QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees [2024] QIRC 289

PARTIES:	
	State of Queensland (Queensland Health)
(Applicant)

v

Together Queensland, Industrial Union of Employees
(Respondent)
	
CASE NO:
	D/2023/61
	
PROCEEDING:
	Industrial Dispute - Application in existing proceedings

DELIVERED ON:
	6 December 2024
	
MEMBER:

HEARD AT:	McLennan IC

On the papers

ORDERS:
	1.	That the Application in existing proceeding is upheld. 

2.	That the substantive Application is dismissed.
	
CATCHWORDS:	INDUSTRIAL LAW – INDUSTRIAL DISPUTE – where Respondent filed application pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld) to dismiss the substantive matter – application to dismiss the substantive matter is granted
	
LEGISLATION:

CASES:	Commonwealth of Australia Constitution Act s 44
Industrial Relations Act 2016 (Qld) s 3, s 261, s 262, s 426, s 531, s 541

Public Service Act 2008 (Qld) s 130

Circular No: 01/22 – Public sector employees contesting elections 

Circular No: 03/14 – Public sector employees contesting elections

Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 4

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Department of Corrective Services v The Queensland Public Sector Union of Employees [2006] ICQ 27

Fardon v Attorney-General of Queensland [2004] HAC 46

Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 081

Orchid Avenue Realty Pty Ltd t/a Ray White Surfers Paradise v Percival (2003) 174 QGIG 643

Queensland Services, Industrial Union of Employees (for Leslie Rojas-Carranza) v Brisbane City Council [2018] QIRC 042

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2024] QIRC 43

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2023] QIRC 181
State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura [2015] QIRC 030

State of Queensland v Lockhart [2014] ICQ 006

State of Queensland v The Queensland Public Sector Union of Employees [2003] ICQ 8

The Australian Workers' Union of Employees, Queensland v State of Queensland [2012] QCA 353

Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health) [2021] ICQ 16

Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] 25 CLR 434
	
Reasons for Decision

Summary of industrial dispute

[1]	Together Queensland, Industrial Union of Employees (Together Union; the Union; the Notifier) filed a Form 10 – Notice of Industrial Dispute (the Dispute Notice) on 19 June 2023.  

[2]	Together Queensland, Industrial Union of Employees is the 'Notifier' in the substantive industrial dispute matter but the 'Respondent' to this Application in existing proceedings.  For ease of reference, I will continue to refer to Together Queensland as the 'Notifier' and the State of Queensland (Queensland Health) as the 'Respondent' in this Decision. 

[3]	In summary, the Dispute Notice outlined that Mr David Kerrigan (Together Union member and delegate) had resigned his employment as an AO5 Alcohol and Drugs Co-ordinator (AO5 AODS) at the Barcaldine Hospital, in order to run as a candidate for the seat of Maranoa in the 2022 Federal Election.  Mr Kerrigan was unsuccessful in his election bid.  After the election, Mr Kerrigan sought reappointment to his AO5 AODS role.  However, the role was abolished in his absence.  Discussions about Mr Kerrigan's re-employment ensued at workplace level.  Ultimately, Mr Kerrigan returned to work with the Central West Hospital and Health Service (CWHHS) in a Medical Imaging Assistant role at a lower CA3 classification – albeit with a period of salary maintenance at his previous AO5 classification level.

[4]	Together Queensland said that CWHHS's decision to abolish the AO5 AODS role formerly held by Mr Kerrigan was not compliant with the Queensland Public Health Sector Certified Agreement (No. 11) 2022 (EBA11) and the Queensland Government Employment Security policy. 

[5]	In the Dispute Notice, the outcome sought by Together Queensland was that Mr Kerrigan "be reinstated" into the AO5 AODS role, "which [Together Queensland] contend was not lawfully abolished" due to "the failure of the employer to follow the EB provisions."

Relevant Legislation 

[6]	Relevantly, s 130(2)(b) of the Public Service Act 2008 (PS Act) prescribed a defeated candidate's right to reappointment to their former role, or another role at the same or lower classification level, post-election:

	130	Right of reappointment

		(1)	This section applies if –
			(a)	a person held an office of service with the State and the office was permanent (the former office); and
			(b)	the person resigned from that office to become a candidate for election as any of the following – 
				(i)	a senator or a member of the House of Representatives of the Commonwealth Parliament;
				(ii)	a member of the Legislative Assembly; and
			(c)	the person was a defeated candidate at the election.

		(2)	The person is entitled to be – 
			(a)	reappointed to the former office; or
			(b)	appointed to another service with the State, whether of the same classification level or a lower classification level as the former office.
		…

[7]	The Public Service Commission Circular No: 01/22 – Public sector employees contesting elections (the PSC Circular No: 01/22) also applied at the relevant time.  That circular restates the entitlement under the PS Act for an unsuccessful election candidate: 

… who has resigned to participate in federal or state election and was not elected to:
a.	be reappointed to their former role; or
b.	be appointed to another role with the State and this may be at the same classification level or a lower classification level as the former role.
…
Where a person has been reappointed, the continuity of the person's service if taken not to have been broken by their resignation.

Chronology

[8]	A brief chronology is set out below:

Date 	Event 	
4 April 2022	Mr Kerrigan resigned from his AO5 AODS role with CWHHS, to be a candidate in the 2022 Federal Election. 	
15 April 2022	Mr Kerrigan's AO5 AODS role "became permanently vacant."	
21 May 2022	Federal Election held.  Mr Kerrigan was not elected.	
23 May 2022	Mr Kerrigan requested reappointment to the AO5 AODS role.  He was then informed "the position no longer existed, and a meeting would be arranged with CWHHS to explore suitable vacant positions."	
On or around
26 May 2022	Mr West (CWHHS) and Mr Kerrigan discussed possible options for reappointment, in a telephone discussion.	
9 June 2022	Mr West emailed Mr Kerrigan "advising of the vacant roles at Barcaldine Hospital and their wage rates, which included a role as a CA3 Medical Imaging Clinical Assistant …"	
30 June 2022	Mr Kerrigan emailed Mr West "requesting a meeting to discuss the proposal that [he] be appointed to the Medical Imaging Clinical Assistant position."  (Mr Bernie and Mr Abbott were amongst the five people copied into that email).	
8 July 2022	A meeting occurred between Mr West, Ms Coombe, Mr Kerrigan and Mr Bernie.  

