Chief Executive of the Public Service Commission v Together Queensland, Industrial Union of Employees and Others (No. 2) [2013] QIRC 142

CITATION: Chief Executive of the Public Service Commission AND Together Queensland, Industrial Union of Employees and Others (No. 2) (CA/2012/289) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 149 - Arbitration if conciliation unsuccessful Chief Executive of the Public Service Commission AND Together Queensland, Industrial Union of Employees and Others (No. 2) (CA/2012/289) VICE PRESIDENT LINNANE DEPUTY PRESIDENT BLOOMFIELD INDUSTRIAL COMMISSIONER THOMPSON 13 September 2013 DECISION [1] The substantive matter before the Full Bench in CA/2012/289 involves a proceeding under s. 149 of the Industrial Relations Act 1999 (Act) for an arbitrated determination of a replacement for the State Government Departments Certified Agreement 2009 (Core Agreement). CA/2013/8 is an interlocutory application by Together Queensland, Industrial Union of Employees (Together Queensland) pursuant to s. 149(2)(b) of the Act for an interim wage increase of 2.35% for all employees covered by the Core Agreement on and from 31 January 2013. Thus, CA/2013/8 seeks an interim increase in wages prior to the final determination of the application in CA/2012/289. [2] This Full Bench issued a decision in CA/2013/8 on 28 March 2013: see Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission1. That decision was successfully appealed by Together Queensland to the Industrial Court of Queensland (Industrial Court) with a decision in that matter delivered on 24 June 2013: see Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission and Others2. [3] The Chief Executive of the Public Service Commission (the Public Service Commission) then sought statutory review of the decision of 24 June 2013. That application seeks an order in the nature of certiorari to quash the decision of the President of the Industrial Court and remit the matter back to the Industrial Court for further consideration and a determination according to law. The matter is listed to be heard by the Supreme Court of Queensland (Supreme Court) on 13 December 2013. [4] The issue thus far in CA/2013/8 is whether the Queensland Industrial Relations Commission (Commission) has the jurisdiction to grant an interim wage increase, pursuant to the provisions of s. 149(2)(b) of the Act, in the course of arbitrating a proposed certified agreement. The merits of any such application have not been considered by the Full Bench at this time. [5] It is apparent from the material provided to the Full Bench by the Public Service Commission (and not disputed by Together Queensland), that the matter before the Supreme Court could have been heard on 4 October 2013 except for the fact that Together Queensland's Counsel was not available for a hearing on that date. Any delay in the hearing of the Supreme Court review application is thus not a delay caused by the Public Service Commission except to the extent that the Public Service Commission exercised its right to seek a review of the President's decision. [6] The matter before the Supreme Court is whether the Commission has the jurisdiction to grant an interim wage increase in the course of arbitrating a proposed certified agreement. A decision on this point from the Supreme Court will not be known until, at the earliest, 13 December 2013 but more likely some time in 2014. Given the views of the parties expressed to the Full Bench it is also likely that any decision of the Supreme Court will not be the final determination in the matter. It appears to this Full Bench that there is a reasonable likelihood that an appeal to the Court of Appeal against any decision of the Supreme Court will be made by one of the parties. As such, a final determination of the question of law involved is not likely to be known for some considerable time in the future. [7] If the matter on review in the Supreme Court is determined in the Public Service Commission's favour then CA/2013/8 would be remitted back to the Industrial Court for further consideration and determination according 1 Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission (CA/2013/8) - Decision <http://www.qirc.qld.gov.au>. 2 Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission and Others (C/2013/15) – Decision (No.2) <http://www.qirc.qld.gov.au>. -- 1 of 7 -- 2 to law. If the matter on review in the Supreme Court is determined in Together Queensland's favour then CA/2013/8 would (assuming no appeal of that decision is sought) be before the Full Bench for determination and, as the President indicated in Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission at para [9], the "case may begin" and that "proceedings may be programmed" i.e. in matter CA/2013/8. In para [12] of the decision in Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission, the President has further indicated that the Public Service Commission could then raise the "flood-gate" issue in support of an argument under s. 331(b) of the Act that the Full Bench should "refrain from hearing the matter" i.e. under s. 331(b) of the Act an argument could be advanced by the Public Service Commission that the Full Bench should refrain from further hearing CA/2013/8 as further proceedings by the Full Bench are not "necessary or desirable in the public interest". Accordingly, given these potential scenarios, there is still possibly a substantial path ahead for CA/2013/8 to travel before any determination on an interim wage increase can be made by a Full Bench. [8] Meanwhile, Together Queensland presses its application in CA/2013/8 as it is entitled to do. However, this Full Bench has previously made it clear that it will