QTeachers First Inc T/A the Teachers Professional Association of Queensland v Gibson
[2022] FedCFamC2G 681
Federal Circuit and Family Court of Australia
(DIVISION 2)
QTeachers First Inc T/A the Teachers Professional Association of Queensland v Gibson [2022] FedCFamC2G 681
File number(s): BRG 72 of 2021 Judgment of: JUDGE VASTA Date of judgment: 1 September 2022 Catchwords: INDUSTRIAL LAW – Misrepresentation – jurisdiction of Part 3-1 of the FW Act – referral by State – Public Sector employees – no jurisdiction – application dismissed Legislation: Fair Work Act 2009 (Cth): Part 3-1, s 30 B, s 30G, s 30L, s 30R, s 30S s 334 to s 378,
Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld): s 6(d)
Cases cited: National Roads and Motorists Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491
ALDI Foods Pty Ltd v Transport Workers Union of Australia [2020] FCAFC 231
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 15 August 2022 Date of hearing: 27 April 2022 Place: Brisbane Counsel for the Applicant: Ms Willoughby Solicitor for the Applicant: Saines Legal Counsel for the Respondents: Ms Coulthard Solicitor for the Respondents: Holding Redlich ORDERS
BRG 72 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: QTEACHERS FIRST INC T/A THE TEACHERS PROFESSIONAL ASSOCIATION OF QUEENSLAND
Applicant
AND: NOEL GIBSON
First Respondent
KELLIE INSCH
Second Respondent
QUEENSLAND TEACHERS UNION OF EMPLOYEES
Third Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
1 September 2022
THE COURT ORDERS THAT:
1.The Application filed on 28 February 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
On 2 December 2020, Stephen Tate, a teacher at Bracken Ridge State High School, distributed a leaflet to teachers employed at that school. The leaflet was from the Applicant, QTeachers First Inc trading as Teachers Professional Association of Queensland (“TPAQ”). The leaflet was distributed by placing it in the teacher’s “pigeon holes” at the school.
Mr Tate also sent an email that informed the teachers that if they hadn’t yet paid their union dues to the Third Respondent, Queensland Teachers Union of Employees (“QTU”), they had another option by instead joining the Applicant TPAQ.
On 8 December 2020, the First Respondent, Noel Gibson and the Second Respondent, Kellie Insch, distributed a memorandum entitled “The Value of Being a QTU Member” to all teaching staff in the same manner used by Mr Tate. In that memo, it was said that the Applicant was not recognised as a union in Queensland and that it cannot negotiate Enterprise Bargaining Agreements nor can it represent the industrial rights of employees covered by Agreements or Awards.
The Applicant contends that such material was a misrepresentation and so contravened s 345 of the Fair Work Act 2009 (Cth) (“the FW Act”)
A number of issues arise for the Court to consider.
The leaflet
The leaflet is reproduced as an annexure to the affidavit of both Mr Gibson and Ms Insch. The leaflet has the logo of the Applicant on the front page and is headed “Protection without Politics”. The claim is made that the Applicant is “a trade union for all teachers” and that there would be savings of $350 a year.
The back page of the leaflet gives a comparison of the union dues amongst TPAQ, QTU and Independent Education Union “IEU”. The inside pages of the leaflet speak of TPAQ being modelled on the successful new nurse union, NPAQ, which offered union dues at half the price because it did not financially or otherwise support a political party.
The leaflet claimed that “above and beyond the workplace issue support, you will also receive a tailored personalised enterprise bargaining process and professional indemnity insurance that other unions don’t provide”.
The First and Second Respondents
Mr Gibson and Ms Insch are teachers at Bracken Ridge State High School. They are teacher representatives for the Third Respondent, QTU. They both testified that their positions really were to be a conduit between teachers and the Union. Mr Gibson gave evidence that he told the local organiser for the Third Respondent about the leaflet. He said that the organiser told him that she would get “something for you to give to the teachers challenging it”.
Mr Gibson was not clear as to whether that meant that he would be given something that challenged the leaflet for him to give to the teachers at Bracken Ridge State High School or whether he would be given something to give to the teachers who were challenging the leaflet. Mr Gibson did make clear that no teacher challenged the leaflet “except maybe for one”.
Both Mr Gibson and Ms Insch were sent a draft memorandum by the QTU organiser. This memorandum was five A4 pages in length. Ms Insch said that she skimmed over the document but did not read all of it. She said that she did not discuss the contents of the memo with either the organiser or with Mr Gibson. She said that she did not stop to consider the contents of the memorandum and that she did not know if what was written in there was true or not.
In effect, she said that she trusted the QTU and, when asked to distribute the memorandum, she obliged.
Mr Gibson said that he was sent the draft memorandum by the QTU on organiser. This is reproduced at annexure NJG-3 to his affidavit. He was asked why he did not simply forward on that memorandum to the one person who “challenged” the leaflet and he said that it was “easier just to distribute the memo to everyone”.
