Ganly v Queensland Audit Office
[2015] QIRC 108
•2 June 2015
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 |
| APPEARANCES: | Mr K. Watson, counsel instructed by Moriarty and Associates |
Decision
Brian Ganly ("the Applicant"), an auditor employed by the Queensland Audit Office ("QAO", "Respondent"), has applied to the Queensland Industrial Relations Commission ("the Commission") for an injunction under s 277 of the Industrial Relations Act 1999 ("IR Act") to prevent disciplinary action being taken in relation to him by the QAO under the Public Service Act 2008 ("PS Act") before the Applicant's related grievance is dealt with in accordance with the procedure contained in the relevant Award.
The Respondent QAO contends that:
(a) the Applicant lacks standing to bring the application; or
(b) the Commission does not have jurisdiction to grant the injunction sought; or
(c) if the Commission has jurisdiction, it should exercise its discretion not to grant the injunction.
Factual background and the disciplinary process that preceded this application
Mr Ganly is employed by the QAO as an Audit Manager, classified at an AO8 level. He is employed under the PS Act and has worked at the QAO and its predecessors since 1981.
An Audit Manager is not entitled to a car park during business hours, except on occasion for official purposes.
Mr Ganly undertook an audit of Queensland Shared Services ("QSS"), a division of the Department of Science, Information Technology, Innovation and the Arts ("DSITIA") during the period between August 2009 and June 2013. In the course of conducting that audit, Mr Ganly negotiated and secured the use of a car parking space in the building occupied by the audit client. Mr Ganly did not register the car park as a gift, and apparently did not discuss the matter of business car parking with his Director.
By letter dated 22 August 2014, signed by Anthony Close, Deputy Auditor-General, Mr Ganly was invited to show cause why a disciplinary finding should not be made against him in relation to the allegation that he had accepted and used a free car park from an audit client (i.e., QSS, a division of DSITIA). It was alleged that by that conduct Mr Ganly had failed to comply with specified sections of the QAO Independence Policy and hence had breached the Code of Conduct for the Queensland Public Service. He was required to provide his response in writing by Monday 8 September 2014
Because of his ill health, Mr Ganly was granted an extension of time to provide that response. By letter dated 29 September 2014, Mr Ganly's solicitors responded to the allegations contained in Mr Close's show cause letter. The solicitors' letter set out in some detail the background to Mr Ganly's use of the subject car park. In summary, it stated that in the period from August 2009 to June 2013 Mr Ganly was provided with access to an after-hours car park at Forestry House to facilitate the QSS audit. He obtained that access through the required approval process set out in the QSS building access form.
By June 2013, he was aware that there were some vacant business hour car parks allocated to QSS on a long-term government lease that were not being used. Mr Ganly approached the senior security officer of Forestry House for temporary business hours car park access to assist in the timely completion of the DSITIA financial statements as he was working late at night. He was allocated a specific car park on a temporary basis but, due to delays in finalising the 2013 to 2014 audit allocations, Mr Ganly did not move from the QSS audit accommodation until early January 2014. In order to complete other audit allocations, he negotiated an extension to his temporary building and car park access at Forestry House until March 2014. In early February 2014, Mr Ganly relinquished the temporary car park at the request of the senior security officer.
In reliance on that and other information, the letter from Mr Ganly's solicitors responded to the allegation in Mr Close's show cause letter of 22 August 2014 with submissions that:
(a) there was no breach of s 4.2 of the Code of Conduct;
(b) the business hours car park was not provided by QSS or DSITIA;
(c) the car park did not constitute a "gift" or "benefit" to Mr Ganly; and
(d) Mr Ganly acted openly and transparently.
Accordingly, the letter concluded on the basis that Mr Close would find that the allegation could not be sustained. However, if he remained of the view that the allegation could be substantiated on the balance of probabilities, the solicitors requested a statement of reasons for that view and an opportunity to respond before he made his final decision.
On 17 October 2014, Mr Close wrote to Mr Ganly advising that he had carefully considered all the evidence before him (including the response dated 29 September 2014) and had determined that the allegation against Mr Ganly was substantiated on the balance of probabilities, although he seemed to accept that neither QSS nor DSITIA was aware that Mr Ganly was using the business hours carpark. On the basis of his findings in relation to the allegation, Mr Close determined (pursuant to s 187(1)(f) of the PS Act) that Mr Ganly contravened, without reasonable excuse, a provision of the Code of Conduct. Consequently, Mr Close found Mr Ganly liable for disciplinary action pursuant to s 188 of the PS Act and was "giving serious consideration to imposing the following penalty":
(a) a reduction of classification level and consequential change of duties from Audit Manager AO8(4) to an Audit Senior AO6(4);
(b) a written reprimand; and
(c) counselling in relation to the Code of Conduct and the QAO's Independence Policy.
Mr Ganly was invited to show cause why that penalty should not be imposed on him, and was given 14 days to do so.
On 23 October 2014, Mr Ganly requested the suspension of the show cause process until 31 October 2014 due to his ill-health. On 29 October 2014, an extension of time until 14 November 2014 was granted to him.
On 13 November 2014, Mr Ganly lodged an employee grievance with his manager about both the decision to find the allegation against Mr Ganly to be substantiated and the decision to seriously consider a demotion from AO8(4) to AO6(4) as the proposed penalty. The letter set out why he submitted that the first decision was wrong and why the proposed penalty was excessive and unjustifiable. Because Mr Ganly's letter was about a decision of Mr Close (who was more senior than Mr Ganly's manager), the letter was referred to the Auditor-General, Andrew Greaves.
