Together Queensland, Industrial Union of Employees v State of Queensland (Department of Housing, Local Government, Planning and Public Works)
[2025] QIRC 33
•5 February 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Together Queensland, Industrial Union of Employees v State of Queensland (Department of Housing, Local Government, Planning and Public Works) [2025] QIRC 033 |
PARTIES: | Together Queensland, Industrial Union of Employees v State of Queensland (Department of Housing, Local Government, Planning and Public Works) |
CASE NO: | D/2023/115 |
PROCEEDING: | Interlocutory Application |
DELIVERED ON: | 5 February 2025 |
MEMBER: HEARD AT: | Hartigan DP On the papers |
ORDER[S]: | 1. The Application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – OTHER MATTERS – notification of industrial dispute – conciliation unsuccessful – referred to mediation – application in existing proceedings – application for Commission to act as mediator in industrial proceedings with the Commission to determine any outstanding matters in dispute – whether the Commission, when acting as a mediator in a matter pursuant to s 263 of the Industrial Relations Act 2016 (Qld) has the power to resolve the matter in dispute by issuing a binding order on the parties – consideration of Commission’s powers under r 181 of the Industrial Relations Tribunals (Rules) 2011 (Qld) – mediation distinct from an arbitration of the industrial cause – finding that it is not within the powers or functions of the Commission to make an arbitrated outcome within a mediation process under s 263 of the Industrial Relations Act 2016 (Qld) – application dismissed. |
LEGISLATION: CASES: | Acts Interpretation Act 1954 (Qld) s 14A Industrial Relations Act 2016 (Qld) ss 261, 262, 263, 264, 265, 313, 314, 447, sch 5 Industrial Relations (Tribunals) Rules 2011 (Qld) r 181 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Limited (1985) 157 CLR 309 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Queensland Teachers Union of Employees v Department of Education (2000) 164 QGIG 268 Queensland Rail v The Electrical Trades Union of Employees and Ors (2006) 181 QGIG 161 The Queensland Public Sector Union of Employees v Queensland Health (Queensland Industrial Relations Commission, Asbury IC, 9 October 2007) R v A2 (2019) 269 CLR 507 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 |
Reasons for Decision
On 1 December 2023, Together Queensland, Industrial Union of Employees ('Together') lodged a dispute in the Industrial Registry in respect of accrued time entitlements for certain employees.
The Commission subsequently listed the matter for conciliation. Following several conciliation conferences, Together filed an application seeking that the Commission act as a mediator in the matter but further requested that if the parties could not reach agreement then the Commission, acting as mediator, issue binding orders resolving the dispute. Instead, they seek to engage in a hybrid mediation and arbitration process which they contend the Commission is empowered to conduct pursuant to s 263 of the Industrial Relations Act 2016 (Qld) ('IR Act').
The issue to be determined in this application is whether the Commission, when acting as a mediator in a matter pursuant to s 263 of the IR Act, has the power to hear and receive evidence and resolve the matter in dispute by issuing a binding order on the parties.
This issue has arisen in the context of this dispute, where for reasons that have not clearly been articulated by the parties, they do not wish to engage in the typical process of conciliation at first instance, followed by an arbitration if the matter remains in dispute following conciliation.
Relevant Background
The subject matter of the dispute was set out in the Notice of Industrial Dispute as follows:
1. The dispute is in respect of accrued time entitlements for employees who were previously engaged under the QBuild Office Staff Certified Agreement 2019 and now engaged under the State Government Entities Certified Agreement 2023.
2. Each department has an hours of work arrangement pursuant to schedule 3 of the Queensland Public Service Officers and Other Employees Award – State 2015. At all time the hours of work arrangement enabled approval of carryover of excess hours to 5 days accrued time.
3. For a number of years employees had been entering their record of time worked and these records were approved.
4. In these records there was carryover of accrued time in excess of 5 days.
5. There was a proposal from the Department upon moving from the Ellipse Payroll system to the Aurion payroll system to alter the accrued leave balances to removing any accrued time balance in excess of 36.25 hours.
