Ganly v Queensland Audit Office [2015] QIRC 108

Industrial Relations Act 1999 ss 7, 229, 274(2), 277, 686

Public Service Act 2008 ss 4, 7, 10, 21, 22, 187, 188, 194(1)(b)(i), 215, 216, 217, schedule 4

Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1

Deidre Marie Gomm AND Department of Corrective Services (No. B45 of 2004) (2004) 176 QGIG 319

Delaney AND Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197

Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427

Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130

Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2007) 97 FCR 407

FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141

Irene Hart v State of Queensland (Queensland Health - Gold Coast City Health Service District) (2007) 185 QGIG 410

Ivers v McCubbin & Ors [2005] QCA 200

Richard Clancy v Butchers' Shop Employees Union, James John News Secretary, and the President and Members of the Court of Arbitration N.S.W [1904] HCA 9; (1904) 1 CLR 181

St Justins Properties Pty Ltd v Rule Holdings Pty Ltd [1980] FCA 11; (1980) 40 FLR 282

State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura [2015] QIRC 030

The Australian Workers' Union of Employees, Queensland AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No B879 of 1999) AND Queensland Council of Unions and Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No B1049 of 1999) [2000] QIRComm 26; (2000) 163 QGIG 277

The Mutual Life and Citizens Assurance Company Ltd v Attorney General for the State of Queensland and Another [1961] HCA 51; (1961) 106 CLR 48.

The Queen v Coldham and Others; ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297

The Queen v Turbet and Others; Ex parte Australian Building Construction Employees and Building Labourers' Federation [1980] HCA 47; (1980) 144 CLR 335

The Queensland Public Sector Union of Employees AND Queensland Corrective Services [2006] QIRComm 136; (2006) 183 QGIG 964

The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees (C/2009/31) [2009] QIC 27; (2009) 192 QGIG 39

Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121

Mr K. Watson, counsel instructed by Moriarty and Associates

[1] Brian Ganly ("the Applicant"), an auditor employed by the Queensland Audit Office ("QAO", "Respondent"), has applied to the Queensland Industrial Relations Commission ("the Commission") for an injunction under s 277 of the Industrial Relations Act 1999 ("IR Act") to prevent disciplinary action being taken in relation to him by the QAO under the Public Service Act 2008 ("PS Act") before the Applicant's related grievance is dealt with in accordance with the procedure contained in the relevant Award.

(a) the Applicant lacks standing to bring the application; or

(b) the Commission does not have jurisdiction to grant the injunction sought; or

(c) if the Commission has jurisdiction, it should exercise its discretion not to grant the injunction.

Factual background and the disciplinary process that preceded this application

[3] Mr Ganly is employed by the QAO as an Audit Manager, classified at an AO8 level. He is employed under the PS Act and has worked at the QAO and its predecessors since 1981.

[4] An Audit Manager is not entitled to a car park during business hours, except on occasion for official purposes.

[5] Mr Ganly undertook an audit of Queensland Shared Services ("QSS"), a division of the Department of Science, Information Technology, Innovation and the Arts ("DSITIA") during the period between August 2009 and June 2013. In the course of conducting that audit, Mr Ganly negotiated and secured the use of a car parking space in the building occupied by the audit client. Mr Ganly did not register the car park as a gift, and apparently did not discuss the matter of business car parking with his Director.

[6] By letter dated 22 August 2014, signed by Anthony Close, Deputy Auditor-General, Mr Ganly was invited to show cause why a disciplinary finding should not be made against him in relation to the allegation that he had accepted and used a free car park from an audit client (i.e., QSS, a division of DSITIA). It was alleged that by that conduct Mr Ganly had failed to comply with specified sections of the QAO Independence Policy and hence had breached the Code of Conduct for the Queensland Public Service. He was required to provide his response in writing by Monday 8 September 2014

[7] Because of his ill health, Mr Ganly was granted an extension of time to provide that response. By letter dated 29 September 2014, Mr Ganly's solicitors responded to the allegations contained in Mr Close's show cause letter. The solicitors' letter set out in some detail the background to Mr Ganly's use of the subject car park. In summary, it stated that in the period from August 2009 to June 2013 Mr Ganly was provided with access to an after-hours car park at Forestry House to facilitate the QSS audit. He obtained that access through the required approval process set out in the QSS building access form.