By letter dated 20 November 2014, Mr Greaves advised Mr Ganly that he had determined not to accept Mr Ganly's letter dated 13 November 2014 as an employee grievance because Mr Greaves did not consider a complaint about a disciplinary process taken under the PS Act to be an "industrial matter" for the purposes of the IR Act. Hence any such complaint is not a matter that can be the subject of an employee grievance under the Award. He stated that, should Mr Ganly wish to complain about a decision to take disciplinary action, the appropriate course of action is to lodge an appeal with the Appeals Officer.
In a separate letter dated 20 November 2014, Mr Close wrote to Mr Ganly advising that he would afford Mr Ganly a further period of seven days from receipt of this letter to respond to his letter dated 17 October 2014. He advised Mr Ganly that upon receipt of any submissions, or in the absence of any further response from Mr Ganly in seven days, he would proceed to make a decision with respect to the proposed penalty.
Mr Ganly has not responded to Mr Close's letter of 17 October 2014.
On 24 November 2014, Mr Ganly's solicitors wrote to Mr Greaves in response to his letter dated 20 November 2014. The solicitors set out why, in their view, the reasoning on which he based his decision to reject Mr Ganly's grievance was flawed and why they considered that the QAO had shown a clear intention to persist with a breach of the Award after the grievance procedure had been initiated. They foreshadowed filing an Application for an Injunction seeking the QAO's compliance with the Award, and asked Mr Greaves to ensure that the QAO did not proceed with the show cause disciplinary process pending the hearing of the Application for an Injunction.
On 24 November 2014, Mr Ganly filed an Application for Injunction in the Industrial Registry. By that document, Mr Ganly applied to the Commission for an injunction pursuant to s 277 of the IR Act:
(a) compelling the Respondent to comply with the status quo provision in clause 8.2(f) of the Queensland Public Service Officers and Other Employees Award - State 2014 ("the 2014 Award) which is a certified industrial instrument; and
(b) restraining the continuance of a contravention of the 2014 Award by the Respondent by requiring the Respondent to withdraw the letter continuing the "show cause" process issued by the Respondent to the Applicant dated 20 November 2014; and
(c) restraining the Respondent from contravening the 2014 Award by prohibiting the Respondent from taking any further action that would result in non-compliance with the terms of clause 8.2 of the 2014 Award.
On 26 November 2014, the Applicant filed a Notice of Industrial Dispute under s 229 of the IR Act in relation to the same matters that are the subject of these proceedings. Mr Ganly sought the Commission's assistance in procuring the revocation of Mr Close's letter dated 17 October 2014 on the basis that:
(a) the allegation against Mr Ganly could not be substantiated on the balance of probabilities; and
(b) the proposed disciplinary action constitutes constructive dismissal of Mr Ganly.
Following a mention of the Application for Injunction before the Commission on 1 December 2014, the Applicant formed the view that the relevant award was the Queensland Public Service Award - State 2012 ("the 2012 Award") and not the 2014 Award.
On 8 December 2014, an Amended Application for Injunction was filed in the Industrial Registry. The amendment comprised the deletion of the reference to the 2014 Award from paragraph 1(a) of the original Application for Injunction and the insertion of a reference to clause 3.2.8 of the 2012 Award in its place. In his affidavit attached to the Amended Application for Injunction, a solicitor for Mr Ganly noted that the Respondent was prepared to consent to the amendment to refer to the 2012 Award. The effect of that consent is that the purported grievance procedure previously commenced is now accepted as a grievance procedure activated under the 2012 Award.
On 11 December 2014, a conciliation conference in relation to the industrial dispute was held by the Commission before Deputy President Kaufman. The issues were not resolved.
To date, no decision as to the appropriate penalty to be imposed on Mr Ganly has been made. In the course of these proceedings, the Respondent agreed:
(a) not to take any action until the Commission released its decision; and
(b) that if the Applicant is unsuccessful in his application for an injunction, the Respondent would allow him a further two weeks from the date of the Commission's decision to respond to the second show cause letter, i.e. the letter dated 17 October 2014.
Issues in relation to the application for an injunction
In essence, the application seeks to restrain the Respondent from proceeding further with the disciplinary process against Mr Ganly under the PS Act until the grievance which he has initiated is dealt with properly in accordance with the procedure contained in the 2012 Award.
It is clear from the combined operation of ss 4, 7, 10, 21 and 22 of the PS Act, read with the definitions of relevant terms in Schedule 4 to that Act, that the PS Act and other Acts apply to the QAO as if it were a department and to the Queensland Auditor-General as if he were the department's chief executive (see s 22(2)).
Broadly speaking, there are three issues for determination in relation to the application:
(a) whether the subject of Mr Ganly's grievance is an "industrial matter" within the meaning of the IR Act;
(b) whether the Commission has jurisdiction[1] to deal with the matter; and
(c) if the answer to (b) is yes, whether the Commission should exercise its discretion to grant the orders sought by Mr Ganly.
[1] The question whether there is an issue relating to the Commission's power rather than jurisdiction is considered later in these reasons.
Before the hearing on 4 March 2015, each party provided written submissions to the Commission in relation to those issues. Their counsel expanded on those submissions at the hearing. Evidence was provided by way of:
(a) an affidavit of Mr Ganly filed with the Application for Injunction together with eight documents exhibited to the affidavit; and
(b) a further affidavit by Mr Ganly dated 28 January 2015 and nine documents attached to it (many of them the same as for his previous affidavit).
