Queensland Teachers Union of Employees v TAFE Queensland (No. 2)
[2014] QIRC 171
•27 October 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Queensland Teachers Union of Employees v TAFE | |
| Queensland (No. 2) [2014] QIRC 171 | ||
| PARTIES: | Queensland Teachers Union of Employees | |
| (Applicant) | ||
| v | ||
| TAFE Queensland | ||
| (Respondent) | ||
| CASE NO: | CA/2013/57 | |
| PROCEEDING: | s 148 Request for help to make a Certified | |
| Agreement | ||
| DELIVERED ON: | 27 October 2014 | |
| HEARING DATES: | 22, 24 and 29 July 2013 | |
| 3, 5, 13 and 18 June 2014 15 August 2014 | ||
| MEMBERS: | Deputy President Bloomfield | |
ORDERS: | 1. Section 831 operates to prevent the Commission arbitrating QTU's unresolved claim for an Educational Employees Certified Agreement. | |
|
jurisdiction to refer QTU's claim to
arbitration.
CATCHWORDS: | INDUSTRIAL LAW - COMMISSION TO HELP NEGOTIATING PARTIES - Applicant lodged declaration of breakdown in negotiations - matter referred to arbitration - Appeal - Appeal allowed - matter remitted back to Commission - amendment to Act in interim - operation of pre-amended Act versus operation of amended Act - effect of section 831 - finding that arbitration under section 149 was not engaged within the meaning of section 831 - Commission estopped from referring matter to arbitration | ||
| CASES: | Industrial Relations Act 1999, s 149, s 831 | ||
| Australand Corporation (Qld) Pty Ltd v Johnson & | |||
| Ors [2007] QCA 302; [2008] 1 Qd R 203. | |||
| Esber v The Commonwealth of Australia and | |||
| Another [1992] HCA 20. | |||
| Hicks and Others v Aboriginal Legal Service of | |||
| Western Australia (Inc) [2001] FCA 483. | |||
| J.R. Exports Pty. Limited v Australian Trade | |||
| Commission (1987) 14 FCR 161. Norbis v Norbis (1986) 161 CLR 513 [5]. | |||
| Queensland Teachers Union of Employees v Department of Education, Training and Employment | |||
| |||
| < | |||
| State of Queensland v Queensland Teachers' Union | |||
| & Anor [2014] ICQ 012 [20]. | |||
APPEARANCES: | Ms T. Edmonds, Dr J. McCollow and Mr D. Coxen for Queensland Teachers Union of Employees, the Applicant. | ||
| Mr C.J. Murdoch of Counsel, instructed by Minter Ellison Lawyers, for the Respondent and with him Mr T. Barlow of TAFE Queensland. | |||
| Mr K. McKay of Together Queensland, Industrial Union of Employees, Interested Party. |
Decision (No.2)
Background
[1] On 30 July 2013 I purported to act in accordance with section 149(1)(b) of the Industrial Relations Act 1999 (the Act) to refer to arbitration an unresolved claim by the Queensland Teachers Union of Employees (QTU) for a new agreement (the Educational Employees CA) to replace the Department of Education, Training and Employment TAFE Educational Employees Certified Agreement 2012 (the TAFE Teachers Agreement).
[2] In the course of my decision[1] I said:
[1]
"[28] On my analysis, the present situation is as follows:
QTU (and TQ) seek a new Educational Employees (only) CA;
Negotiations between QTU/TQ and DETE in relation to that claim have broken down and QTU has declared a breakdown in such negotiations pursuant to s 149(1)(b) of the Act (sic - should be s 148(1)(a));
My discussions with the parties on 24 July 2013 has led me to conclude that it is not likely that further conciliation will result in the matter at issue (being QTU's claim for a replacement Educational Employees (only) CA) being resolved within a reasonable timeframe, if at all;
QTU (supported by TQ) urges me to refer that unresolved matter to
arbitration in accordance with s 149 of the Act;
That position is opposed by DETE, which seeks to be given the opportunity to ballot its employees about their preparedness to be covered by a new 'whole of TAFE' certified agreement - with such proposal to be advanced to employees on 31 July 2013 with a ballot to be conducted between 26 and 30 August 2013;
Approximately fifty percent of the employees who are proposed to be balloted by DETE are already the subject of proceedings under s 149 in the Core Arbitration proceedings; and
Neither QTU, TQ or UV support DETE's proposal for a single
certified agreement covering all of TAFE's award-based employees.[29] In the normal course of events, I might have been prepared to allow the potentially affected employees to decide whether they will accept DETE's proposal for a single 'whole of TAFE' certified agreement, after considering the contents of DETE's proposal.
