Cass v The Queensland Building Services Authority [1994] QIRC 711 (1994) 147 QGIG 1665

- 1664 Q UEENSLAND GOVE RNMENT 1NDUSTRI AL GAZETTE [23 December, 1994 23 December, 19941 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT E 1665 ##-##### ######### ##### ######### #### ############## ####### QUEENSLAND INDUST RI AL RELATIONS COMMI SS ION /n dus l!wl Rela1ions Ac1 / 990 s. 295 -- a pp lica ti on for rei nstat eme nt !\·1r W. Cass AN D The Qu eensland Bu ild ing Serv ices Au thority f:\'o . BI 00() of I 99-i) CO MM ISSIONE R SWA N 13 December 1994 J u ri sd ic ti ona l point to be det enn in ed - Di sm issal by Ac t o f Parliament - Ap p li c ant 's reliance on consultan t 's recom me ndations - Parliamentary Reco rd - Pub lic service conditions of empl oy me nt - I LO Co nventions - Seeki ng re inst att:m cnt to pos ition not in exi~tcncc - Lnc k of. jurisdict ion es tabl ished. REPO RT ON Dl'C ISION (AS ED IT ED) On 16 Se ptemb er I 9 94. an application u nder Part 12 Div ision 5 o f the Indus trial Rel ations Ac t (the Act) was lodged by Mr W Cass . The appli cat ion related to the purported termin at ion of emplo yment of Mr Cass from a position entitled Director, Horne Build ing Adv isory [) ivision o f the Queensland Build ing Se rvic es Amhorit y (the res ponden t Au thority) . The res ponde nt, c laim ing that there arose ou t of this app lic at ion a juri sdictional po int to be detcm1incd. stated that the app licant had not been d ism issed from the p os ition o f Director. Horne Building Adv isor, Divis ion (a posit io n the res pondent cl ai med has never in fact existed ) but ra the r had bee.n dismissed fr o m a statu tory posit ion (ie Directo r. ll orne Building Advisory S erv ice ) by th e Parliam ent o r Queensla nd and 11 01 O) his 13 516J DOC -- 1 of 3 -- 1666 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 December, 1994 immediate employer. In this context. the respondent claimed that the Queensland Industrial Relations Commission (QIRC) did not have the jurisdiction to hear the application as it applied to the particular situation in which the applicant found himself. Brief Background to Dispute A fore-runner to the current respondent Authority was The Builders' Registration Board of Queensland (a statutory authority operating under the Builders' Registration and Home Owners' Protection Act 19 7 9-1 WF). By virtue of the Queensland Building Services Authority Act I 99 /, that body was reconstituted and named the Queensland Building Services Authority (and was declared a Public Sector Unit in 1993) Under that latter Act. a llome Building Advisory Service was created and the position of Director. I !omc Building Advisory Service was created under section 23 of that Act. The applicant was subsequently appointed to that position. The respondent stated that. over time, tensions had developed between sections of the respondent Authority sufficient for the Minister for Housing and Local Government and Planning (the Minister) to commission a consultancy firn1 (Deloittes) to undertake a revic½ of the Authority At the conclusion of this review, the Queensland Parliament detern1ined to introduce ce11ain amendments to the current Act. To understand the submissions or the parties more fully, it is relevant to note the comments made by Deloittes (made prior to the enactment of the amending Act by Parliament) as they pertained to the position the applicant had held with the Authority as well as the duties performed by the Division he directed. The comments were:-- "Recommendations: The HBAS functions be transferred to the organisational structure of the QBSA and the functions outlined in Sections 22(A) and (B) be incorporated into a proposed Home Building Advisory Division and the functions outlined in Section 22(C) be incorporated in the licensing section of the QBAS Actions R/GM lo ensure a comprehensive l !ome Building Consumer Advisory Program is developed by the current Director, HBAS for inclusion in the Corporate Plan and initial business planning process. R/GM to work with Director, HBAS to develop the detailed organisational structure of the proposed Home Building Advisory Division and ensure the Division 1s structured and resourced to: • develop and implement a comprehensive Home Building Advisory Program including consumer infonnation, consumer recognition of QBSA and consumer awareness of their rights. • develop and implement overall marketing strategy for the QBSA. • develop and implement the ()BSA's contractor awareness program. • develop and co-ordinate the QBSA's mdustr) consultation program. • develop and co-ordinate the consultation processes required to underpin the