[8] By June 2013, he was aware that there were some vacant business hour car parks allocated to QSS on a long-term government lease that were not being used. Mr Ganly approached the senior security officer of Forestry House for temporary business hours car park access to assist in the timely completion of the DSITIA financial statements as he was working late at night. He was allocated a specific car park on a temporary basis but, due to delays in finalising the 2013 to 2014 audit allocations, Mr Ganly did not move from the QSS audit accommodation until early January 2014. In order to complete other audit allocations, he negotiated an extension to his temporary building and car park access at Forestry House until March 2014. In early February 2014, Mr Ganly relinquished the temporary car park at the request of the senior security officer.

[9] In reliance on that and other information, the letter from Mr Ganly's solicitors responded to the allegation in Mr Close's show cause letter of 22 August 2014 with submissions that:

(a) there was no breach of s 4.2 of the Code of Conduct;

(b) the business hours car park was not provided by QSS or DSITIA;

(c) the car park did not constitute a "gift" or "benefit" to Mr Ganly; and

[10] Accordingly, the letter concluded on the basis that Mr Close would find that the allegation could not be sustained. However, if he remained of the view that the allegation could be substantiated on the balance of probabilities, the solicitors requested a statement of reasons for that view and an opportunity to respond before he made his final decision.

[11] On 17 October 2014, Mr Close wrote to Mr Ganly advising that he had carefully considered all the evidence before him (including the response dated 29 September 2014) and had determined that the allegation against Mr Ganly was substantiated on the balance of probabilities, although he seemed to accept that neither QSS nor DSITIA was aware that Mr Ganly was using the business hours carpark. On the basis of his findings in relation to the allegation, Mr Close determined (pursuant to s 187(1)(f) of the PS Act) that Mr Ganly contravened, without reasonable excuse, a provision of the Code of Conduct. Consequently, Mr Close found Mr Ganly liable for disciplinary action pursuant to s 188 of the PS Act and was "giving serious consideration to imposing the following penalty":

(a) a reduction of classification level and consequential change of duties from Audit Manager AO8(4) to an Audit Senior AO6(4);

(c) counselling in relation to the Code of Conduct and the QAO's Independence Policy.

Mr Ganly was invited to show cause why that penalty should not be imposed on him, and was given 14 days to do so.

[12] On 23 October 2014, Mr Ganly requested the suspension of the show cause process until 31 October 2014 due to his ill-health. On 29 October 2014, an extension of time until 14 November 2014 was granted to him.

[13] On 13 November 2014, Mr Ganly lodged an employee grievance with his manager about both the decision to find the allegation against Mr Ganly to be substantiated and the decision to seriously consider a demotion from AO8(4) to AO6(4) as the proposed penalty. The letter set out why he submitted that the first decision was wrong and why the proposed penalty was excessive and unjustifiable. Because Mr Ganly's letter was about a decision of Mr Close (who was more senior than Mr Ganly's manager), the letter was referred to the Auditor-General, Andrew Greaves.

[14] By letter dated 20 November 2014, Mr Greaves advised Mr Ganly that he had determined not to accept Mr Ganly's letter dated 13 November 2014 as an employee grievance because Mr Greaves did not consider a complaint about a disciplinary process taken under the PS Act to be an "industrial matter" for the purposes of the IR Act. Hence any such complaint is not a matter that can be the subject of an employee grievance under the Award. He stated that, should Mr Ganly wish to complain about a decision to take disciplinary action, the appropriate course of action is to lodge an appeal with the Appeals Officer.

[15] In a separate letter dated 20 November 2014, Mr Close wrote to Mr Ganly advising that he would afford Mr Ganly a further period of seven days from receipt of this letter to respond to his letter dated 17 October 2014. He advised Mr Ganly that upon receipt of any submissions, or in the absence of any further response from Mr Ganly in seven days, he would proceed to make a decision with respect to the proposed penalty.

[16] Mr Ganly has not responded to Mr Close's letter of 17 October 2014.

[17] On 24 November 2014, Mr Ganly's solicitors wrote to Mr Greaves in response to his letter dated 20 November 2014. The solicitors set out why, in their view, the reasoning on which he based his decision to reject Mr Ganly's grievance was flawed and why they considered that the QAO had shown a clear intention to persist with a breach of the Award after the grievance procedure had been initiated. They foreshadowed filing an Application for an Injunction seeking the QAO's compliance with the Award, and asked Mr Greaves to ensure that the QAO did not proceed with the show cause disciplinary process pending the hearing of the Application for an Injunction.

