INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council (No 2) [2022] ICQ 026	
PARTIES:	QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES
(appellant)
v
MORETON BAY REGIONAL COUNCIL
(respondent)	
FILE NO/S:	D/2018/57
C/2020/4	
PROCEEDING:	Appeal	
DELIVERED ON:	25 August 2022	
HEARING DATE:	17 August 2020, 3 June 2021	
MEMBER:	Davis J, President	
ORDER/S:	1.	That the appeal be allowed.
2.	The decision of 6 March 2020 is set aside.
3.	It is declared that:
(a)	the purported variation of the Queensland Local Government Industry Award - State 2014 (2014 Award) from 1 September 2016 was invalid and had no effect;
(b)	the Queensland Local Government Industry Award - State 2017 was validly made.
4.	It is declared that the agreement entered into by Ms Tania Peters with the respondent under clause 15.3(a)(ii)(A) of the 2014 Award (referred to as the “Spread Agreement”) ceased to have effect from 1 July 2017.
5.	The appellant and the respondent (parties) shall confer and attempt to reach agreement on what rate of remuneration the respondent is required to pay Ms Peters under the applicable Award for her hours of work and if any (and if so, how much) back-pay is required to be paid to Ms Peters.
6.	If the parties are unable to reach agreement in respect of order 5, the matter be remitted to the Commission for that question to be determined according to law by an Industrial Commissioner, other than Industrial Commissioner Knight.	
CATCHWORDS:	INDUSTRIAL LAW - QUEENSLAND - GENERAL EMPLOYMENT CONDITIONS - OTHER EMPLOYMENT CONDITIONS - where a member of the appellant was employed by the respondent - where the employee established on appeal that an agreement she made as to the spread of ordinary hours only bound her during the currency of the Queensland Local Government Industry Award - State 2014 - whether it is appropriate to declare the rights between the employee and the Council - whether it is appropriate that the calculation of pay rates and of any back-pay be remitted to the Queensland Industrial Relations Commission - whether it is appropriate to remit the calculation to some Industrial Commissioner other than the Commissioner who decided the case the subject of appeal
INDUSTRIAL LAW - QUEENSLAND - AWARDS - AMENDMENT - VARIATION OR RECISSION - where on appeal the Council challenged the validity of the variation of the Queensland Local Government Industry Award - State 2014 and the Queensland Local Government Industry Award - State 2017 - where the variation of the Queensland Local Government Industry Award - State 2014 was found to be invalid - where the Queensland Local Government Industry Award - State 2017 was found to be valid - whether it is appropriate to declare the invalidity of the variation to the Queensland Local Government Industry Award - State 2014 - whether it is appropriate to declare the validity of the Queensland Local Government Industry Award - State 2017
Industrial Relations Act 2016, s 424, s 557, s 995
Queensland Local Government Industry Award - State 2014
Queensland Local Government Industry Award - State 2017	
CASES:	Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] QIRC 038, related
Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] ICQ 021, related
Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2022] ICQ 023, related
Re: In the matter of the making of Modern Awards – Queensland Local Government Industry Award – State 2017 [2017] QIRC 009, cited	
APPEARANCES:	Mr N Henderson for the appellant on 17 August 2020
CJ Murdoch QC for the respondent instructed by Minter Ellison on 17 August 2020
W Friend QC with C Massey for the appellant on 3 June 2021 instructed by Hall Payne Lawyers
CJ Murdoch QC with D Fuller for the respondent on 3 June 2021 instructed by Minter Ellison
AW Duffy QC for the Minister for Education, Industrial Relations and Racing on 3 June 2021 instructed by Crown Law
A Fryberg for the Local Government Association of Queensland on 3 June 2021
J King for the Queensland Council of Unions on 3 June 2021	

[1]	
[1]	On 3 August 2022, I decided all issues in Queensland Services Industrial Union of Employees v Moreton Bay Regional Council but did not make formal orders.  