[30] However, noting the provisions of s 147(A)(8) (sic - should be s 147A(8)) as well as the position that something in the order of fifty percent of the employees DETE proposes to ballot, in relation to its proposal, are already the subject of s 149 proceedings in this Commission (in matter number CA/2012/289), it appears to me that any attempt to conduct such a ballot would be null and void and of no effect.
[31] Accordingly, having reached that view and noting the strong desire of both the QTU and TQ to have the unresolved subject matter of QTU's claim for a new Educational Employees' (only) CA referred to arbitration, I propose to take that course of action.
[32] As such, I formally refer QTU's unresolved claim for a new Educational Employees (only) CA to arbitration in accordance with the provisions of s 149, most specifically s 149(1)(b)."
[3] Subsequently, the State of Queensland (Department of Education, Training and Employment) (DETE) lodged an appeal against the whole of my decision. On 20 May 2014 Justice Martin, President of the Industrial Court of Queensland, allowed the appeal and remitted the matter to the Commission to proceed according to law and in accordance with his reasons.
[4] Relevantly, in the course of his decision the President said:
"[12] The 'matter' referred to in s 147A(8) is the 'matter' which the Commission has jurisdiction to arbitrate under s 149. To understand what a 'matter' is under that section a reader should examine its use in that section and its context. The following can be drawn from s 149 and its immediate context, that is, in Chapter 6:
(a) It must concern a proposed certified agreement (Chapter 6); (b) It must involve negotiating parties who can be identified; (c) It must have been preceded by conciliation (s 149(1)(a)); (d)
The powers under s 230 must be capable of being exercised with respect to the parties and the proposed agreement (s 149(2)); and
(e)
There must be, within the overall matter, issues upon which the parties do not agree (s 149(4) and (5)).
[13] The 'matter' referred to in s 147(8) (sic - should be s 147A(8)) is not an amorphous and shifting set of parties, disagreements and proposals. Rather, it is something quite specific, arising in respect of a particular proposal. It is a set of circumstances which can be identified by reference, at least, to the requirements set out in the preceding paragraph.
[14] More importantly, there is nothing in s 147 (sic - should be s 147A) or s 149 which suggests that because an employer or an employee is involved in a matter to be arbitrated under s 149 such an employer or employee is thereby precluded from being involved in any other type of negotiation or conciliation. So much is obvious from the fact that an employer can be
subject to more than one agreement. Chapter 6 does not suggest—far less, require—that an employee cannot be the subject of competing proposals.
In other words, Chapter 6 does not require that proposed agreements must pass through all the processes before another proposal can be considered.
What are the 'matters' in this case?
[15] On the approach set out above, there are two separate sets of circumstances which could become distinct 'matters' and be subject to s 147A(8). They are:
(a) The QTU claim for a certified agreement to replace the Educational Employees CA, and (b) The DETE claim for a certified agreement which would cover all award-based TAFE Queensland employees. Grounds of Appeal
[16] There are four grounds of appeal advanced by the appellant.
… [18]
The second and third grounds concern the issue dealt with above and the so- called 'extraction' of non teaching employees from the core arbitration. The 'extraction' referred to was neither necessary nor possible. The argument advanced for the appellant was that the QTU proposal should not be sent to arbitration because a part of it might be resolved through the proposal for a TAFE employees' agreement. The reasoning process of the Deputy President was that:
(a) the QTU proposal was not able to be settled by conciliation; (b) that proposal should therefore be referred to arbitration; (c)
the QTU proposal concerned some of the employees who were proposed to be covered by the DETE proposal; and
(d)
as a result, he could not permit the ballot of employees for the DETE proposal.
