Ganly v Queensland Audit Office - [2015] QIRC 108

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Ganly v Queensland Audit Office [2015] QIRC 108
PARTIES:	Brian Ganly (Applicant) v Queensland Audit Office (Respondent)
CASE NO:	B/2014/70
PROCEEDING:	Application for Injunction
DELIVERED ON:	2 June 2015
HEARING DATES:	4 March 2015 19 March 2015 (Respondent's further submissions) 27 March 2015 (Applicant's further submissions)
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 Industrial Relations Act 1999 ss 7, 229, 274(2), 277, 686 Public Service Act 2008 ss 4, 7, 10, 21, 22, 187, 188, 194(1)(b)(i), 215, 216, 217, schedule 4 Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 Deidre Marie Gomm AND Department of Corrective Services (No. B45 of 2004) (2004) 176 QGIG 319 Delaney AND Q-COMP Review Unit (2005) 178 QGIG 197 Director-General of Education v Suttling (1987) 162 CLR 427 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 Fernando v Minister for Immigration and Multicultural Affairs (2007) 97 FCR 407 FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 Irene Hart v State of Queensland (Queensland Health - Gold Coast City Health Service District) (2007) 185 QGIG 410 Ivers v McCubbin & Ors [2005] QCA 200 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 St Justins Properties Pty Ltd vRule Holdings Pty Ltd (1980) 40 FLR 282 State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura [2015] QIRC 030 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…

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: [2015] QIRC 108
Decision Date: 2 June 2015

CaseChat Overview and Summary

In Ganly v Queensland Audit Office, the applicant, Mr Ganly, sought an injunction to prevent the Queensland Audit Office from proceeding with disciplinary action against him under the Public Service Act 2008 until a grievance he raised under the relevant Award was dealt with. Mr Ganly argued that the Audit Office breached the Award by not preserving the status quo while handling his grievance. The Queensland Audit Office contended that the disciplinary process under the Public Service Act 2008 effectively excluded the operation of the Award in relation to the discipline of an employee subject to the Award. The court was required to decide whether the applicant had standing to bring the application for an injunction, whether the Commission had the power to grant such an injunction, and whether there was an "industrial dispute" or "industrial matter" within the meaning of the Industrial Relations Act 1998.

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

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." 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.

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.