Chief Executive, Public Service Commission AND Together Queensland, Industrial Union of Employees and Others; Together Queensland, Industrial Union of Employees v Chief Executive, Public Service Commission and Others [2013] QIRC 115

CITATION: Chief Executive, Public Service Commission AND Together Queensland, Industrial Union of Employees and Others (D/2013/127); Together Queensland, Industrial Union of Employees AND Chief Executive, Public Service Commission and Others (B/2013/49) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 230 - action on industrial dispute Industrial Relations Act 1999 - s. 331 - decisions generally Chief Executive, Public Service Commission AND Together Queensland, Industrial Union of Employees and Others (Matter No. D/2013/127) Together Queensland, Industrial Union of Employees AND Chief Executive, Public Service Commission and Others (Matter No. B/2013/49) COMMISSIONER FISHER 6 August 2013 Industrial Dispute - Orders sought to conduct a secret ballot - Employees covered by the core certified agreement - Application to dismiss and refrain from further hearing - Arbitration before full bench - Quantum of wage increases - Timing of such increases - Conditions of employment - Meetings - Proposal not accepted - Submissions - Jurisdiction to issue orders - Attempts to resolve - Industrial matter - Held single member has no jurisdiction. DECISION [1] Two "applications" are presently before the Queensland Industrial Relations Commission (the Commission) as constituted: 1. D/2013/127 - a Notice of Industrial Dispute lodged by the Public Service Commission (PSC) seeking Orders (as amended) that pursuant to s. 285 of the Industrial Relations Act 1999 (the Act) the Commission direct the Registrar to conduct a secret ballot of all employees who are proposed to be covered by the Core Certified Agreement. 2. B/2013/49 - an Application filed by Together Queensland, Union of Employees (TQ) seeking that the Commission dismiss D/2013/127 and refrain from further hearing the matter pursuant to s. 331(b) of the Act. Background [2] These two applications have been filed against the background of Case No. CA/2012/289 which is presently before a Full Bench of the Commission. This matter concerns the Commission determining by arbitration pursuant to s. 149 what is colloquially known as the Core Agreement. CA/2012/289 was referred to arbitration on 31 January 2013 and, as the Amended Statement of the Vice President dated 26 July 2013 shows, has had a tortuous short history with the dates of hearing the substantive matter still to be set. The industrial relationship between at least one of the union parties, TQ and the PSC is strained and difficult. [3] CA/2012/289 was most recently before the Full Bench on 24 July 2013. On that occasion the Vice President offered to make me available on either 25 or 26 July 2013 to facilitate a conference between the parties to see "once again" if agreement could be reached. TQ was not available to meet until 30 July 2013. On 25 July 2013 the Chief Executive of the PSC, Ian Maynard, and Deputy Commissioner Peter McKay, met with the Secretary of TQ, Alex Scott, the President of TQ, Vivienne Doogan and a Director of TQ, Deborah Ralston. The following day Mr Maynard wrote to Mr Scott attaching a without prejudice offer (the offer) for resolution of the Core Agreement. Shortly after the PSC decided to survey relevant employees to ascertain their views about the offer. [4] Meetings between the PSC, TQ, and The Australian Workers' Union of Employees, Queensland were held on 30 and 31 July 2013 in the Commission. The Queensland Council of Unions (QCU) attended on 30 July 2013. The Commission as constituted only attended briefly on 30 July 2013 because of hearing commitments although I participated more fully on 31 July 2013. I subsequently met with Mr Maynard and Mr Scott. Following this meeting the PSC proposed a settlement of the Core Agreement (the proposal) to Mr Scott. Ultimately this proposal was not accepted by TQ. Had the proposal been accepted in principle, it was the intention of the PSC to formalise it into a without prejudice offer. -- 1 of 4 -- 2 [5] The proposal includes a measure of backdating for the wage rises as well as other matters. The offer about which employees of the Core Agreement were surveyed did not include backdating. It is against this background that the two applications come before the Commission. [6] D/2013/127 was lodged on the afternoon of Friday 2 August 2013 and at the request of the PSC was listed later that day. At that time TQ raised an issue about whether the Commission had jurisdiction to make the orders sought. The Commission decided that jurisdictional question would not be heard at that time in order to give TQ time to prepare. Another matter raised by the dispute notification was dealt with. [7] During the course of the conference TQ sought to clarify the status of the proposal as comments by Mr Maynard elsewhere had led TQ to believe that the proposal would not be on the table after close of business 2 August 2013. TQ understood from the remarks made by the representatives of the PSC at the conference that the proposal would not continue beyond 2 August 2013. [8] The jurisdictional