In the course of his oral submissions on behalf of the Respondent, Dr Spry contended that the Applicant lacked standing to make the application (or at least continue with it). The parties were directed to provide written submissions in relation to that issue and these were filed in the Industrial Registry on 19 and 27 March 2015.
The key events that gave rise to or preceded these proceedings are summarised above. The legal issues fall to be decided against that background.
Does Mr Ganly have standing to bring the application for an injunction?
For present purposes, only subsections (1) and (2) of s 277 of the IR Act are relevant. They provide:
"277 Power to grant injunctions
(1) The commission may, on application, grant the injunctive order it considers appropriate-
(a) to compel compliance with an industrial instrument, permit or this Act; or
(b) to restrain a contravention or continuance of a contravention, of an industrial instrument, a permit or this Act.
(2) An application may be made by-
(a) a party to industrial action or an industrial dispute; or
(b) a person who is, or is likely to be, directly affected by industrial action or an industrial dispute; or
(c) the registrar; or
(d) the chief inspector; or
(e) an inspector."
The Respondent's submissions: The Respondent submits that Mr Ganly lacks standing to seek injunctive relief pursuant to s 277(1) of the IR Act because:
(a) at the time he lodged his Application for Injunction, Mr Ganly was not "a party to … an industrial dispute;" and/or
(b) Mr Ganly is no longer a party to an industrial dispute.
For the Respondent to succeed, the Commission must accept the Respondent's interpretation of s 277(2)(a) of the IR Act.
Schedule 5 to the IR Act includes the following definition:
"industrial dispute means-
(a) a dispute, including a threatened or probable dispute, about an industrial matter; or
(b) a situation that is likely to give rise to a dispute about an industrial matter." (emphasis added)
Section 7 of the IR Act contains a detailed definition of "industrial matter."
"(1) An industrial matter is a matter that affects or relates to-
(a) work done or to be done; or
(b) the privileges, rights or functions of-
(i) employers or employees; or
(ii) persons who have been, or proposed to be, or who may become, employers or employees; or
(c) a matter (whether or not an industrial matter as defined in this section) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
(2) However, a matter is not an industrial matter if it is the subject of proceedings for an indictable offence.
(3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1."
In support of the first limb of its submission, the Respondent notes that:
(a) on 24 November 2014, Mr Ganly filed the present Application for Injunction;
(b) on 26 November 2014, Mr Ganly filed a Notice of Industrial Dispute which was made pursuant to s 229 of the IR Act; and
(c) the present Application and the Industrial Dispute concern the same subject matter.
The Respondent submits that it is not sufficient for the purposes of s 277(2)(a) of the IR Act that Mr Ganly merely be engaged in a dispute with his employer or that he has lodged a grievance with his employer that, in his view, remains unresolved. The language of s 277(2)(a) requires Mr Ganly to be "a party to … an industrial dispute." Until such time as Mr Ganly initiated an industrial dispute pursuant to s 229 of the IR Act, he was not a party to an industrial dispute and hence he lacked standing to make the present Application for Injunction.
In support of that submission, the Respondent refers to the following statement by Fisher C in State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura:[2]
"Section 229 of the IR Act provides that a dispute is initiated by way of notice given to the Industrial Registrar."
[2] State of Queensland (Metro South Hospital and Health Service) v Misiura [2015] QIRC 030, [61].
The Respondent submits that the step of initiating an industrial dispute pursuant to s 229 was entirely within Mr Ganly's control. To adopt what Heerey J said in another context in Fernando v Minister for Immigration and Multicultural Affairs:[3]
"This is not a case where individuals would suffer if invalidity were to flow from some default within the administration of a public authority that is entirely beyond the control of the individual."
[3] Fernando v Minister for Immigration and Multicultural Affairs (2007) 97 FCR 407, 415 [31].
In these circumstances, the Respondent submits, Mr Ganly's Application for Injunction is invalid and, being invalid, the Commission lacks jurisdiction to deal with his Application.
As a second limb, or in the alternative, the Respondent submits that Mr Ganly lacks standing to pursue the Application because the Notice of Industrial Dispute (and hence any underlying industrial dispute) is no longer on foot.
In support of that submission, the Respondent notes that:
(a) on 11 December 2014, a conciliation conference was held by the Commission before Deputy President Kaufman but a satisfactory resolution could not be reached during that conference; and
(b) at the conclusion of that conference, Mr Ganly's counsel said that they were content for the file for this matter to be closed and sent back to the registry.
In those circumstances, the Respondent submits that there is no industrial dispute on foot and Mr Ganly lacks standing to pursue the Application for Injunction because he is no longer a party to an industrial dispute. Consequently, the Commission lacks power to hear and determine the Application.
The Applicant's submissions: The Applicant's submissions in response also refer to the definitions of "industrial dispute" and "industrial matter" quoted above.
First, the Applicant submits that the documentation before the Commission clearly demonstrates that there is an industrial dispute involving the Appellant and the Respondent. In the absence of a definition in the IR Act of "dispute", that word should be read according to its primary meaning namely "to engage in argument or discussion."[4] The Appellant also relies on the following statement of Stephen J in The Queen v Turbet; ex parte Australian Building Construction Employees' and Building Labourers' Federation:[5]
"The essence of an industrial dispute is 'disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship'."
Although that case concerned the meaning of the words "industrial disputes" as used in s 51(xxxv) of the Australian Constitution, the Applicant submits that the notion that there needs to be disagreement is common to the definition in the IR Act as well as the term used in the Constitution.
[4] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009), 484.
[5] The Queen v Turbet and Others; Ex parte Australian Building Construction Employees and Building Labourers' Federation (1980) 144 CLR 335, 341.