[2]	Ms Tania Peters, who is a member of the applicant, Queensland Services, Industrial Union of Employees (the Union), worked as a part-time library assistant for the respondent, the Moreton Bay Regional Council. Ms Peters’ employment was subject to the Queensland Local Government Industry Award - State 2014 (the 2014 Award).
[3]	Pursuant to a facilitative clause within the 2014 Award, the Council and Ms Peters made an agreement as to her spread of working hours (the Spread Agreement).  The Spread Agreement affected the rates of pay which Ms Peters would otherwise earn for working outside business hours Monday to Friday.  
[4]	After the Spread Agreement was entered into, and while Ms Peters’ employment with the Council continued:
1.	the Queensland Industrial Relations Commission (QIRC) purported to vary the 2014 Award by making what I will call the 2014 Award - Version 2;
2.	later, the QIRC made the Queensland Local Government Industry Award - State 2017 (the 2017 Award);
3.	later still, the 2017 Award was partitioned into separate awards pursuant to s 995 of the Industrial Relations Act 2016.
[5]	The Union’s position was that the Spread Agreement was made pursuant to the 2014 Award, to vary the operation of that Award.  It argued that once the 2014 Award fell, so did the Spread Agreement.  
[6]	The Council argued that the Spread Agreement applied to the later awards and, in the alternative, submitted that each of the later awards were not validly made.  
[7]	In the QIRC, the Union was unsuccessful.  Industrial Commissioner Knight held that the Spread Agreement applied to all the awards.  She did not decide whether the 2014 Award - Version 2, the 2017 Award or the Partitioned Awards were valid.
[8]	The Union appealed.  On appeal, the Union maintained that the Spread Agreement only operated during the currency of the 2014 Award.  The Council contended to the contrary and also contended that the 2014 Award was still in operation as the later awards were invalidly made.
[9]	As the question of validity of the later awards potentially impacted many parties, I directed that the following be notified of the appeal and invited to participate:
“1.	Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland.
2.	Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland.
3.	Electrical Trades Union of Employees, Queensland.
4.	Local Government Association of Queensland.
5.	Plumbers and Gasfitters Employees’ Union Queensland, Union of Employees.
6.	Queensland Independent Education Union of Employees.
7.	Queensland Nurses’ Union of Employees.
8.	Queensland Services Union of Employees.
9.	The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union Of Employees.
10.	The Australian Workers’ Union of Employees, Queensland.
11.	The Hon Grace Grace, Minister for Education, Minister for Industrial Relations and Minister for Racing.
12.	Transport Workers’ Union of Australia, Union of Employees (Queensland Branch).
13.	United Voice Industrial Union of Employees.”
[10]	I am convinced that they are all the interested parties.  Three of them appeared and participated in the appeal:  the Minister for Education, Industrial Relations and Racing, the Queensland Council of Unions and the Local Government Association of Queensland.
[11]	Because of the numerous possible results of the many issues raised on the appeal, the parties urged that I decide the various issues and then hear submissions as to final orders.  I accepted that as the appropriate course.  
[12]	I found:
1.	The 2014 Award – Version 2 is invalid.
2.	The 2017 Award is valid.
3.	The Partitioned Award is valid.
4.	The 2014 Award applied to Ms Peters’ employment until 30 June 2017.
5.	The Partitioned Award applied to Ms Peters’ employment from 1 July 2017.
6.	The Spread Agreement only bound Ms Peters while the 2014 Award applied to her employment.
7.	The Spread Agreement did not apply to Ms Peters’ employment from 1 July 2017.
[13]	The parties to the appeal and all those interested parties who appeared (except the Local Government Association of Queensland) have since agreed that the orders below should be made.  The Local Government Association of Queensland does not oppose any of the orders being made.
1.	That the appeal be allowed.
2.	The decision of 6 March 2020 is set aside.
3.	It is declared that:
(a)	the purported variation of the Queensland Local Government Industry Award - State 2014 (2014 Award) from 1 September 2016 was invalid and had no effect;
(b)	the Queensland Local Government Industry Award - State 2017 was validly made.