When it was pointed out that the draft memorandum ended with the electronic signature block of the union organiser (which included the logo of the Third Respondent), Mr Gibson said that he did not think that he should include the information as to the author of the memorandum in what he distributed to the other teachers. He said that he could not explain why he made that decision.
The draft memorandum was edited for spelling mistakes and then printed without the signature block, however the last line of the memorandum has the words “Distributed by Noel Gibson and Kellie Insch (Your QTU Reps)”.
Mr Gibson conceded that he didn’t know whether the contents of the memorandum were true or not and that he didn’t stop and consider whether what was said was true and accurate. He explained that it was the last week of a busy school year and that he was rushing to ensure that he had distributed the document.
The Memorandum
While the memorandum is five pages in length (and is reproduced as an annexure to the affidavits of Jack McGuire, Mr Gibson and Ms Insch). The relevant part of the document is the first paragraph after the heading “THE VALUE OF BEING A QTU MEMBER” and beginning with “Dear colleague”. The memorandum then states:-
Recently you received some communication from one of the school’s teachers about an organisation purporting to be a union. Please be advised that the organisation mentioned is not recognised as a union in Queensland, with no right-of-entry to workplaces and cannot negotiate Enterprise Bargaining Agreements (EBAs) and cannot represent the industrial rights of employees covered by agreements or awards.
The memorandum then extolled the virtues of the QTU and spoke of its achievements with industrial matters, other matters, professional matters, legal matters, support and advocacy, general member matters, training courses and professional development, representation, campaigns, submissions, governance matters, information forums, standing committee meetings and other meetings or groups.
The Issues
In the Further Amended Statement of Claim, the Applicant alleges that the QTU memo has misrepresented the workplace rights of “another person” or misrepresented the exercise, or the effect of the exercise, of a workplace right by “another person”. The misrepresentation particularised is that TPAQ:
·Is not recognised as a union in Queensland
·Cannot negotiate Enterprise Bargaining Agreements
·Cannot represent the industrial rights of employees covered by agreements or awards
The Applicant claims that the Respondents “recklessly” made no distinction between State based and Federal employees. The Applicant also claims that the Respondents misrepresented the “Freedom of Association” rights of teaching staff at the high school including the right to be represented by the Applicant in any negotiations for an Enterprise Bargaining Agreement or otherwise in respect of their industrial rights.
The real issue is whether the statements made in the memorandum and distributed to the teachers, were misrepresentations. However, before I can embark upon such an examination there are a number of preliminary issues that I must determine.
Preliminary issues
Both Counsel have identified the issues that need to be determined. As can be seen, there are many hurdles that the Applicant must jump before they can be successful in this application.
The first issue is whether the Court has jurisdiction to deal with this matter; in other words, does Part 3-1 of the FW Act apply to the conduct alleged by the Applicant?
If the answer to that question is “no”, then this matter will be at an end. Conversely, if the answer to that question is “yes”, then the Court needs to determine whether the Applicant is “an industrial association” for the purposes of the FW Act.
If that aspect is resolved affirmatively in favour of the Applicant, the Court can then determine whether the statements in the QTU memo contained misrepresentations.
If they were “misrepresentations”, were they misrepresentations about workplace rights, the effect of those workplace rights or the effect of the exercise of workplace rights of either the Applicant or the teaching staff at Bracken Ridge State High School.
If that matter is resolved affirmatively, the Court must then ascertain whether those misrepresentations were made deliberately or, at the very least, recklessly.
If that aspect is resolved affirmatively, the Court must then decide whether a reasonable person (in the shoes of the First Respondent or the Second Respondent) would expect the teaching staff at Bracken Ridge State High School to rely upon those misrepresentations.
Finally, if all of those matters have been proven, the Court must then decide whether the Applicant is a person affected by the contravention of s 345 of the FW Act.
Jurisdiction
In looking at whether there is jurisdiction for the Court to consider this claim, the Court must look at Part 3-1 of the FW Act, which contains ss 334 to 378 of the FW Act. Part 3-1 is headed “General Protections”.
Section 337 of the FW Act states that this Part applies only to the extent provided by this Division (which is Division 2 of Part 3-1). However, there is a notation that states that s 30G and s 30R extend the operation of this Part in a referring State.
Section 338 of the FW Act (which is a section in Division 2) speaks of the action to which this Part applies.
338 Action to which this Part applies
(1) This Part applies to the following action:
(a) action taken by a constitutionally‑covered entity;
(b) action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally‑covered entity;
(c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally‑covered entity:
(i) to take, or not take, particular action in relation to another person; or
(ii) to threaten to take, or not take, particular action in relation to
(d) action taken in a Territory or a Commonwealth place;
(e) action taken by:
(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect an employee of the employer;
(f) action taken by an employee of:
(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect the
(2) Each of the following is a constitutionally‑covered entity:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(3) A trade and commerce employer is a national system employer within the meaning of paragraph 14(d).
