State of Queensland v Queensland Teachers' Union
[2014] ICQ 12
•20 May 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
State of Queensland v Queensland Teachers’ Union & Anor [2014] ICQ 012
PARTIES:
STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION, TRAINING AND EMPLOYMENT)
(appellant)
v
QUEENSLAND TEACHERS’ UNION OF EMPLOYEES
(first respondent)
TOGETHER QUEENSLAND INDUSTRIAL UNION OF EMPLOYEES
(second respondent)CASE NO/S:
C/2013/33
PROCEEDING:
Appeal
DELIVERED ON:
20 May 2014
HEARING DATE:
24 February 2014
MEMBER:
Martin J, President
ORDERS:
1. Appeal allowed
2. That the matter be remitted to the Commission to proceed according to law and in accordance with these reasons
CATCHWORDS:
INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – CERTIFICATION OR APPROVAL – where the Commission referred a proposal for a new Certified Agreement to arbitration – where the appellant sought to negotiate with a different group of employees, some of whom were potentially affected by the “matter” referred to arbitration – where the Commission held that such negotiations were unable to proceed by reason of s 149 of the Industrial Relations Act 1999 then in force – whether the appellant’s proposed negotiations were part of the “matter” referred to arbitration by the Commission
Industrial Relations Act 1999, s 147A, s 149, s 230, s 232
CASES:
APPEARANCES:
J E Murdoch QC instructed by Minter Ellison for the appellant
J W Merrell instructed by Tresscox for the respondent Queensland Teachers Union of Employees
K McKay for Together Queensland Industrial Union of Employees
On 30 July 2013 a Deputy President of the Commission held that s 147A(8) of the Industrial Relations Act 1999 (the Act)[1] applied to a proposal by the appellant for a certified agreement, and that as a result, the appellant was not able to ask employees to approve the proposed agreement in accordance with the other provisions in s 147A. This appeal concerns the operation of s 147A and 149 of the Act and the meaning of “matter” as used in those sections.
[1]Section 147A and other sections in Part 6 of the IR Act were substantially amended by the Industrial Relations (Fair Work Act Harmonisation No 2) and Other Legislation Amendment Act 2013. Those amendments commenced operating on 1 December 2013.
The appellant has referred to itself in the proceedings in this Court and before the Commission as the Department of Education, Training and Employment (“DETE”). That is, no doubt, a convenient way to describe the “employer” but it is inaccurate. The Department is not an entity capable of employing anyone. The employing entity will be either the State of Queensland or, in some limited circumstances, the Director-General of the Department. That fact should be recognised in all documents relating to departments of the government of the State of Queensland. I have amended the title in this appeal to reflect that.
In order to understand the questions which arise in this appeal it is necessary to have reference to the history of the interaction among the various parties. That history is conveniently set out in the Deputy President’s reasons which I reproduce here:
“25 March 2013
QTU wrote to DETE, as required by s. 143 of the Act, advising of its desire to commence formal negotiations for a new agreement to replace the Department of Education, Training and Employment TAFE Educational Employees Certified Agreement 2012 (the Educational Employees CA), which was due to expire on 30 June 2013;
8 April 2013
DETE wrote to QTU and Together Queensland (TQ), as required by s. 143 of the Act, advising of its desire to commence formal negotiations for a replacement Educational Employees CA;
8 April 2013 to 13 June 2013
QTU, TQ and DETE participated in seven meetings in relation to the content of the proposed CA;
19 June 2013
DETE wrote to QTU, TQ, United Voice Industrial Union of Employees, Queensland (UV), Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland (CFMEU), the Electrical Trades Industrial Union of Employees, Queensland (ETU) and Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland (AMWU), pursuant to s. 143 of the Act, inviting those organisations to negotiate a new certified agreement, as a single bargaining unit (SBU), in light of the proposed TAFE Queensland Act 2013 and the impending formation of TAFE Queensland as a statutory body. In its letters DETE advised that the proposed certified agreement would cover all award-based TAFE Queensland Employees employed in TAFE institutes and the TAFE parent entity;
3 July 2013
TQ wrote to DETE informing it that the Union did not support DETE’s proposal for a single certified agreement to cover all TAFE employees. In its correspondence, TQ noted that non-teaching employees of TAFE Queensland are the subject of s. 149 proceedings (CA/2012/289) in QIRC’s arbitration of the State Government Departments Certified Agreement (the Core Agreement). TQ also said “Should the Department continue to pursue this option we expect that application will be made to the Full Bench of the Queensland Industrial Relations Commission to withdraw relevant TAFE employees from the Core arbitration. Please be advised that Application will be resisted.”
10 July 2013
DETE wrote to both QTU and TQ notifying them of the withdrawal of its proposal for an Educational Employees CA under the previous s. 143 notification dated 8 April 2013, effective immediately;
15 July 2013
QTU lodged its declaration of breakdown in negotiations and request for assistance, pursuant to s. 148(1)(a) of the Act.”
At the hearing before the Deputy President the QTU asked the Commission to act pursuant to s 149(1)(b) of the Act and formally determine that further conciliation would not result in the matter being settled within a reasonable time and to refer the matters at issue between itself and the appellant to arbitration.
The legislation
Section 147A (as it stood prior to the amendments of late 2013) provided that an employer could ask employees to approve a proposed agreement which was being negotiated with an employee organisation. The section sets out certain requirements for that to occur but, in s 147A(8), it provides:
“(8) If the commission has jurisdiction to arbitrate the matter under section 149, this section stops applying and anything being done under this section ends.”