6. Employees who have had their attendance record placed into the existing records can only have this done if so approved.
7. There is no basis at law to alter those approved attendance records at a later stage.
8. Employees have been denied approval to avail themselves of accrued time and restrictions have been placed on the time each employee could take off in a work cycle.
9. We seek the assistance of the Commission to resolve the dispute between the parties so that the accrued time entitlements provided as compensation for work in excess of employees standard hours remains available to the employees and that they have reasonable excess to entitlements.
The parties participated in several conciliation conferences with respect to the dispute. During this process, the parties agreed that it would be beneficial to the resolution of the dispute for the parties to participate in a mediation process under s 263 of the IR Act.
Following the second conciliation conference, the parties formally requested that the Commission act as a mediator and jointly provided a Terms of Reference to the Industrial Registry which was said to be in accordance with r 181 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('IR Rules'). However, the Terms of Reference contained a proposal that if the parties could not reach a negotiated outcome, the mediator could resolve the outstanding matters in dispute, in the following terms:[1]
[1] Email Correspondence to the Industrial Registry received from the Respondent dated 22 March 2024 (emphasis added).
The following terms of reference have been agreed to by both parties in good faith to resolve the matters subject of the Notice of Dispute (D/2023/115):
1. The parties will endeavour to reach agreement where possible in respect of the following:
a.For the 160 employees who do not, at the time of mediation, have access to their entire preserved ATL balance (refer to Attachment 1), an agreed balance of preserved ATL hours for these employees to access.
b.A timeframe in which the employees (refer to Attachment 1) will have to use the ATL hours agreed to in 1a.
c.That the ATL balances agreed to in 1a will be used by the timeframe agreed to in 1b, except in exceptional circumstances.
d.Subject to an agreement of 1a and 1b, an agreed set of principles to assist managers and employees to develop a management plan to use their ATL balances.
e.Alternative arrangements that may be available for any employee who is unable to use their ATL balances by the agreed timeframe.
f.The process in which an employee may apply for alternative arrangements.
g.Circumstances where an employee leaves QBuild prior to using the agreed ATL balance within the agreed timeframe.
2. Where the parties cannot reach agreement on a matter listed above (1a – g), the mediator will determine the outcome of the unresolved matter.
3. The parties agree that the resolution of the matters between the parties for any matter listed in 1a-g, including those that has been determined by the mediator will be documented in a deed of settlement.
4. The parties agree that any disputes in relation to the implementation of outcomes arising from the mediation will be resolved utilising the Queensland Industrial Relations Commission.
5. The parties agree to accept any resolution achieved by the process as required under section 181(2) of the Industrial Relations (Tribunals) Rules 2011.
On 18 April 2024, the Commission convened a conference. During the course of the conference, the Commission indicated that it was agreeable to act as a mediator but questioned the power of the Commission to determine and resolve the dispute by issuing binding orders on the parties under the veil of mediation.
On 21 June 2024, Together filed an interlocutory application seeking:
That the Commission agrees to deal with the matters subject to dispute pursuant to s 263 of the Act in accordance with the process agreed by the parties and set out in Schedule A.
Schedule A to the application is attached as an appendix to these reasons and marked Appendix A.[2]
[2] See Appendix A.
Appendix A sets out a proposed process with the parties agreeing to be bound by a determination issued by the Commission at the conclusion of the process. The process includes consideration of a Statement of Agreed Facts and other "evidence", an opportunity to call witnesses and for them to be cross-examined as matters to be considered, inter alia, by the Commission in making an ultimate determination about the matters in dispute.
The Respondent agrees with the orders sought by Together.
Together submits that s 263 of the IR Act permits the Commission to accept an appointment as a "private mediator" and, should an agreement be unable to be facilitated, determine any outstanding matters with finality on the basis that:
(a)Section 263 proceeds on the basis that when acting as a mediator, there may not be any specific legislative basis that permits the Commission to decide the matters the subject of the mediation.