[19]
That reasoning is inconsistent with the analysis of 'matter' set out above, and gives that term a much more expansive meaning than the language of the statute is capable of supporting. The mere fact that there is an agreement proposed which, if successful, would cover a group of employees does not mean that an identifiable subset of that group of employees is somehow removed and isolated from the operation of the Act while the procedures under Chapter 6 are engaged. Any conflict which might emerge from such a situation is able to be dealt with by the Commission in the normal course of the exercise of its discretion.
[20]
... It was open to the Deputy President to refer the QTU matter to arbitration. It was not open to the Deputy President to prevent the holding of a ballot, nor was it open for him to conclude that a ballot would be void and of no effect, as the appellant contends in its fourth ground of appeal.
[21]
The means for resolving the dispute which has arisen, at least with the QTU proposal, is through the power available to the Commission under s 230 and s 232. That power may not, as a matter of discretion, be able to be exercised completely with respect to the appellant's proposed certified agreement because the parties in the QTU proposal and the parties in the appellant's proposal are different. The Commission is empowered, under s 230 and s 232, to make orders of an interlocutory nature and to require compulsory conferences. These powers, exercised properly, can be used to ensure that there is afforded to the appellant the facilities available under Part 6 for its proposal.
[22]
If, for example, the ballot proposed by the appellant were to proceed and resulted, from the appellant's point of view, in a successful conclusion, it is difficult to envisage a Full Bench not taking the necessary steps to ensure that any arbitrated outcome of the QTU proposal did not purport to cover the employees the subject of the appellant's proposed certified agreement. Where a ballot is held and demonstrates that a particular certified agreement is the preferred outcome for employees and employer, then the Full Bench would, all other things being equal, be remiss if it concluded an arbitration which also purported to cover employees the subject of another agreement. That would be inconsistent with the objects of the Act.
Orders [23]
The appeal is allowed. I remit the matter to the Commission to proceed according to law and in accordance with these reasons."
[5] In accordance with His Honour's decision and direction the matter was listed for further hearing on 15 August 2014, with each of the interested parties being required to lodge outlines of submissions, and submissions in reply, prior to the proceedings.
Legislative and other changes since the original decision
[6] Before turning to the parties' submissions, and my decision in relation to the matter, it is worthwhile recording that on 1 July 2014, pursuant to the TAFE Queensland Amendment Regulation (No. 1) 2014, (a Regulation made under the TAFE Queensland Act 2013 (the TAFE Act)), all of the employees of TAFE (both teaching and administrative staff) were transferred from DETE to TAFE Queensland (TAFE Q), a statutory authority created under the TAFE Act. As a result, all legal proceedings commenced by or against the State of Queensland in respect of TAFE are to be continued by or against TAFE Q, including the present proceedings.
[7] On 17 October 2013 (the introduction day) the Attorney-General and Minister for Justice introduced the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 (the Bill) into the Queensland Parliament. Amongst other matters, the Bill made provision for the creation of what were described as "Modern Awards" which are to be made by the Commission. The Bill also included provisions limiting the making of new Certified Agreements or Determinations until Modern Awards have been made to cover the employees who would be the subject of any new Certified Agreement or Determination.
[8] Relevantly, for present purposes, the Bill included a new section, as follows:
"831 Existing arbitrations
(1) This section applies if, before the introduction day—
(a) the commission’s jurisdiction to determine a matter by arbitration was engaged under section 149 of the pre-amended Act; and
(b)
the commission had not made a determination for the matter under that section.
(2) For subsection (1), it does not matter whether or not the commission has
starting hearing the matter.(3) The commission must determine the matter by arbitration under section 149
of the pre-amended Act.(4)
However, if the employer and 1 or more parties reach agreement on the terms of a proposed certified agreement to be made between them before
the commission makes the arbitration determination for the matter—
(a)
the parties must take the steps under chapter 6 of the pre-amended Act necessary to have the agreement certified; and
(b) if an application is made under section 156 of the pre-amended Act— the commission must deal with the application under that section; and
(c) the arbitration ends when the agreement is certified."
[9] The Bill was subsequently passed by the Parliament on 19 November 2013. As such, section 831 has relevance in my determination of the matter referred back to me by the President.