At the meeting "Ms Coombe offered to seek Director-General approval for an above award payment for the position of CA3 Medical Imaging Clinical Assistant for a set period, to be paid at Mr Kerrigan's rate of his previous role as AODS Coordinator (AO 5.4) and said a new letter of offer would be issued for the Medical Imaging Clinical Assistant role."	
13 July 2022	Mr Kerrigan was given a Letter of Offer for the Medical Imaging Clinical Assistant role, that provided "This appointment is subject to [CWHHS] receiving approval from the Director-General (of Queensland Health) for the provision of salary maintenance for a period of 12 (twelve) months at the same pay level of your previous pay level (AO 5.4)."	
21 July 2022	Mr Bernie emailed Ms Coombe "requesting minutes of the meeting held on 8 July 2022", whereby he noted "we all came to an Agreement of Salary maintenance for 12 months."	
25 July 2022	Mr Kerrigan signed the Letter of Offer.	
4 August 2022	The Acting Chief Operating Officer "officially approved the appointment of Mr Kerrigan to a CA3 Medical Imaging Clinical Assistant" role "with salary maintenance, at the rate of an AO 5.4 for 12 months, which was backdated to 30 May 2022." 	
11 August 2022	Mr Kerrigan was advised of the decision to approve the above award payment.	
16 May 2023	CWHHS received correspondence from Together Union advising that the parties would be in dispute unless Mr Kerrigan's "position is reinstated, or he is deployed into an AO5 or equivalent position".	
26 May 2023	CWHHS responded to Together Union advising that it did not agree to reinstate Mr Kerrigan's previous position or redeploy him elsewhere.	
19 June 2023	Together Union filed an industrial dispute seeking "that our member be reinstated into his position …"	

Background

[9]	The parties were unable to resolve the industrial dispute in conciliation conferences before the Commission.  The matter was allocated to me for arbitration, pursuant to s 262(3) of the Industrial Relations Act 2016 (Qld) (IR Act).

[10]	A Mention was held on 16 January 2024 for the purpose of settling the questions for arbitration.  That was subsequent to the parties' email exchange of their respective views on the matter.

[11]	At the Mention, the Respondent argued that "the industrial dispute is misconceived and that further proceedings are not necessary or desirable in the public interest" (consistent with its 12 October 2023 correspondence to the Notifier).  The Respondent proposed that the Commission should first decide that preliminary matter, before determining the questions for arbitration.

[12]	Conversely, the Notifier's view was that the questions for arbitration ought to first be decided, before the Commission determines any application to dismiss the matter.

[13]	Noting there was no Form 4 – Application in existing proceedings before the Commission at that time, notwithstanding the possibility of the Respondent doing so had been mooted for many months, I proceeded to first determine the questions for arbitration.  The following questions for arbitration were provided to the parties on 25 January 2024:

1.	Does the employer's contravention of the certified agreement provisions invalidate its decision to abolish the AO5 AODS role?

2.	If the employer's decision to abolish the role is found to be invalid, does the AO5 AODS role then remain?
3.	If so, was the employer's decision not to re-appoint Mr David Kerrigan to the AO5 AODS role fair and just?

4.	Was the employer's decision not to re-appoint Mr David Kerrigan to an AO5 role fair and just?

5.	What are the appropriate remedies?

[14]	The framing of the first question was informed by the Respondent's concession at the Mention that the AO5 AODS role formerly held by Mr Kerrigan was abolished by CWHHS in a manner that contravened the provisions of the Certified Agreement, as the appropriate consultation process was not followed.  That was an appropriate concession to make, though regrettably the matter had been on foot for some time before that occurred.

Application in existing proceedings filed

[15]	Days later, on 29 January 2024, the Respondent filed a Form 4 – Application in existing proceedings asking the Commission for:

An order under section 541(b)(ii) of the IR Act to dismiss the Notice of Dispute on the basis that it would not be in the public interest.

Section 541(b)(ii) 

[16]	In the Form 4 – Application in existing proceedings, the Respondent sought to rely on s 541(b)(ii) of the IR Act that provides (emphasis added):

	541	Decisions generally

		The court or commission may, in an industrial cause do any of the following-
(a)	make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause; 
		(b)	dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers-
			(i)	the cause is trivial; or
			(ii)	further proceedings by the court or commission are not necessary or desirable in the public interest;
		(c)	order a party to the cause to pay another party the expenses, including witness
  expenses, it considers appropriate. 

[17]	Satisfaction of s 541(b)(ii) of the IR Act turns on whether further proceedings are not necessary or desirable in the public interest. 

Submissions

[18]	Along with the Form 4 – Application in existing proceedings, the Affidavit of Mr Anthony West, Chief Executive, Central West HHS was also filed on 29 January 2024.

[19]	I issued Directions on 1 February 2024 to hear the parties' submissions on the Form 4 – Application.

[20]	The Notifier filed submissions on 8 February 2024.

[21]	The Respondent filed submissions on 15 February 2024.

[22]	The Notifier applied for leave to make oral submissions on 16 February 2024.  

[23]	The parties' oral submissions were heard on 5 March 2024.  Exhibits included:

1.	Letter from Mr Xavier Lake to Ms Allison Finley-Bissett dated 12 October 2023

2.	State of Queensland v The Queensland Public Sector Union of Employees 

3.	Department of Corrective Services v The Queensland Public Sector Union of Employees 

4.	Queensland Services, Industrial Union of Employees (for Leslie Rojas-Carranza) v Brisbane City Council

5.	Fardon v Attorney-General of Queensland

6.	Email correspondence between Mr Larry Bernie, Mr Anthony West, Mr David Kerrigan, Ms Kate Wright between 6 June 2022 and 6 July 2022

7.	Bundle of Authorities, including:

•	Extracts from the IR Act; 

•	Extracts from Industrial Laws of Queensland;
 
•	Judgment in Dispute between Maryborough City Council and its Sanitary Employees (No. 47 of 1916)

•	The Australian Workers' Union of Employees, Queensland v State of Queensland

•	Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health)

•	Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast 

•	Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast

8.	Waterside Workers' Federation of Australia v J W Alexander Ltd 

[24]	Also before the Commission is the folder of 26 documents compiled by Together Union.  Those documents included:

1.	Email correspondence between Together and CWHHS between 20 June 2023 and 6 July 2023

2.	Role Description of the ATODS Health Promotion Co-ordinator Role 

3.	Public Service Commission's Circular No: 03/14 – Public sector employees contesting elections 

4.	Extracts from the Public Service Act 2008 (Qld) 

5.	Public Service Commission's Circular No: 01/22 – Public sector employees contesting elections 

6.	Extracts from Public Sector Act 2022 (Qld) 

7.	Email from Joni Barrie to David Kerrigan dated 23 May 2022

8.	Email from Antony West to David Kerrigan (undated)

9.	CWHHS vacancy list from 1 January 2022 to 31 March 2022

10.	CWHHS vacancy list from 1 April 2022 to 30 June 2022

11.	CWHHS vacancy list from 1 July 2022 to 30 September 2022

12.	CWHHS vacancy list extract from July HSF agenda pack
 
13.	File note regarding abolition of AODS Prevention Promotion Officer role dated 8 July 2022

14.	Email correspondence between Together and CWHHS between 16 May 2023 to 13 June 2023

15.	Email correspondence between Together and Queensland Health between 7 June 2023 to 15 June 2023

16.	Email correspondence between Together, Queensland Health and CWHHS between 16 May 2023 to 13 June 2023

17.	Extract of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 4

18.	Queensland Health's Organisational Change: Change Management Guideline 2018 

19.	CWHHS Consultative Forum dated 2 August 2022

20.	CWHHS Consultative Forum dated 4 October 2022

21.	Department of the Premier and Cabinet's Employment Security Policy
 
22.	Department of the Premier and Cabinet's Queensland Government Commitment to Union Encouragement 

23.	ABC News article regarding Maranoa – Federal Election 2022

24.	Extracts from the Anti-Discrimination Act 1991 (Qld) 

25.	Extracts from Industrial Relations Act 2016 (Qld)

26.	Employees Requiring Placement B36 (QH-POL-237)

Respondent's submissions

[25]	The Respondent argued that it was "not necessary or desirable in the public interest" for the Commission to proceed to arbitrate the industrial dispute for the reasons that follow.