(b)Whilst the ordinary meaning of the word mediation involves a process of assisted negotiation rather than binding determination, s 263 must be construed having regard to its text and the context in which it occurs.
(c)An important part of the context for s 263 is s 262(3), which provides that the Commission may resolve industrial disputes by either conciliation and/or arbitration; if mediation were to have its ordinary meaning, then the power would overlap with the powers conferred in s 262(2).
(d)The preconditions for the Commission acting as a mediator are either the agreement of the parties or the Commission’s satisfaction that it is in the public interest to do so. This suggests that mediation is a flexible concept broad enough to encompass either a consensual or, in the case of important industrial causes, a non-consensual process.
(e)One of the functions performed by s 263 is a statutory authorisation for members of the Commission to conduct an alternative dispute resolution process that is tailored to the circumstances before it irrespective of whether the Commission has any jurisdiction to resolve the matter.
(f)This reading is confirmed by r 181 of the IR Rules. Rule 181(1) identifies the traditional types of mediation the Commission may engage in. Rules 181(2)-(6) also embrace the prospect that the parties might agree, between themselves, to be bound by a determination from the Commission acting as a mediator. Ultimately, the presence of r 181(2) does not mean that the Commission is exercising any form of statutory power or jurisdiction when acting as a mediator. The source of the Commission’s power to resolve the matters agreed between the parties arises from the parties’ agreement.
(g)The reference to "consenting to any formal orders" in r 181(2) must go beyond what are commonly referred to as "consent orders" which are routinely issued in the resolution of disputes under s 262.
(h)Section 263, read in conjunction with r 181(2), allows for parties to agree to a process that includes the Commission issuing orders, that they consent to be bound by, to resolve "other outstanding issues" that remain after the functions encompassed under r 181(1) are exhausted.
(i)It is submitted that such a process provided by s 263 and r 181 is a hybrid process sometimes referred to as mediation arbitration ('med-arb').
(j)The Commission in resolving outstanding issues in proceedings pursuant to s 263 is performing a private arbitration as distinct to a statutory arbitration; s 263 is the enabler for that private arbitration to occur.
The submission made in subparagraph (i) above, was supplemented in Together's submissions by a copy of a publication published by the Law Council of Australia in October 2022, titled "Med-Arb Commentary: A Guide for Legal and ADR Practitioners".[3]
[3] The Law Council of Australia, Med-Arb Commentary: A Guide for Legal and ADR Practitioners (Commentary, October 2022) ('The LCA Guide').
The LCA Guide states that the purpose of producing the guide is to assist legal practitioners in utilising the hybrid process of 'med-arb'.[4]
[4] Ibid 3.
The LCA Guide notes that the term 'med-arb' is not a precisely defined term as it has many practice variables. The LCA Guide referred to a definition provided by the National Alternative Dispute Resolution Advisory Council for "combined or hybrid dispute resolution processes" which were described as, "processes in which the dispute resolution practitioner plays multiple roles. For example, in conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration)."[5]
[5] National Alternative Dispute Resolution Advisory Council, Dispute Resolution Terms, (Paper, September 2003).
The LCA Guide notes that the use of med-arb in Australia remains relatively low. Examples referred to in the LCA Guide of med-arb procedures in Tribunals in Australia relate to small claim disputes in the Australian Capital Territory and Victoria.[6]
[6] The Australian Capital Territory Civil and Administrative Tribunal uses a "conference and immediate determination" process for claims of less than $3,000. The Victorian Civil and Administrative Tribunal uses a "Fast Track Mediation and Hearing Process" for civil claim disputes of up to $10,000. The 'med-arb' process referred to in the LCA Guide is distinct from the conciliation and arbitration process set in s 262 and the mediation process set out in s 263.