The Applicant also refers to the following statement by the High Court in The Queen v Coldham; ex parte Australian Social Welfare Union,[6] in relation to the same Constitutional expression:
"It is, we think, beyond question that the popular meaning of 'industrial disputes' includes disputes between employees and employers about the terms of employment and the conditions of work."
[6] The Queen v Coldham and Others; ex parte Australian Social Welfare Union (1983) 153 CLR 297, 312.
The Applicant submits that there is disagreement here between the Applicant and the Respondent concerning whether or not the disciplinary process under the PS Act should apply to the Applicant having regard to the allegation which has been made against him. This is a disagreement concerning a term of his employment or condition of his work. The dispute is clearly articulated in the Applicant's grievance letter dated 13 November 2014.
Furthermore, the Applicant seeks to refute the Respondent's submission that the words "industrial dispute" as used in s 277 of the IR Act refer to a Notice of Industrial Dispute given under s 229 of that Act. In particular, the Appellant submits that:
(a) the Respondent misreads the passage on which it relies from the decision in State of Queensland v Misiura;
(b) the plain reading of s 229 requires an industrial dispute to exist before a Notice of Industrial Dispute is given to the Industrial Registrar;
(c) an industrial dispute can exist between a single employer and a single employee;[7] and
(d) s 277 refers to a party to an industrial dispute, not to a person who has given a Notice of Industrial dispute under s 229.
[7] Acts Interpretation Act 1954 s 32C
Given that an industrial dispute is a dispute about an "industrial matter," the Applicant also submits that:
(a) the reference in s 7(1)(b) of the IR Act to the privileges, rights or functions of employers or employees carries the implication that there are two parties, one of whom owes a duty or possesses a right as against the other;[8]
[8] See Richard Clancy v Butchers' Shop Employees Union, James John News Secretary, and the President and Members of the Court of Arbitration N.S.W (1904) 1 CLR 181, 201.
(b) the definition requires that there be the relationship of employer and employee;[9]
(c) Mr Ganly has been and remains an employee with the Respondent;
(d) the right which is an issue here is the employer's right under s 187 of the PS Act to discipline Mr Ganly for an alleged breach of a Code of Conduct (which is the matter that Mr Ganly disputes, given his assertion that the allegation against him is not supported and that the proposed penalty is out of proportion to the alleged breach).
[9] See The Mutual Life and Citizens Assurance Company Ltd v Attorney General for the State of Queensland and Another (1961) 106 CLR 48, 57.
The existence or non-existence of an industrial dispute is a question of fact.[10]
[10] See The Queen v Coldham and Others; ex parte Australian Social Welfare Union (1983) 153 CLR 297, 312.
The Applicant submits that the dispute has not been settled or resolved. The non-pursuit of the Notice of Industrial Dispute is not a resolution of the industrial dispute. The dispute about whether Mr Ganly is liable for disciplinary action:
(a) came into existence when the Respondent rejected Mr Ganly's arguments, i.e. in Mr Close's letter of 17 October 2014;
(b) was given form through Mr Ganly's letter of 13 November 2014 when he launched his grievance;
(c) has not gone away or been resolved and hence still exists.
In other words, the Applicant submits, the industrial dispute to which Mr Ganly referred in his Notice of Industrial Dispute existed at the time he filed his Application for Injunction and continues to exist.
The Applicant also refutes the Respondent's assertion that the Application for Injunction is the same matter as the Notice of Industrial Dispute. According to the Applicant:
(a) the Notice of Industrial Dispute concerned the dispute which he has with the way he is being treated and his future treatment by the Respondent; and
(b) the Application for an Injunction seeks to hold the Respondent accountable for the proper application of the grievance procedure set out in the 2012 Award.
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.
I will assume for the purpose of dealing with the standing issue that the subject of the dispute is an "industrial matter" (an issue dealt with later in these reasons).
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.
Resolving the substantive issues
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?
Is Mr Ganly's grievance is an "industrial matter" within the meaning of the IR Act?
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.
The Applicant seeks to restrain the Respondent from further proceeding with the disciplinary process it has initiated under the PS Act without, the Applicant submits, proper regard to the dispute which has been initiated by the Applicant pursuant to the relevant Award.
The heading to clause 3.2 of the 2012 Award is "Employee grievance procedures." Clause 3.2.1 states:
"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."
Clause 3.2.2 states that this procedure "applies to all industrial matters within the meaning of the Act"[12] (emphasis added). The 2012 Award is binding on, among others, the Chief Executives (clauses 1.6, 1.3.2).
[12] i.e., the IR Act see clause 1.3.1
Clauses 3.2.3 to 3.2.6 describe a three stage process for resolving (or at least attempting to resolve) a grievance, and prescribe the usual timeframes within which each stage is to be completed. Clause 3.2.7 states:
"If the grievance is not settled the matter may be referred to the chief executive of the Public Service Commission or the Commission by the employee or the Union, as appropriate, in accordance with the respective jurisdictions of the tribunals."
Clause 3.2.8, the clause referred to in the Amended Application for Injunction, states:
"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."[13]
[13] Clause 8.2(f) of the 2014 Award, referred to in the original Application for Injunction, is in terms similar to those of clause 3.2.8 of the 2012 Award. Clause 8.2(f) is part of clause 8.2 "Procedure for resolution of individual disputes" and states: "Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue. Further, the status quo existing before the emergence of the grievance or dispute is to continue whilst the disputes procedure is being followed."
