Department of Corrective Services v The Queensland Public Sector Union of Employees [2006] ICQ 27 [2006] QIC 30; (2006) 182 QGIG 152

[Extract from Queensland Government Industrial Gazette, dated 2 June, 2006, Vol. 182, No .5, pages 152-153] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Department of Corrective Services AND The Queensland Public Sector Union of Employees (C/2006/18) PRESIDENT HALL 18 May 2006 DECISION On 28 July 2005, the Queensland Public Sector Union of Employees (QPSU) notified the Queensland Industrial Relations Commission that a dispute existed between QPSU and the Department of Corrective Services (DCS). The notification was given in reliance upon s. 229 of the Industrial Relations Act 1999. The dispute relates to the employment of three persons employed as "industry supervisors" at the Wolston Correctional Centre. DCS maintains that the engagement of each of the three employees is controlled by the Department of Corrective Services Correctional Employees' Interim Award - State. QPSU asserts that the engagement of each of the employees is governed by the Queensland Public Service Award - State 2003. It is the contention of QPSU that the error commenced when the gentlemen were first employed. At that time, when the Government's corrective service functions were discharged by the Queensland Corrective Services Commission, the employment of all staff was regulated by the Queensland Corrective Services Commission Employees' Award - State. That Award made provision for an administrative stream, a corrections stream and a nursing stream. The claim is that three employees were wrongly treated as falling within the corrections stream. Subsequently, of course, the Queensland Corrective Services Commission was abolished. DCS took the Commission's place. In the course of the transition, employees within the corrections stream were brought under the Department of Corrective Services Correctional Employees' Interim Award - State, whilst those within the administrative stream were placed under the Queensland Public Service Award - State 2003. The original (allegedly incorrect) classification of the three employees within the corrections stream, under the Queensland Corrective Services Commission Employees' Award - State is said to have led to their current incorrect classification under the Department of Corrective Services Correctional Employees' Interim Award - State. Conciliation failed. The dispute moved to arbitration. DCS submitted that the Commission should decline to resolve the dispute or, alternatively, should dismiss the dispute without going to the merits. The Commission was said to have jurisdiction to take either course in reliance upon s. 274(2)(b) and, alternatively, in reliance upon s. 331(b). In substance, the justification for exercising jurisdiction in the way sought was based upon clause 1.7.1 of the Department of Corrective Services - Correctional Employees' Determination 2004, which provides: "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.". (For the purposes of this Decision it is unnecessary to consider clauses 1.7.2 and 1.7.3.) Whilst I accept that some remarks about public interest were made in the course of submissions at first instance, DCS did not (as it might have done) go into evidence and the Commissioner into whose hands the matter had fallen placed no reliance upon those matters. The justification for spurning QPSU's case was all about clause 1.7.1. With respect to Counsel for the Appellant, who has argued a difficult brief with tenacity and perseverance, the attempt to rely upon clause 1.7.1 was misconceived. Clause 1.7.1 might only be relied upon if it applied to the engagement of each of the three employees at the Wolston Correctional Centre whose employment was the subject matter of the dispute. The Commission could not rely upon clause 1.7.1 without determining that the Department of Corrective Services Correctional Employees' Interim Award - State applied to the three employees. Yet the whole purpose of the application mounted by DCS was to persuade the Commissioner not to answer that question. To the extent that it relied upon clause 1.7.1, the application was an exercise in futility. The reliance on s. 274(2)(b) was also misplaced. I accept that s. 274(2)(b) is one of a number of provisions which authorises the Commission to dismiss an application as well as to grant an application. I accept also that once it is demonstrated that an application is one which might not succeed on any view of the facts or the law, s. 274(2)(b) may be invoked to bring proceedings on application to a summary conclusion. But this was not a case in which DCS was seeking to contend that, on any view of the law, QPSU's case was simply not sustainable. Rather, DCS was seeking to induce the Commission to dismiss QPSU's case without considering the merits or, in the alternative, to refuse to hear it. Whilst the Commission does (unusually) have authority to decline to exercise jurisdiction and to leave an industrial dispute unresolved, the authority is found in s. 331(b) not s. 274(2)(b). Section 331(b) was of course the alternative basis upon which the Commission's jurisdiction to dismiss or refrain from hearing the matter was based at first instance. -- 1 of 2 -- 2 In short, in my view, the refusal of the Commissioner to accede to DCS's request was correct, though I rely upon somewhat different reasons. It is not necessary to go further. In particular, it is not necessary to consider whether the Commission's Decision should be set aside and the matter remitted to the Commission so that the Appellant may lead evidence on a second chance trial. It is not necessary to take that step because the frequency on s. 331(b) applications in a matter is limited only by the discretion of the Commission. However, since the matter has been fully argued, it is appropriate to record that I accept that clause 1.7.1 has nothing to do with a case such as this where QPSU does not seek to advance any new or extra claim but seeks to enforce an existing entitlement albeit (properly) via the expeditious and informal processes available under s. 229 rather than by way of an action for unpaid wages in the Industrial Magistrates Court. I dismiss the appeal. I reserve all questions as to costs. Dated 18 May 2006. D.R. HALL, President. Released: 28 May 2006 Appearances: Mr M. Spry, instructed by the Crown Solicitor for the Appellant. Mr J. Merrell, instructed by Quinlan Miller and Treston for the Respondent. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --