Walkley v Brisbane City Council

[2025] QIRC 264

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Walkley v Brisbane City Council [2025] QIRC 264

PARTIES:

Walkley, Hunter
Notifier

v

Brisbane City Council
Respondent

CASE NO:

D/2025/54

PROCEEDING:

Arbitration of industrial dispute

DELIVERED ON:

7 October 2025

MEMBER:

HEARD AT:

O'Neill IC

On the papers

ORDERS:

Questions as per paragraph [28] of these reasons for decision.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES –  ARBITRATION OF AN INDUSTRIAL DISPUTE – conciliation unsuccessful – matter referred for arbitration – where parties disagree as to appropriate question for arbitration – determination of question for arbitration.

LEGISLATION:

CASES:

Industrial Relations Act 2016, s 451

Adams v State of Queensland (Queensland Police Service) [2020] QIRC 110

Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No. 3) (2006) 182 QGIG 16

Reasons for Decision

Introduction

1. This industrial dispute concerns Mr Walkley ('the Notifier'), who is employed by the Brisbane City Council ('the Respondent'). The Notifier was subject to a disciplinary process following the receipt of a 'Please Explain' letter dated 30 January 2025.

2. Two allegations were put to Mr Walkley and later substantiated via a letter dated 18 March 2025. The Allegations were as follows:

   1.     Inappropriate and aggressive behaviour towards another employee in the workplace

   i.On 6 November 2024, it is alleged you demonstrated inappropriate and aggressive behaviour, by raising your voice and pointing a finger in the face of a colleague who spoke to you about unsafe behaviour when entering a Council worksite.

   ii.On 19 November 2024, it is alleged you behaved in an intimidating manner towards this same colleague by pointing your camera at them and appearing to take photographs.

   2.       Unsafe behaviour on a worksite

i.On 6 November 2024, it is alleged you entered a Council worksite in your personal vehicle, in an unsafe manner by entering the site, between witches' hats, at speed.

1. In the decision letter dated 18 March 2025, the Council advised that the letter served as a Final Warning to the Notifier and that his continued employment with Council would be dependent upon him complying with Council's Code of Conduct, Policies, Procedures and Zero Harm protocol.

2. The Notifier disputes Allegation 2 above and contends that his driving was not dangerous driving. That is the subject of the dispute between the parties.

3. The dispute was the subject of a conciliation conference before another member of the Commission, but unfortunately the dispute was not resolved. The matter is to be arbitrated.

4. The parties were unable to agree on questions for arbitration. Therefore, I issued a Directions Order for the filing of submissions by each party in support of their proposed question/s.

5. The Industrial Relations Act 2016 ('the IR Act') provides that the Commission has the power to do all things necessary or convenient to be done in the performance of its functions.[1]

   [1] Industrial Relations Act 2016, s 451(1).

6. I will determine firstly whether there is a preliminary issue to be determined prior to the question for arbitration being settled, and if not, the questions for arbitration.

   The Proposed Questions

7. The Notifier proposes the following question:

   My question for the Commission is whether driving at 20kph into a totally empty space of approximately 100 square metres immediately after determining that the space was totally empty and stopping in the middle of that totally empty space 2 seconds later can be legitimately dangerous.

8. The Council proposes the following questions:

   1. Is the subject matter of this proceeding an 'Industrial Dispute' for the purposes of Chapter 6 of the Industrial Relations Act 2016 (Qld) such that the Commission has jurisdiction to arbitrate it?

   2.       If the answer to Question 1 is "yes", considering the employer's well-established and important responsibilities to manage the safe operation of its business and premises, and its managerial prerogative as to how it does so, is the subject matter of this dispute such a significant departure from ordinary accepted standards that it warrants the Commission's intervention?

Submissions

1. In support of his position, the Notifier submits that:

   ·He is wishing for a chance to correct a miscarriage of justice.     
   
   

   ·        He entered an empty space of 6 metres in width and approximately 17 metres in length in a car with well-maintained brakes at jogging speed and stopped the car in the middle of that space two seconds later.        
   