not deal with CA/2013/8 until such time as the Supreme Court has delivered its decision in respect of the application for review. This will not be before 13 December 2013, and potentially may be at a time well beyond 13 December 2013. [9] While continuing to press for its application for an interim increase in wages prior to the final determination of the application in CA/2012/289, Together Queensland has now sought to have the Full Bench schedule dates of hearing early in 2014 for the substantive matter (CA/2012/289) and to issue directions for the further conduct of CA/2012/289 i.e. prior to any determination by the Supreme Court as to whether this Commission has jurisdiction to grant the interim wage increase sought. The Public Service Commission opposes that course for reasons outlined immediately below. [10] The Public Service Commission contend that the task of the Commission, in an arbitration under s. 149 of the Act, is to determine, in respect of the affected employer and employees, their respective rights and obligations in circumstances where attempts to negotiate an agreement in respect of those rights and obligations have not been successful. In exercising those arbitration powers, the Commission must limit its consideration to the matters at issue during negotiations for the proposed agreement: see s. 149(4) of the Act. The Public Service Commission submit that this necessarily requires the Commission to determine all of the matters at issue. In CA/2012/289 the matters at issue include a wages increase and the operative date of any such wage increase. [11] Section 149(5) further requires that the Commission, in considering the matters at issue, must consider the matters outlined in the subsection. Section 149(5) of the Act provides as follows: "149 Arbitration if conciliation unsuccessful (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) or 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.". -- 2 of 7 -- 3 [12] The Public Service Commission submit that the matters the Commission is required to consider include the financial position of the State of Queensland and the State's fiscal strategy, the financial position of the relevant public sector entity and the likely effects of the Commission's determination on those things. [13] Given the number of employees covered by the Core Agreement, the level of the interim increase sought by Together Queensland and the date from which that wage increase is sought, any determination of CA/2013/8, should jurisdiction exist, would have an impact, of itself, on the financial position of the State of Queensland and the financial position of the relevant public sector entitles involved in the Core Agreement. Further, as the issue of a wage increase and the operative date of any wage increase is at the heart of the matters to be determined in CA/2012/289, any determination of CA/2012/289 should, in the Public Service Commission's submission, not occur until such time as the outcome of the matter before the Supreme Court is known. [14] In addition the Public Service Commission argues that there is the real potential for key factors (wages and operative date) to alter significantly if, and when, the outcome of the current proceedings before the Supreme Court is known. Any consideration of CA/2012/289 prior to the decision by the Supreme Court has the very real potential of affecting the position to be taken by the Public Service Commission in respect of the issues for determination, the evidence to be adduced, the cross-examination on the evidence and the submissions made in the substantive matter. According to the submission of the Public Service Commission, the effect of any decision in respect of the interim wage increase application by Together Queensland would not only affect the question of wage increases and the timing of such wage increases within the Core Agreement but would also potentially affect the position of the Queensland Government in respect of the other issues identified in the arbitration of CA/2012/289. [15] Should the Full Bench give directions for the further conduct of CA/2012/289 in the absence of any determination by the Supreme Court, the Public Service Commission contend that the result would be wasteful of not only the resources of the parties but also the resources of the Commission. In that regard the Public Service Commission submit that any outcome document, affidavits of evidence or submission may need to be substantially reworked, and any evidence heard may need to be revisited once the outcome of the matter before the Supreme Court is known. This could also lead to significant disputation not only as to the original positions adopted by each party but also the evidence adduced and the submissions made prior to any amendment of the parties' positions as a result of any Supreme Court decision and this, according to the Public Service Commission, would be wholly unsatisfactory, undesirable and unfair to the Public Service Commission. [16] The important matters relevant to the Commission's determination are not able to be known, according to the Public Service Commission, until the application currently before the Supreme Court is known. [17] The second aspect of the Public Service Commission's submission is that the delay in the arbitration of CA/2012/289 is as a result of Together Queensland's application for an interim wage increase in CA/2013/8 and its decision to continue to press that application. No criticism is made by the Public Service Commission of Together Queensland for its decision to seek an interim wage increase and for its decision to continue to press such an application. However, the Public Service Commission submit that its interest as