	1.	Remedies sought are not available via an industrial dispute pathway - or ought to have been sought under other provisions

[26]	With reference to the Form 10 – Notice of Industrial Dispute filed, the Respondent noted that Mr Kerrigan seeks to be reinstated to his former AO5 AODS position – or alternatively, that he may be seeking wage recovery.

[27]	The Respondent stated that those remedies are not available to Mr Kerrigan under an industrial dispute pathway, citing VP Linnane's decision in Queensland Services, Industrial Union of Employees (for Leslie Rojas-Carranza) v Brisbane City Council.  

[28]	The Respondent noted Together Union's:

…  reliance on C/2003/7 – State of Queensland and the Public Sector Union of Employees and C/2006/18 – Department of Corrective Services and the Queensland Public Sector Union for Employees.  However, it submits these decisions of President Hall were respectfully, not sound and the more recent decision of Vice President Linnane is to be preferred.  Further, as set out below, a distinguishing factor here is the attempt to avoid the time limitations of a Public Service Appeal.

[29]	The Respondent stated that the remedies of reinstatement or wage recovery:

… ought to have been brought under the reinstatement provisions of the IR Act (noting that the time to do so has since expired), by making application under s 475 for unpaid wages, or by seeking a declaration under s 463 by an application under s 464 of the IR Act.

[30]	The Respondent submitted Together Union has filed this matter as an industrial dispute as an "attempt to avoid the time limitations of a Public Service Appeal" – or an out-of-time reinstatement application.

[31]	Presenting the complaint as an industrial dispute is "misconceived where there are other alternative means of dealing with the matter, which ought to be, or ought to have been pursued."

2. 	Remedies sought unavailable via the 'General Powers' provision of the IR Act

[32]	The Respondent rejects Together Union's argument that the QIRC can grant the remedy sought under s 451 of the IR Act because:

a)	"First, the Industrial Court authorities referred to in Together Union's submissions do not support the proposition that the Commission may rely upon the general powers provision of the IR Act to 'issue orders of a similar nature to a reinstatement decision'.  In the authorities referenced, President Hall did not express a view regarding the relief that could be granted as part of an industrial dispute."

b)	"Secondly, Together Union's submission regarding the use of general powers is wrong.  The Commission is not conferred with inherent power to grant relief in the nature of reinstatement and (as Together Union correctly notes) such power is confined to specific statutory provisions per Part 2 of Chapter 8 IR Act.  Moreover, the general powers provision is not used to grant final relief such as reinstatement."  Rather, the provision is typically used for "procedural matters and for the day-to-day performance of the Commission's functions."  The Commission cannot "use the general powers provision to confer upon it jurisdiction it does not have."

c)	"Thirdly, Together Union's submissions that VP Linnane's decision is 'manifestly wrong' and that her Honour did not follow Industrial Court precedent should be disregarded.  As stated above, the Industrial Court authorities do not support the proposition claimed by Together Union.  There are several cases which support the State's position regarding the limits of the Commission's jurisdiction in an industrial dispute.  In State of Queensland v Misiura, Fisher IC dismissed an Industrial Dispute on the basis that it was determined that further proceedings by the Commission were not necessary or desirable in the public interest."  In that case, Fisher IC noted that the remedies the Notifier was seeking could not be granted because "It is a grab bag of remedies sought without regard to the jurisdiction the Commission would be required to exercise to deliver the relief … the declarations and consequential orders sought … would arguably be an exercise of the Commission's judicial power and beyond the power of the Commission under s 230(4) of the IR Act."

d)	"Similarly, in Hennessy v Gold Coast Hospital and Health Service, McLennan IC dismissed an industrial dispute pursuant to s 541 of the IR Act because … 'in addition to declarations being unavailable in an Industrial Dispute, the remedies which would effectively involve the recovery of unpaid wages are also not available in an Industrial Dispute'."

e)	"As the Commission lacks jurisdiction to grant the requested remedy, continuing the proceeding is not in the public interest.  It undermines the principle that courts must operate within their prescribed jurisdictional boundaries.  Pursuing a case without jurisdiction wastes resources, time and money.  Moreover, it risks generating unjust outcomes as the Commission cannot provide the desired remedy even if the merits of the particular case seem compelling."

3. 	Subject matter of dispute has already been resolved

[33]	The Respondent submitted:

… the matter of Mr Kerrigan's reemployment has already been resolved … Importantly, Mr Kerrigan has already been provided with a remedy in circumstances where he signed and accepted reappointment at a lower classification but with salary maintenance for 12 months.  

[34]	"Notably, Mr Kerrigan has been sufficiently compensated for any failure to consult, and the Commission ought not order any further remedy."

[35]	As the issue has already been resolved, "it would be a waste of the Commission's resources for the matter to progress to arbitration."

4. 	Model Litigant

[36]	The State maintained it has "complied with the Model Litigant Principles including fairness and firmness and has acted properly to protect the State's interests in this matter."

Notifier's submissions

[37]	The Notifier expressed the issues in dispute in the substantive matter to be:

… whether Mr Kerrigan's rights can be eroded by the unjust actions of an employer which contravened provisions of an industrial instrument and whether the employer's failure to employ a failed candidate at the same classification level is consistent with the legislative purposes of the provision.

[38]	The Notifier argued that the Commission ought to proceed to arbitrate the industrial dispute for the reasons that follow.

1. 	It is in the public interest to hear the case

[39]	The Notifier submitted: 

What is in the public interest requires a value judgement, relevant to this case, is whether the employer should be allowed to benefit from a contravention of an industrial instrument to the detriment of an employee, whether the employer has acted in a fair and just way when considering the legislative rights of Mr Kerrigan to be restored in employment after participating in our democratic processes of contesting a federal election.

[40]	Together Union cited the Industrial Court of Queensland (ICQ) decisions of President Hall in Orchid Avenue Realty Pty Ltd v Percival and his Honour Deputy President O'Connor (as he then was) in State of Queensland v Lockhart, to support the Notifier's argument that the substantive matter should be heard.

[41]	Together Union concluded that:

[37]	As President Hall has indicated every litigant should have matters of fact and law determined via the normal rules of procedure, unless the case is so obviously untenable that it cannot succeed.  The need to rely upon witness evidence which is contested indicates that there are disputed facts and the Commission cannot draw conclusion on the contested facts without recourse to the normal rules of procedure.  Hence the Commission cannot draw the conclusion that the case is obviously untenable and therefore cannot dismiss the matter or determine no further are warranted in the public interest.

[38]	One of the grounds of the application relates to the contested issues of fact that can only be resolved by witness evidence and cross-examination, hence the tendered affidavit.  We dispute the conclusions of the witness affidavit.

[39]	We would indicate that if there were formal hearings in respect of this matter we would object to the admissibility of parts of the affidavit as it presents the subjective views of one party as to what was considered in the provision of salary maintenance and cannot be used as evidence of an agreement between the parties.  If the provision of salary maintenance was meant to be settlement of all matters, the usual practice would involve the execution of a deed of settlement, this did not occur.