As will become apparent after my consideration of the construction of the statutory scheme, the med-arb processes referred to in the LCA Guide are distinct from the conciliation and arbitration processes set out in s 262 of the IR Act and the mediation process set out in s 263 of the IR Act.
Together further submits that historically, during mediation processes convened by the Commission and in accordance with processes agreed to by parties, binding orders have been issued by the Commission to determine unresolved matters in dispute. Together refers to the following decisions in support of this contention:
(a) Queensland Teachers Union of Employees v Department of Education;[7]
(b) Queensland Rail v Electrical Trades Union of Employees;[8] and
(c) The Queensland Public Sector Union of Employees v Queensland Health.[9]
[7] (2000) 164 QGIG 268.
[8] (2006) 181 QGIG 161.
[9] (Queensland Industrial Relations Commission, Asbury IC, 9 October 2007).
It is relevant to note that the decisions referred to in the sub-paragraph above are distinguishable from the current proceedings on the basis that the Commission did not, in those cases, undertake a consideration of the relevant statutory provisions in circumstances where the Commission's power to hear and determine the dispute in the course of the mediation was questioned.
Construction of the statutory scheme
The task of determining the powers of the Commission to hear evidence and issue binding orders resolving an industrial dispute when acting as a mediator pursuant to s 263 of the IR Act is a task of statutory construction.
The approach to be taken to ascertain the true meaning of words used is well settled.[10] The approach requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose.[11]
[10] R v A2 (2019) 269 CLR 507, [32] ('R v A2').
[11] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78]; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Limited (1985) 157 CLR 309.
The relevant principles with respect to statutory construction were considered and summarised in R v A2 as follows:[12]
[12] R v A2 (n 10) [32]-[37] (citations omitted).
[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
[35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
…
In SZTAL v Minister for Immigration and Border Protection the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:[13]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
…
[13] (2017) 262 CLR 362, [14] (citations omitted).
Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.
Consideration
Chapter 6 of the IR Act deals with Industrial Disputes.
Schedule 5 of the IR Act defines ‘industrial dispute’ to mean:
"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.
An ‘industrial matter’ is defined in sch 5 to mean:
(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 propose to be, or who may become, employers or employees; or
(c)a matter 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 a proceeding for–
(a)an indictable offence; or
(b)a public service appeal.
(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.
Section 261 provides that notice of an industrial dispute must be given to the Registrar as follows:
261 Notice must be given to registrar
(1) Subsection (2)applies if an industrial dispute–
(a)exists between–
(i)an employer organisation or employer; and
(ii)an employee organisation or employee; and
(b)remains unresolved after the parties to the dispute have genuinely attempted to settle the dispute.
(2) Each party to the dispute must immediately give the registrar written notice of the dispute.
(3) The notice–
(a)may be given by letter, facsimile, email or other means of written communication; and
(b)must state each of the following–
(i)the names of the parties to the dispute;
(ii)the place where the dispute exists;
(iii)the subject matter of the dispute;
(iv)anything else required by the rules.
Section 262 of the IR Act provides for the action that may be taken on an industrial dispute. Relevantly, this includes, inter alia, conciliation at first instance, and then arbitration if the Commission considers conciliation has failed. Section 262 of the IR Act is in the following terms:
262 Action on industrial dispute
(1) This section applies if—
(a)notice of a dispute has been given by a party under section 261 (2); or
(b)whether or not a notice of a dispute has been given under section 261 —the commission considers it is in the public interest to take action under this section in relation to the dispute.
(2) Subsection (1) (b)applies irrespective of whether the parties are attempting to resolve the dispute.
(3) The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by—
(a)conciliation in the first instance; and
(b)if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute—arbitration.
(4) Without limiting subsection (3), the commission may do 1 or more of the following—
(a)direct any industrial action in relation to the dispute to stop or not happen;
(b)make orders, or give directions, of an interlocutory nature;
(c)exercise the commission’s powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;
(d)make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.