a party to CA/2012/289 should not be disadvantaged by a litigation choice made by another party to the proceeding i.e. by Together Queensland. [18] A third matter relied upon by the Public Service Commission is that it has attempted, outside of the s. 149 of the Act process, to resolve with Together Queensland the issues at the heart of the arbitration in CA/2012/289. However, no agreement has been able to be achieved in that process. In this respect, it should be noted that because of the substantial delay in the progressing of CA/2012/289, the Full Bench did, at a hearing on 24 July 2013, propose a further attempt at conciliation of the matters in dispute in CA/2012/289 before a Member of the Commission (not a Member of the Full Bench hearing the applications) however that conciliation did not produce any resolution. [19] Fourthly, the Public Service Commission submitted that it attempted, via a Notice of Dispute, to create an opportunity for its proposal to resolve the matter at the conciliation proceeding (the conciliation proceeding referred to above) to be the subject of a ballot of employees but this attempt to progress matters was also unsuccessful: see Chief Executive of the Public Service Commission v Together Queensland, Industrial Union of Employees & Ors (D/2013/127) and Together Queensland, Industrial Union of Employees v Chief Executive, Public Service Commission & Ors (B/2013/49)3. 3 Chief Executive of the Public Service Commission v Together Queensland, Industrial Union of Employees & Ors (D/2013/127) and Together Queensland, Industrial Union of Employees v Chief Executive, Public Service Commission & Ors (B/2013/49) - Decision <http://www.qirc.qld.gov.au>. -- 3 of 7 -- 4 [20] The third and fourth arguments advanced by the Public Service Commission were identified simply to show that the Public Service Commission had not sat idly by in circumstances where the arbitration of CA/2012/289 had not commenced. [21] The Full Bench was also referred to paragraph [7] in its decision in Chief Executive of the Public Service Commission v Together Queensland, Industrial Union of Employees and Others4 of 30 April 2013 where it stated, inter alia, as follows: "… The matter in which the case in CA/2012/289 will be progressed will be significantly impacted by any outcome arising from CA/2013/8 should Together Queensland's appeal be successful. This is because any case which the Chief Executive Officer of the Public Service Commission might conduct in arbitration proceedings in CA/2012/289 will be totally dependant on the outcome of proceedings in CA/2013/8.". [22] The Public Service Commission contend that those comments of the Full Bench remain valid and no further directions should be issued in respect of the hearing of CA/2012/289 until such time as the outcome of the proceeding before the Supreme Court is known. Further, if the Commission has jurisdiction to deal with an interim wage increase then matter CA/2013/8 would need to be determined prior to the listing of CA/2012/289 so that any interim increase granted could be factored into the parties' evidence and submissions in the substantive proceedings. [23] Together Queensland submit that the Full Bench should issue directions for the further conduct of CA/2012/289 and that available Commission dates provided to the parties at the hearing on 23 July 2013 be utilised for the hearing of this matter. At the hearing on 23 July 2013 of this matter the parties were advised of the following:  that, as at 23 July 2013, there were potential hearing dates for CA/2012/289 in December 2013 and January 2014 should Together Queensland decide not to progress CA/2013/8; and  that, as at 23 July 2013, if Together Queensland were to seek a date of hearing of CA/2013/8 following the hearing and determination of the review application currently before the Supreme Court (which is listed for hearing on 13 December 2013) that it was unlikely that a hearing date before a Full Bench prior to May 2014 would be available [24] The position of Together Queensland throughout this hearing has been that if CA/2012/289 could be heard, determined and concluded before CA/2013/8 was ready to be heard, then the prosecution of the application for an interim wage increase in CA/2013/8 would serve no useful or practical purpose. Together Queensland further submit that there was a "strong likelihood" that the hearing of CA/2012/289 (if the December 2013 and January 2014 dates were available) could be concluded prior to any decision of the Supreme Court being released. It should now be noted that the potential hearing dates in December 2013 and January 2014 canvassed with the parties on 23 July 2013 are no longer available for the hearing of CA/2012/289 as other matters before the Commission have utilised those dates. [25] It is, of course, unknown to this Full Bench as to when the decision in the review application before the Supreme Court will be delivered. It could be 13 December 2013 or any time thereafter. It is thus not possible for this Full Bench to even contemplate whether any decision in CA/2012/289 would be released prior to any determination by the Supreme Court of the matter currently before it. If, for instance, a decision in the Supreme Court was delivered in December 2013 there would be nothing preventing Together Queensland from seeking to have any hearing dates provided in CA/2012/289 utilised for a hearing in CA/2013/8. Meanwhile the proceedings in CA/2012/289 could have substantially concluded via the directions now being sought by Together Queensland. In such circumstances, if Together Queensland sought to pursue CA/2013/8 ahead of the completion of CA/2012/289 the exact dilemma which the Public Service