Section 149, as it previously stood, applied in circumstances where conciliation had been unsuccessful. In order to understand the arguments of the parties and to assist with the determination of the meaning of the word “matter” used in s 147A(8), it is necessary that this section be set out in full:
“(1) This section applies if—
(a) the commission considers conciliation has not been successful because industrial action—
(i) has been protracted; or
(ii) is threatening, or has caused, significant damage to—
(A) the economy or local community, or part of the economy; or
(B) a single enterprise; or
(C) employees; or
(iii) is threatening to endanger, or has endangered, the personal health, safety or welfare of the community or part of it; or
(b) the commission considers it is not likely that further conciliation will result in the matter being settled within a reasonable time, considering, among other things, the history of industrial relations in the enterprise or industry to which the proposed agreement is to relate; or
(c) all the negotiating parties consider conciliation has been unsuccessful and ask the commission to determine the matter by arbitration.
(2) To determine the matter by arbitration—
(a) the commission has the arbitration powers that it would have under section 230 if that section applied to certified agreement negotiations instead of industrial disputes; and
(b) the commission may give directions or make orders of an interlocutory nature.
(3) Industrial action organised, or engaged in, while the commission determines the matter by arbitration is not protected industrial action for section 174.
(4) In exercising the arbitration powers, the commission must limit its consideration to the matters at issue during negotiations for the proposed agreement.
(5) In considering the matters at issue, the commission must consider at least the following—
(a) the merits of the case;
(b) the likely effects of the commission’s proposed determination, and any matters agreed before arbitration, on employees and employers who will be bound by the proposed determination;
(c) the public interest, and to that end the commission must consider—
(i) the objects of this Act; and
(ii) either—
(A) for a matter involving a public sector entity—the State’s financial position and fiscal strategy, and the financial position of the public sector entity; or
(B) for any other matter—the employer’s financial position;
and the likely effects of the commission’s determination on those things; and
(iii) the likely effects of the commission’s determination on the economy and the community;
(d) the extent to which the negotiating parties have negotiated in good faith.
(6) The commission must publish its reasons when determining a matter under this section.
(7) The reasons must address each of the things the commission considered under subsection (5) and, for each thing, must—
(a) set out the commission’s findings on material questions of fact; and
(b) refer to the evidence or other material on which those findings were based.
Note—
See also the Acts Interpretation Act 1954, section 27B.(8) The full bench may establish principles about the arbitration of certified agreements.
(9) After the principles have been established, the commission must exercise its power to arbitrate in a way that is consistent with the principles.
(10) Unless all the negotiating parties agree, the commission as constituted for the conciliation can not exercise the arbitration powers mentioned in this section.
(11) In this section—
public sector entity—
(a) includes an entity that is—
(i) a department; or
(ii) a public service office; or
(iii) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; or
(iv) a part of an entity mentioned in subparagraph (i), (ii) or (iii); but
(b) does not include—
(i) a local government; or
(ii) a local government owned corporation, or a subsidiary of a local government owned corporation, under the Local Government Act 2009; or
(iii) a parents and citizens association formed under the Education (General Provisions) Act 2006.”
The reasoning of the Commission
For the purposes of this appeal, it is possible to identify three groups of employees. First, there are those subject to the Educational Employees CA. These were referred to by the deputy President as “teachers” and I will adopt that description. Secondly, there are employees covered by the Core Agreement (and the proposed new Core Agreement) – “the core employees”. Those two groups do not overlap. Thirdly, there is an identifiable group within the core employees group who are award-based TAFE employees.
So far as the employees who were proposed to be subject to the new Core Agreement were concerned, some of them would also be subject to the separate agreement proposed by the appellant. This overlap was illustrated by a Venn diagram that formed part of the Deputy President’s reasons. Within the group of employees covered by the current Core Agreement is a subgroup of “non-educational employees” employed in TAFE. Those employees would, under the proposal advanced by the appellant, be covered by the same certified agreement as the teachers employed in TAFE. The Deputy President held that the non-educational employees in TAFE could not be part of the appellant’s proposed single TAFE award-based employees’ certified agreement unless they were “extracted” from the core arbitration proceedings. This, the Deputy President said, could not happen without the consent of the relevant unions and/or the approval of the Full Bench.
After considering the submissions of the parties, the Deputy President arrived at the following synthesis:
“[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;
• 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 [United Voice] support DETE’s proposal for a single certified agreement covering all of TAFE’s award-based employees.”
On the basis of that analysis, the Deputy President arrived at the following conclusions:
“[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) as well as the position that something in the order of fifty percent of the employees DETE proposes to ballot, in relation to it’s [sic] 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.”
The Deputy President then made the following finding and direction:
“[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’ [sic] (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).”
What is a “matter” in s 147(8)?
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)).
The “matter” referred to in s 147(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.
More importantly, there is nothing in s 147 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?
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
There are four grounds of appeal advanced by the appellant.
The first is that the Deputy President erred in referring the claim by the appellant for an agreement which would cover all TAFE Queensland employees to arbitration. The “matter” which was referred by the Deputy President was that which commenced with the QTU seeking to replace the Educational Employees CA. He did not refer the claim made by the appellant to arbitration.
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.
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.
It was argued for the appellant that the “matter” referred by the Deputy President to arbitration should not have been referred because there was a possibility that a part of it, namely, the part which related to TAFE employees, might be settled pursuant to the proposal of the appellant. But that argument is inconsistent with the other argument mounted by the appellant, and accepted in these reasons, that there were separate “matters”. 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.
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.
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
The appeal is allowed. I remit the matter to the Commission to proceed according to law and in accordance with these reasons.
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