increase for full-time adult employees in Queensland, outside the national safety net. The decision was made by the Full Bench of the Fair Work Commission. The key legal issues before the court were whether the Commission should exercise its discretion under section 459A of the Industrial Relations Act 1993 (Cth) to set a state wage case and, if so, what percentage increase should be applied.

The court found that the Commission should not exercise its discretion under section 459A of the IR Act to set a state wage case. The Full Bench concluded that the Commission ought not to exercise its discretion because there were no relevant differences between the national workforce and Queensland workers that warranted a separate state wage case. The Full Bench emphasised the need for the Commission to establish and maintain wages that are fair and just by assessing the qualities of the safety net by reference to the statutory criteria in sections 141 and 142 of the IR Act. The Full Bench further noted that there was no compelling evidence of economic or social conditions peculiar to Queensland that would justify a separate state wage case.

The Full Bench made two orders. Firstly, it ordered that the wages or salaries for full-time adult employees in all state awards should be increased by 5.75%. Secondly, the court ordered that these increases would operate from 1 September 2023. The Full Bench also noted that the Commission's approach to state wage cases should provide certainty to all interested parties with respect to the timing of the operation of state wage case decisions from year to year.

Orders

Orders of the court

1. Except as otherwise provided in these orders, the wages or salaries for full time adult employees in all state awards shall be increased by 5.75%.

2. The above increases operate on and from 1 September 2023.

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

Whilst future state wage cases will not be attended by the same level of detail it will nevertheless be necessary for the Full Bench to undertake an evaluative function having regard to the matters in ss 141 and 142 of the IR Act and assessing the qualities of the safety net by reference to the statutory criteria to ensure that the Commission establishes and maintains wages that are fair and just. Equally, the Full Bench will need to be in receipt of evidence identifying relevant differences between the national workforce and Queensland workers who are not national system employees. It is also necessary to identify economic and perhaps social conditions which may be peculiar to Queensland and relevant to the Full Bench's determination of the state wage case. Once those things are identified, proper evidence (expert if necessary) should be led as to their impact upon the issues in the state wage case.Conclusion For the reasons set out above, the Full Bench has determined that the Commission ought not to exercise its discretion pursuant to s 459A of the IR Act. The Full Bench makes the following orders:

Ratio Decidendi

Legal Principle Established

The Commission has taken the view that the general ruling should take effect from 1 September 2023. The continuation of this approach provides all interested parties with certainty with respect to the timing of the operation of state wage case decisions from year to year.Other considerations The State relied upon the affidavit of Mr Molloy, as representing the prevailing economic conditions. These conditions include slowing national economic growth in line with declining global economic growth, an expected deficit in 2023-24 and marginal surpluses in 2024-25, 2025-26, 2026-27 and slow growth in employment over the coming financial year. Mr Molloy's evidence outlines a moderation in the national inflation figures from the peak of 8.4% in December 2022 to 4.9 % in July 2023 and moderation in Brisbane's consumer price index to 3¾% in 2023-24 and 3% in 2024-25.[50][50] Exhibit 10 - Affidavit of Dennis Molloy filed 14 September 2023, [26]. The State submits that there has been a change in the conditions following the FWC decision relating to the level of inflation. The FWC determined that the expected inflation rate to the June quarter was 6.3%, however the inflation rate in this quarter was in fact 6.0%.[51][51] Exhibit 10 - Affidavit of Dennis Molloy filed 14 September 2023 at [23]. It is noted that the moderation in inflation was directly considered by the FWC expert panel with an express identification that inflation was expected to fall.[52] It is also noted that the inflation rate for Brisbane has not moderated, remaining at 6.3%.[53] [52] FWCFB 3500 at [65], [69] and [70].[53] Exhibit 10 - Affidavit of Dennis Molloy filed 14 September 2023 at [23]. The evidence of Professor Peetz was that the difference between 6.3% and 6.0% in the inflation rate was not significant and he noted that inflation had both a retrospective and prospective effect. The submissions of TQ contend that following the 2022 SWC increase of 4.6%, inflation was approximately 7.25% resulting in inflation exceeding wages by 2.6%. Consequently, the forecasted inflation of 3.75% for the 2023-24 financial year will leave Queensland workers approximately 6.4% below the inflation rate. In these circumstances a 5.75% increase is justifiable. Both the forecasted decline in economic growth and slow growth in employment referred to in Mr Molloy's affidavit had been considered in the AWR decision.[54][54] FWCFB 3500 at [157] and [71]. Mr Anthony James, Acting Assistant Director-General, Office of Industrial Relations gave evidence of the Cost-of-Living Adjustment payment ('COLA') incorporated in nineteen certified agreements, noting that it was a feature of public sector wages policy as recognition of cost-of-living pressure but is not part of the base wage.[55] TQ submits that payments such as COLA are bargained for and agreed as part of certified agreements and are not contained in the award. [55] TR3-27, LL32-37; Exhibit 11 - Affidavit of Anthony John James filed 14 September 2023, Exhibit TJ-3.

CITATION:	Declaration of General Ruling (State Wage Case 2023) (No 3) [2024] QIRC 111
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:	Declaration of General Ruling
DELIVERED ON:	10 May 2024
HEARING DATE:	9, 10, 11 October 2023 23 November 2023 20 December 2023
MEMBERS:	Davis J, President, O'Connor VP, Power IC
ORDERS:	1. Except as otherwise provided in these orders, the wages or salaries for full time adult employees in all state awards shall be increased by 5.75%. 2. The above increases operate on and from 1 September 2023.
LEGISLATION:	Fair Work Act 2009, s 134 Industrial Relations Act 2016, s 3, s 4, s 458, s 459, s 459A, s 460 Industrial Relations and Other Legislation Amendment Act 2022
CASES:	Annual Wage Review 2022-23 [2023] FWCFB 3500 Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane City Council [2017] QIRC 087 Declaration of General Ruling (State Wage Case) 2014 [2014] QIRC 129 Declaration of General Ruling (State Wage Case 2020) [2020] QIRC 131 Declaration of General Ruling (State Wage Case 2022) [2022] QIRC 340 Declaration of General Ruling (State Wage Case 2023) [2023] QIRC 263 New South Wales v Commonwealth (2006) 229 CLR 1 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] 272 IR 88 Together Queensland Industrial Union of Employees v State of Queensland (Queensland Corrective Services [2022] ICQ 6; (2022) 314 IR 166
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 instructed by Crown Law for the State of Queensland (Office of Industrial Relations), first respondent. Mr A Herbert, Counsel directly instructed by the Local Government Association of Queensland Ltd, second respondent. Reasons for Decision