Commission identified would ensue. [26] Together Queensland clarified, on a number of occasions, that its reference to CA/2012/289 having reached a "conclusion" and/or a "final determination" meant that a decision of a Full Bench in the matter was released and therefore known to the parties. To reinforce this Mr McKay for Together Queensland said at one point "… I mean if the bench took 12 months to hand down a decision after our application is concluded I don't know if we want to categorically state that we wouldn't proceed with an interim wage increase …". [27] At one point Deputy President Bloomfield asked Mr McKay why Together Queensland had not taken "a decision that it will just get on with the main game, and leave the subsidiary game in the other court just to play out itself in the fullness of time"? Mr McKay's response was "[w]ell, I think, your Honour, that's what we've actually asked this bench to do: is to play the main game, which is 289 … [a]nd we believe that 289 can – can be proceeded with 4 Chief Executive of the Public Service Commission v Together Queensland, Industrial Union of Employees and Others (CA/2012/289) - Decision <http://www.qirc.qld.gov.au>. -- 4 of 7 -- 5 and completed, prior to any necessity to even look at the merit argument. If that's the case, then there won't be any further proceedings on the interim ... if there's a final determination.". Shortly thereafter Mr McKay confirmed again that it was Together Queensland's position that the interim wage increase would not be pursued "if 289 is concluded". [28] Subsequently Mr McKay talked about whether the application in CA/2013/8 could become a live issue and said that it became "more and more remote when we look at the realities". Deputy President Bloomfield then asked if it was becoming more and more remote why then was Together Queensland wishing to reserve its right to progress CA/2013/8? The response from Mr McKay was "[b]ecause we don't have any guarantee on how long that my friend will want to run their case" in CA/2012/289. [29] Together Queensland further submitted that any disadvantage to the Public Service Commission could be dealt with by "putting a waiver on their outcome document". Mr McKay further identified the disadvantage to Together Queensland's membership of delaying a potential wage increase because of a "remote hypothetical possibility" (i.e. actually prosecuting CA/2013/8) but continued to indicate that it was not prepared to forgo the option of pursuing CA/2013/8 in the Commission. [30] The Queensland Council of Unions (QCU) supported the arguments advanced by Together Queensland. [31] Mr Murdoch, Counsel for the Public Service Commission, submitted that if CA/2013/8 was ultimately heard and determined adversely to the Public Service Commission there would be adverse cost implications which the Public Service Commission would need to take into account in respect of its approach to all of the matters in issue between the parties that are the subject of the arbitration in CA/2012/289. What the Public Service Commission sought was for CA/2012/289 to proceed in an orderly way, which could not occur until such time as the question of the interim wage application is heard and determined. [32] During the course of the hearing, Deputy President Bloomfield asked Mr Murdoch if he could get written instructions from the Public Service Commission (following the hearing) as to whether its position would alter if Together Queensland indicated that the outcome of the Supreme Court proceedings would be informative only i.e. that the matter before the Supreme Court would determine the question of law but that Together Queensland would not further pursue its application for an interim wage increase before the Full Bench. [33] On 21 August 2013 the Full Bench received correspondence from Minter Ellison, Solicitors for the Public Service Commission, as follows: "At the mention of this matter on 20 August 2013 we were asked to obtain our client's instructions in respect of the programming of CA/2012/289 if there was certainty that Together's application for an interim wage increase in matter CA/2013/8 would not proceed. Our client's position remains that CA/2012/289 should not be programmed while application CA/2013/8 remains on foot and there is any prospect that CA/2013/8 (or a similar application) could be enlivened before matter CA/2012/289 has been determined. However, if Together withdraws application CA/2013/8 and undertakes not to file an application for similar relief in relation to this matter, our client's position is that CA/2012/289 can be immediately programmed for hearing. In those circumstances, the Supreme Court proceedings would still be pursued in order to resolve the legal issues for future reference, however our client would see no impediment to CA/2012/289 proceeding while that matter was determined. If Together does not withdraw CA/2013/8 and provide the undertaking, our client's position remains as stated in submissions on 20 August 2013. If the Full Bench does determine the matter can be programmed for hearing, we wish to make additional submissions in relation to the directions, which we would be happy to make in writing.". [34] In correspondence dated 26 August 2013 the Full Bench received the following response from Ms Ralston on behalf of Together Queensland: "I refer to the correspondence forwarded to the Registrar on the 21 August 2013, by Minter Ellison, to which a copy was provided to me. -- 5 of 7 -- 6 We have previously provided to the full bench, by way of correspondence dated 19 July 2013 (being exhibit 16), Together's position in relation to the above matter as it pertains to programming. We have also provided orally, in