	2. 	ICQ interpretation binds QIRC

[42]	With respect to the Respondent's submission that President Hall's decisions in State of Queensland v The Queensland Public Sector Union of Employees and Department of Corrective Services v The Queensland Public Sector Union of Employees were "not sound and the more recent decision of Vice President Linnane is to be preferred", Together Union submitted that it was regrettable that President Hall's decisions were not brought to VP Linnane's attention – if they had been, then she may have avoided "a jurisdictional error" in that later decision.

[43]	The decision of VP Linnane cited by the Respondent was a Commission decision.  The decisions referenced by Together Union were made by President Hall in the Industrial Court of Queensland.

[44]	Together Union submitted that s 426 of the IR Act means "the Commission is not free to ignore decisions of the Industrial Court where it involves interpretation of the Act …" and binds the Commission to "comply with interpretations of the Act by the Industrial Court", concluding that "this Commission has no jurisdiction to reach a conclusion that such decisions are unsound."

3. 		Reinstatement remedy not available under Part 2 of Chapter 8 of the IR Act

[45]	The Respondent's argument that the matter should have been subject to a reinstatement application is rejected because Mr Kerrigan's employment was not terminated by CWHHS.  

[46]	Together Union submitted that:

For those provisions to be enlivened there needs to be a termination of employment at the employer's initiative.  There was no such termination.  Mr Kerrigan resigned his position to enable him to participate in a democratic process of our society, namely contest a federal election.  The Commonwealth Constitution prohibits certain public sector employees from contesting elections, hence they are required to resign such employment.  The State of Queensland through legislative means enable unsuccessful candidates certain rights of re-employment.

4. 	Remedy not available under PS Act

[47]	The Respondent has alleged that:

… the dispute is an attempt to seek resolution of the matter outside the time limitation of a Public Sector Appeal.  This is a ludicrous claim, section 195(f) of the then Act precludes a Public Service Appeal about a decision about the classification level of employment.  Disputes about the classification level of employment can only be determined pursuant to the Industrial Relations Act 2016.

5. 	General Powers can be used to provide relief

[48]	The Notifier referred to Industrial Court of Queensland decisions of President Hall, in which:

… the Industrial Court has made a specific interpretation of the provisions in the Act which provide the power to the Commission to exercise any of the General Powers available to it to resolve an industrial dispute and whether specific powers bestowed to the Commission by particular sections of the Act restrict the General Powers available to the Commission in resolving an industrial dispute.  

C/2003/7 and C/2006/18 involved both our union and the State of Queensland, this the State of Queensland is unable to press the claim that the decision of President Hall was not sound due to the principle of issue estoppel.  

The [State of Queensland] should not be able to rehash arguments it presented to the Industrial Court and lost.

[49]	The Notifier submitted that the settled questions need to be arbitrated by the Commission, before the appropriate remedies can be determined:

The parties should have the right to address the Commission on the appropriate remedies after the 4 questions are determined.  If we are successful on any of the answers to the first four questions, it is logical that there may be a range of remedial outcomes to be determined after both parties have put before the Commission their arguments in support of the range of remedial action, it is worth noting that the Commission has within its general powers the ability to determine a remedial outcome even if not suggested by the parties.

[50]	Further, that: 

While relief is not available pursuant to Part 2 of Chapter 8 [of the IR Act], this does not prevent the Commission in a dispute proceeding to issue orders of a similar nature to a reinstatement decision utilising the General Powers available to the Commission.

6. 	Dispute has not already been resolved

[51]	Together Union rejected the Respondent's submission that the dispute had been resolved, stating:

Mr Kerrigan has never waived the pursuit of the rights afforded to him by legislation.

Provision of salary maintenance was never conditional upon not pursuing any claim against the employer.

… [The Respondent] claims that Mr Kerrigan has been sufficiently compensated for any failure to consult and the Commission ought not order any further remedy.

In the affidavit material the [Respondent] was maintaining that they had not contravened the industrial instrument.

The [Respondent] maintained that position in the proposed question submitted to Commissioner Power on 19 September 2023.

The [Respondent] did not admit the contravention until the directions hearing on 16 January 2024.
One cannot claim retrospectively that the decision to pay salary maintenance was some form of compensation for contravening the industrial instrument, when the contravention was denied at the time of payment of salary maintenance.

The normal course involving payment of public monies as a settlement of disputed matters is to specify that settlement in a deed, this did not happen in this case, it is not permissible to represent actions based on the subject views of a party as evidence of an agreement between the parties.

7. 	Model Litigant 

[52]	The Notifier submitted:

Suggesting that the current matter be dismissed pursuant to section 541 because it could have or should have been pursued under Part 2 of Chapter 8 where there would be no jurisdiction for the Commission to entertain such an application is evidence that this application by the State of Queensland has been made vexatiously or without reasonable cause, or that it would have been reasonably apparent that the application had no reasonable prospect of success on this ground.

[53]	Similarly with respect to the Respondent's suggestion that the matter ought to have been earlier addressed as a public service appeal, the Notifier complained that:

To claim effectively an abuse of process as the basis to dismiss the matter without any foundation is further evidence that this application has been made vexatiously or without reasonable cause, or that it would have been reasonably apparent that the application had no reasonable prospect of success on this ground.

[54]	Further, the Notifier asserted that the Respondent failed to comply with the President's Code of Conduct and Model Litigant Principles by causing unnecessary delays in the handling of this matter.  Specifically, the Notifier stated the Respondent was first slow to respond to its proposed questions for arbitration (replying only after the Notifier forwarded its proposed questions to the Industrial Registry, a month after not receiving any response from the Respondent) – then again slow to bring this application (first raising the possibility in a conference on 19 September 2023, reiterating it in correspondence to the Notifier dated 12 October 2023, though not moving to file this application until 25 January 2024).

Relevant cases 

[55]	The decision of his Honour Deputy President O'Connor (as he then was) in State of Queensland v Lockhart provided (emphasis added, citations removed):

In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'. Their Honours wrote: 

'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.'

In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote: 

'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

[56]	In Campbell v State of Queensland (Department of Justice and Attorney-General), Justice Martin provided (emphasis added, citations removed): 

	Similarly, in Prange v Brisbane City Council, Hall P held at [3] that: 

"The power to dismiss proceedings pursuant to s. 331 of the Act, on the ground that further proceedings are not necessary or desirable in the public interest, is a discretionary power. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene. In House v The King at 504 to 506, Dixon, Evatt and McTiernan JJ explained: 

'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'

In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows: 

"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."

		…
The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest.  The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia.  The accepted approach was that the applicant bore the onus of making the claim for relief.  But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials.  A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest.  While the onus remains on applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied.  Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section.  On an application of this type, a respondent is not relieved of any requirement to advance a case.

[57]	In Orchid Avenue Realty Pty Ltd v Percival, President Hall cautioned against dismissing matters before they have been heard in their entirety (citations removed): 

In Nugent v. Aromas Pty Ltd I accepted that in exercising the power at s. 331(b) (then the power at s. 90(1)(b) of the Industrial Relations Act 1990) respect should be given to the general principle enunciated by O'Connor J in Burton v. The President of the Shire of that:

"Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.".

I continue to adhere to that view. I also accept that great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed Tribunal, compare General Steel Industries Inc v. Commissioner for Railways (NSW).