development of the QBSA's Policy Development Program. • Current Director of HBAS be transferred to the position of Director of the proposed Division.". In his speech to Parliament regarding the amendments to the Legislation pertaining to the Authority, the Minister (Hansard - 14 April I 994) stated:- "The Deloittc's report made a number of recommendations for improvement in the authority's effectiveness and efficiency. The vast majority of these recommendations were accepted by the board, the general manager and the peak building industry organisations, with the exception of that on the size of the board.". As it transpired, the Queensland Parliament abolished both the position held by the applicant and the Home Building Advisory Service and, specifically in tenns of the applicant's position, enacted the following provision within the Schedule to the Queensland Building Services Authority Amendment Act 1994 (No 20 of 1994) which was proclaimed on 20 May 1994:-- "Director of the Advisory Service 6.( I) On the commencement of this clause, the person who, immediately before the commencement of this clause, held appointment under section 23 of the Act as Director of the Home Building Advisory Service goes out of office. (2) The termination of the appointment of the Director under subclausc ( l) docs not affect any right to compensation to which the Director is entitled under the terms of the Director's appointment. (3) This clause expires on the day on which it commences.''. As the amending provisions abolished the position held by the applicant as well as the Division under his control, those functions \Vere incorporated, by way of amendment to the Act into the functions of the General Manager of the Authority (sec Queensland Building Services Authority Act I 99 I as amended inclusive of Act No. 20 of 1994 ). The amending provisions vested in the General Manager all executi\e powers to deal with these specific functions at his discretion. While recognising the claim of the applicant that the position to which he seeks reinstatement is a non-statutory position, for the sake of clarity it should be stated that it is clear that the amending Act neither created a Home Building Advisory Division nor the position of Director of such Division. Claim of the Respondent Authorit:y The respondent claims that as a result of the amendments to the Act the applicant was without a position within the Authority - in effect, dismissed by an Act of Parliament. As a consequence of this, because the respondent Authority was a Public Sector Unit, the Public Sector Management Standard for Staffing Options to Manage Organisational Change in the Queensland Public Sector applied. To support its position that the QIRC did not possess jurisdiction to hear this application on this specific point, the respondent Authority cited a decision of Moore .I in Australian Liquor, Hospitality and Miscellaneous Workers llnion and Commonwealth of Australia (Industrial Relations Court of Australia - New South Wales Registry - No. NI 471 of 1994) where His Honour stated:- "In my view, the termination of the employment of Mr Simmons \\as not termination at the initiative of the employer but rather, as is submitted by the respondent, termination resulting from the operation of an Act of Parliament. Accordingly, the application 13516_).DOC 23 December, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1667 to the Court is one that does not concern termination of the type to which the relevant legislative provisions are directed.". In the context of that decision, the respondent stated that the Legislation to which Moore J referred was similar Legislation to that which exists under the Queensland jurisdiction (ie Dismissal provisions of both the Federal and Stale Industrial Relations Acts). Subsequent to the proclamation of the amending Act on 20 May 1994, it was claimed by the respondent that:- "Mr Cavanagh also referred in his reply to Mr Cass somehow being given a new contract of employment after 20 May. There is evidence before you again in affidavit material that this matter was one which was in dispute and had already appeared before two Commissioners of this Queensland Industrial Relations Commission, and whilst all these things were happening it was felt until the matter could be dealt with and there was still a view held in the authority that Mr Cass would accept or agree to have one of the optional provisions of the standard apply to him, it was felt that the most humane way to proceed, notwithstanding that he could have been terminated on 20 May, was to allow him to continue in employment and in fact he acted in the position of Manager, Home