Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31 (2017) 264 IR 410

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31 PARTIES: BRISBANE CITY COUNCIL (applicant) v CONSTRUCTION, FORESTRY, MINING & ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND (respondent) FILE NO/S: CB/2017/3 PROCEEDING: Appeal DELIVERED ON: 10 April 2017 HEARING DATE: 29 March 2017 MEMBER: Martin J, President ORDER/S: Pursuant to s 486 of the Industrial Relations Act 2016, this matter is referred to a Full Bench for hearing. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where the respondent and other unions applied to the Commission for scope orders to be made regarding a bargaining instrument – where the applicant applied to the Commission to refer the matter to the Full Bench – whether a matter must be of industrial significance to be referred to the Full Bench – whether application should be referred to the Full Bench Fair Work Act 2009 Industrial Relations Act 1999 Industrial Relations Act 2016 APPEARANCES: L Cruwys for the applicant A Borg for the respondent [1] A number of unions have been engaged in bargaining with the Brisbane City Council (‘BCC’) with a view to replacing the Brisbane City Council Certified Agreement 2013. The bargaining commenced in October 2016. -- 1 of 5 -- 2 [2] On 20 March 2017 the Automotive, Metals, Engineering, Printed and Kindred Industries Industrial Union of Employees, Queensland and, on 24 March, the Electrical Trades Union of Employees, Queensland, served applications on the BCC in which each union sought that the Commission make a “scope order” under s 185 of the Industrial Relations Act 2016. The BCC then sought an order that each of those applications be referred to a Full Bench. On 27 March I made those orders. [3] After those matters were referred to a Full Bench the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (‘CFMEU’) and the Australia n Workers Union of Employees, Queensland each filed applications seeking scope orders. In response, the BCC has applied for referral of those matters to a Full Bench. [4] The explicit power to refer a matter to a Full Bench is given to the President under s 486. That section provides: “486 Referring matter to full bench (1) The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench. (2) A commissioner may refer the matter only with the president’s approval. (4) Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench. (6) The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.” [5] Unlike its predecessor in the Industrial Relations Act 1999 (s 281), s 486 does not impose a requirement that the President be satisfied that a matter is of substantial industr ia l significance before it can be referred to a Full Bench. The absence of that requireme nt does not, though, mean that the power to refer is unfettered. Any decision to refer should be made in the light of the objectives of the Act and other relevant sections directing the Commission on the way in which it may conduct itself. [6] One of the arguments put forward by the CFMEU is that a reference to a Full Bench made without allowing an entity such as a union to be heard, is a denial of procedural fairness. I do not agree. But, in order to remove any doubt, I will not take into account the -- 2 of 5 -- 3 references which have already been made in determining these applications. In other words, I will approach these applications as if they were the first to be made. [7] It is submitted by the BCC that the application should be granted for a number of reasons. First, it says that as referrals have already been made, there is the possibility of differe nt decisions arising from differently constituted benches if these new matters are not referred. For the reasons I have given above, I do not intend to rely upon this ground in the decision I make. [8] The BCC goes on to argue that each of the unions concerned in the making of each of the scope orders will be required to be present at each of the hearings with a significa nt increase in time and cost and complexity. The issue of time etc can be resolved by either the same Full Bench hearing all applications for a scope order or a single commissio ner hearing all applications for a scope order with appropriate directions being made so that there is not unnecessary repetition. [9] It is also submitted by the BCC that it will be “providing a significant amount of evidence in each of the proceedings demonstrating the reasons why a scope order should not be awarded”. It is easy to understand that that might be the case. But, once again, a Full Bench is not necessitated by this matter alone. [10] The BCC also argues that referral to a Full Bench has the potential to save time because it will obviate the possibility of appeals. If a referral is made then, obviously, an avenue of appeal is lost. There is still, though, the possibility of appeal to the Industrial Court. In any event, the elimination of a level of appeal is not an attractive argument in favour of referral. It may, though, confine the time needed for the matter to be finalised. [11] Finally, the BCC also argues that the novelty of this type of application is one which justifies the referral to a Full Bench. [12] The CFMEU raises a number of issues in its response to the application to refer. [13] First, it says that there is no valid application because it has been mis-described. The application refers to the respondent as the “Construction, Forestry, Mining & Energy Union, Construction Branch”. The misnomer, while evidence of sloppiness on the part of -- 3 of 5 -- 4 the BCC, has not caused any confusion. The CFMEU knows to whom the application is truly addressed. If an application to amend were to be made, I would grant it. This is a technical issue which can easily be overcome. [14] Secondly, it is argued that the BCC has not adequately particularised why any referral would facilitate the fair and practical conduct of proceedings. In arguing that case, the CFMEU raises issues already dealt with above: the other referrals, the amount of evidence to be called, and the reduction of a level of appeal. I have already considered those. [15] It also deals with the issue of “novelty”. While novelty is not, of itself, a prerequisite for referral to a Full Bench, it can often be a compelling reason for such a referral. The capacity to make a scope order is new. The Queensland Industrial Relations Commiss io n has never had this power. It must be acknowledged that the power is one which exists under the Fair Work Act 2009 and the Fair Work Commission has the ability to make such an order. It is not uncommon in both this jurisdiction and the federal jurisdiction for a Full Bench to be constituted in order to deal with a matter which has not previous ly been within the jurisdiction of the particular tribunal and which has potential to be of significance to other, similar matters within that tribunal. [16] Finally, the CFMEU argues that any referral to a Full Bench would provide the BCC with readier access to legal representation which would not otherwise be available before a single member. It is unnecessary to deal with this in any depth apart from saying that none of the parties who may be affected by a referral are without resources. Each of them has a long history in bargaining, conciliation and arbitration. The mere fact that legal representation may, not must, be available before a Full Bench is of little weight in these circumstances. [17] While some of the matters advanced by the BCC do lend weight to its application, the major matter which has satisfied me that a referral should be made, is that these provisio ns are entirely new to this jurisdiction and the decision of the Full Bench in this matter will be of considerable assistance to other parties who may wish to bring similar applicatio ns for scope orders. -- 4 of 5 -- 5 [18] Pursuant to s 486 of the Industrial Relations Act 2016, this matter is referred to a Full Bench for hearing. -- 5 of 5 --