Department of Administrative Services v Smith [1993] ICQ 38 (1993) 144 QGIG 905

904 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 17 December, 1993 [9 05] The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY PP45 1207100086 Annual Subscription S2IO ISSN 0IS5-9362 Vol. 144] FRIDAY, 17 DECEMBER, 1993 [No. 31 QUEENSLAN D INDUSTRIAL COURT Industrial Relations Act 1990 s. 96 (2) - appeal irom d ec i si on oi industri al commission Department oi Admin i st rat ive Serv i ces AND Colin Graham Sm i th /No. C30 of 1993) JUS TI CE MAC KEN ZIE, PRESIDENT 6 D ece mber 1993 Ap pea l - Industrial Commission Ind ustrial Relations Act - Public Sector Management Commission Act - Juri sd iction - Public Inte re st Remi tted to Indu strial Commission - Appeal A llowed. JU DGMENT In a deci si on relea sed on 3 1 Ju ly 1993. a challenge to the juri sd iction oi t he Commission to hea r a re-instatement appl ication by t he re spondent was re jected. Mr Smith h ad on 1 3 September 1984 been appointed Ass istant Director, Sta te Government Compu ter Centre, Treasury Department. Later the St ate Government Computer Centre fell under th e res ponsibility of the Department of Industry Development and ioll owing a Departm enta l re-o rga nizati on in l ate 1989, Mr Sm ith performed th e dut ies oi Manager, I. T. Resea rch Branch of CITEC. Then in October or November 1990, M r Smith was required to perfo rm t he du ti es oi Manager, Executive Support Branch in CITEC. Upon a iurther re-organization. al l D irector and Branch Manager po sitions were decl ared vacant and adverti sed. tv\r Smi th was unsuccessful in obtaining a pos it ion and was considered ior re- deployment. From August 1991 onwards, Mr Sm i th lodged a number oi grievances and on 28 September 1991 , lodged a Not 1iic at ion oi Dispute w i th t he Commission. The esse n ce oi t he matter beiore the Commi ss ion was that the respondent sough t to conunue 1n employment or re-i nsta te ment to the position oi 14582 1-78 Manager, Executive Support Branch or severance payments based on continuous serv ice since 1955. After a compulsory conference before Commissioner Swan an d further di scuss ions involving the Department and the respondent and his union rep re sen ta tive, Comm issioner Dempsey conducted a preliminary hearing and decid ed th at the matter should proceed to formal h ea ring in March 1992. In t he meantime on 20 January 1992, the Fair Treatment Tribunal allowed the respondent's grievance in certain re spec ts and on 11 Fe bruary 199 2 decided t ha t his suitabili ty for th ree specific positions in CITEC be considered. A selection pa nel subsequently decided that the responden t was not suitable for any oi those positions but on 5 March 1992 the Fair Treatmen t Tribunal found tha t he was suitable for a p os ition of Computer Sy st ems Ofiicer. The Depanment was di rected to oiler him appoin tment to th at position on ce rtain conditions. The Depanment's offer was accepted by the respond ent on 24 March 199 2. A funher Fa ir Tr eatment Tribunal Hearing determined that t he res pondent could not appeal against the appointmen t to one of t he posi tio ns ior which he had been founo un sui table in the previous Tribu na l hearing. Aiter the peri od ior wh ich M r Sm ith's sa lary h ad been maintained at the previous level had ceased he "r e-act ivated" t he re-instatement proceedings in the Commission. The bas i s oi the ap peal is a narrow one. It rel ates to the interaction between the Industrial Relations Act 1990 and the Public Sector Management Commission Act 7990. Part 16 oi th e Industri al Relations Act decl ares the Crown to be bound by it subject to cert ai n exceptions. Those are where another Ac t: (a) prescribes a means by which a matter must or may be determ ined an d such a determination of the ma tte r has been made and is in force; (b) prescri bes a process or procedure by wh ich to pursue a matter and does no t allow for ju risdicti on by t he Industrial Coun or the Indu st ri al Commissi on ; or (c) excludes the j urisdiction of the Industri al Court or Industrial Commission or a decision by them in respect oi the matter. Section 5.3 oi the Public Sector Management Commission Act 1990 gives exclusive ju risdic ti on to th e Commissioner fo r Pu blic Service Equi ty in: -- 1 of 2 -- 906 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ l 7 December, 1993 (a) cases whe re there is an action taken or purportedly taken or a fa ilure to take action in compliance with or pu rsuant to a standa rd ; (b) disciplinary act i on except d ism issa l; or (cl appeals against promotion (sub ject to certa in immaterial exception s) . Sect ion 5.9(3) provides tha t the Indu str i al Re l ations Commission does not have jurisdiction to hear and determine a matter wh ich i s within thed· uri sd iction of an Appeal Tribunal or which has been heard an d ete rmined by an Appeal Tri bunal unl ess the Comm iss ion is satis fi ed that it is in the public interest tha t it hea r the matter. Th erefore, the Industrial Relations Commission's j uri sd iction is excluded only if the respondent' s "matler" before the Commission i s to be characteri zed as being in respect of a matter wi thin the proscribed desc ript ion. It was no t submitted by M r Martin for the appellant that the i ssue of re- in statement was beyond t he ju risdiction of the Industrial Commission. He conceded t hat the Commi ss ioner had correctly identified the two p rel iminary issues as to jurisdic ti on, namely whether the respondent had been di sm is sed and whether the provisions of the Pub lic Service Management Commi ssion Act and the hearings wh ich ha d ta ken place before the Commissioner for Public Service Equ ity together had the result that the Co mmi ss ion did not have j urisdiction in the event that th e respondent ha d be en