   

   ·        The closest person to that space was about 18 metres away and stationary, as were the next four closest people. It wasn't possible for anyone to get in front of me in the 2 seconds before the car stopped.

   ·        The Council should adjudicate matters with the same parameters as a civil court, however, despite the likelihood of probability that I would be struck in the head and killed by a bullet or small meteorite in the 2 seconds it took me to enter that space and stop is a Googleplex, the Council did not accept that there was no danger.

2. In support of its question, the Council submits that:

   ·      Both questions are important threshold questions to determine whether the Commission has jurisdiction to hear and make orders to determine the matter.

   ·        In his Form 10 – Notice of Industrial Dispute the Notifier purports that the dispute is brought pursuant to section 261 of the Industrial Relations Act 2016 (Qld) ('the IR Act') however, he has failed to establish whether the subject matter of the Notice is an 'industrial matter' or further that the dispute itself is an 'industrial dispute.

   ·        The Council contends that the Notifier has not established, either in the Form 10 Notice or subsequently, whether the subject matter of the Notice is an 'industrial matter' and further whether the dispute itself is an 'industrial dispute', as is necessary to enliven the Commission's dispute jurisdiction under Chapter 6 of the IR Act.

   ·        The Council further contends that resolving the point of contention as to whether the subject matter of the dispute is an industrial dispute is a necessary pre-requisite to establishing the Commission's jurisdiction to arbitrate the matter, and from an efficiency standpoint may obviate the need for the Council's section question (or any subsequent questions) to be considered.

   ·        In relation to Question Two, Deputy President Merrell in Adams v State of Queensland (Queensland Police Service)[2] held:

   [2] Adams v State of Queensland (Queensland Police Service) [2020] QIRC 110, [65]-[66].

   The approach of industrial relations tribunals in Australia in respect of the arbitration of industrial disputes involving the exercise of managerial prerogative is settled.

   If an employer's exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal, acting as an arbitrator of a dispute, in interfering with what would otherwise be a lawful exercise of managerial prerogative, is for the tribunal to examine all the facts and not to interfere with the right of an employer to manage its own business unless the employer is seeking from the employees something which is unjust or unreasonable.’ (emphasis added)

   ·        The Respondent contends that in reliance on the Adams decision, the impugned management action which is the subject of the dispute, was a lawful and reasonable exercise of managerial prerogative directed towards matters of health and safety. The Respondent further contends, that following the line of authority in Adams, there is no basis for the Commission to interfere with the Respondent's right to manage its business by intervening in the subject matter of the Notice.      
   
   

   ·        The Respondent then submits that the Notifier, by his own proposed question appears to be seeking the Commission step into the shoes of the Respondent and conduct an independent merits review of what the Respondent alleges is the Respondent's lawful management decision, based solely on the Notifier's apparent personal dissatisfaction with the outcome.                   
   
   

   ·        The Respondent then submits that this does not amount to a satisfactory basis to justify the Commission accepting the Notifier's invitation to intervene, and rather than proceed to a substantive hearing, the Commission should first conduct a jurisdictional hearing to hear and determine the Respondent's threshold questions.  
   
   

   ·        The Respondent contends that the obstacles faced by the Notifier in respect of Question One and Question Two are such that there is unlikely to be any need for further questions, and the Respondent's questions should be accepted as the two final questions for arbitration.    
   
   

   Consideration

3. I do not consider that the draft question for arbitration proposed by the Notifier is a proper question to be arbitrated. 
   
   

4. The Respondent in its submission has raised a preliminary jurisdictional issue as to whether the dispute is in fact an "industrial dispute" within the meaning of the IR Act at all.
   
   

5. The Commission has not had the benefit of detailed submissions from either of the parties on that threshold jurisdictional issue. It would clearly not be appropriate for that issue to be determined prior to both parties being afforded procedural fairness and having the opportunity to provide submissions to the Commission as to their respective positions.
   