(5) For proceedings for the dispute—
(a)the commission may name a party to the dispute as having carriage of the proceedings; and
(b)the party named has the carriage of the proceedings accordingly.
(6) This section does not affect the operation of an industrial instrument that imposes a duty on a party to the instrument in relation to industrial disputes.
Section 264 provides that, when taking action under s 262, the Commission must hold a conference as follows:
264 Compulsory conference
(1) This section applies if the commission, when taking action under section 262 in relation to a dispute, considers that holding a conference is desirable to prevent or settle the dispute.
(2) The commission may, by attendance notice, require a person to attend a conference at a stated time and place.
(3) A person may be required to attend the conference even though not directly involved in the dispute if the commission considers the persons presence would be conducive to the prevention of, or the prompt settlement of, the dispute.
(4) A person required to attend must–
(a)attend the conference at the stated time and place; and
(b)continue to attend as directed by the commission.
Note—
This subsection is a civil penalty provision.
Section 265 provides for the enforcement of the Commission’s orders as follows:
265 Enforcing commission’s orders
(1) The commission may direct an order about a dispute to—
(a)an organisation; or
(b)a person in a capacity as an officer or agent of an organisation; or
(c)any other person.
(2) If an order may be directed to an organisation or a person, the commission may direct the order to the person only after considering whether it would be more appropriate to direct the order to the organisation.
(3) An order must—
(a)if the order is made against a person—state the person’s name; and
(b)state a time for complying with the order; and
(c)direct any of the following to file an affidavit with the registrar within a stated time—
(i)the organisation or person to whom the order is directed;
(ii)the party to the proceedings who sought the order;
(iii)any other party to the proceedings the commission considers appropriate.
(4) An affidavit under subsection (3)(c) must state whether there has been compliance with the order and, if the order has not been complied with, the steps the person is aware of that have been taken to comply.
(5) The commission may extend a time stated under subsection (3)(b) or (c).
(6) At the end of the time stated or extended for filing an affidavit, the registrar must—
(a)examine all affidavits filed; and
(b)if not all affidavits required to be filed have been filed by that time—make all necessary further inquiries; and
(c)having examined the affidavits filed and made the inquiries necessary, decide whether there has been substantial compliance with the order.
(7) If the registrar is not satisfied that there has been substantial compliance with the order, the registrar must issue a notice (a show cause notice) under the rules calling on the organisation or person to whom the order was directed to show cause to the full bench at a stated time why the organisation or person should not be dealt with under section 266.
(8) In this section—
full bench means the full bench constituted by 3 or more members, 1 of whom must be the president, vice-president or a deputy president (court).
Separate to the conciliation and arbitration process, envisaged by s 262, the Commission may also act as a mediator in an industrial cause which is separately set out in s 263. "Industrial cause" is defined to include an industrial matter, an industrial dispute, a work-related matter under the Anti-Discrimination Act 1991 (Qld) and another matter within the jurisdiction of the Commission.[14] Accordingly, the use of the words "industrial cause" permits the mediation to involve matters that go beyond the subject matter of the industrial dispute. Section 263 is in the following terms:
[14] IR Act, sch 5.
263 Mediation by commission
The commission may act as mediator in an industrial cause, whether or not it is within the jurisdiction of the commission—
(a)on the request of the parties directly involved in the cause; or
(b)if the commissioner is satisfied mediation of the cause is desirable in the public interest.
Accordingly, where the Commission acts as a mediator in an industrial cause, it undertakes that role pursuant to the relevant statutory scheme. It does not act as a "private mediator" as Together submits.
The term 'mediator' takes its ordinary meaning. The Macquarie Dictionary defines the term to mean:[15]
1. someone who mediates.
2. someone who mediates between parties at variance.
[15] Macquarie Dictionary (online at 18 December 2024) ‘mediator’.
The term ‘meditate’ is defined to mean:[16]
1. to bring about (an agreement, peace, etc.) between parties by acting as mediator.
2. to settle (disputes, etc.) by mediation; reconcile.