[58]	In Hennessy v Gold Coast Hospital and Health Service, I dismissed an industrial dispute under s 541(b)(ii) of the IR Act, on the grounds of factors including the lack of availability of remedies being sought by the applicant, the prejudice to the respondent and the inordinate delay by the applicant in bringing the present notice of dispute.  

[59]	In addition to the above, the parties each submitted authorities relevant to their respective positions.  Those are listed as exhibits, at [23] above.

Should this proceeding be dismissed under s 541(b)(ii) of the IR Act?

[60]	The Commission's decision as to whether or not to dismiss the substantive matter is a broad discretionary determination informed by the facts of the matter itself and by the objects of the Act.

[61]	In that regard, s 3 of the IR Act provided:  

3		Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that—

(a)	is fair and balanced; and
(b)	supports the delivery of high quality services, economic prosperity and social justice for Queenslanders. 

[62]	The purpose of the IR Act would, on balance, seem to lend support to a course of proceeding to hear the substantive matter.  

[63]	The Industrial Court of Queensland decisions referred to at [57] above also favours that approach "unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."  I have therefore considered the prospects of success of the substantive matter later in this decision.

[64]	I am further mindful that s 531 of the IR Act provides:

531	Decisions of the commission and magistrates
…
(3)	Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of – 
	(a)	the persons immediately concerned; and
	(b)	the community as a whole.

[65]	With respect to s 531 of the IR Act above and consideration of "the persons immediately concerned", it is not disputed that:

a)	Mr Kerrigan was legally required to resign from his job with CWHHS, in order to exercise his democratic right to run for election.  

b)	Mr Kerrigan had a right to be reappointed to the Queensland public service, following his election defeat – and indeed, that ultimately occurred.  

c)	Mr Kerrigan was reappointed to the Queensland public service in an CA3 role, rather than at his former AO5 classification level – albeit with a twelve-month period of salary maintenance at his former AO5 classification level.

d)	The reappointment in those terms occurred following a meeting attended by Mr Kerrigan, Mr Burnie, Mr West and Ms Coombe.

e)	Mr Kerrigan's former AO5 AODS role at Barcaldine Hospital was abolished by CWHHS in a manner that contravened the provisions of the Certified Agreement, as the appropriate consultation process was not followed.

[66]	With respect to s 531 of the IR Act above and consideration of "the community as a whole", it is not disputed that:

a)	CWHHS sought, and obtained, approval to pay Mr Kerrigan at his former AO5 classification level for a twelve-month period upon his reappointment, notwithstanding he was then working in an CA3 role.  

b)	Public service employees are entitled to exercise their democratic right to run for election. 

[67]	A number of questions flow from the above circumstances that inform my consideration of Mr Kerrigan's prospects of success of the substantive matter.  Those include:

a)	What does the provision at s 130 of the PS Act require?  

b)	Did Mr Kerrigan's reappointment in an CA3 role, together with the twelve-month period of salary maintenance at his former AO5 classification level, constitute the agreed resolution of the matter?  

c)	Can the "contested issues of fact" about the meeting that occurred (prior to Mr Kerrigan's reappointment) "only be resolved by witness evidence and cross-examination", necessitating progress of the matter to hearing?

d)	To what extent did CWHHS's decision to abolish the AO5 AODS role, contrary to the consultation process in the Certified Agreement, impact Mr Kerrigan?

e)	Is the delay in filing the industrial dispute relevant to whether or not it should be heard?

f)	What is the prejudice to the Respondent if I proceed to hear the matter?

g)	What is the prejudice to Mr Kerrigan if I do not proceed to hear the matter?

h)	Are the remedies sought available, for this matter type?

[68]	I will proceed to address each of the above questions in turn.

What does the provision at s 130 of the PS Act require?  

[69]	Mr Kerrigan was reappointed to the Queensland public service in a lower CA3 role, rather than at his former AO5 classification level.  

[70]	Section 130 of the PS Act provides:

(1)	This section applies if—
(a)	a person held an office of service with the State and the office was permanent (the former office); and
(b)	the person resigned from that office to become a candidate for election as any of the following—
(i)	a senator or a member of the House of Representatives of the Commonwealth Parliament;
(ii)	a member of the Legislative Assembly; and
(c)	the person was a defeated candidate at the election.
(2)	The person may ask to be reappointed to the former office.
(3)	However, the request can not be more than 3 months after the return of the writ for the election.
(4)	The request can only be made by notice to the person who has the power to appoint to the former office.
[71]	At the Mention on 16 January 2024, Together Union explained its view of the operation of s 130(2) of the PS Act as follows:

The Act enables a range of activities.  It enables the employer to re-employ the person who contested the election back into the exact same role. It also has a discretion to enable the employer to put them into another role at the same level or at another – at a different or lower level.  They are discretionary decisions.  Just because they are in the Act doesn't mean that the employer can choose one of those without having to do so in a manner which was just.  They are discretionary decisions, and it needs an examination of the purpose of the legislation, and we would say the purpose of the legislation is to ensure that a class of persons can participate in our democratic processes without fear of financial reduction in their living standards.  The alternatives – and we would say that the scheme of the legislation is such that the legislation would place the highest – or the priority in the person maintaining their level of income so there is no financial penalty in participating in the democratic processes of our society.

So that's why we say its not just, well, the Act enables three different options and the employer can choose whichever one they want.  The – the purpose of the legislation has to be taken into account to see if that a just outcome …

[72]	The Form 10 – Notice of industrial dispute explained the subject matter of the industrial dispute.  That included (emphasis added):

When Mr Kerrigan sought reappointment to his position, he was told that the position had been abolished because it was no longer required.  Mr Kerrigan was offered assistance from a friend who was an organiser in another Union and did not request assistance from his Union Together.  Unfortunately, Mr Kerrigan was placed into a situation where he felt forced into accepting a lower position with a vague promise of salary maintenance for 12 to 24 months.  Together has never previously had this occur to other members who have contested federal seats.  Together's Union office would have disputed this situation immediately if we had been made aware.

[73]	On plain reading, s 130 of the PS Act provided Mr Kerrigan with an absolute right to reappointment to the Queensland public service.  The section expresses the scope of that entitlement by use of the word "or".  Mr Kerrigan was entitled to be reappointed to his former role or another role at the same classification level or a lower classification level.  That evinces the legislature actively considered and provided for a situation such as this – that is, where someone resigned to run for election, was unsuccessful and so sought reappointment, and was reappointed to a lower classification level (because his former role had been abolished in the interim period).  

[74]	The PSC Circular No: 01/22 simply reproduces the terms of s 130 of the PS Act, it does not say reappointment at level is required – nor does it provide any further explanation on how the provision is intended to apply.  Where the wording of the section is clear, interpretation of the provision does not require recourse to the purpose of the PS Act set out at s 3.  

[75]	I accept Together Union's account that this situation has never previously occurred.  However, as I have noted above, it is a situation that was evidently considered by the legislature in the drafting of s 130 of the PS Act – and no further information about how it is intended to apply was otherwise contained in the PSC Circular No: 01/22.

[76]	I find that the provisions of s 130 of the PS Act were satisfied.

Did Mr Kerrigan's reappointment in an CA3 role, together with the twelve-month period of salary maintenance at his former AO5 classification level, constitute the agreed resolution of the matter?  