Applicant's submissions: The Applicant submits, by reference to s 7 of the IR Act, that the grievance lodged by Mr Ganly is an "industrial matter" for the purpose of the 2012 Award.
In particular, the Applicant relies on s 7(3) which provides that "without limiting subsection (1)" a matter is an industrial matter if it "relates to" a matter contained in Schedule 1.
Two observations can be made about subsection (3):
(a) a matter is an industrial matter if it is "relates to" a matter contained in Schedule 1, so that a matter contained in Schedule 1 provides the subject to which an industrial matter "relates"; and
(b) subsection (3) does not limit subsection (1), so that subsection (1) does not depend for its operation on a matter being contained in Schedule 1. Rather, as a Full Bench of the Commission has said, s 7(1)(b) is "augmented by" s 7(3).[14]
[14] The Australian Workers' Union of Employees, Queensland AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No B879 of 1999) AND Queensland Council of Unions and Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No B1049 of 1999) (2000) 163 QGIG 277, 279.
None of the 28 matters listed in Schedule 1 refers to the disciplining of employees. However, the Applicant submits that the opening words of item 21, "the regulation of relations between employer and employee," apply in relation to the present application. In particular, the Applicant submits, the dispute is about the manner in which a person can be disciplined under the PS Act and whether, in this case, the Respondent has a proper basis for disciplining him.
In the alternative, the Applicant submits that the dispute about disciplinary procedures falls within the scope of that part of s 7(1)(b) that refers to "a matter that affects or relates to" the rights of employers or employees. Section 187 of the PS Act empowers a public service employee's chief executive to discipline the employee if the Chief Executive is reasonably satisfied that the employee has contravened, without reasonable cause, a standard of conduct applying to the employee under an approved code of conduct or a standard of conduct applying to the employee. In disciplining a public service employee, the employee's chief executive may take the disciplinary action that the Chief Executive considers reasonable in the circumstances (PS Act s 188) which could include anything from a reprimand to termination of employment.
In this case, the Applicant contends that the Chief Executive could not be reasonably satisfied that the employee has contravened a standard of conduct applying to him and hence no disciplinary action should be taken by the Chief Executive under s 188 of the PS Act. Accordingly, the Applicant submits, there is a dispute about a matter that affects or relates to:
(a) the rights of the employer to discipline Mr Ganly in these circumstances; and
(b) the rights of Mr Ganly not to be subjected to disciplinary proceedings, which he submits have not been established by the Respondent in relation to the relevant allegations.
In support of that submission, the Applicant refers to the decision of Hall P in The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees.[15] In that case, one union sought declaratory relief from the Commission against the other union. A Full Bench of the Commission stated a question for the Industrial Court of Queensland about whether the Commission had power under specific sections of the IR Act to make the orders and decisions sought. Hall P identified the question as whether the declaration sought was a declaration about an "industrial matter." Consequently, he concentrated on the application of s 7(1) and (3) of the IR Act.
[15] The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees (C/2009/31) (2009) 192 QGIG 39.
In respect of s 7(1), Hall P considered that the declarations sought was about an industrial matter "in that it affects the rights of the employees … to participate in the enterprise bargaining regime for which the Act provides."[16]
[16] The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39, 41.
In respect of s 7(3), Hall P considered that the declaration sought was about an industrial matter "in that it relates to the regulation of relations between employer and employee." He continued:
"Of the expression 'relating to', Lord Macnaughten in Inland Revenue Commissionersv Maple and Co (Paris) Ltd [1908] AC 22 at 26, 'There is no expression more general or far reaching than that'. Of the expression it has been said that it 'can signify great width of association', compare Secretary, Department of Foreign Affairs and Trade vBoswell (1992) 108 ALR 77 at 86 per Hill J, and 'should not be read down in the absence of some compelling reason for so doing', Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J. … The phrase 'relates to' is of course a 'vague and indefinite' phrase, Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 108 ALR 77 at 94 per Cooper J and context will be everything, Tooheys Ltd v Commissioner of StampDuties (NSW) (1961) 104 CLR 602 at 620 and Secretary, Department of Foreign Affairs and Trade v Boswell op. cit., there is nothing remote or tenuous about the connection between the regulation of the relations between employer and employee and participation in and representation in the enterprise bargaining regime which is a means of regulation."[17]
[17] The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39, 41-2.
Respondent's submissions: The Respondent submits that the grievance lodged by Mr Ganly is not an "industrial matter." That is part of a broader submission, in which the Respondent also starts with s 277 of the IR Act, and submits that, in refusing to accept Mr Ganly's letter dated 13 November 2014 as an employee grievance under the Award, there has been no failure to comply with an industrial instrument or any contravention of an industrial instrument. That is because:
(a) clause 3.2 of the 2012 Award sets out the procedure for resolving employee grievances;
(b) clause 3.2.2 of the Award provides that the grievance procedure applies to all "industrial matters" within the meaning of the IR Act;
(c) Mr Ganly's compliance is not an "industrial matter" within the meaning of the IR Act; and hence
(d) Mr Ganly's complaint about the substantiation of the allegation, as well as the proposed penalty, cannot be the subject of a grievance under clause 3.2 of the 2012 Award.
An "industrial matter" is defined in s 7 of the IR Act, the relevant passages from which were quoted earlier. I only repeat subsection (3).
"(3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1."
Although the Respondent does not submit that all industrial matters are listed in Schedule 1 to the IR Act, it describes that Schedule as providing an indication of what an industrial matter is. The Respondent notes that there is nothing there listed about the discipline of employees, and in particular public service employees. It takes issue with the Applicant's reliance on item 21 in Schedule 1 which, when quoted in full, refers to:
"21 the regulation of relations between employer and employee, or between employees, and to that end the imposition of conditions on-
(a)the conduct of a calling; and
(b)the provision of benefits to persons engaged in a calling."