3. to effect (a result), convey (a gift), etc., as or by an intermediary or medium.
4. to act between parties to effect an agreement, compromise, or reconciliation.
5. to occupy an intermediate place or position.
6. acting through, dependent on, or involving an intermediate agency; not direct or immediate.
[16] Macquarie Dictionary (online at 18 December 2024) ‘mediate’.
Accordingly, the ordinary meaning of the term suggest that the Commission, when acting as a mediator, acts between parties as an intermediary to effect an agreement, compromise or reconciliation with respect to the industrial cause.
Section 263(a) envisages that a mediation be conducted by the Commission on the request of the parties directly involved in the industrial cause. However, s 263(b) does also provide the Commission with the discretion to act as a mediator in an industrial cause if satisfied that it is in the public interest to do so.
In this matter, consistent with s 263(a), the parties have requested the Commission act as a mediator and each of the parties are willing to engage in a mediation.
Rule 181 of the IR Rules provides the steps the Commission may take as a mediator in an industrial cause under s 263 of the IR Act as follows:
181 Mediation by commission
(1) The steps the commission may take as mediator in an industrial cause under section 263 of the Act include conferring with the parties to the cause to the extent necessary—
(a)to help the parties resolve the matter or dispute; or
(b)to ensure all avenues of resolution have been explored before proceeding to arbitration; or
(c)to facilitate the conduct of any necessary arbitration proceedings by exploring ways of effectively conducting hearings; or
(d)to help the parties resolve any other outstanding issues.
(2) The commission may resolve other outstanding issues only if—
(a)the commission considers the mediation is desirable in the public interest; and
(b)all parties to the industrial cause—
(i)consent; and
(ii)agree on the specific issues to be dealt with in the consultation process; and
(iii)agree to accept any resolution achieved by the process, including consenting to any formal orders.
(3) The commission may direct a record be taken of the mediation.
(4) The consent of a party to the commission resolving other outstanding issues can not be withdrawn other than with the leave of the commission.
(5) The outcome of the mediation—
(a)may be incorporated in the record or issued separately in writing; and
(b)may be given effect—
(i)by an order of the commission; or
(ii)in another way the commission considers appropriate.
(6) The commission may stop acting under this rule at any time.
(7) This rule does not limit the jurisdiction of, or the obligations placed on, the commission under chapter 6, part 3 of the Act.
Accordingly, r 181 of the IR Rules provides guidance with respect to how a mediation by the Commission is to be conducted.
Rule 181(1) identifies the steps that may be taken by the Commission as a mediator. The steps include conferring with the parties, to the extent necessary:
(a)to help the parties resolve the matter or dispute; or
(b)to ensure all avenues of resolution have been explored before proceeding to arbitration; or
(c)to facilitate the conduct of any necessary arbitration proceeding by exploring ways of effectively conducting hearings; or
(d)to help the parties resolve any outstanding issues.
It is apparent from its terms, that r 181(1) envisages that steps taken by the Commission as mediator include conferring with the parties. The words "to help" referred to in sub-paragraphs (a) and (d) and the words "to facilitate" in sub-paragraph (c) provides the context of the type of role the Commission, as mediator, would take when conferring with the parties. The words "to help" and "to facilitate" support a conclusion that the Commission, as mediator, would take on a facilitative role to assist the parties in coming to, inter-alia, a resolution.
Rule 181(1)(b) and (c) refers to the mediation conference as proceeding any future arbitration process. This is because, those provisions suggest that the mediation conference could be used to ensure all avenues of resolution have been explored before proceeding to an arbitration or, alternatively, to explore ways the mediation might assist in the efficient conduct of any later arbitration hearing.
Rule 181(2) provides that other outstanding issues may be resolved if the Commission considers the mediation is in the public interest and if the parties to the industrial cause consent and agree to the process. This provision permits the mediation process to be more flexible and broad ranging insofar as the parties may attempt to resolve matters that go beyond the Industrial Dispute in an attempt to resolve all outstanding matters in an industrial cause between the parties.
