Department of Corrective Services v The Queensland Public Sector Union of Employees [2006] QIRC 36 (2006) 181 QGIG 358

[Extract from Queensland Government Industrial Gazette, dated 10 March, 2006, Vol. 181, No .9, pages 358-359] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 274 - application to dismiss Department of Corrective Services AND The Queensland Public Sector Union of Employees (B/2006/9) COMMISSIONER BLADES 23 February 2006 Strike out application - Section 331(b); s. 274(2)(b) Industrial Relations Act 1999 - Determination under s. 149 - Closed Determination clause - Full and final settlement of all matters - Claims relating to employee rights and entitlements - Community Correctional Officers - Industries Supervisors - Salary progression - Arbitration of dispute regarding incorrect classifications - Application to strike out based on Closed Determination clause - Whether Closed Determination clause relates to all employee rights and entitlements - Held such an interpretation too wide - Held relates only to employee rights and entitlements in relation to matters in the Determination - No bar to Union application - Strike out application dismissed. DECISION On 28 July 2005, The Queensland Public Sector Union of Employees (the Union) notified the Commission under s. 229 of the Industrial Relations Act 1999 (the Act) that a dispute existed between the Union and the Department of Corrective Services (the Department). The dispute (D/2005/287) was conciliated before a Commissioner who, when negotiations failed to settle the matter, referred the dispute for arbitration. This is an application by the Department inviting the Commission to either decide not to arbitrate D/2005/287 under s. 274(2)(b) of the Act or to exercise its powers under s. 331(b) of the Act to dismiss the cause or refrain from hearing, further hearing or deciding the cause. The dispute involved the Wolston Correctional Centre where 3 staff are employed as Industries Supervisors. The notification states that these staff are employed under the Correctional Stream at level CO2.4 of the Department of Corrective Services Correctional Employees' Interim Award - State. Other Industries Supervisors in the Department are employed in the AO stream of the Queensland Public Service Award - State 2003. It was contended that the staff are not correctly employed against the relevant Award and that since the inception of their employment in 1999, had not been appointed to the proper classification. The Department's application is that the claim involved is to move the staff to a different classification stream with a different base pay rate. Because the Department is currently operating a Determination made by a Full Bench under s. 149 of the Act, there is no ability for the Union or the employees to pursue the claim through the Commission. Clause 1.7 of the Department of Corrective Services - Correctional Employees' Determination 2004 (2004) 176 QGIG 85 (the Determination) provides: "1.7 Closed Determination 1.7.1 This Determination is in full and final settlement of all matters contained within it, and all Union or employee claims relating to employee rights and entitlements. Accordingly, and subject to clause 1.7.2 and clause 1.7.3, the Union or employees cannot pursue any extra claims, nor take any industrial action (whether protected or otherwise) concerning any such matters.". Clauses 1.7.2 and 1.7.3 have no application. The question is whether the Union's claim is caught by the provisions of the Determination. Whether the employees were correctly classified or not is outside the scope of this hearing. If the Union's claim was successful, it would result in the 3 employees being moved from the correctional stream to the administrative stream under the Queensland Public Service Award - State 2003. That would result (probably) in a pay rise. Since the commissioning of the Wolston Correctional Centre in April 1999, the 3 staff have been classified in the custodial stream and payment has been governed by a succession of certified agreements and the 2004 Determination. There is nothing in any award or instrument of the Commission which refers to the term "Industries Supervisor" but it appears to be accepted by both parties that it incorporates "Trade Supervisors". A "Trade Supervisor" was allocated to the administrative stream under the abolished Queensland Corrective Services Commission Employees Award - State while Custodial Correctional Officers (Trade Instructor) and Custodial Correctional Officers (Farm) were in the correctional stream. The Department has submitted that a conscious decision was made to construct the positions of Industries Supervisors within the correctional stream due to the expansive nature of the industries program designed for -- 1 of 3 -- 2 the then new Wolston Correctional Centre. (The Union objected to this assertion because it was said to be a statement of fact, unsupported by any evidence. That is correct but the assertion does not support either argument in this case, being relevant only to the merit argument). The task for the Commission is to ascertain what the Determination covered. Clause 1.7.1 purports to settle all matters contained in the Determination and all claims relating to employee rights and entitlements and prohibits extra claims concerning any such matters. The decision in the matter The Queensland Public Sector Union of Employees v Department of Corrective Services (2004) 175 QGIG 1225 (the decision), from which the Determination was made, referred at paras 9 and 10 to the matters that remained to be heard and determined by the Full Bench. The matters to be decided related to salary progression and in respect of Supervisors, the respective positions of the parties were: The Department's preferred clause 9.3 Supervisors (and Co-ordinators at the Woodford Correctional Centre) Relevant provisions of the Queensland Corrective Supervisors Certified Agreement 1998 (CA92/98) as confirmed by the Commission in the matter No. B/2002/1265 should continue to apply. QPSU's preferred clause 9.3 Correctional supervisors (and Co-ordinators at the Woodford Centre) Notwithstanding the provisions of the Queensland Corrections Correctional Supervisors Agreement 1998 Supervisors shall progress to paypoint 2 of level 3 of the correctional stream of the Department of Corrective Services Employees' Interim Award - State. The Full Bench ruled at para 135 that there should be no interference or