QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	State of Queensland (Department of Education) v Together Queensland [2019] QIRC 206

PARTIES:	
	State of Queensland (Department of Education)
(Applicant)

v

Together Queensland, Industrial Union of Employees
(Respondent)
	
CASE NO:
	CB/2018/152
	
PROCEEDING:
	Arbitration of collective bargaining dispute

DELIVERED ON:
	9 April 2019
	
HEARING DATES: 
	9 April 2019
	
MEMBER:

HEARD AT:	Merrell DP

Brisbane

ORDERS:
	1.	The application by the State of Queensland is dismissed.
	
CATCHWORDS:	INDUSTRIAL LAW -  ARBITRATION OF COLLECTIVE BARGAINING DISPUTE - Application to vacate directions - Application to list matter for directions hearing at a later date - Election of executive officer holders.
	
LEGISLATION:

	Industrial Relations Act 2016, s 177, s 536 and s 544
Industrial Relations Tribunal Rules 2011, r 43
	
APPEARANCES:	Ms P. Everingham of Crown Law instructed by Ms M. Aylwart of Crown Law and with them Ms L. Nugent of the Department of Education, the Applicant.

Mr K. McKay and Ms K. Flanders of Together Queensland, Industrial Union of Employees Queensland.	

Reasons for Decision (ex tempore)

[1]	The parties to the present application are the State of Queensland and Together Queensland, Industrial Union of Employees (Together Queensland).  The parties, on about 25 July 2018, commenced formal bargaining to make a certified agreement to apply to certain non‑teaching employees of the State of Queensland employed in the Department of Education.  However, by application filed on 5 October 2018, Together Queensland, pursuant to s 175(1) of the Industrial Relations Act 2016 (the Act), asked the Commission to help the parties reach agreement.

[2]	Commissioner Black provided that help by directing the parties to participate in what I am told were nine conciliation conferences.  Despite Commissioner Black's help, the parties were not able to make the certified agreement.  On 13 March 2019, Commissioner Black, being satisfied of the matters referred to in s 177 (1) of the Act, referred the matter to arbitration by giving a written notice of referral to the President and to each of the negotiating parties.

[3]	On 25 March 2019, the Vice President made directions in relation to the arbitration of the matter by a Full Bench as referred by Commissioner Black.  Those directions are annexed to these reasons.  In summary, those directions provided for the parties to:

•	by 4.00pm on 15 April 2019, file an agreed statement setting out each matter in dispute between the parties that is to be determined by the Full Bench by arbitration, and, where a disputed matter involves a dispute over the wording of a clause, each party's version of the disputed clause; 

•	by 4.00pm on 15 April 2019, to file a draft of the final determination to be made including the full and complete clauses of each party agreed between the parties and of those clauses prescribed or those matters prescribed by s 180(3)(a) of the Act; and

•	file and serve statements of evidence of witnesses with Together Queensland to file its witness statements by 4.00pm on 6 May 2019 and its witness statements in reply by 10 June 2019.

[4]	The matter is to be heard before the Vice President and Commissioners Thompson and Knight on 25, 26 and 27 June 2019.  

[5]	By application filed on 4 April 2019, the State of Queensland applied for a decision that orders 2 to 8 inclusive of the orders made by the Vice President be vacated and that the matter be listed for directions hearing after 15 May 2019.  Upon being advised that the Vice President was unable to hear its application until on or after 10 April 2019, the State of Queensland requested that its application be reallocated for urgent consideration.

[6]	The State of Queensland referred to two sections of the Act which it contends in its written submissions conferred power on me to make the directions it seeks;  namely, s 536 of the Act, which provides that the Commission may give directions the Commission considers just and necessary in relation to interlocutory matters to be taken before the hearing of proceedings, and s 544(1)(a)(i) of the Act, which provides that in the exercise of its jurisdiction, the Commission may make decisions necessary in the interests of justice in the proceedings before it.

[7]	Together Queensland and the State of Queensland agreed that I also have power pursuant to r 43 of the Industrial Relations Tribunal Rules 2011 (the Rules) to issue further directions for the matter.  That rule provides that at any time after a directions order has been made, the Commission may make a further directions order if it is considered necessary or appropriate.  Together Queensland did not contend that I lacked discretion to grant the further directions orders sought by the State of Queensland but contended for the reasons it advanced that I should not exercise that discretion in favour of the State of Queensland.

[8]	The issue is whether I should exercise my discretion to issue the further directions as sought by the State of Queensland in this application filed on 4 April 2019.  The reasons for the application by the State of Queensland are set out in its submissions filed on 4 April 2019 and on 5 April 2019 and through oral submissions made today.

[9]	On 15 May 2019, a postal ballot pursuant to the Fair Work (Registered Organisation) Act 2009 will close in respect of scheduled election E2018/255.  That election is to elect persons to certain offices in the Federal Queensland Branch of the Australian Municipal Administrative, Clerical and Services Union, also known as Queensland Together Branch.  The State of Queensland submits that the outcome of that election, by virtue of r 30B(c)(i) of the Together Queensland rules, will determine the identities of the corresponding office holders of Together Queensland as referred to in the table set out in r 30B(b) of those rules.  Rule 30B (c)(i) seems to compel the Secretary of Together Queensland to make an application for exemption under the Act from holding an election for the corresponding office holders of that State registered union.
		
[10]	Rule 30B(c)(i) provides that that application is to be made as soon as practicable following the declaration of the relevant election held under the Fair Work (Registered Organisations) Act 2009 for the federal Queensland branch of the Australian Municipal, Administrative, Clerical and Services Union referred to in the rules as the "Counterpart Federal Body."

[11]	The State of Queensland submits that, first, the outcome of scheduled election E2018/255 will determine the elected office holders of Together Queensland or, in the unlikely event that an exemption from holding election is not granted to Together Queensland, be followed forthwith by the election of the elected office holders of Together Queensland.  Secondly, the current Secretary, Assistant Secretary and President of Together Queensland are nominated for election to offices in scheduled election E2018/255 and have caused campaign material to be published in relation to that election which refers to the industrial activities of Together Queensland.
 
[12]	The State of Queensland submits that, consequently, any executive office holders of Together Queensland with whom agreement is reached by 15 April 2019, being the first date referred to in the directions issued by the Vice President on 25 March 2019 and from whom evidence is filed by 6 May 2019 and 10 June 2019 in accordance with the Vice President's directions order, may be removed from office by virtue of scheduled election E2018/255.  The State of Queensland also submits that the executive office holders and policies, priorities and position of Together Queensland in respect of the arbitration and the life of the resulting determination are uncertain and will remain so at least until the result of scheduled election E2018/255 is known and, finally submits that any agreement by the parties and documents to be filed by 15 April 2019 "… may have an actual, potential or perceived impact on the outcome of scheduled election E2018/255."

[13]	The State of Queensland submits that to ensure the proper and efficient conduct of the arbitration for the benefit of the Queensland Industrial Relations Commission, the parties and those who will be subject to the determination resulting from the proceeding "… it is necessary, just and in the interests of justice to postpone or otherwise vacate Orders 2 to 8 of the Order, inclusive at least until after scheduled election E2018/255 concludes on 15 May 2019."

[14]	This is said to be necessary in order to, firstly, facilitate certainty and consistency of the position of Together Queensland Industrial Union of Employees in respect of the arbitration and the resulting determination, including in respect of any agreed documents filed by the parties for the purpose of defining the scope and matters in dispute in the proceeding; and secondly, once there is certainty in relation to the position of Together Queensland's position in respect of the proceeding, afford the parties adequate time to narrow the matters in dispute and refine the draft final determination as far as possible and identify and obtain evidence from the most appropriate witnesses in respect of each matter in dispute.

[15]	In her submissions today, Ms Everingham of Crown Law, who appeared for the State of Queensland, submitted for essentially the same reasons as set out above, that:  first, there was a real and genuine possibility of a change of leadership of Together Queensland Industrial Union of Employees;  secondly, there was a real possibility of change in Together Queensland's approach to the arbitration;  and finally, this state of uncertainty was a cause for concern such that it was in the interests of justice to vary the directions for a few short weeks to allow the arbitration to proceed in an efficient manner.

[16]	Mr McKay appeared for Together Queensland Industrial Union of Employees and spoke to written submissions that organisation filed on 8 April 2019.  Together Queensland does not dispute that scheduled election E2018/255 will take place as referred to by the State of Queensland in its submissions.  Further, leaving aside whether or not it is mandatory for the Secretary of Together Queensland to make application for an exemption from holding an election, Together Queensland did not dispute the potential effect of r 30B(c)(i) of Together Queensland, Industrial Union of Employees' rules if an application for exemption was to be made.  However, the Union did note that it was not automatic that an exemption would be granted under the Industrial Relations Act 2016.

[17]	Together Queensland made a number of submissions against the making of further directions in relation to the arbitration of the matter.  One of the submissions made by Together Queensland was that, putting its case at its highest, the reasons given by the State of Queensland for the making of the further directions order it sought was based on speculation; namely, that the events the State of Queensland relies upon to base this application for further directions may or may not happen.  

[18]	The onus is on the State of Queensland to demonstrate that it is just and necessary, to use the words of s 536 of the Act, or in the interests of justice, to use the words of s 544(1)(a)(i) of the Act, or necessary or appropriate, to use the words in r 43 of the Rules, for the directions it seeks to be made.

[19]	The reasons relied upon by the State of Queensland for issuing, in effect, new directions that the matter be listed for directions hearing after 15 May 2019 do not, in my view, meet any of these criteria.  It is possible that as a result of scheduled election E2018/255, that different persons are elected to the offices referred to in the table in r 30B(b) of the rules for the Counterpart Federal Body as referred to in Together Queensland's rules.

