Brisbane City Council v Queensland Services, Industrial Union of Employees [2017] QIRC 76

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brisbane City Council v Queensland Services, Industrial Union of Employees [2017] QIRC 076 PARTIES: BRISBANE CITY COUNCIL (appellant) v QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES (respondent) FILE NO/S: C/2017/14 C/2017/15 PROCEEDING: Appeal DELIVERED ON: 11 August 2017 HEARING DATE: 7 July 2017 MEMBER: Martin J, President Deputy President Bloomfield Commissioner Fisher ORDER/S: The appeal is dismissed. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – OTHER MATTERS – where the respondent made a number of applications to the Industrial Registrar for the approval of proposed industrial action – where the appellant contends that the proposed action does not constitute “industrial action” under the Industrial Relations Act 2016 (“IR Act”) – where the appellant submits that the IR Act obliges the Industrial Registrar to determine whether the proposed action falls within the definition of “industrial action” under the IR Act – whether the Industrial Registrar is obliged to make such a determination – whether the Industrial Registrar did in fact determine that the proposed action was industrial action – whether the Industrial Registrar was correct in her conclusion – where the appellant contends that the Industrial Registrar is obliged to notify the employer of an application and afford them an opportunity to respond to that application – whether the Industrial Registrar is subject to such an obligation – whether the Industrial Registrar complied with this obligation LEGISLATION: Industrial Relations Act 2016 s 233, s 235, s 236, sch 5 CASES: Ambulance Victoria v United Voice (2014) 245 IR 375 -- 1 of 11 -- 2 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 APPEARANCES: A Herbert instructed by Brisbane City Legal Practice for the appellant in each matter E White instructed by Hall Payne Lawyers for the respondent in each matter DECISION [1] The Industrial Relations Act 2016 (“IR Act”) provides that a negotiating party for a proposed bargaining instrument has a right to take protected industrial action. The IR Act sets out a process by which such protected action may be approved. In this appeal from the Industrial Registrar, the parties are agreed that the following questions arise and that the answers to them will determine the appeal: (a) whether it is necessary for the Registrar to determine if the actions the subject of the applications before her constitute industrial action; (b) if it is necessary for the Registrar to determine if the proposed actions the subject of the applications constitute industrial action, whether she did so consider; (c) if she did consider whether the action the subject of the applications was industrial action, whether she was correct in her conclusion; (d) whether there is an obligation on the Registrar to notify the employer and provide an opportunity to be heard in relation to the question of whether or not the proposed action would constitute industrial action; and (e) if there is such an obligation, whether the Industrial Registrar complied with that obligation. History of the matters [2] The respondent made a number of applications with respect to protected industrial action. The Industrial Registrar approved the process eventually proposed by the respondent. It is not disputed that the steps taken by the respondent came within the approved process. The respondent then sought an order under s 235 to approve the union members taking part in protected industrial action. -- 2 of 11 -- 3 [3] The Industrial Registrar expressed herself to be satisfied that the respondent had met all the requirements of s 235 and granted each application for a period of two months. The legislation [4] The sections relevant to this appeal are: “233 When industrial action is protected industrial action (1) Industrial action is protected industrial action for a proposed bargaining instrument if the industrial action— (a) meets the requirements of this section; and (b) is not industrial action to which section 234 applies. (2) The industrial action must be— (a) organised, or engaged in, by a protected person for the purpose of— (i) supporting or advancing claims made in relation to the proposed instrument; or (ii) responding to industrial action mentioned in paragraph (b)(i) by an employer who will be covered by the proposed instrument; or (b) organised, or engaged in, by an employer who will be covered by the proposed instrument for the purpose of— (i) supporting or advancing claims made in relation to the proposed instrument; or (ii) responding to industrial action mentioned in paragraph (a)(i) by an employee who will be covered by the proposed instrument. (3) The following persons have not contravened, before the industrial action starts, the requirement to negotiate in good faith under section 173— (a) if the industrial action is a strike by an employee who will be covered by the proposed instrument—the negotiating party for the employee; (b) if the industrial action is a lockout by an employer who will be covered by the proposed instrument—the employer. (4) If the industrial action is engaged in by employees, the employees likely to be engaging in the industrial action have, before the industrial action is engaged in, been approved by the Registrar under section 235 to engage in the industrial action. -- 3 of 11 -- 4 (5) Before the industrial action is engaged in, notice of the industrial action must have been given under section 236. (6) The industrial action may be engaged in during conciliation for the proposed bargaining instrument. Note— However, see sections 240 and 241. (7) In this section— protected person, for a proposed bargaining instrument, means— (a) an employee organisation that is a negotiating party for the proposed instrument; or (b) an officer or employee of that employee organisation acting in that capacity; or (c) an employee who is a member of that employee organisation and will be covered by the proposed instrument. … 235 Approval to engage in industrial action (1) For section 233(4), the Registrar must, on application by an employee organisation, approve the employees likely to be engaging in the proposed industrial action doing so if satisfied that— (a) before making the application, the employee organisation followed the process approved under subsection (2) and the result was that a majority of employees who participated in the process expressed support for the industrial action; and (b) the employees are members of the employee organisation; and (c) the employees will be covered by the proposed bargaining agreement the subject of the industrial action; and (d) the employees are not proposing to engage in the industrial action— (i) before the end of the nominal expiry date of any existing bargaining instrument or arbitration determination that will be replaced by the proposed bargaining instrument; or (ii) during any peace obligation period for the proposed bargaining instrument. -- 4 of 11 -- 5 (2) For subsection (1)(a), the employee organisation must provide its members likely to be engaging in the proposed industrial action with a process, approved by the Registrar, to express their democratic views about the industrial action. (3) An approval remains in force for the period stated by the Registrar. 