adjustment with current salary progression arrangements. The Determination itself made no reference to salary progression but the decision leading to the Determination rejected the applications by both the Department and the Union relating to salary progression of Supervisors. It is submitted by the Department that because the Union's claim is in relation to salary progression, the Determination was "in full and final settlement of all matters contained within it" and therefore prohibits the Union's claim in this dispute. It is submitted that the clause is purposeful and clear about restricting claims, howsoever worded. There is, however, the serious question whether salary progression of "Trade Supervisors" or "Industries Supervisors" was ever part of the Determination or the applications before the Full Bench. The submissions to the Full Bench, as appear from the decision at paras 74 and 78, dealt with salary progression for Custodial Correctional Officers, Trade Instructors and Correctional Supervisors, nothing in relation to Trade Supervisors or Industries Supervisors so that it seems to me that it cannot be said that any issue dealing with salary progression of Trade Supervisors or "Industries Supervisors" was within the Determination or was ever put before the Full Bench. There is nothing to suggest that Correctional Supervisors are Industries Supervisors or Trade Supervisors. It follows that the subject matter of the dispute does not fall within the phrase "all matters contained within it". The question which then arises is, does the Union's claim fall within the phrase "all Union or employee claims relating to employee rights and entitlements"? The Department has argued that clause 1.7.1 was purposefully written into the Determination to address issues raised in the Emwest case, Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2002) FCA 61 which highlighted the need for a clear construction of a no further claims provision. But there is a flaw in that argument in that clause 1.7.1 was inserted into the Determination by the Full Bench of the Commission, not by the parties (although after apparent agreement between the parties), and there is no reference in the decision to the Emwest case. But leaving that point aside, the phrase "all Union or employee claims relating to employee rights and entitlements", prima facie, is very wide. The Department has said that "the effect of the closed Determination is quite specific in relation to any matter that relates to issues contained within the Determination, and/or any matters related to employee rights and entitlements; for the term of the Determination." The Union claims that such an interpretation precludes the Union or any employee from pursuing any matter that relates to employee rights and entitlements and with such a submission, I respectfully agree. If the interpretation proposed by the Department be correct, then an employee could not bring an action for unpaid wages alleging underpayment of an allowance. That was never intended I am sure, and an interpretation of the clause achieving that result would be repugnant. Clause 1.7.1 can be effectively interpreted so that "Union or employee claims relating to employee rights and entitlements" refers only to those matters settled or decided or that were in issue within the Determination. The Department's submission that the effect of the Closed Determination is quite specific in relation to any matter that relates to issues contained within the Determination is quite correct. It is the second string to that submission which goes too far. Those employee rights and entitlements must relate back to issues contained within the Determination. Even then the submission would be too wide if it were said to relate to the enforcement of rights devolved by the Determination. -- 2 of 3 -- 3 The further prohibition in clause 1.7.1 about pursuing extra claims "concerning any such matters" can only relate back to the matters contained within the Determination and all Union or employee claims covered by the Determination. The Act provides in s. 149(8) that while a determination operates, it cannot be amended. I am informed that no amendment to the Determination would be necessary here if the Union merit argument be ultimately upheld. Section 181 of the Act prohibits industrial action supporting or advancing claims against the employer during the life of a determination but industrial action is not being taken. No other section of the Act provides any assistance. I have already ruled that salary progression of Trade Supervisors or "Industries Supervisors" was not part of the decision or the Determination. Similarly, claims relating to employee rights and entitlements can only relate to those matters in issue, settled or decided in the s. 149 proceedings. What the Union seeks to agitate does not fall within the prohibition of the Closed Determination clause 1.7.1. But is the dispute D/2005/287 relating to matters of salary progression at all? The Union says no because those employees were never correctly classified and they should have always been employed in the administrative stream and (by giving evidence from the Bar table to which he himself strongly objected to), Mr Thomas said that the Union has only recently ascertained that an anomaly existed. The Union has submitted that its claim is about enforcing an existing right rather than being a salary progression claim. The "no further claims" clause in clause 1.7.1 could not without absurdity, restrict the enforcement of vested rights and entitlements. Whether the Union's claim is about enforcing existing rights or about deciding what rights ought to exist is not that clear because, like it or not, those employees were classified, rightly or wrongly, under the correctional stream and the Union wants the classification changed. But the point does not need to be explored. The Department's application for orders whether under s. 274(2)(b) or 331(b) of the Act is dismissed. It may now be appropriate for conciliation to recommence in another endeavour to compromise, now that this preliminary matter has been disposed of. B.J. BLADES, Commissioner. Hearing Details: 2006 1 and 21 February Released: 23 February 2006 Appearances: Mr K. Brown, with him Mr C. Hagstrom, for the Department of Corrective Services. Mr M. Thomas, with him Ms T. Stewart, for The Queensland Public Sector Union of Employees. Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --