Department of Corrective Services v Queensland Public Sector Union of Employees [2003] QIRC 164 (2003) 174 QGIG 195

19 September, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 195 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 149 – arbitration if conciliation unsuccessful Department of Corrective Services AND Queensland Public Sector Union of Employees (No. B1380 of 2003) COMMISSIONER BROWN 29 August 2003 REPORT ON DECISION (as edited) In giving his decision from the bench on 29 August 2003, Commissioner Brown stated: ”This application by the Department of Corrective Services seeks inter alia a declaration pursuant to s. 149 that conciliation regarding the matters still outstanding in enterprise bargaining negotiations with corrections officers and The Queensland Public Sector Union of Employees (QPSU) or (Union), has failed and that the issue be determined by arbitration. This Commission has been allocated the matter with respect to s. 149(1) only. That section reads: ‘Section 149: Arbitration, if conciliation unsuccessful: (1) This section applies if – (a) the commission considers conciliation has not been successful because industrial action – (i) has been protracted; or (ii) is threatening, or has caused significant damage to – -- 1 of 2 -- 196 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 September, 2003 (A) the economy or local community or part of the economy; or (B) a single enterprise; or (C) employees; or (iii) is threatening to endanger or has endangered, the personal health, safety or welfare of the community or part of it; or (b) the commission considers it is not likely that further conciliation will result in the matter being settled within a reasonable time, considering, among other things, the history of industrial relations in the enterprise or industry to which the proposed agreement is to relate; or (c) all of the negotiating parties consider conciliation has been unsuccessful and ask the Commission to determine the matter by arbitration.’ ” . Regarding s. 149(1)(c) – the QPSU has opposed the application, therefore there's no need to deal with that section further. Submissions were taken from both parties and have been considered. Regarding s. 149(1)(a)(i) – the Commission must determine not whether the matters listed in (a)(i), (ii) and (iii) exist, but whether or not they have been the cause of the failure of conciliation, and in the view of the Commission, they have not. Regarding subsection (1)(a)(i): I disagree with Mr McKay's submissions that industrial action in connection with these enterprise bargaining negotiations have been protracted. It has been anything but protracted in the view of the Commission, and whilst the QPSU has at times become frustrated with events, it is to their credit that they have to date accepted the guidance - I'm sorry, this was written some time ago - they have up until recently accepted the guidance offered by the Commission in the interests of avoiding disputes. Regarding subsection (1)(a)(ii): There has, in the view of the Commission, been no adverse affect or damage to the economy or community or the enterprise or employees, nor is there any threat in the view of the Commission. Regarding subsection (1)(a)(iii): As mentioned, it is not the view of the Commission that a threat to persons with respect to health and safety or welfare has caused conciliation to fail, however the Commission decision in B1135 of 2003 deals with this matter. Regarding section 149(1)(b): Prior to releasing the decision in B1135 of 2003, the Commission held talks with both parties regarding the latest position advanced by the Union and subsequently rejected by the Government. During these talks, the Commission pressed the Union negotiators on a number of key points, to the point where the Union agreed that a variation to the proposal would be seriously considered by them. These changes involved the deferral of some issues to a Leave reserved category, the withdrawal of the roster variation proposal claimed by the employers to be an extra cost, and the maintenance of an offer to allow the use of casuals on weekends which, until recently seemed to the Commission at least to be an important gain for the employers. The employer has indicated a refusal to further consider matters whilst industrial action is occurring or threatened. They have not indicated a refusal to negotiate in the absence of industrial action. Both parties were asked to express a view on what, considering s. 149(1)(b), would be a reasonable time for the settlement of the negotiations, or the finalisation of the matters. The employer believed one week would be reasonable, the Union felt one month more appropriate. Both parties were of the view that arbitration would take considerably longer ( than either estimate), particularly in light of the fact that the matters to be dealt with would require the attention of a Full Bench. Mr McKay expressed strong reservations regarding his perception that the sentiment expressed by union negotiators was not always reflected in the minds of employees whom he claimed had expressed firm views that certain items would not be accepted under any circumstances. They were certain key items. The conflicting responses to last night's recommendation given by the Union seemed to support this contention. I reluctantly accept these submissions of Mr McKay. Considering the history of the matter, I am of the view that further conciliation will not resolve the issue in a reasonable time and as such I am prepared at this point to record a finding, pursuant to s. 149(1)(b) that the outstanding matters be dealt with pursuant to s. 149(2), that is by arbitration.” . Dated 29 August 2003. By the Commission, Appearances: [L.S.] E. EWALD, Mr J. Pascoe for the Queensland Public Sector Industrial Registrar. Union of Employees, with him Mr B. Newman, Mr J. Ridgeway and Mr T. Newman. Mr P. McKay for the Department of Corrective Services, Released: 5 September 2003 with him Mr T. Barlow, Ms A. Pettie and Mr N. Taylor. -- 2 of 2 --