[77]	Together Union rejected the Respondent's position that the dispute had been resolved by reappointing Mr Kerrigan to another (lower classification) role and maintaining his former AO5 salary level for a twelve-month period.

[78]	Together Queensland asserted that although Mr Kerrigan attended a meeting with CWHHS to discuss the terms of his reappointment and brought along Mr Burnie as a "friend; not as his union representative," Mr Kerrigan never agreed to the arrangement, "didn't think the process was right" and never waived his rights to seek remedy.  

[79]	For the reasons that follow, my view is that Mr Kerrigan did reach genuine agreement with CWHHS on the terms of his reappointment.  While in hindsight Mr Kerrigan may regret not seeking early advice and representation from Together Union, that is nonetheless what occurred.  

[80]	At the Mention held on 16 January 2024, Mr Kerrigan told me (emphasis added):

When we had the consultation about the salary support for 12 months, in the meeting with now the current CE, Anthony West, I stated that I wasn't happy.  I still didn't think – this was coming from me.  I didn't think it was legal and I was advised that if I wanted to take it further, I could, and I said "I will."
…
All the way through, I've maintained that I didn't think the process was right and I didn't think it was legal.

[81]	Despite Mr Kerrigan's account of what he felt about the reappointment offer outcome of the 8 July 2022 meeting, he nonetheless signed to accept its terms on 25 July 2022.  Further, despite Mr Kerrigan's account that he was "advised that if I wanted to take it further, I could", he did not do anything about it until about a month before the twelve-month salary maintenance period was about to run out.  

[82]	Together Queensland submitted that whether or not there was an agreement "that precludes the enforcement of Mr Kerrigan's rights" is disputed between the parties, so the issue "would need to be tested at trial."  

[83]	Together Queensland noted:

the AWU doesn't have any right to represent the employees doing the work that Mr Kerrigan was doing … it's an issue that … goes to whether or not there was a genuine agreement in respect of the situation that needs to be resolved, but that's a matter that will need … evidence on … and can't be dismissed summarily …

[84]	Together Queensland further submitted the question of "whether or not there was genuine agreement" is relevant because Mr Kerrigan's former AO5 role was not abolished in a manner consistent with the requirements of the industrial instrument.  So "if the employer said, "The position's no longer here.  We've abolished it", but that ought not have been the case, then "if there was an agreement, it's an agreement made under false pretences."

[85]	As set out in the chronology earlier in this Decision, the meeting occurred a long time ago, on 8 July 2022.  The four people present at the meeting may well recollect it differently after such a significant time lapse.  However, before the Commission is contemporaneous documentary evidence regarding the workplace meeting that occurred about Mr Kerrigan's reappointment and return to CWHHS.  That is of critical importance in such circumstances.

[86]	In a telephone conversation with Mr West, Mr Kerrigan sought reappointment to his AO5 role just days after the 2022 Federal Election, was told his former position had been abolished and that a meeting would be arranged to explore suitable vacant positions.  On the material before the Commission, Mr Kerrigan actively engaged with the exploration of such possible options, indicating interest in the CA3 role.  On 30 June 2022, Mr Kerrigan emailed Mr West to request a meeting to discuss the proposed appointment to the role he now holds and "the dissolving of my previous role as ATODS Coordinator.  As discussed on the phone with you, I do not believe this was done with any consultation with myself or Unions as per the legislation with Business change." On 1 July 2022, Mr West replied he was "happy to meet to discuss this with you", though noted that Mr Kerrigan's email assertion "don't agree with my record of our phone conversations from 26 May.  While you said you were disappointed with the decision, you indicated this stemmed from your view that the health service should be investing in health prevention and promotion.  You did not raise an issue about 'consultation with myself or Unions as per the legislation with Business change' in either of the phone conversations."  Mr Bernie joined the email exchange on 4 July 2022, adding his concern about "lack of consultation and dissolving of positions without informing the relevant unions, this is a serious Breach of the current Certified Agreement" and then stating (emphasis added) "I have also advised David not to sign any new position with QHealth until we have this issue sorted."  

[87]	The meeting held on 8 July 2022 was attended by Mr Kerrigan, Mr Bernie, Mr West and Ms Coombe.  After the meeting, Mr Bernie emailed Ms Coombe to ask for the meeting minutes and stating (emphasis added) "the meeting was about David Kerrigan's offer of Salary Maintenance that we all agreed on, Thanks."  On 21 July 2022, Mr Bernie again emailed Ms Coombe as no response had been received to his previous email.  In that email, Mr Bernie again noted that (emphasis added) "We all came to an Agreement of Salary maintenance for 12 months to bring David's pay rate up to the equivalent of AO5 (AODS Coordinator role) … David received the same letter of offer dated 13/7/22 once again I requested David not to sign it because we haven't even received the minutes from our meeting on the 8/7/22."  Later that day, Mr West replied to Mr Bernie indicating that "it wasn't clear at the meeting that the Health Service was responsible for minute taking but I'm using my own notes to prepare a more formal record following your request below. I assume you and David took no written record of the discussion."  That was not disputed by Mr Bernie or Mr Kerrigan, who both received the reply email from Mr West – and is a further reason to give weight to the documentary evidence before the Commission rather than rely on the recollections of individuals who attended a meeting more than 2 years ago.

[88]	On 22 July 2022, the following day, email correspondence was sent to Mr Bernie (copy to Mr Kerrigan) from Mr Adams on behalf of CWHHS relevantly stating (emphasis added):

I can confirm that CWHHS has met the agreed outcomes of this meeting, being:
•	the request for salary maintenance has been provided to the office of the Director-General, and we are waiting on a response as to the outcome, and
•	the issue of a letter of offer to David with terms as agreed during the meeting held on 08 July 2022.
…
On this basis, please find attached the following documents:
•	Email to David containing our letter of offer for the Clinical Assistant position;
•	Letter with salary maintenance section highlighted; and
•	Minutes from the meeting you attended with David on 08 July.

As a result of this situation, and in the spirit of cooperation, we would like to extend the terms under the attached letter of offer.

We request that David, if he is agreeable to these terms, sign and return this letter of offer no later than 5:00pm Wednesday, 27 July 2022.

[89]	The File Note of the 8 July 2022 meeting provided recorded the parties' respective positions as to whether or not consultation was required prior to dissolving Mr Kerrigan's former AO5 role, Mr Bernie's view that the "situation is very unfair" and Mr Kerrigan's comment that he was "Happy to take it further."  The options going forward were outlined by Ms Coombe to be: "Seek DG approval for above award payment for a period of time to give an opportunity to consider and look for other roles that might become available" and for the HHS to "issue a new letter of offer, which will indicate it is seeking approval for above award payment at the AO5 level."  The meeting record noted that "DK indicated he was satisfied with this approach."  

[90]	Indeed, the actions of both Mr Kerrigan and CWHHS support the Respondent's contention that agreement had been reached in those terms.

[91]	Mr Kerrigan signed the Acceptance of Offer document on 25 July 2022, confirming his "acceptance of the offer of employment is in accordance with the Letter of Offer ..." dated 13 July 2022 for appointment as a Medical Imaging Assistant (CA3 classification), "subject to Central West Hospital and Health Service receiving approval from the Director General (of Queensland Health) for the provision of salary maintenance for a period of 12 (twelve) months at the same pay level of your previous pay level (AO5.4)." 