question arising from D/2013/127 and arguments in relation to B/2013/49 were heard by the Commission in conference on 5 August 2013. Submissions by the Parties [9] I do not intend to rehearse the submissions of the parties in any detail. All submissions have however been duly considered in reaching this decision. TQ [10] Mr K. McKay, who appeared for TQ, contended that the offer made by the PSC was no longer in existence and as such it was not in the public interest for the Commission to direct the Registrar to conduct a ballot as there was nothing about which employees could cast their vote. Moreover, the orders sought were an abuse of process and would bring the administration of justice into disrepute because: (i) The offer no longer applies; and (ii) The orders sought restrict registered industrial organisations from being able to communicate with their members albeit about a non-existent offer. (Note: the orders sought include an order about restraining the parties from adversely commenting on the subject matter of the ballot, from conducting any other form of ballot or survey at the same time and limiting the information provided to employees with the ballot paper.) For these reasons, the Commission should act under s. 331(b) and dismiss the cause because the ballot serves no useful purpose. [11] Mr McKay also contended that the Commission did not have jurisdiction to issue the orders sought. Mr McKay relied on the Explanatory Notes to the Industrial Relations Bill 1999 and submitted that the clear purpose of s. 285 was to facilitate a ballot pursuant to s. 235 of the Act. Absent s. 285, there was no other power under the Act to enable the Registrar to conduct a ballot. Other Unions [12] The other unions which are parties to the s. 149 proceedings supported the position of TQ. The PSC [13] Mr Murdoch, Counsel appearing for the PSC, said that the ballot was sought to see whether the proposal would be supported by employees in the Core Agreement. He said that time had moved past debates about whether there was an offer but the orders sought for the ballot on the proposal remain. [14] Mr Murdoch rejected the submissions of TQ that the orders sought by the PSC were an abuse of process. He submitted that there was an obvious process on foot before the Full Bench pursuant to s. 149 of the Act. Despite this, it was apparent from the affidavits of Mr Maynard and Ms Ralston accompanying the applications filed by their respective organisations, that there have been some attempts over the past two weeks to explore whether the matters subject to the s. 149 proceedings could be resolved. [15] In his submission a dispute exists about whether those matters could be resolved and further, whether a ballot can occur. Mr Murdoch, after referring to s. 7, s. 229 and Schedule 5 of the Act, submitted that there was an industrial dispute about an industrial matter. The industrial matter pertains to the industrial interests and conditions of employees and the means by which the matters under s. 149 can be resolved. -- 2 of 4 -- 3 [16] Mr Murdoch did not accept the limitations on s. 285 as submitted by TQ. Even were this to be true, the Commission nonetheless has broad powers under s. 230 of the Act to make the orders sought. [17] In summary, the position of the PSC was that a dispute exists, it is about an industrial matter, the Commission has jurisdiction to deal with the matter and to make the orders sought. Moreover, it was legitimate for the orders to be made. TQ in reply [18] Mr McKay restated his submissions that the orders sought were an abuse of process and added that it was TQ's view that the purpose of the orders were to seek an outcome to put pressure on parties in other proceedings, i.e., CA/2012/289. There could be no other outcome because the matter has already been referred to arbitration. Accordingly, the Commission should refrain from further hearing the dispute because it was not in the public interest to do so. [19] Mr McKay also rejected the use of s. 229 and 230 to deal with the maters in dispute because matters dealing with agreement making are governed exclusively by ss. 148 and 149. The Commission would fall into error if these provisions were relied on to make the orders sought. Queensland Council of Unions [20] Mr Martin, who appeared for the QCU, supported the submissions of TQ about the exclusive jurisdiction of the Commission under ss. 148 and 149. In addition, he submitted that orders are usually directed to a remedy and in this case there could be no remedy as the orders only seek to gauge employees' opinions and not to reach an agreement. Further, granting of the orders could lead to the opening of the floodgates where unions could seek orders for other things despite s. 149 proceedings being on foot. Consideration [21] The Commission accepts the submissions made on behalf of the PSC that an industrial dispute (as defined) about an industrial matter (as defined) exists. The critical questions are whether the Commission as constituted has jurisdiction to deal with this dispute and if so, whether the Commission should deal with it in the manner sought by the PSC or whether to do so would be an abuse of process as TQ contends. [22] The Commission