Building Advisory Services which was a new position and you'll see it on the 1993/94 report, a new position of Manager Home Building Advisory Service until that position was advertised and he also was encouraged to apply for that position.. ..Mr Cass finally had a retrenchment package applied to him after he had refused all the options that could have applied under the standard.". In light of the fact that the amending Legislation is clear in that the General Manager had vested in him the authority to administer the previous functions of the Home Building Advisory Service as he saw fit, l accept the evidence on the part of the respondent that the position in which the applicant acted, post 20 May 1994, was not a position entitled Director, Home Building Advisory Division. I hold this view because I accept that the respondent would be well aware of the exact nature of the functions that Parliament had entrusted to it as well as the manner in which it chose to exercise those functions. In this context. the respondent states that it created a new position in which the applicant acted on a clearly temporary basis pending the advertisement and filling of the position on a permanent basis. The applicant subsequently applied for that position and was unsuccessful in his application. Further, the applicant tendered to the Commission correspondence from the General Manager of the Queensland Building Services Authority (Exhibit C I) to Mr Cass dated 7 September 1994 wherein the following reasons were cited as constituting the employer's rationale for acting as it did:- "The Authority takes it that you are referring to the recommendation in the Deloitte's Report that the 'current Director of HBAS be transferred to the position of Director of the proposed division'. The Deloitte's Report referred to development of a detailed organisational structure of a proposed Home Building Advice Division. The Authority is of the view that no such division was created by the amending Legislation and the Legislation did not provide that you were to be transferred to the position of Director of that proposed division. Accordingly, it is a nonsense for you to purport to present for work on 8 September 1994 to fill a position which does not exist. The Authority's reasons for holding this view are as follows:- l. The recommendations in the Deloitte's Report were merely recommendations made to the Minister for Housing, Local Government and Planning, along with recommendations made to him by other interested parties. 2. Although the Report was generally approved, it does not appear from the Queensland Building Services Authority Amendment Act 1994 that the Report was implemented in full. 3. In relation to the Home Building Advisory Service, the Legislation provides that the service be abolished and the functions of the service be incorporated into the functions of the General Manager. 4. The Amending Act gives the General Manager all executive powers. Accordingly, he has the power to arrange for the Home Building Advisory Service functions to be performed as he sees fit 5. The Legislation did not create any organisational structure for a Home Building Advisory Division as proposed by Deloittes. The Legislation did not provide that you be appointed as Director of any proposed Home Building Advisory Division. ! f Parliament had intended that those proposals be effected, then the Legislation would have referred to them. 6. On the contrary, the functions of the old Home Building Advisory Service were subsumed under the powers and functions of the General Manager. On the face of the Legislation, it is a matter entirely in the discretion of the General Manager as to how those functions be fulfilled. 7. Accordingly, the Authority is of the view that Parliament did not intend the General Manager to be bound by the Deloitte's recommendation.". Claim of the Applicant It is clear from the application that the applicant is seeking reinstatement to a position entitled Director, Home Building Advisory Division (which is a position which was recommended by the Deloitte's Report) and not reinstatement to the position he had held which ,vas abolished by Parliament. Notwithstanding which position the applicant seeks reinstatement to, it is strongly denied by the applicant that he was ever dismissed by Parliament. What did occur, according to the applicant, was that Parliament had 'told' the Authority to create a position entitled Director. Home Building Advisory Division (according to the Deloitte's report, the relevant section of which is cited in this decision). l can, however, see no reference in the amending Legislation which verifies the applicant's