[92]	Together Union has suggested that even if there were some 'agreement' (which was denied) it may not constitute genuine agreement because "the AWU doesn't have any right to represent the employees doing the work that Mr Kerrigan was doing". However, Mr Kerrigan told me that he was, and is, a financial member of both unions.  Ms Coombe also drew my attention to an email from Mr Bernie dated 21 July 2022 in which he refers to Mr Kerrigan as "our AWU member".  The meeting on 8 July 2022 occurred at Mr Kerrigan's initiative and from 30 June 2022 he began copying Mr Bernie into email correspondence with CWHHS.  On 4 July 2022, Mr Bernie emailed Mr West to advise that he "will be attending the meeting with David on Friday" and did so.  It was open to Mr Kerrigan to choose who – if anyone – he decided to ask to attend the meeting with him.  He may have asked Together Union, a friend, family member, colleague – or Mr Bernie, as he ultimately chose to.  He may have chosen to attend the meeting alone.  Mr Kerrigan's choice of support person or representative at the 8 July 2022 does not render the outcome to be something other than a genuine agreement.  There is also the matter of the 4 July 2022 email, in which Mr Bernie stated he "advised David not to sign any new position with QHealth until we have this issue sorted."  (Mr Kerrigan's actions in signing the 'Acceptance of Offer' document that included the salary maintenance provision, emailed by CWHHS to Mr Bernie on his behalf, reflected then that the issue was considered "sorted" by both Mr Kerrigan and Mr Bernie as at the time of signing.)  

[93]	On the material before the Commission, Mr Kerrigan showed that he accepted the terms of reappointment by signing the Letter of Offer, proceeded to work in the CA3 role under the arrangement, received the salary maintenance top-up ("somewhere in the realm of 50,000 for that annual year") and ("did not apply for any AO5 positions … [although] there were options made available to him") for a lengthy twelve-month period, before finally drawing the matter to the attention of Together Union (the union with coverage of Mr Kerrigan's employment with CWHHS) only shortly before that specified period about to conclude.  

[94]	I find that Mr Kerrigan's reappointment in a CA3 role, together with the twelve-month period of salary maintenance at his former AO5 classification level, constituted the agreed resolution of the matter.

Can the "contested issues of fact" about the meeting that occurred (resulting in Mr Kerrigan's reappointment) "only be resolved by witness evidence and cross-examination", necessitating progress of the matter to hearing?

[95]	As I have explained in the section above, with respect to the facts of the matter itself, there is much contemporaneous documentary evidence before the Commission that enables a fair assessment of the prospects of success of the substantive matter.  

[96]	It follows, then, that I am able to conclude that further proceedings are 'not necessary or desirable in the public interest' at this time, without the need to proceed to a hearing.

To what extent did CWHHS's decision to abolish the AO5 AODS role, contrary to the consultation process in the Certified Agreement, impact Mr Kerrigan?

[97]	As earlier noted, s 130 of the PS Act provides for a defeated candidate's right to reappointment post-election to either their former role or to another role at the same classification level or lower.

[98]	The Respondent has appropriately but belatedly conceded that the abolition of Mr Kerrigan's former AO5 AODS role occurred contrary to the provisions of the Certified Agreement, as the required consultation process was not followed.  In those circumstances, Together Queensland have argued the role was not lawfully abolished and so Mr Kerrigan ought to have been returned to it, post-election.  

[99]	The impact of the abolition of a role in that way warrants further exploration.

[100]	Together Union provided the Commission with the relevant extract of EB10, "Part 4 – Organisational Change and Restructuring".  In addition to setting out requirements for consultation and the need for management to establish "such benefits in a business case", the clause also provides "that management has a right to implement changes to ensure the effective delivery of health care services.  The consultation process will not be used to frustrate or delay the changes but rather ensure that all viable options are considered."  Relevantly, the clause further provides that (emphasis added): 

… The objective of such consultation will be to minimise any adverse impact on security and certainty of employment.

After such discussions have occurred and it is determined that fewer employees are required, appropriate job reduction strategies will be developed that may include non-replacement of resignees and retirees and the deployment / redeployment and retraining of excess employees which will have regard to the circumstances of the individual employee/s affected.  This will occur in a reasonable manner.

Where individuals unreasonably refuse to participate or cooperate in deployment / redeployment and retraining processes, the full provisions for managing redundancies will be followed.  No employee will be redeployed against their will…

[101]	CWHHS declared the AO5 AODS role formerly held by Mr Kerrigan to be "permanently vacant" on 15 April 2022, less than two weeks after he resigned on 4 April 2022 to contest the Federal Election.  If CWHHS had abided by the consultation provisions in the Certified Agreement, as the Respondent conceded it ought to have, the required discussions would likely have concluded by the time Mr Kerrigan contacted to seek reappointment on 23 May 2022, or shortly thereafter.

[102]	Together Union also provided the Commission with the relevant Department of Health Human Resources Policy 'Employees requiring placement' B36 (QH-POL-237).  The purpose of that policy is "To outline the principles and processes for managing an employee whose substantive role becomes surplus through organisational change."  The policy states that "An employee's position may become surplus through organisational change … Managers must make reasonable efforts to identify alternative suitable permanent placement opportunities for those employees whose substantive position has been deemed surplus to requirements."  When Mr Kerrigan resigned from CWHHS to run as a candidate in the 2022 Federal Election, the Respondent determined to deliver the service previously performed by him in the AO5 AODS role in another way.  Upon Mr Kerrigan's request for reappointment to his former role post-election, it appears to me that CWHHS treated Mr Kerrigan's particular circumstances consistent with this policy by "providing salary maintenance within certain parameters".  CWHHS submitted that costs of training Mr Kerrigan in the new Clinical Assistant role were accommodated and although he was redeployed to a lower classification level role (CA3) his salary was maintained at the former AO5 level for a 12-month period.  The terms of the agreement reached with Mr Kerrigan for his reappointment to CWHHS were consistent with the entitlement in the policy that an employee in such circumstances was "entitled, for a period of 12 months from the date of redeployment, to be paid the salary and allowances applicable to the last substantively appointed role prior to redeployment."  From the material before the Commission, that is what occurred.

[103]	I have carefully considered the consultation requirements in the Certified Agreement, and the policy provision for salary maintenance for employees deployed in circumstances where their role is no longer required.  For the reasons above, I conclude that Mr Kerrigan has not suffered any particular detriment as a result of the Respondent's default for which some additional remedy is required.  He has, in essence, received the same remedy of 12-month salary maintenance, another job and training that would have been afforded to him had he remained in the employ of CWHHS for the entire period – and had not resigned to contest the Federal Election.

[104]	I find that CWHHS's decision to abolish the AO5 AODS role, contrary to the consultation process in the Certified Agreement, had negligible impact on Mr Kerrigan because the agreement reached provided him with 12-month salary maintenance, another job and training.

[105]	With respect to Mr Kerrigan's employment terms after the expiry of the 12-month salary maintenance period, in the same vein, I further note the policy provides that:

Following expiry of salary maintenance arrangements, [where] an employee…[is] redeployed to a lower classification level in another salary stream, appointment is to be made to an equal or next highest pay point in the lower level, with normal incremental movement through the classification level, subject to industrial instrument requirements.