dismissed. Mr Martin accepted th at th e Co mmissioner had correctly sta ted the concept of a dism issa l. However, he submitted that the Commi ssio n er h ad erred in a passage of his judgment where he sa id: . I am of the opinion that the provision re lied upon by the Crown, section 5.9(3), does no t override nor limit the Industri al Commission's j uri sd icti on in so far as section 11 .37 of the Industri al relati ons Act i s concerned as i t would appear that section 5.9(3) i s qualified as being sub ject to subsection (2) wh ich appea rs to have b een dependent on the estab lishmen t of a Cl assi fication Review Tribunal, sec tion 5.4.'' . It was submitted that because some of t he ev idence to be l ed in t he Indu str ia l Commission was likely to re l ate to m atte rs already d ea lt w i th by the Commissioner fo r Pub lic Serv ice Eq uity i t was an error of law not to con si der, under s.5.9(3), the question of publ ic interes t. The opening words of s.S.9 (3) h ave the effect only of removing t he matte rs in s.5.9(2i from the lim itation applied ge n era lly by s.5 9(3). Except in the spe ci al case referred to in s.5.9(2), s.5 .9(3 ) has e ff ec t according to i ts terms. Therefore, if the matter was wi thin th e juri sd iction of an A pp eal Tribunal or the matter h ad been heard and determ in ed by an Appeal Tribu na l, the Commission must consider the publ ic interest questi on. When an i ssue ar i ses whether s.5.9(3) is rel evan t, it will be necessary to define as preci se ly as possi ble wh at the "matte r" in each forum comprises. It is desirable that an applicant gi ve a clear indica ti on of the i ssues tha t he w il l rai se if the Industri al Commi ss ion hea rs th e "matter" so tha t the ex t en t to which '"m atters " dealt with in the App eal Tribunal and the Commission wi ll co-incide can be determi ne d. The mere fact that some ev idence w ill be relevan t in each forum does not necessarily requi re co ns ideration of t he public interest by the Commi ssion. On the oth er hand, if t he conduct of the hearing in th e Commission requi res consideration of the merits of a decision in an Appeal Tribunal as pan of the Com mi ss ion's consi de rat ion of the "matte r" before it, the public inte re st test will be relevant. The se are not necessarily two mutuall y exc l us i ve ca tegor ies because th ere may well be grey areas in between. In the present case, i t was an error to rely on the passage quoted above to exclude s.5.9(3) from considera ti on. It is not clear whether Mr Sm i th's case w ill involve matters which wou ld ii l the description in s. 5.9(3 ). It i s poss ible that they may, and thi s illustrates why it is desi ra ble to defi ne as clearly as possible at the outset wh at the case w ill be. Hav in g regard to M r Martin 's indi ca tion that he did not propose a narrow tes t of "pub li c interest", it is to be noted that as part of his rea so ns for concl uding that the matter ought to be pe rm i tt ed to proceed, the Commi ssio n er said t he fo ll owing: " ... it wo uld appear th at the matter that is the su bject of this application aught to be permitted to proceed. I am fu rther pers uad ed to thi s direction in view of t he commen ts of Mr Pul s, 't hat this ma tter should be determined once and for a ll' , as public time wh ich engages cost has bee n expended to a si gn ificant degree on Mr Sm i th to this po int in time. It would appear t hat the forming of an opinion can only be given credence if the respective positions of the parties are before the Industrial Commi ss ion for its consideration. If any 1arty is denied the right to pu t its position the lndus trr a Com mi ss ion cannot come to a balanced and well informed opinion. Given th ese considerati ons it would only be at l eas t fair to l et the appli can t st ate a case and consider the respondents contentions, t he n ha ving considered those conten tions, form an opinion and de te rmine whether intervent ion by t he Industrial Commission is warranted. If the position is as I have stated j urisdiction woul d seem to ex i st. It is then a matter for the applicant to demonstrate that the acti ons of the employer are or have been h arsh, unfair or unjust.". T he conclusion to be drawn f ro m th i s is that in all probability the Com m is sioner would have concluded that the public interest qualification wou ld have been satisfied in thi s case if it was one to wh ich th e Lest applied. It i s noted th at th e Commissioner's at te nti on was drawn to the deci si on of this Court in Campbell Security Pty. Ltd. v F.M.W.U. (Queensland) (1991) 136 QGIG 585. The provision considered in that case h as a requi rement that " th e matter is of such importance that an appeal should be brought in the public interest" . Tha t is a more stringent test than that in s.5 .9 (3) which simply re fe rs to "the public inte rest". In all of the circumstances, t he appropriate cour se is to rem it the matter to the Commission to make a finding as to public interest. In the even t that such a finding is made, th ere is nothing to p reven t the Commi ss ion from proceeding to h ear the res pondent's application. The order is t hat the appea l is allowed. The matter i s rem itted to the Industrial Commission w i th a direction that it proceed according to law. Dated thi s si xth day of December, 1993. K.G.W. MACKENZIE, President. Appearances:- Mr G.C. Martin (i ns tructed by the Crown Sol icitor) for Departmen t of Ad mi nistrat i ve Serv i ces. Mr C. Pu ls of The Association of Professional Eng ineers. Aust rali a, Queensla nd Branch, Union of Empl oyees w ith him Mr C.G. Sm i th. Operative Date: NIA Judgment - Department of Adm inistrative Se rv ices and C.G. Smi th Rel eased: 6 December 1993 I 7 December, 1993] QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE 907 -- 2 of 2 --