236 Notice of industrial action must be given (1) For section 233(5), the protected person or employer intending to take the industrial action must give written notice of the intention to all of the negotiating parties for the proposed bargaining instrument— (a) at least 3 working days before the day the intended action starts, unless paragraph (b) applies; or (b) if the intended action is in response to industrial action as mentioned in section 233(2)(a)(ii) or (b)(ii) or the intended action is taken after industrial action is taken by a negotiating party—at any time before the day the intended action starts. (2) However, an employer may, instead of giving written notice, take any other reasonable steps to notify employees of the intended action. (3) Notice under this section must indicate— (a) the nature of the intended action; and (b) the day on which the intended action will start. (4) Notice under this section may be given before the end of any peace obligation period for the proposed bargaining instrument, as long as the intended action does not start during that period.” [5] The relevant definitions are contained in schedule 5. “Industrial action” is defined as a lockout or strike. “Strike” is defined in this way: “strike— 1 Strike means the conduct of 2 or more employees employed or formerly employed by an employer, if— (a) the conduct is any of the following— (i) a wilful failure to perform work required under the employees’ employment contracts; (ii) the performance of work by the employees in a way that it is not customarily performed; (iii) the adoption of a practice or strategy by the employees resulting in a restriction, limitation or delay in the -- 5 of 11 -- 6 performance of work or a restriction or limitation of the product of work; (iv) a ban, restriction or limitation on the performance of work or accepting or offering work; (v) a wilful failure of the employees to attend work that is not allowed by the employer; (vi) a wilful failure of the employees to perform work in a way that is not allowed by the employer; and (b) the conduct occurs because of a combination, agreement or understanding, express or implied, entered into by the employees for any of the following purposes— (i) to compel or induce an employer to agree to employment conditions; (ii) to compel or induce an employer to employ or stop employing a person or class of persons; (iii) to compel or induce an employer to comply with demands made by the employees or any other employee; (iv) to help employees in the employment of another employer to compel or induce the other employer in a way mentioned in subparagraph (i), (ii) or (iii); (v) to cause loss or inconvenience to an employer in the conduct of business; (vi) to incite, instigate, aid, abet or procure another strike 2 Also, strike includes conduct capable of constituting a strike under paragraph (a) even though the conduct relates to only part of the functions the employees must perform in their employment. 3 However, strike does not include action by an employee if— (a) the action was based on a reasonable concern by the employee about an imminent risk to the employee’s health or safety; and (b) the employee did not unreasonably contravene a direction of his or her employer to perform other available work at the employee’s workplace, or another workplace, that was safe and appropriate for the employee to perform.” Is it necessary for the Registrar to determine if the actions the subject of the applications before her constitute industrial action? [6] The appellant contends that it is a necessary part of the powers conferred upon the Registrar by s 235 and, more generally, by the IR Act, that the Registrar examine and determine whether the “industrial action” the subject of the s 235 application is industrial -- 6 of 11 -- 7 action within the meaning of that term in the Act. It is argued that it is part of the scheme of s 235 that the Registrar must be satisfied of each of the elements set out in the relevant sub-sections, and to be further satisfied that the approval which was given by employees to engage in the proposed industrial action was, in fact, an approval to do that which the section states, namely engage in industrial action. [7] This, the appellant says, means that the Registrar is required to assess whether the proposed industrial action is, in fact, industrial action as defined. Further, it is said that this assessment is to occur, at the latest, when an application is made under s 235(1). [8] In order to determine this question, it is first necessary to examine the statutory framework. [9] The IR Act introduced a new set of provisions concerning the manner in which proposed industrial action might be protected. Under the Industrial Relations Act 1999, there were requirements for what was called a “protected action ballot” and s 176 of that statute set out, in some detail, the requirements for the manner in which the ballot was to be conducted. Schedule 4 of that Act provided that the ballot had to be conducted by the Electoral Commission of Queensland. [10] The new regime under the IR Act is much simpler. It merely requires that the Registrar approve a process. Thus, the first point in time at which the Registrar becomes involved is when an employee organisation seeks the Registrar’s approval of a “process” to allow members to express their “democratic views” about the industrial action. No particular process is prescribed for this type of application and the requirement appears, inconveniently, within s 235. But, even at this point, the same question arises: should the