The Respondent submits that the disciplining of public service employees does not fall within that notion. But even if it could be said to fall within that paragraph:
(a) s 215 of the PS Act makes clear what is an "industrial matter" that the Commission may hear and determine; and
(b) in any case, there is no need to list the disciplining of public service employees in Schedule 1 because there is a scheme, a code, under the PS Act to deal with that matter.
Conclusion: The issue whether the scheme under the PS Act operates as a code and effectively excludes disputes about disciplinary decisions in relation to public service employees being "industrial matters" is dealt with below. Subject to being satisfied that the PS Act scheme does not so operate, I would conclude that the dispute between the Applicant and the Respondent about whether the allegations have been substantiated is an "industrial matter" because it affects or relates to the right of the Respondent as an employer to take disciplinary action against an employee. On one hand, the Applicant disputes the Respondent's capacity to exercise its rights under the PS Act in relation to him at this time because, he contends, he has invoked the grievance procedure under the 2012 Award to deal with whether there is a factual basis on which the Respondent can take that disciplinary action (i.e. exercise its rights under the PS Act). On the other hand, the Respondent contends that the grievance procedure has not been, and cannot be, invoked because the Appellant's complaint cannot be the subject of a grievance under clause 3.2.2 of the 2002 Award. Expressed in those terms, the dispute between the parties can be characterised as being about an "industrial matter," and hence within the scope of s 7(1)(b) of the IR Act.
In light of that conclusion, it is not necessary for me to express a view about whether the dispute also "relates to a matter mentioned in" Schedule 1 of the IR Act. However, I observe that, given the opening words of s 7(3), the absence from Schedule 1 of a category of dispute such as arises in this case does not prevent it being 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?
Respondent's submissions: The Respondent submits that the PS Act constitutes a code in respect of disciplinary matters not amounting to termination of employment and hence effectively displaces or excludes the provisions under the IR Act that would apply otherwise. In support of that submission, the Respondent relies on a series of decisions and on specified sections of the IR Act and the PS Act.
First, the Respondent refers to and relies on (but did not make detailed submissions about) the decisions of the High Court in Director-General of Education v Suttling[18] ("Suttling") and Ferdinands v Commissioner for Public Employment[19] ("Ferdinands") and decisions of the Commission in Deidre Marie Gomm AND Department of Corrective Services[20] ("Gomm") and The Queensland Public Sector Union of Employees AND Queensland Corrective Services[21] ("QPSUE"). To follow the development of legal analysis on this issue, I will consider the decisions in chronological order.
[18] Director-General of Education v Suttling (1987) 162 CLR 427.
[19] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130.
[20] Deidre Marie Gomm AND Department of Corrective Services (No. B45 of 2004) (2004) 176 QGIG 319.
[21] The Queensland Public Sector Union of Employees AND Queensland Corrective Services (2006) 183 QGIG 964.
Suttling: Mr Suttling, a schoolteacher in New South Wales, applied successfully for appointment to a position with a higher salary than he was receiving. The appointment was by secondment and for two years. During the first year, the relevant service was reviewed and employees were told it would be reduced by 72 positions. The centre at which Mr Suttling was based was to be closed, and the centre for the amalgamated region was located in another suburb. In light of advice that his position was to be abolished, Mr Suttling accepted, of necessity, an appointment elsewhere at a lower salary than for his secondment position. Mr Suttling sued for a declaration that the defendant Director-General of Education had appointed him to be secondment position for a period of two years and for an order that the defendant accord him the salary condition and emoluments for that position for the two years.
Brennan J (with whom Mason ACJ and Deane J agreed) stated that the critical issues were whether Mr Suttling's appointment conferred an enforceable right to the "salary condition and emoluments" of the secondment position for a period of two years and, if so, whether the premature termination of the appointment was valid. Members of the Education Teaching Service ("the Service") were appointed pursuant to the Education Commission Act 1980 ("EC Act") and their rights must be ascertained by reference to its provisions. His Honour assumed that Mr Suttling's appointment was validly made and that he became entitled to the conditions of employment determined pursuant to the relevant section of the EC Act. Having considered other sections of the EC Act in relation to compulsory transfer and the power of the Director-General to dispense with the services of a teacher in certain circumstances, Brennan J noted that members of the Service are protected in their membership and salary by the provisions of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act"). His Honour stated:
"The legislature can hardly have intended that when it conferred on the Director-General power to determine staff establishments, the Director-General was thereby empowered to destroy the security of employment and conditions of employment which the GREAT Act was enacted to protect. The abolition of positions is no doubt necessary from time to time in order to achieve 'efficient, effective and economical management of the functions and activities of the Education Teaching Service' … and, when a position is abolished, either the services of the person occupying the position must be dispensed with or he must be transferred to some other suitable post. But the express provisions [of the EC Act] confer the powers which the legislature deemed appropriate for this purpose and it may be inferred that the legislature did not intend the exercise of the general administrative powers of the Director-General (including the power to abolish positions) should otherwise prejudice the security of tenure and salary of permanent appointees to positions in the Service."[22]
[22] Director-General of Education v Suttling (1987) 162 CLR 427, [15].