(4) A Territory employer is a national system employer within the meaning of paragraph 14(f).
As can be seen, the section covers action taken by, action that affects, and action that advises, encourages, insights or coerces a “constitutionally-covered entity”. A “constitutionally-covered entity” includes a “constitutional corporation” and an “organisation”.
An “organisation” means an organisation registered under the Registered Organisations Act. A “constitutional corporation” means a corporation to which paragraph 51(xx) of the Constitution applies. It seems to me that the Applicant would have to be a trading corporation to comply with the requirements of being a “constitutional corporation”.
It seems to me that the Applicant cannot be a “constitutional corporation” because the evidence is that the sole purpose of the Applicant is “to protect and promote the interests of members in matters concerning their employment”.
There is a line of authority from the Federal Court to the point that the activities of registered employee organisations cannot be classified as “trading activities” (see National Roads and Motorists Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491, ALDI Foods Pty Ltd v Transport Workers Union of Australia [2020] FCAFC 231).
Taking these matters into account, I cannot see how the Applicant is an entity to whom s 338 applies. The Applicant has not claimed that s 338 applies to them and so must rely upon the notation to s 337 to establish that the operation of Part 3-1 extends to this action.
Legislative provisions extending the operation of Part 3-1 in Queensland
Section 30L of the FW Act provides that a State is a referring State if the Parliament of that State has referred certain matters in relation to the State, to the Parliament of the Commonwealth. Those matters are references covering “referred provisions”, “amendments” and “transitional matter” to the regime provided for by the FW Act.
Section 30R states:
30R General protections
(1) Part 3‑1 (which deals with general protections) applies to action taken in a State that is a referring State because of this Division.
(2) This section applies despite section 337 (which limits the application of Part 3‑1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part).
Note: Section 30S may limit the extent to which this section extends the application of Part 3‑1.
Section 30S states:
30S Division only has effect if supported by reference
A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30L(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect. The referral law that pertains to Queensland is the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) (“the Queensland Act”).
In my view, the effect of all these provisions is that Part 3-1 of the FW Act will only have effect to the extent that the Queensland Act allows.
Section 6(d) of the Queensland Act says that the matters referred by the Queensland Parliament to the Commonwealth Parliament do not include matters relating to “public sector employees and employers”.
State School teachers in Queensland are employed by the Queensland Government, specifically, the Queensland Department of Education. This means that the teachers at Bracken Ridge State High School are public sector employees.
The members of the Third Respondent are teachers employed in the State School system. The evidence is that only persons in that system can be members of the Third Respondent. Therefore, the members of the Third Respondent are public sector employees.
What consequences arise?
The manner in which the Applicant has pleaded its case is that the First Respondent and the Second Respondent engaged in misrepresentation which was in contravention of s 345 of the FW Act. It has been pleaded that the contravening conduct is taken to be action by the Third Respondent by virtue of s 363(1)(b) of the FW Act.
This means that the Applicant is alleging that Queensland Public Sector employees (namely the First Respondent and the Second Respondent) were in contravention of s 345 of the FW Act. The Applicant has pleaded that the Third Respondent has only contravened s 345 if the First Respondent and the Second Respondent have contravened that particular section.
As that section is contained in Part 3-1 of the FW Act, jurisdiction for this Court is only conferred if s 30S of the FW Act is satisfied. In looking at to what extent “Queensland’s referring law” refers the matters mentioned in s 30L of the FW Act to the Parliament of the Commonwealth, it is clear that such a referral does not extend to public sector employees.
In other words, the Applicant alleges that Queensland Public Sector employees have misrepresented to other Queensland Public Sector employees (in relation to their employment as Public Sector employees) that the Applicant is not a union and cannot negotiate EBAs or represent the industrial rights of employees.
In my view, s 6 of the Queensland Act is clear that the Queensland Parliament has not referred such a matter to the Commonwealth Parliament. There is merit to the submission that the Queensland Parliament has jealously guarded its jurisdiction over its own employees.
It seems to me then, that Part 3-1 has no application to the action or conduct alleged by the Applicant as constituting a contravention of s 345 of the FW Act because the Parliament of Queensland did not refer such actions (that have occurred in this case) to the Parliament of the Commonwealth. Therefore, the Commonwealth has no jurisdiction to deal with the application.
This means that the application must be dismissed.
Unfortunately for the Applicant, this means that the Applicant has failed to clear the “first hurdle”. There is no need for me to consider the matter any further and I do not think that it would be in anyone’s interests for me to proceed upon (what I would class as) a theoretical exercise of determining any of the other questions that would have arisen if the Applicant had been able to clear the first hurdle.
Order
I order that the application be dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 1 September 2022
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