Rule 181(4) provides that consent provided by a party in accordance with r 181(2) cannot be withdrawn other than with the Commission’s leave.
Accordingly, rr 181(1), 181(2) and 181(4) identify the process of the mediation, including by identifying that the Commission will mediate by conferring with the parties to facilitate a process exploring all avenues of potential resolution with the parties, to assist the parties in reaching a resolution of the industrial cause or to assist the parties to prepare for an arbitration hearing or in the resolution of any other outstanding issues.
Contrary to the parties' position, the mediation process referred to in r 181 does not provide a means whereby the Commission, as mediator, conducts a hearing including by taking evidence in the course of issuing a determination with respect to the matters in dispute.
Together appears to rely on r 181(5) as supportive of the Commission's power to determine the issues in dispute under the guise of mediation. Rule 181(5) provides that the outcome of the mediation may either be:
(a)incorporated in the record or issued separately in writing; or
(b)may be given effect by:
(i)an order of the Commission; or
(ii)in another way the Commission considers appropriate.
The words "the outcome of the mediation" must be considered in the context of the provision. These words refer to the outcome of the process provided for in r 181(1), r 181(2) and r 181(4). That is, an outcome of a process during which the Commission, acting as mediator, has facilitated or helped the parties come to.
Rule 181(5) provides for a means in which that outcome may be formalised.
Rule 181(5)(a) provides for the outcome to be "incorporated" so that it is noted and becomes part of the record, or alternatively, the outcome may be recorded in writing separately.
Relevant to this application, r 181(5)(b)(i) provides that the outcome of the mediation may be given effect by an order of the Commission. This would have the effect of making the outcome of the mediation operative and enforceable as an order of the Commission.
Rule 181(5)(b)(i) does not operate to provide the Commission with the power in the context of a mediation, to determine the issues in dispute in the industrial cause and issue binding orders. The process identified by r 181 envisages the Commission as mediator playing a facilitative role to assist the parties in reaching an outcome. If the parties do reach an outcome, then they may agree that the outcome be given effect to by an order being issued by the Commission.
This conclusion is supported when the provision is considered in the context of the IR Act as a whole. Section 447 provides for the Commission’s functions as follows:
447 Commission’s functions
(1) The commission’s functions include the following—
(a)establishing and maintaining a system of non-discriminatory modern awards that, together with the Queensland Employment Standards, provide for fair and just conditions of employment for employees;
(b)supervising the bargaining of agreements;
(c)certifying agreements;
(d)making bargaining awards;
(e)making modern awards;
(f)promoting cooperative and productive workplace relations;
(g)taking measures to prevent disputes;
(h)assisting parties to an industrial cause in negotiating or resolving a matter relevant to the cause, whether or not the matter is within the jurisdiction of the commission;
(i)resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order;
(j)resolving disputes in the negotiation of agreements—
(i) by conciliation; or
(ii) by arbitration, including by the making of determinations;
(k)resolving disputes over union coverage by making representation orders;
(l)resolving disputes by performing the functions conferred on the commission under a referral agreement;
(m)resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration;
(n)dealing with—
(i)applications brought under this Act or another Act, including for public service appeals; or
(ii)claims relating to dismissals;
(o)making declarations about industrial matters;
(p)any other function conferred on the commission under this Act or another Act.
(2) The commission must perform its functions in a way that—
(a)is consistent with the objects of this Act; and
(b)avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
The function of the Commission set out in s 447(1)(h) of the IR Act is consistent with the power of the Commission when acting as a mediator pursuant to s 263 of the IR Act. The function of the Commission in this instance is to assist the parties to an industrial cause to, inter alia, resolve a matter relevant to the cause whether or not the matter is within the jurisdiction of the Commission.
The function of the Commission referred to in s 447(1)(i) is to resolve disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order. Section 447(1)(i) of the IR Act is consistent with the function of the Commission when conciliating and arbitrating an industrial dispute pursuant to s 262 of the IR Act.