Brennan J held that if the Director-General proposes to remove a temporary appointee from his position for cause before the fixed term of his appointment has expired, it would be necessary to observe any of the applicable requirements of the GREAT Act. In this case, however, Director-General did not purport to remove Mr Suttling from his position for any cause other than his intention to close down the Service centre where Mr Suttling was located. That reason provided no ground for the exercise of the general power of removal. The power to abolish positions in determining staff establishments was general in nature and could not be exercised in derogation of the rights of members of the Service created pursuant to the power to make particular appointments under the EC Act. It followed that the premature termination of Mr Suttling's appointment was not supported by the relevant legislation and he was wrongfully required to quit his position.
Gomm: In Gomm there was a challenge to the Commission's jurisdiction to hear an application for reinstatement under the IR Act consequent upon what was claimed to have been an unfair dismissal. Ms Gomm was a public servant who had been demoted as disciplinary action under the Public Service Act 1996. The central substantive issue was whether the demotion for disciplinary reasons constituted dismissal. Having decided that "termination" in relation to public servants means bringing employment to an end (not demotion), Bechley C wrote:
"It would seem to me that it was Parliament's intention when making the Public ServiceAct 1996 that all matters of appeal on disciplinary action are to be dealt with by the Public Service Commissioner except in the case where the disciplinary action involves a termination of employment from the Public Service. In such a case the appeal lies to the Industrial Relations Commission. In other words it is the clear scheme of the Public Service Act 1996 that the jurisdiction of the Industrial Relations Commission with respect to appeals relating to termination of employment is limited to the action taken by the employing authority to terminate the employment of a person as an officer or employee of the public service. That legislation does not enable later changes in employment law with respect to dismissal to be taken as being incorporated within it."[23] (Underlining in original)
Bechley C considered that the appeal provisions of the Public Service Act 1996 would not be denied to Ms Gomm.
[23] Deidre Marie Gomm AND Department of Corrective Services (No. B45 of 2004) (2004) 176 QGIG 319, 320.
Ferdinands: Ferdinands involved action taken under s 40(1)(a) of the South Australian Police Act1998 ("SA Police Act") which provided that if a member of the police force was found guilty of an offence, the Commissioner of Police may terminate the member's appointment. A police officer was convicted of assault and his appointment was terminated by the Commissioner of Police. He applied to the Industrial Relations Commission of South Australia for a determination pursuant to the Industrial and Employee Relations Act 1994 (SA) ("IER Act") that his dismissal was harsh, unjust or unreasonable. It was contended that the jurisdiction of that commission extended to all public employees in South Australia except those specifically exempted. The police force was not specifically exempted. The High Court[24] held that the exercise of the Commissioner's power under s 40(1)(a) of the SA Police Act was not subject to the wrongful dismissal provisions of the IER Act, because the SA Police Act had impliedly repealed the wrongful dismissal provisions of the IER Act to the extent that they otherwise would have applied to the termination of appointment of a member of the South Australian Police in consequence of conviction of an offence.
[24] Gleeson CJ, Gummow, Hayne and Callinan JJ, Kirby J dissenting.
To understand whether that decision is relevant to the present proceedings, it is important to consider the reasoning that led to that result.
Gleeson CJ noted that it was not suggested that there was repugnancy between the two State statutes, in the sense that they create conflicting commands, which could not both be obeyed, or produce legal rights or obligations which cannot be reconciled. Rather, the contention which was upheld was that there is such contrariety in the two legislative schemes that, by necessary implication, the SA Police Act excluded the operation of the IER Act in its application to termination of the appointment of a person in the position of the Appellant. He characterised the problem as one of statutory interpretation which arose only because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first. His Honour stated that the legislature may, by necessary implication, manifest an intention of the latter kind, although partial repeal of an earlier statute by a later statute will only be inferred on "very strong grounds."[25]
[25] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 133-4.
Gleeson CJ stated that the provisions of the SA Police Act concerning the control and management of the police force are to be understood in a context which includes the history and character of the police force.[26] Although there is an elaborate system of merits review of decisions relating to transfer, promotion, termination on certain grounds, and discipline, the SA Police Act reserves to the Commissioner the power to decide whether the appointment of a member of the police force should be terminated following a conviction.
"The evident reason for that reservation lies in the disciplined nature of the police force, the Commissioner's responsibilities of control and management, and the range of information and considerations that would need to be taken into account in deciding whether, in a particular case, retention of appointment is consistent with such a conviction. In particular, issues of morale and integrity, perhaps extending beyond the circumstances of the individual officer, are likely to arise. The arrangements for control and management of the police force, and for merits review of some kinds of decision by the Commissioner, and the absence of merits review of others, have the appearance of exhaustiveness."[27]
Having regard to the nature of the subject of police appointment, discipline, and termination, and to the scheme established by the SA Police Act to deal with that subject, his Honour held that it was right to conclude that it would be incompatible with that scheme to treat an exercise of the Commissioner's power under s 40(1)(a) of the SA Police Act as subject to the industrial regime of the IER Act.
[26] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 134.
[27] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 136.
Gummow and Hayne JJ set out the long recognised proposition that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Although it is difficult to formulate a rule which will apply in every case of implied repeal, the two "cardinal considerations" are:
(a) there must be very strong grounds to support the implication, because there is a general presumption that the legislature intended that both provisions should operate; and
(b) deciding whether there is such inconsistency that the two cannot stand or live together requires the construction of, and close attention to, the particular provisions in question.[28]
No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an explicit or implicit contradiction between the two, the later act impliedly repeals the earlier.[29]
[28] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 137-8.
[29] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 145-6.
