Department of Natural Resources and Water v The Queensland Public Sector Union of Employees [2007] QIRC 48 (2007) 185 QGIG 78

[Extract from Queensland Government Industrial Gazette, dated 8 June, 2007, Vol. 185, No. 6, pages 78-81] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 173 - terminating after nominal expiry date Department of Natural Resources and Water AND The Queensland Public Sector Union of Employees (CA/2007/25) DEPARTMENT OF NATURAL RESOURCES AND WATER - STATE VALUATION SERVICE - CERTIFIED AGREEMENT DEPUTY PRESIDENT BLOOMFIELD 29 May 2007 Application for approval of the termination of an agreement - s. 173 considered - onus on Applicant to establish public interest - onus not established - application refused. DECISION The Commission has before it an application under s. 173(1) of the Industrial Relations Act 1999 (the Act) by the Department of Natural Resources and Water (the Department) (formally the Department of Natural Resources, Mines and Energy) for approval of the termination of a Certified Agreement. The Agreement concerned, "Department of Natural Resources, Mines and Energy - State Valuation Service - Certified Agreement" (CA379 of 2004), was certified by the Commission on 24 August 2004 to operate from that date until its nominal expiry on 23 August 2006. The application for approval of the termination of the Certified Agreement was accompanied by an affidavit from Mr Dale Himstedt, Director, HR Services, Department of Natural Resources and Water. In his affidavit Mr Himstedt said: "The intention of CA379 of 2004 was to assist this Department to overcome a number of attraction and retention employment issues. Through the certification of the Agreement the attraction and retention issues that the Department was experiencing at the time have now been rectified, therefore, the intention and purpose of this Agreement has been carried out. All employee entitlements required by CA379 of 2004 have been met. On 22 December 2006 the State Government Departments Certified Agreement 2006, being CA308 of 2006, was certified. All employees who were receiving entitlements described by CA379 of 2004 are now currently receiving entitlements prescribed in CA308 of 2006.". The application for termination was opposed by the other party to the Certified Agreement, The Queensland Public Sector Union of Employees (QPSU). Mr Himstedt, who appeared on behalf of the Department, indicated that CA379 of 2004 (the Agreement) was negotiated in the context of a number of difficulties facing the Department at that time as a result of a significant boom in the property market. Valuers were resigning and moving to the Private Sector as a result of wage differentials and the Department was facing particular difficulties recruiting and retaining sufficient staff to allow it to complete its statutory obligation for a full re-evaluation of the city of Brisbane. The Agreement entered into between the Department and QPSU included provision to address those problems. Such provisions included: an attraction and retention bonus of 4% payable to staff in the classification ranges P03 to P05; accelerated increments for Valuers appointed to positions within the P03, P04 and P05 classification levels, following a closed merit selection process; a camping out allowance payable to Valuers who provide their own camping out equipment; payment of continuing professional development fees for professional development required as part of Valuers' continued registration; and promotion for Valuers at the P02 classification level, who have gained registration, to classification level P03.1. Mr Himstedt said that the transcript from the certification proceedings clearly showed that the intention of the Agreement was that it was to be a temporary measure to assist the Department through a certain period of time to address the attraction and retention issues then facing it. The temporary circumstances no longer existed and there was no need to continue the Agreement, he said. -- 1 of 3 -- 2 Mr Himstedt also indicated that email exchanges with the QPSU had established that the Union was seeking to retain what it considered to be 3 core provisions, namely the last 3 dot points mentioned above. He said that the Department was prepared to agree to continue paying the camping out allowance through an exchange of letters. It was also agreeable to continue to pay the professional development expenses through arrangements to be agreed. However, because of the terms of Directive 04 of 2006 "Recruitment and Selection" of the Public Service Commissioner, it was unable to agree to continue to accommodate the special promotion provision. Mr Thomas, who appeared for the QPSU (who coincidentally also appeared for the same Union in the 2004 certification proceedings) indicated that whilst it was certainly intended that a number of the provisions referred to by Mr Himstedt be temporary in nature, it was never intended that the 3 issues identified would automatically cease when the 2004 Agreement technically expired on 23 August 2006. In support of this submission he pointed to particular aspects of the wording of the Agreement and/or the transcript of the earlier proceedings. Mr Thomas also indicated that the onus was on the Department to establish that termination of the Certified Agreement was in the public interest, which he submitted was not the case. Relevantly, s. 173 of the Act provides: "173 - Terminating agreement after its nominal expiry date (1) After a certified agreement's nominal expiry date, the following persons may apply to the commission to terminate a certified agreement - (a) the employer; (b) the valid majority of the relevant employees; (c) an employee organisation that is bound by the agreement and that has at least 1 member who is a relevant employee. (2) If the agreement does not provide for the way it may be terminated after the agreement's nominal expiry date has passed, the person who intends to apply to terminate it must give all other persons bound by the agreement notice of the intention. (3) The commission must approve the termination if, and only if, satisfied - (a) for an agreement that provides that it may be terminated if particular conditions are met - the conditions have been met; or (b) for an agreement that does not provide for the way it may be terminated - it is in the public interest to terminate the agreement. (4) The termination takes effect when the commission's approval takes effect.". The Agreement does not contain any provisions setting out the conditions or circumstances which might need to be met for the Agreement to be terminated. The only clause which makes any remote reference to the nature of the Agreement and/or the way it is intended to operate is that contained in Part 12 - Variation of Agreement, of the Agreement which provides: "12.1 This Agreement may be varied under the terms of the Industrial Relations Act 1999 to facilitate or document agreed changes to employment conditions and practices during the life of this Agreement.". The inclusion of such provision negates any suggestion that it was always the intention of the parties to terminate the Agreement upon its expiry. This is because one can reasonably conclude that because the parties took the time and effort to include a provision allowing for the Agreement to be varied under the terms of the Act they would have also included a provision dealing with the way the Agreement was to be terminated upon its nominal expiry if that was their intention. However, my reading of the transcript of the 2004 Certification proceedings also leads me to conclude that whilst certain elements of the Agreement had a finite life, other elements of the Agreement, such as the 3 particularly mentioned above, were envisaged as having continued operation beyond the nominal expiry date. Indeed, Mr Thomas is recorded at page 10 of the transcript as saying it was his understanding that there was agreement that if the Agreement was not replaced by another Agreement or Determination it would continue to operate. In the circumstances it is clear that the legislative onus falls on the Department, pursuant to the provisions of s. 173(3)(b), to demonstrate to the Commission that it is in the public interest to terminate the Agreement. This is because the provisions of s. 173 make it plain that the Commission must approve the termination if, and only if, satisfied ... it is in the public interest to terminate the Agreement. Establishing that something is in the pubic interest is quite different to establishing that something is not contrary to the public interest. -- 2 of 3 -- 3 In this regard, simply arguing that the circumstances that gave rise to the need for the Agreement no longer exist does not establish it is in the public interest for the Agreement to be terminated. Equally, producing witness or other evidence to support the claim that the circumstances existing in 2004 have changed might improve the argument but might still not be enough to establish that it is in the public interest for the Commission to terminate the Agreement. Something more would appear to be required to positively establish public interest, not just Departmental interest. On the basis the Department has failed to present any substantive argument that it is in the public interest for the Agreement to be terminated, the Commission has no alternative other than to refuse the Application. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2007 4 May (Hearing) 22 May (Transcript available) Released: 29 May 2007 Appearances: Mr D. Himstedt for The Department of Natural Resources and Water. Mr M. Thomas for The Queensland Public Sector Union of Employees. Government Printer, Queensland The State of Queensland 2007. -- 3 of 3 --