The position adopted by the parties in the resumed proceedings
Queensland Teachers Union of Employees
[10] QTU said that the sole issue before the Commission for determination is whether it should send QTU's unresolved claim for a new TAFE Educational Employees CA for arbitration in accordance with section 149(1)(b) of the pre-amended Act. In this respect, QTU submitted:
The Commission had previously concluded that further conciliation would not
result in the matter being settled within a reasonable time;
The Act confers a very wide discretion on the Commission, particularly in the context of the Commission's ability to provide assistance for negotiation and resolution of industrial disputes, including a discretion to refer unresolved claims for agreements to arbitration;
The existence of a discretion was confirmed in the Appeal decision where Justice Martin stated "It was open to the Deputy President to refer the QTU matter to
2
arbitration." ;
The Commission should exercise its discretion again to refer the matter to arbitration, given that genuine and extensive negotiation and conciliation has not resolved, and is not likely to resolve, the matter;
The Commission can be satisfied that the statutory pre-conditions for referral have been met and it ought to exercise its discretion, the principles surrounding the exercise of which had not hardened into legal rules which would confine the 3
discretion more narrowly than Parliament intended , and refer the matter to arbitration.
Together Queensland, Industrial Union of Employees
[11] In addition to supporting the submissions of QTU, Together Queensland Industrial Union of Employees (Together) submitted that because the Commission as presently constituted had heard submissions from the parties about exercising powers pursuant to section 149 prior to the "introduction day" referred to in section 831 of the Act, the Commission's jurisdiction to determine the matter by arbitration "was engaged" under section 149 of the pre-amended Act.
[12] In addition, Together argued that because the only matter formally before the Commission when it issued its 30 July 2013 decision was the proposed TAFE Educational Employees CA it was that matter which enlivened the operation of section 831. Further, because the proposal by DETE (at that stage) for a whole of TAFE agreement covering all employees had not been the subject of section 148 proceedings, the Commission could not have been said to have made any decision under section 149 in connection with that matter. Consequently, the decision of the Commission to refer the QTU matter to arbitration in accordance with section 149(1)(b) in its original decision of 30 July 2013 should stand. However, paragraphs [29] and [30] of the original decision should be deleted as they involved errors of law, as outlined by the President in his Appeal decision.
TAFE Queensland
[13] TAFE Q submitted that the only decision and Order made by the Commission as presently constituted in its decision of 30 July 2014 was to refer QTU's claim for an Educational Employees CA to arbitration pursuant to section 149(1)(b) of the pre- amended Act. However, because DETE's appeal against the whole of the Commission's decision of 30 July 2014 had been allowed, the legal status of QTU's proposal for a TAFE Educational Employees CA is that it has not been referred to arbitration. As such, the Commission's jurisdiction to determine that matter by arbitration was not "engaged" under section 149 of the pre-amended Act as at the introduction day, 17 October 2013. Consequently, action to "engage" the arbitral process under section 149 is not now possible because the existing TAFE Teachers Agreement is a continuing agreement within the meaning of sections 826 - 829 of the Act.
[14] In addition, no further step to progress QTU's claim for an Educational Employees CA (whether by the reaching of agreement or through arbitration) is possible until there is a relevant Modern Award.
[15] TAFE Q submitted that the issue for determination by the Commission could be tested by asking the rhetorical question: "For jurisdiction to determine a matter by arbitration to be 'engaged', does the Commission have to exercise a function under section 149(1)?". If the answer to the question is "Yes", then it must be that arbitration has not yet been engaged.
[16] Given all of the above, TAFE Q submitted, the Commission cannot further deal with QTU's claim for an Educational Employees CA until there is an underlying Modern Award.
Reply submissions of the parties
Queensland Teachers Union of Employees
[17] In addition to rejecting TAFE Q's argument that the Commission's jurisdiction to determine the matter by arbitration had not been engaged for the purposes of section 831 of the Act, QTU also submitted that it had an accrued right, within the meaning of section 20 of the Acts Interpretation Act 1954 (the Interpretation Act), to progress its claim for an Educational Employees CA pursuant to the provisions of the Act as it existed on 30 July 2013.
[18] Relevantly, section 20 of the Interpretation Act provides:
"20 Saving of operation of repealed Act etc.