Registrar be satisfied that what the employee organisation proposes is “industrial action”? [11] Section 235(2) requires that the employee organisation obtain the Registrar’s approval for a process which allows the members to express their “democratic views” about the “proposed industrial action”. The syntax of this sub-section is clumsy and the words used are poorly chosen. The word “democratic” is an adjective and means “of, like, practising, advocating, or constituting democracy or a democracy”. A democracy is a system of government by the whole population, usually through elected representatives. Applying -- 7 of 11 -- 8 this to an employee organisation, the whole population would be the membership of that organisation. But “democratic views” are not what the sub-section is really concerned with – it is whether or not the members support the proposed industrial action. [12] The proper construction of s 235(2) so far as the expression of “democratic views” is concerned was not the subject of argument by the parties and that particular infelicity of language need not be resolved on this application. [13] Section 235 requires that an employee organisation make two applications: first, for the approval of a process and, secondly, for approval of the employees likely to be engaging in the proposed industrial action doing so. It is a matter for the employee organisation what that proposed industrial action is. It is sufficient, at the first stage, for the employee organisation to identify the proposed industrial action in terms of the definition of “strike” in schedule 5. It might, for example, simply propose that there be bans, restrictions or limitations on the performance of work. The terms of s 235(2) do not envisage that the Registrar should play some part in determining what may or may not be put to the relevant members. [14] It must be borne in mind that the subject of the Registrar’s attention is the “process” which will allow the members to express their views. At this point, the employee organisation may not, and need not, have a fully formed plan as to the precise action it might eventually recommend to its members. In addition, the nature of negotiations with an employer and the capacity of parties to alter their positions on issues mean that it might not be possible to provide more than a broad outline of the action which might be taken. [15] The same approach can be taken by an employee organisation at the second stage. In order to give the approval, the Registrar is required to be satisfied that “a majority of employees who participated in the process expressed support for the industrial action”. As the “process” was concerned with the “proposed industrial action”, it follows that an employee organisation cannot seek approval of anything other than that which has been put to the members. -- 8 of 11 -- 9 [16] Although a different regime exists under the Fair Work Act 2009, there are broad similarities. The members of a union must be given an opportunity to express their views and other steps need be taken before protection is afforded. In Ambulance Victoria v United Voice,1 Tracey J was required to consider whether certain action was “industrial action” within the meaning of that term in the Fair Work Act. In dealing with that, his Honour said: “ Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.”2 [17] Tracey J has, with respect, correctly identified that the nature of industrial action is such that it is often difficult to determine whether something which is proposed will constitute a strike. As was said in Davids Distribution Pty Ltd v National Union of Workers: “Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. …”3 [18] The definition in Schedule 5 is broadly expressed, and its width is made clear by the extended meaning given to paragraph 1 of the definition by paragraph 2: “Also, strike includes conduct capable of constituting a strike under paragraph (a) even though the conduct relates to only part of the functions the employees must perform in their employment.” 1 (2014) 245 IR 375. 2 At 381. 3 (1999) 91 FCR 463 at 494. -- 9 of 11 -- 10 Thus, a limitation on the performance of work, for example, need not be with respect to all the work of the employees but can still be industrial action if it concerns only some part of the work. This part of the definition is another factor which makes it very difficult to form any useful view of proposed industrial action. [19] Another aspect of this process is that, after approval has been given under s 235(1), s 236 requires the protected person intending to take the industrial action to give at least three working days’ notice to all the negotiating parties of: (a) the nature of the intended action; and (b) the day on which the intended action will start. [20] Once that notice is given, it will usually be the case, as Tracey J observed, that “greater clarity will often be present”. And, it is after that notice is given that a negotiating party might be in the position, for example, to seek a declaration from the Commission under s 463 of the IR Act about the true nature of the threatened industrial action. [21] The requirements of s 235 are properly characterised as procedural. It is not necessary, at the point of either application, for the Registrar to form a view about whether the proposed industrial action would, if taken in some yet to be identified form, amount to industrial action. If it is necessary for the Registrar to determine if the proposed actions the subject of the applications constitute industrial action, did she so consider? If she did consider whether the action the subject of the applications was industrial action, was she correct in her conclusion? [22] In light of the ruling above, these questions need not be considered. Is there an obligation on the Registrar to notify the employer and provide an opportunity to be heard in relation to the question of whether or not the proposed action would constitute industrial action? [23] No. The process in s 235 does not envisage the interposition of an employer in the procedure to be observed by the Registrar. As the Registrar does not decide whether the -- 10 of 11 -- 11 proposed industrial action would at some future time constitute industrial action as defined, there is no place for any form of hearing on the matter. If there is such an obligation, did the Industrial Registrar comply with that obligation? [24] Unnecessary to consider. Order [25] The appeal is dismissed. -- 11 of 11 --