QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2020] QIRC 181
	
PARTIES:	
	Queensland Services, Industrial Union of Employees 
(Applicant)

v

Council of the City of Gold Coast 
(Respondent)
	
CASE NO:
	D/2020/82	
PROCEEDING:
	Arbitration of industrial dispute 	
DELIVERED ON:
	21 October 2020	
MEMBER:

HEARD AT:	Knight IC

On the Papers
	
ORDER:
	1.	Questions as per final pages of decision.  	
CATCHWORDS:	INDUSTRIAL LAW – ARBITRATION OF INDUSTRIAL DISPUTE – dispute to be arbitrated – determination of questions for arbitration.

LEGISLATION:	Industrial Relations Act 2016 	

Reasons for Decision

Introduction

[1]	This industrial dispute concerns Mr Brendan Soustal, a member of the Queensland Services, Industrial Union of Employees ("the Union"). He was employed by the Council of the City of Gold Coast ("the Council") in the role of Coordinator Data Insights and Visualisation. 
[2]	When he commenced his employment, Mr Soustal's offer of employment stipulated his total remuneration comprised a base salary 'plus Market Equity Payment' ("the payment") and that this 'is to be reviewed every two (2) years'. 

[3]	At this early stage in proceedings, it suffices to say that the payment ceased to form part of Mr Soustal's remuneration. 

[4]	The controversy between the parties, in a nutshell, is whether the Council's cessation of the payment and the manner in which it occurred breached Mr Soustal's employment contract or, in the event it applies, whether the Critical Skills Flexible Remuneration Policy ("the policy") upon which the Council purported to rely when ceasing the payment is the applicable policy insofar as the payment is concerned. 

[5]	Conciliation was unsuccessful. The matter is to be arbitrated. 

[6]	The parties, unable to agree on the questions for arbitration, filed written submissions at my direction in support of their proposals. 

[7]	The Industrial Relations Act 2016 ("the Act") provides that the Commission has the power to do all things necessary or convenient to be done in the performance of its functions. Furthermore, unless the Act otherwise provides, the Commission may exercise its powers on its own initiative. 

[8]	I will determine the questions for arbitration. 

The Proposed Questions

[9]	The Union proposes the following questions:

1.	Does the Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy govern the Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation during the period between 2 January 2018 to 2 January 2020?

2.	Was the review of the Market Equity Payment, applied to the position of Coordinator Data Insights and Visualisation and paid to Mr Brendan Soustal during the period between 2 January 2008 to 2 January 2010, undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy?

3.	Does Mr Brendan Soustal have an entitlement to the continuation of the Market Equity Payment post the City's termination of said payment on 2 January 2020?

[10]	The Council proposes the following questions:

1.	Does the Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy govern the Critical Skills Payment/Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation during the period between 2 January 2018 to 2 January 2020. 

2.	Was the review of the Critical Skills Payment/Market Equity Payment, applied to the position of Coordinator Data Insights and Visualisation and paid to Mr Brendan Soustal during the period between 2 January 2008 to 2 January 2010, undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy.

3.	Does Mr Brendan Soustal have an entitlement to the continuation of the Critical Skills Payment/Market Equity Payment post the City's termination of said payment on 2 January 2020.

4.	In the event that Mr Brendan Soustal is not performing the role of Coordinator Data Insights and Visualisation and the duties attached to said role, does he have an entitlement to the Critical Skills Payment/Market Equity Payment.

Submissions

[11]	In support of its position, the Union submits that:

•	its questions accurately reflect what the payment has always been called, that is, a 'Market Equity Payment'. On the contrary, the Council's attempt to call it a 'Critical Skills Payment/Market Equity Payment' is a factually inaccurate and wishful attempt to have the payments considered one and the same. According to the Union, the payments are distinct; and 

•	question four as proposed by the Council is an irrelevant afterthought and, in effect, a contingency in case Mr Soustal is successful.

[12]	In support of its position, the Council submits that:

•	the terms 'Market Equity Payment' and 'Critical Skills Payment' are used interchangeably by the Council to describe an incentive payment that is applied to a particular position within its operations;

•	the payment, whatever its name, falls squarely within the ambit of the Critical Skills Flexible Remuneration Policy and was approved in accordance therewith. Furthermore, that policy itself refers to a 'Market Equity Payment Request Template Memo'; 

•	it disputes the Union's assertions that the Critical Skills Payment and Market Equity Payment are separate and distinct types of payments; and

•	the relevance of its fourth question is that, if question three is answered in the affirmative, there should be consideration as to whether Mr Soustal is entitled to the payment given he no longer performs the role to which the payment is attached (Coordinator Data Insights and Visualisation). 

The Question for Arbitration

[13]	In large part, confusion flows from the Council's inconsistent use of terminology across the relevant documents. 

[14]	Whether the payment is governed by the policy is one of the key questions to be decided at arbitration. In my view, the difficulty with the Council's questions is that the wording itself insinuates the answer. And while it may well prove to be the case that the descriptions of the payment (insofar as they are referenced in the policy and Mr Soustal's employment contract) were intended to be used interchangeably, this is properly a matter for evidence.  

The Council's Fourth Question

[15]	The original dispute notice indicates the core issues in dispute are confined to the Council's decision to discontinue the payment on 2 January 2020 and its reliance on the policy. This is despite Mr Soustal's contention that the payment was distinct and not envisaged by the policy. In those circumstances, I have limited the questions for arbitration to the issues identified in the original dispute notice.  

[16]	In any event, should the answer to question 1 be 'yes', then the fourth question strikes me as irrelevant in circumstances where cl 4.8 of the policy specifically provides for this situation, namely, where an employee such as Mr Soustal transfers to another role. 

[17]	Separately, if the answer to question 1 be 'no', then whether Mr Soustal has an ongoing entitlement to the payment in the event he is no longer performing the role of Coordinator Data Insights and Visualisation (and the duties thereof) is a matter not for the Commission to determine but rather the Council and Mr Soustal, having regard to his employment circumstances at that time.  

Order

The questions to be arbitrated are:

1.	Does the Council of the City of Gold Coast's Critical Skills Flexible Remuneration Policy govern the Market Equity Payment that was applied to the position of Coordinator Data Insights and Visualisation during the period between 2 January 2018 to 2 January 2020?

2.	Was the review of the Market Equity Payment, applied to the position of Coordinator Data Insights and Visualisation and paid to Mr Brendan Soustal during the period between 2 January 2018 to 2 January 2020, undertaken properly in accordance with either the offer of employment or the Critical Skills Flexible Remuneration Policy?

3.	Does Mr Brendan Soustal have an entitlement to the continuation of the Market Equity Payment post the City's termination of said payment on 2 January 2020?