(1) In this section— Act includes a provision of an Act. repeal includes expiry.
(2) The repeal or amendment of an Act does not—
(a)
revive anything not in force or existing at the time the repeal or amendment takes effect; or
(b)
affect the previous operation of the Act or anything suffered, done or begun under the Act; or
(c)
affect a right, privilege or liability acquired, accrued or incurred under the Act; or
(d)
affect a penalty incurred in relation to an offence arising under the Act; or
(e)
affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
(3)
The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.
(4) Without limiting subsections (2) and (3), the repeal or amendment of an Act does not affect—
(a) the proof of anything that has happened; or (b)
any right, privilege or liability saved by the operation of the Act; or
(c) any repeal or amendment made by the Act; or (d) any savings, transitional or validating effect of the Act. (5)
This section is in addition to, and does not limit, sections 19 and 20A, or any provision of the law by which the repeal or amendment is made."
[19] In support of its submission that it had an accrued right in accordance with section 20
4
of the Interpretation Act, QTU referred me to a decision of Keane J.A. concerning section 8 of the Acts Interpretation Act 1901 (Cth) in which His Honour said (references omitted):
"[110] If the relevant right is no more than a right or power adversely to affect the legal position of another, then the right or power to affect the rights or liabilities of others disappears when the statute conferring the right or power is repealed. Section 8(c) of the Acts Interpretation Act, in speaking of a 'right accrued' under an Act, is not speaking of a mere right conferred by an Act of which a person may take advantage should he or she choose to do so, but of a right which may be enforced by the person who propounds the right against a person said to be under a liability which corresponds to the right. The concern of s 8(c) is that, in the absence of a contrary intention, the legislature is not to be taken to intend to deprive those with a complete and enforceable right of the benefit of that right simply because the law's mechanisms of enforcement have not finally vindicated the accrued entitlement at the time of repeal.
[111] Generalising from the decided cases cited by the parties, and the observations of Hayne, Heydon and Crennan JJ in the recent decision of the High Court in Chang v Laidley Shire Council, the most important point to emerge is the proposition that the operation of s 8(c) and its analogues cannot be understood without a clear understanding of the nature of the right said to have accrued under a particular statute. The idea that the extent of a party's right or interest is commensurate with the nature of the orders which a court may make to protect or enforce the right or interest is one which has long been familiar to lawyers. In considering the operation of s 8(c) of the Acts Interpretation Act, one may test the suggestion that a party has an accrued right by asking what order could be made by a court in favour of that party had the court come to pronounce on the liability of the other party prior to the repeal of the statute which conferred the right."
[20] After referring me to His Honour's decision, QTU said that a better approach for the
Commission to adopt than to ask itself the rhetorical question proposed by TAFE Q was to apply the test as outlined by Keane J.A. in Australand Corporation (Qld) Pty
5
Ltd v Johnson & Ors, namely: whether a party has an accrued right is to be determined by asking "What order could be made by a court in favour of that party had the court come to pronounce on the liability of the other party prior to the repeal of the statute which conferred the right?".
[21] QTU also submitted that in accordance with the decision of Mason CJ Deane, Toohey
6
and Gaudron JJ in Esber v The Commonwealth of Australia and Another it had acquired a "substantive right" to continue to prosecute its claim for a new Educational Employees CA according to the law under the pre-amended Act. As such, section 831(1) of the Act applied on the basis the Commission's jurisdiction to determine QTU's claim by arbitration had been "engaged" under section 149 of the pre-amended Act.
[22] In further support of its submissions that section 149 of the Act had been engaged, QTU also said:
There are no words in section 831 of the amended Act that evince any intention by Parliament that QTU is to be deprived of its accrued right to have its claim for a new Educational Employees CA determined by arbitration pursuant to section 149 of the pre-amended Act; There is nothing in section 831 that would deprive a party which has taken the relevant steps and accrued a legally enforceable right to hear and determine its claim of the right to enforce that accrued right; For the decision of His Honour Justice Martin to have meaning, other than a purely perfunctory one, it must be that the Commission as presently constituted has the capacity to proceed with the matter before it; It is open to the Commission to affirm its original decision to refer the matter to arbitration in accordance with section 149(1)(b) of the pre-amended Act if the Commission continues to hold the view that there is no prospect of agreement between the parties; and It is inappropriate for TAFE Q to attempt to use this proceeding as a means to
short-circuit the Award Modernisation process.Together Queensland
[23] Together continued to argue that the Commission's jurisdiction to determine the matter by arbitration under section 149 had been engaged the moment the Commission was asked to exercise its powers pursuant to that section. In this respect, Together said it was an error on the part of TAFE Q to read section 831(1)(a) with a focus on the word "arbitration" as opposed to the word "jurisdiction". In that regard, section 831 preserved the operation of the pre-amended Act provisions when the jurisdiction has been engaged, not when arbitration has been engaged (Together's emphasis).