[20]	Assuming it is mandatory for the Secretary of Together Queensland to make application under the Act for an exemption from holding an election, it is possible an exemption would be granted and those persons elected to the offices in the Counterpart Federal Body will fill the corresponding offices in Together Queensland as referred to in the table in r 30B of the rules of Together Queensland.  If those two things happen, it is possible Together Queensland may change its views about the certified agreement dispute it has with the State of Queensland in respect of those employees sought to be covered by the certified agreement that has been the subject of the negotiation and conciliation.

[21]	The highest the State of Queensland can put it is that those events are possible.  

[22]	The formal bargaining for the certified agreement sought to be made commenced in July 2018.  In October 2018, Together Queensland asked the Commission to help the parties make an agreement.  I am told today that nine conciliation conferences before Commissioner Black then took place.  On 13 March 2019, Commissioner Black referred the matter to arbitration by giving written notice to the President and to the negotiating parties because Commissioner Black did not consider there was a reasonable likelihood of further conciliation or negotiation resulting in the parties reaching an agreement on the matters at issue within a reasonable period.

[23]	On 25 March 2019, the Vice President issued the directions I referred to earlier in these reasons.  The matter has had a reasonably long history of negotiation and conciliation to get to the present point.  The possibility of the events unfolding that the State of Queensland relies upon for the further directions it seeks to be made, do not reach the threshold of just or necessary or in the interests of justice or necessary or appropriate.  In my view, something more probable would be needed to issue the directions the State of Queensland seeks, given the relatively long history of this matter.  

[24]	For those reasons, the application made by the State of Queensland is dismissed.  The directions order made by the Vice President for this matter CB/2018/152 made on 25 March 2019 remain in place.  

Order

	1.	The application by the State of Queensland is dismissed.

	

	ANNEXURE

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 2016

Together Queensland, Industrial Union of Employees 

and

State of Queensland (Department of Education and Training) 

Matter No.  CB/2018/152 

REFERAL TO ARBITRATION UNDER - SECTION 177

DIRECTIONS ORDER

IT IS ORDERED:

1.	That the parties be:

•	Together Queensland, Industrial Union of Employees ("Together") 
•	State of Queensland (Department of Education and Training) ("the Department") 

2.	That the parties file in the Industrial Registry by 4.00 pm on 15 April 2019 in a hard copy and in electronic (Microsoft Word) form:

(a)	an agreed statement setting out:

(i)	each matter in dispute between the parties that is to be determined by the Full Bench by arbitration (the disputed matters); and

(ii)	where a disputed matter involves a dispute over the wording of a clause, each party's version of the clause of the disputed matter; and

(b)	a draft final Determination, in the format prescribed by rule 173 of the Industrial Relations (Tribunals) Rules 2011 which must include:

(i)	the full and complete terms of the clauses of each matter agreed between the parties; and

(ii)	the full and complete terms of the clauses containing the provisions and other matters required to be included in the Determination as prescribed by s 180(3)(a) of the Industrial Relations Act 2016 (the Act), including any industrial instruments the operation of which are to be excluded by the draft final Determination.

3.	That Together serve on the Department, and file in the Industrial Registry, statement(s) of evidence, from all witnesses to be called by Together and which are to be relied upon in the hearing, by 4.00 p.m. on 6 May 2019.

4.	That the Department serve on Together, and file in the Industrial Registry, statement(s) of evidence, from all witnesses to be called by the Department and which are to be relied upon in the hearing, by 4.00 p.m. on 27 May 2019.

5.	That Together serve on the Department and file in the Industrial Registry, statement(s) of evidence in reply which are to be relied upon, by 4.00 p.m. on 10 June 2019.

6.	Leave of the Full Bench will be required should any party seek to adduce further evidence in chief beyond that contained in the statements of evidence filed pursuant to Orders 3 to 5 hereof.

7.	That each party file in the Industrial Registry and serve on every other party its written outline of argument addressing the disputed matters to be no more than 20 pages, type-written, double-line spaced, 12 point font size and with numbered paragraphs by 4.00 p.m. on 17 June 2019.

8.	That the matter be heard before Vice President O'Connor, Commissioner Thompson and Commissioner Knight at the Queensland Industrial Relations Commission, Level 21, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane, on 25, 26, 27 June, commencing at 10.00 a.m. each day.

9.	That each party has liberty to apply on the giving of two days' notice.

NOTE:  Statements of evidence filed in compliance with this Directions Order must:

(a)	be in the first person;

(b)	identify the person making it;

(c)	state the residential or business address or place of employment of the person making it;

(d)	be divided into consecutively numbered paragraphs, with each paragraph, as far as practical, confined to a distinct part of the subject matter; and

(e)	be signed by the person making the witness statement.

Dated 25 March 2019 

O'CONNOR VP