QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ganly v Queensland Audit Office [2015] QIRC 108 |
PARTIES: | Brian Ganly v Queensland Audit Office |
CASE NO: | B/2014/70 |
PROCEEDING: | Application for Injunction |
DELIVERED ON: | 2 June 2015 |
HEARING DATES: | 4 March 2015 |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | 1. By 4.00 pm on Tuesday 9 June 2015: (a) the parties are to file with the Industrial Registrar agreed draft minutes of orders to give effect to the decision in relation to the Application for Injunction; or (b) if the parties do not agree on draft minutes of orders, each party is to file with the Industrial Registrar and serve on the other party draft minutes of orders to give effect to the decision in relation to the Application for Injunction. |
| CATCHWORDS: | INDUSTRIAL RELATIONS - disciplinary proceedings against employee commenced under Public Service Act 2008 - employee initiated grievance process under relevant Award before disciplinary process complete - employee sought injunction from Commission to restrain respondent from proceeding with disciplinary process until grievance dealt with - alleged breach of Award by Respondent not preserving the status quo - whether Applicant has standing to bring application for injunction - whether the Commission has power to grant the injunction - whether there is an "industrial dispute" - whether there is an "industrial matter" - whether the disciplinary process provisions of the Public Service Act 2008 exclude the operation of the relevant Award in relation to the discipline of an employee subject to the Award. |
CASES: | Acts Interpretation Act 1954 ss 13, 32C |
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- Case
- [2015] QIRC 108
- Decision Date
CaseChat Overview and Summary
The court concluded that Mr Ganly's grievance was an "industrial matter" because it affected the respondent's right to take disciplinary action against an employee. The court found that Mr Ganly had standing to bring the application for an injunction and that the Commission had the power to grant the injunction. The court determined that the dispute between the parties was an "industrial matter" and not excluded by the Public Service Act 2008. Consequently, the court granted the injunction sought by Mr Ganly.
The court's decision hinged on its interpretation of the relevant provisions of the Industrial Relations Act 1998 and the operation of the Award in relation to disciplinary matters. The court held that the disciplinary process under the Public Service Act 2008 did not exclude the operation of the Award in relation to the discipline of an employee subject to the Award. The court further held that Mr Ganly had standing to bring the application for an injunction and that the Commission had the power to grant such an injunction. The court concluded that the dispute between the parties was an "industrial matter" and not excluded by the Public Service Act 2008.
Orders
Orders of the court
1. By 4.00 pm on Tuesday 9 June 2015:
(a) the parties are to file with the Industrial Registrar agreed draft minutes of orders to give effect to the decision in relation to the Application for Injunction; or
(b) if the parties do not agree on draft minutes of orders, each party is to file with the Industrial Registrar and serve on the other party draft minutes of orders to give effect to the decision in relation to the Application for Injunction.
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
Ratio Decidendi
Legal Principle Established
Consideration and conclusion: Having considered the parties' submissions in light of the relevant documents filed with the Industrial Registrar and the provisions of the IR Act quoted above, I am satisfied that:(a) at the dates when the Application for Injunction and the Notice of Industrial Dispute were filed and subsequently, Mr Ganly had a dispute with the Respondent about whether the Respondent should deal with his grievance made under clause 3.2 of the 2012 Award before taking further disciplinary action (if any) under the PS Act; and(b) Mr Ganly continues to have that dispute with the Respondent. A careful reading of Commissioner Fisher's reasons for decision in State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura,[11] including the reference to Rule 8 of the Industrial Relations (Tribunals) Rules 2011, shows that the Commissioner was referring to the process by which industrial dispute proceedings are commenced before the Commission.[11] State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura [2015] QIRC 030, [61]. In any case, s 229(1) of the IR Act provides that subsection (2) applies "if an industrial dispute … exists" between specified parties and "remains unresolved" after the parties have genuinely attempted to settle the dispute. Clearly an industrial dispute must exist before and at the time when each party gives "notice of" the dispute to the industrial registrar under subsection (2). The Notice of Industrial Dispute is not that dispute. Consequently, I conclude that Mr Ganly is a party to an industrial dispute and has standing to continue with the proceedings commenced by his Application for an Injunction. Given the way the parties approached the three issues for determination (as identified in paragraph [26]), it is appropriate that those issues be resolved by answering the following questions.(a) Is Mr Ganly's grievance an "industrial matter" within the meaning of the IR Act? (b) If it might otherwise be characterised as an "industrial matter," is Mr Ganly's grievance excluded from being an "industrial matter" because the PS Act provides a code for dealing with the disciplining of public service employees?(c) Is Mr Ganly a party to an "industrial dispute", or a person who is likely to be affected by an industrial dispute?(d) Is the 2012 Award an "industrial instrument"?(e) If the 2012 Award is an industrial instrument, what is the status quo referred to in clause 3.2.8 in the circumstances of this application?(f) Is there a contravention or threatened contravention of that industrial instrument?(g) Should the Commission exercise its discretionary power to grant the orders sought by Mr Ganly? The answer to this question involves analysis of the meaning of ss 7 and 277 of the IR Act (quoted earlier) and the operation of clause 3.2 of the 2012 Award. The Applicant notes that under s 277(1), the Commission may grant the "injunctive order it considers appropriate". In s 277(12), "injunctive order" is defined to mean an order in the nature of a mandatory or restrictive injunction. As the Applicant submits, the Commission's power is restricted by s 277 to making such an order for the purposes specified in that section. In the circumstances of this case, an injunctive order might be made to:(a) compel compliance with an industrial instrument; or(b) restrain a contravention, or continuance of a contravention, of the industrial instrument.