[24] Together also argued that any proceedings commenced pursuant to section 149 of the pre-amended Act would be able to continue because section 831 did not limit its operation to any particular element, or elements, of section 149. The original proceedings involving QTU, supported by Together, sought the exercise of the Commission's powers pursuant to section 149. Therefore, the Commission's jurisdiction under that section was "engaged" within the meaning of section 831. In addition, because there was a proceeding on foot, i.e. seeking to have the matter dealt with under section 149, the provisions of section 20 of the Interpretation Act preserved the right of QTU, and Together, to have the claim for a new Educational Employees CA determined under section 149 of the pre-amended Act.
TAFE Queensland
[25] At the outset, TAFE Q highlighted paragraph [8] of QTU's initial submissions in which it requested the Commission "… to exercise its discretion again to refer the matter to
arbitration…" (TAFE Q's emphasis) stating that the QTU submission was correct in
that for the matter to be referred to arbitration the Commission would be required to
exercise its discretion "again".[26] TAFE Q also strongly disputed the submissions of both QTU and Together that QTU retained an accrued right, notwithstanding the introduction of the Bill and its subsequent passing by Parliament, to pursue an Educational Employees CA. In that respect, it was submitted that section 831 was a transitional provision and, as such, could be taken to be the considered approach of the Legislature in respect of how matters canvassed in that section were to be dealt with. Accordingly, section 20 of the Interpretation Act, as a general provision, had to give way to the specific provisions of section 831 of the Act.
[27] In support of this submission, TAFE Q referred me to paragraph [110] in the decision
7
of Keane J.A in Australand Corporation (Qld) Pty Ltd v Johnson, recorded at paragraph [18] above, and highlighted the distinction made by His Honour between "a mere right conferred by an Act of which a person may take advantage should he or she choose to do so" and what His Honour described as "a complete and enforceable right of the benefit of that right". It was submitted that the distinction was particularly important in the present case in that section 149, as it was, provided the Commission with a discretion, based upon its consideration of the matters set out in section 149(1)(b), and it was only if the Commission exercised its discretion, considering those factors, that the section applied. It was not a situation where anyone had an actual right to arbitration. At best, all the parties had was an expectation that the Commission may exercise its discretion to refer the matter to arbitration.
[28] I was also referred to the decision of Hicks and Others v Aboriginal Legal Service of
8
Western Australia (Inc) and particular extracts from that decision from paragraph [54]
onwards, including several mentions, with approval, of the decision of Fox, J in J.R.
9
Exports Pty. Limited v Australian Trade Commission where His Honour made reference to an accrued right being "something in the nature of a cause of action".
[29] Finally, TAFE Q re-iterated that because its appeal against the Commission's initial decision had been allowed in full, including the Commission's earlier decision to refer the matter to arbitration pursuant to section 149(1)(b), there was no accrued right which QTU could seek to enforce.
Consideration and conclusion
[30] The appeal against the whole of my decision of 30 July 2013 having been allowed, it is clear that the decision I made at that time to refer QTU's unresolved claim for a new Educational Employees CA to arbitration, pursuant to section 149(1)(b) of the then Act (see paragraph [32] of that decision), is taken to have never been made.
[31] As such, and as all of the parties agree, the sole issue for determination in the present proceedings is whether the Commission's jurisdiction to determine QTU's claim by arbitration "was engaged under section 149 of the pre-amended Act" before the introduction day (see section 831(1)(a)).