proceeds on the basis of the submission made on behalf of the PSC that the proposal for settlement as articulated in D/2013/127 remains on foot. [23] The Commission understands that the matters in issue to be determined by the Full Bench include the quantum of wage increases, the timing of such increases and various conditions of employment. The orders sought by the PSC do not require the Commission to make any decision or order about the matters in issue in the s. 149 proceedings and seek a ballot to gauge employees' views about an alternative path to resolution other than by arbitration. However, the proposed ballot question references wage increases and other conditions of employment. Those matters overlap the matters in issue which the Full Bench in CA/2012/289 is required to determine. Once a matter has been referred to arbitration under s. 149(1) and, although the Commission as a general principle would encourage the parties to keep talking to see whether a resolution can be reached, I do not consider that a single Member of the Commission has the jurisdiction to attempt to find an alternative means to resolve some or all of the matters in issue in the s. 149 arbitration proceedings by making orders or exercising other powers under the Act such as those that might be available under s. 230(4) or s. 285 especially in circumstances where there is no consent to do so. [24] In The Queensland Public Sector Union of Employees v Department of Corrective Services1 Hall P was considering Orders issued by the Commission restraining all industrial action during the arbitral process under s. 149 of the Act. As the President held, the Commission has powers pursuant to s. 230 to arbitrate or make interlocutory orders about matters entirely unrelated to the arbitration but any arbitration may not be intermingled with the arbitration pursuant to s. 149(1). Although this decision is not completely analogous, a reasonable inference that can be drawn from it is that once a matter has been referred to arbitration under s. 149, the Commission should refrain from intermingling processes that are available under the Act to deal with the same or associated subject matters or to attempt alternative resolution of the matter. Exceptions to this might be where the parties consent or by direction from a Full Bench. Otherwise, taken to its extreme, any party to s. 149 proceedings could lodge a Notice of Industrial Dispute seeking the Commission to exercise its powers under the Act to resolve any matter which was in issue in the s. 149 proceedings. 1 The Queensland Public Sector Union of Employees v Department of Corrective Services (2003) 174 QGIG 904. -- 3 of 4 -- 4 [25] For these reasons, the Commission declines to make the orders sought by the PSC in D/2013/127. It is therefore unnecessary to deal further with Case No. B/2013/49.+ [26] Although the Commission finds that it does not have jurisdiction to issue the orders sought by the PSC, I wish to make some additional comments. The submissions of the PSC seeking the orders and TQ's submissions regarding an abuse of process rather assume that the ballot results would be favourable to the PSC. It is to be noted that the results of the ballot conducted under s. 147A of the Act and the recent survey conducted by the PSC have not been favourable to the employer. There is no guarantee that any ballot directed by the Commission would result in a majority of employees voting in favour. The PSC runs the risk that the ballot outcome would be adverse to it and if so, it would be the party which might need to reconsider its position. That is a risk that the PSC is apparently prepared to take. [27] However, a ballot result favourable to the PSC position would not necessarily lead to an agreement being made as the industrial organisations of employees may not consider themselves bound by such a result and would look to the views of their respective memberships. It is also to be remembered that the path embarked on to date is for an agreement (or determination) that would bind the employer, registered industrial organisations and employees. [28] Finally, although it is arguable that an abuse of process might occur where a ballot was directed by a single Member of the Commission outside of the s. 149 proceedings, this argument might lose its import were the Full Bench in CA/2012/289 to find that it had jurisdiction and there was merit in ordering a ballot. [29] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: Released: 6 August 2013 Appearances: Mr C. Murdoch, Counsel instructed by Mr D. Williams, Minter Ellison and with them Mr P. Casey and Ms K. Armstrong, Public Service Commission. Mr K. McKay and Ms D. Ralston, Together Queensland, Industrial Union of Employees. Mr J. Martin, Queensland Council of Unions. Ms V. Semple, Queensland Nurses' Union of Employees. Mr S. Reichman, The Electrical Trades Union of Employees Queensland. Mr M. Raguse, The Australian Workers' Union of Employees, Queensland. Mr S. Stanford, Automotive, Metals, Engineering, Printing and Kindred Industries. Ms K. Badke, United Voice, Industrial Union of Employees, Queensland. Ms T Edmonds, Ms M. Phillips and Ms N. Meyer, Queensland Teachers Union of Employees. -- 4 of 4 --