Is the delay in filing the matter in the Commission relevant to whether or not it should be heard?

[106]	The IR Act provides for the filing of Industrial Disputes as follows:

261	    Notice must be given to registrar

(1)	Subsection (2) applies if an industrial dispute:
(a)	Exists between –
(i)	an employer organisation or employer; and
(ii)	an employee organisation or employee; and
(b)	remains unresolved after the parties to the dispute have genuinely attempted to settle the dispute.

(2)	Each party to the dispute must immediately give the registrar written notice of the dispute. 

(3)	The notice –
(a)	may be given by letter, facsimile, email or other means of written communication; and
(b)	must state each of the following-
(i)	the names of the parties to the dispute;
(ii)	the place where the dispute exists;
(iii)	the subject matter of the dispute;
(iv)	anything else required by the rules.

[107]	In my view, it was open to the Notifier to file the complaint as an industrial dispute.  However, the inordinate length of time between Mr Kerrigan's reappointment occurring and the Notifier filing the industrial dispute weighs against proceeding to hear the matter.  

[108]	Together Union submitted that "Mr Kerrigan has never waived the pursuit of the rights afforded to him by legislation."  However, those rights are not unfettered.  Section 261(2) of the IR Act requires written notice of the dispute "must" be given "immediately" once the parties have "genuinely attempted to resolve the dispute."  The word "must" means the action is mandatory - and the plain meaning of the word "immediately" is "now without waiting or thinking."  I observe that a significant and lengthy time period elapsed between Mr Kerrigan's reappointment and the date of filing the industrial dispute notice.  It was not "immediate."  

[109]	Of course, there is rarely, if ever, a definite point where the parties to an Industrial Dispute have genuinely attempted to resolve the matter and the matter remains unresolved. In some instances, that point may become evident when the dispute resolution procedures in an award or agreement have been exhausted. In this instance, it is my view that would have been when CWHHS proposed reappointment on terms that Mr Kerrigan considered to be unacceptable.  Taking Mr Kerrigan's account at its highest, he maintained that he considered the proposal unfair and told CWHHS he would escalate the matter back in July 2022.  In fact, Mr Kerrigan did not raise the issue with Together Union until a considerable period of time had elapsed.  

[110]	The consideration above is relevant to my decision that it is not necessary or desirable in the public interest to hear this matter.

[111]	However, I do not accept the Respondent's criticism of the Notifier for bringing the matter to the Commission as an industrial dispute - alleging it is an attempt to circumvent the prescribed time periods for filing as either a reinstatement application or a public sector appeal.  That particular criticism is unfair.

[112]	The Notifier could not have brought this matter as a reinstatement application because Mr Kerrigan's employment was not terminated by the Respondent, he resigned.  Mr Kerrigan's circumstances are excluded from the scope of s 316 of the IR Act.

[113]	In my view, the Notifier could not have brought this matter as a public sector appeal either.  Mr Kerrigan was not "a public service employee who is aggrieved by the decision" before his reappointment, so could not seek redress in an appeal against a fair treatment decision pursuant to s 194(1)(eb) of the PS Act.  Mr Kerrigan was prevented from appealing "a decision about the classification level of employment" pursuant to s 195(1)(f) of the PS Act.  Further, s 130 of the PS Act does not specifically provide for a right of appeal.  I note the PSC Circular No 11:22 is also silent on appeal rights, in the event that a person wishes to contest this type of decision.  That does not provide any assistance with respect to recourse for a person dissatisfied with the terms of reappointment, as is the case here.

[114]	The available avenue Mr Kerrigan had to contest the matter was filing an industrial dispute.  Nonetheless, he was required to do so "immediately."  

What is the prejudice to the Respondent if I proceed to hear the matter?

[115]	The prejudice to the Respondent is that Mr Kerrigan's former AO5 AODS role has been abolished.  If I were to proceed to hear this matter, the Respondent would be put to the cost of a hearing with respect to a role that no longer exists, for which agreement has already been reached and salary maintenance for a 12-month period already paid.  

[116]	CWHHS has appropriately paid Mr Kerrigan salary maintenance at his former AO5 classification level for the last 12-months, whilst he performed an CA3 role.  The Respondent submitted that CWHHS drew Mr Kerrigan's attention to vacant AO5 roles towards the end of the 12-month period, though he did not apply for them.

[117]	By his actions, I have earlier found that Mr Kerrigan has accepted and agreed upon the terms of his reappointment.  In those circumstances, it would be most unreasonable for the Commission to contemplate an order restoring Mr Kerrigan to the abolished AO5 role, only to go through a period of consultation between CWHHS and Together Union about the discontinuance of the role, with the presumed outcome of redeployment of Mr Kerrigan on salary maintenance for a further 12-month period.  In my view, that would not be fair and just.

What is the prejudice to Mr Kerrigan if I do not proceed to hear the matter?

[118]	I have carefully considered the prejudice to be suffered by Mr Kerrigan if this matter were dismissed. The most pointed prejudice being that Mr Kerrigan would be unable to attain any additional remedy for a situation he contends is unjust. 

Are the remedies sought available, for this matter type?

[119]	While parties have made extensive submissions on whether or not the remedies sought, or that may be sought, are available to Mr Kerrigan under an industrial dispute pathway, it is not necessary to decided that question in circumstances where I have otherwise decided that it is not necessary or desirable in the public interest to hear the matter.

[120]	My earlier decision in Hennessy v Gold Coast Hospital and Health Service sets out my view of the scope of remedies available in an industrial dispute.  I appreciate that perspective is not shared by Together Union.  However, I stress that there is no need for me to determine here whether or not the remedies of reinstatement, backpay or any other remedy that may have been sought by Together Union ought to apply to Mr Kerrigan in resolution of the industrial dispute application.  

[121]	That is because I have found Mr Kerrigan reached agreement with CWHHS on the terms of his reappointment, that was fair and consistent with the department policy on deployment, and that while an industrial dispute pathway was a legitimate course to raise the complaint with the Commission, Mr Kerrigan simply waited too long to act on it.

[122]	For the reasons outlined above, I accept the Respondent's position that hearing the substantive matter "is not desirable in the public interest".  I will dismiss the substantive matter of the Form 10 – Notice of Industrial Dispute.

Conclusion

[123]	As I concluded in Hennessy v Gold Coast Hospital and Health Service: 

[145]	In reaching my decision, the purposes of the Act and Rules are front of mind. Achieving fairness and balance in industrial relations requires that parties are entitled to have their Industrial Disputes conciliated, heard and determined. It is significant to dismiss any proceeding before it has reached its conclusion, and not a course to be undertaken lightly or with undue haste. However, it is patently unfair and unbalanced to allow a party…to re-agitate an issue and seek a new or additional remedy. Such a process has been described in some decisions as an abuse of process. Equity and good conscience are not best served by allowing such a proceeding to continue.

[146]	Having considered the entirety of the present matter, I have determined that the purposes of the Act, and in turn the public interest, are best served by dismissing this Industrial Dispute. Further proceedings are not necessary or desirable in that respect. 

[124]	I order accordingly. 

Orders

1.	That the Application in existing proceedings is upheld. 

2.	That the substantive Application is dismissed.