4.	It is declared that the agreement entered into by Ms Tania Peters with the respondent under clause 15.3(a)(ii)(A) of the 2014 Award (referred to as the “Spread Agreement”) ceased to have effect from 1 July 2017.
5.	The appellant and the respondent (parties) shall confer and attempt to reach agreement on what rate of remuneration the respondent is required to pay Ms Peters under the applicable Award for her hours of work and if any (and if so, how much) back-pay is required to be paid to Ms Peters.
6.	If the parties are unable to reach agreement in respect of order 5, the matter be remitted to the Commission for that question to be determined according to law by an Industrial Commissioner, other than Industrial Commissioner Knight.
[14]	Proposed orders 1, 2, 5 and 6 naturally flow from the judgment and should be made if the parties seek them, which they do.  Orders 3 and 4 are declarations.  Declarations are a discretionary remedy.
[15]	The declaration which is proposed by order 4 directly affects only the Council and Ms Peters, although it might provoke other claims by other employees who have entered into spread agreements.  There is no discretionary reason why the position as between Ms Peters and the Council ought not be clarified by a declaration and I shall make it.
[16]	I will declare the variation of the 2014 Award - Version 2 invalid in terms of proposed order 3(a) because:
1.	the Court has jurisdiction to set aside the 2014 Award - Version 2 either in exercise of its appellate or prerogative jurisdiction;
2.	all parties with an interest in the validity of the 2014 Award - Version 2 were given an opportunity to be heard on the appeal;
3.	the 2014 Award - Version 2 covered tens of thousands of employees;
4.	the Council successfully challenged the 2014 Award - Version 2;
5.	it is in the interests of all employers and employees under the 2014 Award that the position be determined authoritatively by declaration.
[17]	I will declare the 2017 Award valid, in terms of proposed order 3(b), because:
1.	the Court has jurisdiction to do so;
2.	all parties with an interest in the validity of the 2017 Award were given an opportunity to be heard on the appeal;
3.	the 2017 Award covered tens of thousands of employees;
4.	the Council’s attack upon the 2017 Award was unsuccessful;
5.	it is in the interests of all employers and employees under the 2017 Award that the position be determined authoritatively by declaration.
[18]	No declaration is sought as to the validity of the Partitioned Awards.  They came into existence pursuant to s 995 of the Industrial Relations Act 2016.  The act of partitioning the 2017 Award terminated that award.  
[19]	On the appeal, the only challenge to the Partitioned Awards was that the 2017 Award was invalid.  No evidence was adduced either in the QIRC or on appeal as to the process by which the 2017 Award was partitioned.  Therefore, it would be inappropriate to make any declaration about the Partitioned Awards apart from declaring the 2017 Award valid.
[20]	The calculation of any back-pay owed to Ms Peters is a function which should be remitted to the QIRC in the event of disagreement between Ms Peters and the Council.  It is, in my view, best if Industrial Commissioner Knight is not further burdened with the case.  The matter should be remitted to another Industrial Commissioner.
[21]	I make the following orders:
1.	That the appeal be allowed.
2.	The decision of 6 March 2020 is set aside.
3.	It is declared that:
(a)	the purported variation of the Queensland Local Government Industry Award - State 2014 (2014 Award) from 1 September 2016 was invalid and had no effect;
(b)	the Queensland Local Government Industry Award - State 2017 was validly made.
4.	It is declared that the agreement entered into by Ms Tania Peters with the respondent under clause 15.3(a)(ii)(A) of the 2014 Award (referred to as the “Spread Agreement”) ceased to have effect from 1 July 2017.
5.	The appellant and the respondent (parties) shall confer and attempt to reach agreement on what rate of remuneration the respondent is required to pay Ms Peters under the applicable Award for her hours of work and if any (and if so, how much) back-pay is required to be paid to Ms Peters.
6.	If the parties are unable to reach agreement in respect of order 5, the matter be remitted to the Commission for that question to be determined according to law by an Industrial Commissioner, other than Industrial Commissioner Knight.