assertion in this regard. Referring to the most recent amendments to the Act [cited earlier - Director of the Advisory Service 6(1 )(2)(3)] the applicant claimed that. since the wording of the provision did not contain words such as "dismissed from employment" the applicant, rather than being dismissed, became a supernumerary employee of the Authority. Failure of mention in the amending Act to preclusion of the applicant from the protection of the Industrial Relations Act 1990 was seen as a further telling point in the applicant's submissions. The applicant also claimed that s. 6(2) of the amending Act. namely, "(2) The termination of the appointment of the Director under subclause ( l) does not affect any right to compensation to which the Director is entitled under the terms of the Director's appointment.'' as it related to 'compensation' reflects a determination on the part of Parliament to ensure that. upon moving from a 13516_1.DOC -- 2 of 3 -- 1668 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 December, 1994 statutory position to a non-statutory position, the applicant was compen sa ted for all the changes envisaged, ie. loss in status and movement off the board . How such ·compensation' was to manifest it self was not exp lained by the applicant to the Commission. It was submitted that the Commiss ion needed to fully appreciate the background to the amend ing Act provision s in order to understand the app li cant's case. (It shou ld be noted that the Commi ss ion made it clear to the parties that they would not be precluded from putting before the Commission a ny submission which they be lieved might enh ance or clari fy their posit ion }. Reference was made to the Deloitte's report and the applicant's contention that. with but on e exception as it went to the size of the Board, the Minister had accepted in toto the content of tha t report. It was also s tated by the applicant th at it was the clear intention of Parliament to move the app li cant to a non-statutory position (in accordance with the recommendati o ns of the Deloitte's recommendations}. Tht! applicant states that nowhere in the Minister's report to Parliament does the commentary "dismissal of the Director in HBAS" arise. It was contended that, in light o f the above views, a conflict arose between the Legislation under review and the /ndus 1rial Relations Act 1990. Th is con fli ct arose if the appl icant was in fact dismissed (as c laimed by the respondent) and then not a fforded the protection of the lnduslrial Rela1ions Act I 990. The subm ission was that a 'fair and jus t employer' could never deny a dismissed emp loyee access to a tribunal such as the QIRC and this was particularly so in light of the recent amend ments to the fndus lrial Relations Act 1990 which incorporated ILO conventions. Rega rding the Public Sector Man agement Commission Act provisions, it was stated that, in the case of dismi ssed pub li c servants, access was avai lable to the QIRC for detennination. In essence, the sub mission of the ap pli cant in this context is encapsul ated in the following co mmen tary of the advocate fo r the app lican t - "If Parliament were to dism iss, it must cut off this pathway or acce ss ". The singling out o f one employee (in this case the applicant) by an Act of Parliament for dismissal was. in the view of the applican t, 'ridiculous' and contrary to the intent of the ILO Convcntio t1 s referred 10 in the Industrial Relations Act I 990. The app licant's submission was that ;- "They have noted the ass ignment of the em ployee from the sta tutory posi ti on to a non-statutory position. k.new that assignments were common place in the public sector and quite legal, realised that they simply needed to terminate an appointmen t from a sta tutory office as no dismissal from employment was intended . They did no t need to amend the QOSA Ac t to reflect those exact words and cut off access to the QIRC. They did not need to cut off access to the QIRC through I.he PSMC Act , and did not nee d to regulate an exclusion from the Industrial A ct , and d id not need 10 direct preparation of an o rder in counci l: a very clean, conc ise operation on the part of the Parli amentary Council. Com mi ss ioner. Furthermore, the use of the word 'compensation' reflected the need to compensate the ass igned e mployee from the loss in status associated with the loss o f the statu tory nature of the position and the sea t o n the board, but in my view of the transfer, knew that no othe r subc lau ses were needed in the QBSA amend ment.". As it transpired. it was subrnilled that the ap plicant was retained in emp loymen t for some period