[32] After considering the submissions of the respective parties and the cases to which I have been referred, I have come to the view that:
the Commission's jurisdiction to determine QTU's claim for an Educational Employees CA by arbitration was not engaged under section 149 of the pre- amended Act; and QTU does not have an accrued right to pursue its claim for the proposed CA by
way of arbitration in accordance with section 831 of the Act.[33] As noted in paragraph [30] above, the decision I made on 30 July 2013 to refer QTU's
claim to arbitration was overturned on appeal and is taken to have never been made.
Further, and importantly in the overall circumstances, my decision was based upon my
(incorrect) view at that time that any attempt by DETE to conduct a ballot of employees
to be covered by the Certified Agreement it proposed "would be null and void and of no
10
effect" . Had I not held that view I would have allowed DETE to conduct its proposed ballot. [34] Accordingly, for the Commission's jurisdiction to determine QTU's claim by arbitration to have been "engaged" under section 149 of the pre-amended Act before 17 October 2013, one of two circumstances must exist. Either, the Commission acquired jurisdiction to determine the matter by arbitration before 17 October 2013 or QTU possesses an "accrued right", within the meaning of section 20 of the Interpretation Act, to pursue its claim.
[35] The first issue can be disposed of quite quickly. For the Commission's jurisdiction to determine QTU's claim for an Educational Employees CA by arbitration under section 149 to have been "engaged" there needs to have been a referral of that matter to arbitration pursuant to section 149(1), as it stood, before 17 October 2013. No such referral having been made, as a matter of law, prior to that date, the Commission's jurisdiction to determine the matter by arbitration was not "engaged" as required by section 831.
[36] In terms of whether QTU has an accrued right to pursue its claim for an Educational Employees CA, it is to be noted that its initial submission at [8], where it asks the Commission to exercise its discretion "again" to refer the matter to arbitration, somewhat contradicts the notion of an accrued right. In any event, the principal authority to which QTU referred me in support of its case does not support its argument.
[37] At paragraph [110] in Australand Corporation (Qld) Pty Ltd v Johnson[11] His Honour
[11]Keane J.A makes it clear that "…in the absence of a contrary intention, the Legislature
is not to be taken to intend to deprive those with a complete and enforceable right of the benefit of that right simply because the law's mechanisms of enforcement have not finally vindicated the accrued entitlement at the time of repeal." The question which arises, therefore, is whether section 831 of the Act evinces a contrary intention sufficient to negate the general right to continue to pursue a matter as provided in section 20 of the Interpretation Act?
[38] In my view, the answer is "Yes, it does.". This is because by including reference to the "introduction day" the Legislature can be taken to have created a clear distinction between those matters then before the Commission which can continue through the arbitration process from those that cannot. To continue through the arbitration process the Commission's jurisdiction to determine the matter by arbitration must have been engaged before the introduction day. Absent that element, any other matter then before the Commission is "stayed" until a modern award is made.
[39] This is the situation within which QTU's claim for an Educational Employees CA now finds itself. The Commission is estopped from progressing it because it was not, as a matter of law following DETE's appeal, referred for arbitration pursuant to section 149 of the Act before 17 October 2013 and the Commission no longer possesses the capacity to refer the claim to arbitration because of the effect of section 831 of the Act.
[40] I determine and Order accordingly.
Queensland Teachers Union of Employees v Department of Education, Training and Employment
(CA/2013/57) - Decision <
2
State of Queensland v Queensland Teachers' Union & Anor [2014] ICQ 012 [20].
3
Norbis v Norbis (1986) 161 CLR 513 [5] per Brennan J.
4
Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QCA 302; [2008] 1 Qd R 203.
5
Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QCA 302; [2008] 1 Qd R 203.
6
Esber v The Commonwealth of Australia and Another [1992] HCA 20.
7
Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QCA 302; [2008] 1 Qd R 203.
8
Hicks and Others v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483.
9
J.R. Exports Pty. Limited v Australian Trade Commission (1987) 14 FCR 161.
10
Queensland Teachers Union of Employees v Department of Education, Training and Employment
(CA/2013/57) - Decision <
Australand Corporation (Qld) Pty Ltd v Johnson & Ors [2007] QCA 302; [2008] 1 Qd R 203.
0
5
0