submissions to the full bench on the 20 August 2013, Together's position in regard to the above matter. As such the full bench would be aware through both the aforementioned exhibit and the transcript recording that Together is unable to provide any of the undertakings as outlined in the correspondence copied to us on the 21 August 2013. We have provided a draft directions order to deal with programming for this matter. We are amendable [sic] to discussions with Minter Ellison, in the first instance, in regard to issues arising from the proposed directions order. If such discussions prove less than fruitful from either party's perspective, then we agree that the issue of programming can be dealt with through written submissions to the full bench.". Conclusion [35] Together Queensland has made its position abundantly clear. That is, it wishes to retain its right to have its application for an interim wage increase (CA/2013/8) heard and determined by the Commission should a decision by the Supreme Court confirm its right to pursue such an application before CA/2012/289 has reached a "conclusion" or "final determination". As mentioned previously, CA/2013/8 is an application for an interim wage increase of 2.35% for all employees covered by the Core Agreement on and from 31 January 2013 while CA/2012/289 concerns the arbitration of the matters at issue between the parties in their failed attempt to negotiate a replacement Core Agreement. [36] We acknowledge that employees covered by the Core Agreement have not received any wage increase since mid 2011 and therefore these employees in the public sector have suffered, and continue to suffer, detriment whilst CA/2012/289 awaits hearing and determination. We also acknowledge that an application for an interim wage increase with an operative date of 31 January 2013 is, if the Commission has jurisdiction to hear and determine such a claim, a matter that should, on the face of it, be considered and determined prior to the hearing of the substantive claim. [37] It has become apparent to this Full Bench, during the course of proceedings in CA/2012/289 and CA/2013/8, that the respective parties have strongly divergent views about the best way to deal with future proceedings relating to the Core Agreement. Further, each of the respective parties appear to hold ongoing concerns and reservations about the bona fides of the other party. [38] For its part, Together Queensland is firmly of the view that it is entitled to select the point at which it might choose to pursue its application for an interim wage increase (CA/2013/8), notwithstanding that proceedings in CA/2012/289 might have already commenced and/or be close to "conclusion" or "final determination". Its position appears to be partially motivated by its concern that the Public Service Commission might seek to delay or frustrate the hearing and determination of CA/2012/289. [39] On the other hand, the Public Service Commission seek some certainty in relation to the nature of the proceedings in which it might be engaged, arguing that any evidence and submissions it brings to the Commission might be different depending upon whether it is addressing CA/2013/8 or CA/2012/289. Indeed, it argues that any cost implication arising through any successful prosecution of CA/2013/8 by Together Queensland would significantly impact the case it would (subsequently) conduct in CA/2012/289. Further, the Public Service Commission highlights the potential that any evidence produced and/or submissions made in CA/2012/289 would probably need to be amended, by still further proceedings, if that matter was "parked" while Together Queensland prosecuted its application for an interim wage increase in CA/2013/8. [40] In our considered view the arguments advanced on behalf of the Public Service Commission have considerable merit, in both a logical and practical sense. In our view it would not be appropriate to enter into arbitration proceedings relating to a determination of the matters at issue while there remains the possibility that Together Queensland might ask for those proceedings to be "suspended" while it prosecutes its application for an interim wages increase. This is because of the risk that the time, effort and expense attached to the presentation, and consideration, of the evidence and material initially advanced in CA/2012/289 might need to be partially or totally discarded depending upon the outcome of proceedings in CA/2013/8. [41] The appropriate manner in which to conduct both matters is for the Commission to await the outcome of the review application before the Supreme Court and then to list CA/2013/8 for hearing and determination if the Commission is found to have jurisdiction to hear and determine the interim wage increase application. If no such jurisdiction is found to exist and the matter is remitted back to the Industrial Court to hear and determine according to law, then we are of the view that the appropriate response would be to await a determination of the Industrial Court prior to the listing of CA/2012/289 for hearing. -- 6 of 7 -- 7 [42] In those circumstances we will adjourn both CA/2012/289 and CA/2013/8 to await the determination of the Supreme Court. [43] Order accordingly D.M. Linnane, Vice President A.L. Bloomfield, Deputy President J.M. Thompson, Industrial Commissioner Hearing Details: 2013 August 20 August 21 Correspondence from the Applicant August 26 Correspondence from the Respondent Released: 13 September 2013 Appearances: Mr C. Murdoch of Counsel instructed by Minter Ellison Lawyers for the Chief Executive of the Public Service Commission. Mr K. McKay and Ms D. Ralston of Together Queensland, Industrial Union of Employees. -- 7 of 7 --