   

6. The Respondent further contends that the Notifier seeks to effectively have the Commission step into the Respondent's shoes to conduct a merits review, based solely on the Notifier's apparent personal dissatisfaction with the outcome.   
   
   

7. In making that submission the Respondent has not cited any authority as to the powers of the Commission in conducting an arbitration and the nature of the review to be undertaken by the Commission. Addressing that issue will clearly be relevant to the issue as to whether the matter is an "industrial dispute" and whether the Commission's jurisdiction to arbitrate the matter is enlivened.   
   
   

8. The Respondent having raised the threshold issue is entitled to be heard on its contention that the matter is not an industrial dispute and as a consequence the Commission does not have jurisdiction to arbitrate the matter pursuant to s 262(3)(b) of the IR Act.
   
   

9. The Commission therefore accepts that the first question proposed by the Council is an appropriate question for arbitration.         
   
   

10. In relation to the second question proposed by the Respondent, there appears to be a live issue as to whether the management action taken by the Respondent in response to the actions of the Notifier on 6 November 2024 was the exercise of a managerial prerogative.
    
    

11. In Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No.

    3),[3] Commissioner Asbury relevantly stated:

    As Justice Wright noted in Re Appeal From Determination of Public Service Arbitrator (Re Shift Work) (1969) 128 CAR 319 at 320, the Commission has throughout its existence acknowledged the right of an employer to manage and regulate its own business, subject to the protection of employees from unjust or unreasonable demands. Citing this case as a Full Bench of the Australian Conciliation and Arbitration Commission in AFULE v State Rail Authority of NSW (1984) 295 CAR 188 dealing with "manning" of XPT trains, said (at 181) that the proper test in such cases is for the Commission to examine all the facts,
    

    [3] (2006) 182 QGIG 16.

    [4] Ibid, 711.

    and not to interfere with the right of an employer to manage its own business, unless the employer was seeking from employees something that was unjust or unreasonable.[4]

12. I further accept the Respondent's submission as to the applicability of the decision of his Honour, Deputy President Merrell in Adams v State of Queensland (Queensland Police Service)[5] to the current circumstances.             
    
    

    [5] [2020] QIRC 110.

13. I am therefore satisfied that the second question posed by the Council is an appropriate question for determination in the arbitration.     
    
    

14. It is clear from the submission provided by the Notifier and the Notifier's proposed question for arbitration that he considers that the substantiation of Allegation Two in the Respondent's correspondence dated 18 March 2025 was not a fair and reasonable decision.
    
    

15. The basis of his discontent with that outcome is his strongly held view that he did not drive his vehicle in an unsafe manner (as alleged by the Respondent) on 6 November 2024.
    
    

16. To enable both parties to address that issue, and subject to the outcome of the determination of the first two questions for arbitration, the third and final question for arbitration in my view should be:

    "If the answer to Question 2 is yes, was it fair and reasonable for the employer to find that Allegation Two was substantiated and that the actions of the Notifier on 6 November 2024 were in breach of the employer's Zero Harm Policy."

1. I am satisfied that the proposed third question will enable the Notifier to address his concerns with the disciplinary process undertaken by the Respondent.   
   
   

2. In light of the above, I make the following Order:

   Order:

   The questions to be arbitrated are:

   1. Is the subject matter of this proceeding an 'Industrial Dispute' for the purposes of Chapter 6 of the Industrial Relations Act 2016 (Qld) such that the Commission has jurisdiction to arbitrate it?

   2.       If the answer to Question 1 is "yes", considering the employer's well-established and important responsibilities to manage the safe operation of its business and premises, and its managerial prerogative as to how it does so, is the subject matter of this dispute such a significant departure from ordinary accepted standards that it warrants the Commission's intervention?

   3.       If the answer to Question 2 is yes, was it fair and reasonable for the employer to find that Allegation Two was substantiated and that the actions of the Notifier on 6 November 2024 were in breach of the employer's Zero Harm Policy.