Their Honours undertook a detailed examination of the provisions of the SA Police Act and the IER Act and concluded that the difficulties in reconciling the two Acts stemmed from two separate, but linked, features:
(a) different considerations inform the exercise of power under the SA Police Act from those that inform the exercise of power under the wrongful dismissal provisions of the IER Act; and
(b) the SA Police Act appears intended to deal comprehensively with questions of termination of appointment of a member of the South Australian police.[30]
[30] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 147.
They also took into account the following matters in deciding whether the two Acts are contradictory:
(a) that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise; and
(b) when read as a whole, the SA Police Act reveals an intention to deal comprehensively not only with questions of appointment and termination of appointment of members of the South Australian police, but also with what decisions of the Police Commissioner to terminate appointment of a member are to be subject to review apart from the general supervisory jurisdiction of the Supreme Court.[31]
Their Honours held that the SA Police Act should be read as a comprehensive statement in relation to the termination of appointment of a member of the South Australian police and that the affirmative words of those provisions are to be read as also having a negative force and forbidding the doing of the thing otherwise under the IER Act. It followed that the SA Police Act explicitly or implicitly contradicts the wrongful dismissal provisions of the IER Act.[32]
[31] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 148
[32] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 148-9.
Callinan J accepted the respondent's submission that the SA Police Act "constitutes a self-contained scheme for challenges to decisions of the Police Commissioner." His Honour concluded that the correctness of that submission "follows from the detailed provisions that the Police Act makes for all aspects of the engagement and disciplining of members of the force, and by reason of the nature of the duties and obligations of police officers…"[33] In his Honour's view, it was not irrelevant that the Police Act is a later enactment. Had the legislature intended the IER Act to apply to police officers it would have said so in terms in the SA Police Act. It was not to the point that like provisions to the relevant ones in the two enactments may have appeared in earlier enactments.[34]
[33] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 175.
[34] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 175.
Callinan J also referred to policy reasons why a legislature might take the view that conviction for criminal conduct should result in the liability of a police officer to termination without any further right of challenge. That the definition of "employee" in the IER Act may appear capable of embracing a police officer does not require a different conclusion. The SA Police Act with related legislation is a "specific statutory scheme, clear, explicit and comprehensive with respect to the matters with which it deals." Police officers may be public employees, "but public employees of a kind for whom specific provision is unnecessary and has not been made, they are not."[35]
[35] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 178.
[184]First, the conclusion reached in this decision could only be replicated in similar circumstances.
[185]Second, given the existence of Directive No 02/14 Commission Chief Executive: Appeals, an employee in similar circumstances to the Applicant could appeal to an Appeals Officer in relation to a decision that an allegation against them had been substantiated. As noted earlier, neither party submitted that such an appeal was open to the Applicant, because of their interpretation of s 194(1)(b) of the PS Act. It is not necessary for me to express a view in relation to that issue. I simply observe that, unless the Directive is successfully challenged or rescinded, it provides an avenue to public service employees in similar circumstances to challenge a finding that their behaviour warrants disciplinary action before any such action is taken.
[186]Third, if there is concern that this decision opens the way for (or, at least, alerts some employees to the possibility of) procedural remedies to be sought outside the disciplinary scheme provided in the PS Act, there is at least one method of removing that outcome. The Parliament could enact appropriate amendments to ensure that the scheme under the PS Act is clearly prescribed as the only scheme by which disciplinary action can be taken and under which a public service employee can appeal against any disciplinary decision or determination in the disciplinary process.
Orders
[187]The amended Application for Injunction seeks an injunction pursuant to s 277 of the IR Act:
(a) compelling the Respondent to comply with the status quo provision in clause 3.2.8 of the Queensland Public Service Award - State 2012 ("the Award") which is a certified industrial instrument; and
(b) restraining the continuance of a contravention of the Award by the Respondent by requiring the Respondent to withdraw the letter continuing the "show cause" process issued by the Respondent to the Applicant dated 20 November 2014; and
(c) restraining the Respondent from contravening the Award by prohibiting the Respondent from taking any further action that would result in non-compliance with the terms of clause 3.2.8 of the Award.
[188]The Respondent took issue with the form of orders sought by the Applicant, particularly order 1(b) which the Respondent described as a final, rather than interim, order.
[189]Although the Applicant identified the type of relief sought, the terms of any injunction were not specified in his submissions. As counsel for the Applicant pointed out, s 274(2)(b) of the IR Act empowers the Commission to make a decision it considers appropriate irrespective of the specific relief sought by a party. Although the Commission has that power, it would assist me to have the benefit of draft orders that reflect my conclusions in relation to the Application for Injunction and my assessment of the implications of those conclusions for the operation of the two procedures. Accordingly, it is appropriate that draft minutes of orders be prepared by the parties.
[190]I note that, despite the Respondent's repeated assertions that, in the absence of an injunction, it could proceed at any time to take disciplinary action of the type described by Mr Close in his letter dated 17 October 2014, the Respondent agreed:
(a) not to take any action until the Commission released its decision; and.
(b) that if the Applicant is unsuccessful in his application for an injunction, the Respondent would allow him a further two weeks from the date of the Commission's decision to respond to the second show cause letter.
[191]I will proceed on the basis that the Respondent will take no disciplinary action in relation to the Applicant pending the finalisation of orders giving effect to this decision.
[192]However, in the absence of an undertaking by the Respondent not to take any disciplinary action until the grievance procedure has been followed, the Applicant is entitled to an injunction against the Respondent.
[193]I direct that 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.
Key Legal Topics
Areas of Law
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Employment & Labour Law
Legal Concepts
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Industrial Dispute
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Industrial Matter
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Standing
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Injunction
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Industrial Relations Act
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