of t.imc; the Pu blic Sector Management Stan dard fo r St affi ng Option s to Manage Organisati onal Change in the Queens land Publ ic Sect or was not honoured by the emp loyer and the applicant was summarily dis missed from employment and paid an amount equal to 5.3 1 weeks pay. Co nclusion I believe that I have adequately detailed the general thrust of bo th the applicant's and the respondent's su bm issions. I have determined to accept the submissions of the respondent in that the QIRC does not possess the jurisdiction to hear the app lication of Mr Cass. Th is determ ination, fo r reasons later stated, does not relate solely to a consideration o f the abol ishme nt by Parl iament of the position of Director. Home Building Ad viso ry Service. In summary, my understanding of the applicant's primary claim is that the amending Legislation merely reflected the thrust of the l)cloitte's report in abol ishing the Home Building Adv isory Service and the corresponding statutory office of the Director o f that Service. The advocate for the appli cant str enuous ly denied t hat the Legislati on had d ismissed his client (see Transcript pages, J 6, 21 for examp le). It was claimed that the intent of Parliame nt was to adopt the Deloitte's re port and place the applicant in the non -statutory pos ition of Director of the proposed Home Building Advisory Division (and it is this position to which the app licmll seeks reinstatement). It was submitted that there was no intent on the part of the Parliament 10 dismiss the applicant from employme nt per se. What happened as a matter of fact, however, was that the Parliament di d abolish the Home Building Advi sory Service (and trans fer its functions to the General Manager) and the position held by the appli cant. The applicant's pos1t1on had gone. Notwithstanding that the duties previously performed by the app li cant may have remained as duties to be pcrfonned, Parl iament did not create a Home Building Advisory Division nor did it state that the applic ant was to become its Directo r. It appears that every component of the Delo itte's report was not adopted by the Parliament. T here is no question that Parliamt!n t can enact whatever Legislation it deems appropriate, and my understandi ng of the amending Act provisions is that the General M anager (as per s. 18 of the Queensland Building Services Authority Act 1991 a5 amended inclusive of Act No. 20 of 1994) was a fforded Execu ti ve powers sufficient to arrange the function s of the previous Home Building Advisory Service as he saw fit. What was clear was that no position of Director of Home Building Advisory Division (as proposed by the Deloitte's report) wa!;< created as a result of either the amending Le gislation or subsequent actions of the General Manager. The General Manager c learly made a decis ion not to follow the Deloitt e's repo rt to the letter and my understanding of the amending Leg islation is that it pennits him to do so, if he so chooses. In reaching my decision, I have tak en into accoun t the history surrounding the enactment of the amending Leg islation. Parliament was not bound to accept the recommendations of the cons ultants. Deloi ttcs. That it may have done so to some extent, is not relevant to a situation where th e intention of the precise words chosen by the Par li ament is c lear. While reference to the Minister's speech (cited earl ier) for clarification on intent is not necessary in this instance (because the wording used wi thi n the amending Act is clear and unambiguous), for the purpose of completeness I do refer to it. The c lear understanding I gained from the Min ister's comments to the Parliament is that, while the 'vast majority' of the recommendations were accep table and that an exception existed in regard t.o the size of th e board, the M inister does no t sav words to the effect that "all of the recommendations o f the consuitants must be adopted with the only exception be ing that of the size of the board". In terms of the provision of the amending .Ac t (cited earlier - Dire ctor of th e Ad visory Sen,ice 6(1), (2), (3) ], Parliament did d.:clare that Mr Cass (being the "person.. referred to in the provision] 135 16_1.[)()C 23 December, 1994] QUEE NS LAND GOVERNMENT INDUSTRIAL GAZETTE 1669 vacate the office he had he ld as Director of Advisory Service s. Despite the fact that the re was no mention with in the amending Legislation of a "dismissal'' of the app lican t, the effect of the provision ensured that this was the outcome. The specific wording of s . 