It is apparent that the statutory scheme provides for separate processes for parties to an industrial dispute to seek the assistance of the Commission, being conciliation and arbitration. The statutory scheme also provides for a separate process for parties in an industrial cause to request the Commission act as a mediator.
Neither the specific provisions, being s 262 and s 263 of the IR Act, nor the statutory scheme as a whole, support a conclusion that the mediation process provides for a hybrid "med-arb" process as suggested by Together. The statutory scheme recognises the conciliation and arbitration process and separately a mediation process.
Consistent with the statutory scheme, the parties to an industrial dispute may request that the Commission act as a mediator. Such a process is distinct from the conciliation process as not only does the Commission adopt a facilitative role when acting as a mediator, but a mediation is not limited to the subject matter of the industrial dispute and, with the consent of the parties, may include more broad matters in dispute between the parties.
It is clear by the terms of r 181(1) of the IR Rules, that should mediation fail, then the matter may proceed to arbitration as set out in s 262 of the IR Act. However, any arbitration process would be limited to deal only with the subject matter of the industrial dispute.
Having regard to my conclusion with respect to the operation of s 263 of the IR Act, and, given that several unsuccessful conciliation conferences have been convened with respect to the Industrial Dispute, the parties have two alternative avenues available to progress the dispute.
Firstly, if it is the case that the parties wish for an arbitrated outcome in which the Commission, in accordance with its powers and functions, makes a binding decision with respect to the matters the subject of industrial dispute, they may make such a request to the Commission. Alternatively, if the parties wish for the industrial cause to proceed by way of mediation in accordance with the provisions of the IR Act, they may similarly make such a request.
The application, in so far as the parties request that during the course of the mediation process the Commission hear and determine the issues in dispute, as set out in Appendix A, is dismissed.
Order
For the reasons set out above, I make the following order:
1. The Application is dismissed.
Appendix A
Schedule A
Agreed process to resolve D/2023/115 pursuant to s263 of the Industrial Relations Act 2016
The parties agree to the following process and to be bound by determinations made by the Commission in accordance with the process set out below.
The questions for determination are:
In consideration of:
1. the agreed facts and the parties’ submissions, including evidence; and
2. the relevant industrial provisions under the Queensland Public Service Officers and Other
Employees Award – State 2015 (or the relevant applicable award), State Government Entities
Certified Agreement 2023 and the relevant departmental Hours of Work and Accumulated Time Arrangements Policy,
For QBuild office staff employees who do not, at the time of the mediated determination, have access to their entire preserved ATL balance:
Question 1. What is an appropriate balance of preserved ATL, if any, that these employees are able to access?
Question 2. What is a reasonable time period for the employees to utilise the preserved ATL
determined above?
Question 3. If an employee leaves QBuild during the determined time period, what should occur with unused ATL balances?
Step 1. The Parties file a Statement of Agreed Facts and Actions that sets where the parties agree on facts relevant to the questions outlined above and agreed actions that have resulted from the mediation conference undertaken on 18 April 2024.
Step 2. The Notifier files written submissions and affidavits from relevant witnesses.
Step 3. The Respondent files written submissions and affidavits from relevant witnesses.
Step 4. The Commission may hold a hearing if cross examination of any witnesses are required.
Step 5. Following any hearing, the parties may provide further written submissions, if required.
Step 6. The Commission issues a determination addressing question 1.
Step 7. Concurrently, the Commission provides preliminary views addressing questions 2 and 3.
Step 8. The Parties consider the views of the Commission expressed during Step 6 and file further statements setting out:
i. Any consent position.
ii. Any residual matters of disagreement
iii. Final submissions regarding those matters of disagreement.
Step 9. The Commission issues a final order setting out agreed matters and making determinations on all outstanding matters. The outcome of the mediation is not incorporated in the record but is issued to the parties separately in writing.
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