6 (2) of the amending Legislation. namely, "(2 ) The tem1 ination of the ap pointment o f the Director under subclause (I) does not affect any right lo compensation to which the Director is emi tl ed under the terms of the Director 's appointment.'' clearly demonstrates to me that Parliament had the intent of tenni nat in g t he app li cant's employment and ensuring , in so doing, that the applicant cou ld access whatever compensation he might be entitled to under the tcnn s on which he had been appointed. I do not accept the applican t 's interpretation of this subclause as being rea listic in the circumstances. Whether that outcome was fair and reason able in the ci rcumstances was a matter for Parliament to consider and de1e1mine. It has done so and its decis ion ca nn ot be challenged in this j urisdiction. The fact that leg islat io n ex ists by way of the Industrial Relations Act 1990 and the public sector Standard (earl ie r reft!rred to} provid ing access for dismissed pub lic servants to seek relief, in no way impinges upon the ultimate power of Parliament to enact Legislation as it wishes. Indeed, there are many instances where Pa rliaments exercise the un fettered right 10 statu torily terminate the em ployment o f persons holding a statutory ofl1ce. Questions of fairness and equity mi ght be rai se d by the community as a result of the use of suc h powers. but that would be the extent of the impact. Havi ng regard to the hi story of the rnauer, it appears to be argued or at least appears to be possible that the applicant was dismissed from one of three positions. The first posi ti on is the one he ld by the applicant prior to the amending Legislation (ie Director, Home Building Adviso1)" Service). I bel ieve , for reasons cit ed earlier. that the app lic ant vacated this position by fo rce of the Law embodied in s. 6 of the Schedule to the Queensland Building Services Alllhoriry Amendment Ac1 1994 (No 20 of 1994). I respectfully adopl the decision of Moo re J (e arli er referred to) in this regard. The second posi ti on is the one the appl ican t claims he was sum marily dism issed from and for which he see ks reinstatement ( it!. Directo r, Home Building Advisory Division). I accept that the posi ti on was never cr eated. It was ne ver put to the Commission by th e applicant that the pos ition. as a matter o f fact. exis ted, but rather that the position illill!.!..ct have existed. The ev idence is that this position was recommended by tlw Deloi tle's report but, for reasons re ferred to earlier in this dec ision, it was no t enshrined in the Legis lation. In fact. the dut ies which had anached to this prev io us posi ti on were within Lhe province of I.he General Manager to contro l and admin ister and this si tuat ion occurred as a direct result of lhe amend ing Legislation. Neither the Legislat ion no r the General Manager sought to c.reate the position of Director of Home Ouild ing Advisory Division. Consequently, it is imposs ible for the appl ican t to seek reins tatement to a posi tion wh ich, as a matter of fa ct. docs not exist. The th ird posi tion wou ld be that of Acting tv1a nager, Home Rui lding Advice Division (a newl y created position) in which the ap pli cant acted until this posi tion was adve rti sed. Materia l was tender ed to the Commission by the applicant sta ti ng th at this posi ti on was a newly created position in which the appl ican t had acted unt il the position \\a s adve11ised. AL no stage d id the ap plicant refute the veracity of the contents of the documents as to the creation o f this new pos itio n. The applican t merely stated that after 20 May I 994. he had s tarted another pe ri od of employment with the emp loyer. My understand ing, from the mater ial before me by way of documentary e\'idencc. is that the app li cant unsuccessfu lly applied fo r this position. In any even t, this last position is not the position the applicant sta tes he was dismissed from and consequently it is not the position lo which he seeks reinstatement. Fo r all of the abovementioned reasons, I do not be li eve that the Com mission can proceed 10 hear this application. I order accordingly. Dated this thirteenth day of Dect!mber, 1994. By the Commission, [L.S.] R.H. BLUMSOM, Assislan t Industria l Regis trar. Appearances:- Mr D.J. Cava nagh (of Livingstones Australia}, with him Mr W.A. Cass, for the Appl icanl. Mr I. Bennett (of I. G. Bennett and Associates Pt y Ltd), with him Mr M. Miller, for the Queensland Build ing Services Authori ty. Ms K. Lynch for the Crown . Operative Date: NIA Decision - Lack of Jurisdiction Established - Unable to reinstate to position not in existence Released : 14 Decem ber 1994 ##################/1###########################/I######## 13516_1.DOC -- 3 of 3 --