[18] On 24 November 2014, Mr Ganly filed an Application for Injunction in the Industrial Registry. By that document, Mr Ganly applied to the Commission for an injunction pursuant to s 277 of the IR Act:

(a) compelling the Respondent to comply with the status quo provision in clause 8.2(f) of the Queensland Public Service Officers and Other Employees Award - State 2014 ("the 2014 Award) which is a certified industrial instrument; and

(b) restraining the continuance of a contravention of the 2014 Award by the Respondent by requiring the Respondent to withdraw the letter continuing the "show cause" process issued by the Respondent to the Applicant dated 20 November 2014; and

(c) restraining the Respondent from contravening the 2014 Award by prohibiting the Respondent from taking any further action that would result in non-compliance with the terms of clause 8.2 of the 2014 Award.

[19] On 26 November 2014, the Applicant filed a Notice of Industrial Dispute under s 229 of the IR Act in relation to the same matters that are the subject of these proceedings. Mr Ganly sought the Commission's assistance in procuring the revocation of Mr Close's letter dated 17 October 2014 on the basis that:

(a) the allegation against Mr Ganly could not be substantiated on the balance of probabilities; and

(b) the proposed disciplinary action constitutes constructive dismissal of Mr Ganly.

[20] Following a mention of the Application for Injunction before the Commission on 1 December 2014, the Applicant formed the view that the relevant award was the Queensland Public Service Award - State 2012 ("the 2012 Award") and not the 2014 Award.

[21] On 8 December 2014, an Amended Application for Injunction was filed in the Industrial Registry. The amendment comprised the deletion of the reference to the 2014 Award from paragraph 1(a) of the original Application for Injunction and the insertion of a reference to clause 3.2.8 of the 2012 Award in its place. In his affidavit attached to the Amended Application for Injunction, a solicitor for Mr Ganly noted that the Respondent was prepared to consent to the amendment to refer to the 2012 Award. The effect of that consent is that the purported grievance procedure previously commenced is now accepted as a grievance procedure activated under the 2012 Award.

[22] On 11 December 2014, a conciliation conference in relation to the industrial dispute was held by the Commission before Deputy President Kaufman. The issues were not resolved.

[23] To date, no decision as to the appropriate penalty to be imposed on Mr Ganly has been made. In the course of these proceedings, the Respondent agreed:

(a) not to take any action until the Commission released its decision; and

(b) that if the Applicant is unsuccessful in his application for an injunction, the Respondent would allow him a further two weeks from the date of the Commission's decision to respond to the second show cause letter, i.e. the letter dated 17 October 2014.

Issues in relation to the application for an injunction

[24] In essence, the application seeks to restrain the Respondent from proceeding further with the disciplinary process against Mr Ganly under the PS Act until the grievance which he has initiated is dealt with properly in accordance with the procedure contained in the 2012 Award.

[25] It is clear from the combined operation of ss 4, 7, 10, 21 and 22 of the PS Act, read with the definitions of relevant terms in Schedule 4 to that Act, that the PS Act and other Acts apply to the QAO as if it were a department and to the Queensland Auditor-General as if he were the department's chief executive (see s 22(2)).

[26] Broadly speaking, there are three issues for determination in relation to the application:

(a) whether the subject of Mr Ganly's grievance is an "industrial matter" within the meaning of the IR Act;

(b) whether the Commission has jurisdiction[1] to deal with the matter; and

(c) if the answer to (b) is yes, whether the Commission should exercise its discretion to grant the orders sought by Mr Ganly.

[27] Before the hearing on 4 March 2015, each party provided written submissions to the Commission in relation to those issues. Their counsel expanded on those submissions at the hearing. Evidence was provided by way of:

(a) an affidavit of Mr Ganly filed with the Application for Injunction together with eight documents exhibited to the affidavit; and

(b) a further affidavit by Mr Ganly dated 28 January 2015 and nine documents attached to it (many of them the same as for his previous affidavit).

[28] In the course of his oral submissions on behalf of the Respondent, Dr Spry contended that the Applicant lacked standing to make the application (or at least continue with it). The parties were directed to provide written submissions in relation to that issue and these were filed in the Industrial Registry on 19 and 27 March 2015.

[29] The key events that gave rise to or preceded these proceedings are summarised above. The legal issues fall to be decided against that background.

Does Mr Ganly have standing to bring the application for an injunction?

[30] For present purposes, only subsections (1) and (2) of s 277 of the IR Act are relevant. They provide:

(1) The commission may, on application, grant the injunctive order it considers appropriate-

(a) to compel compliance with an industrial instrument, permit or this Act; or

(b) to restrain a contravention or continuance of a contravention, of an industrial instrument, a permit or this Act.

(a) a party to industrial action or an industrial dispute; or

(b) a person who is, or is likely to be, directly affected by industrial action or an industrial dispute; or

[31] The Respondent's submissions: The Respondent submits that Mr Ganly lacks standing to seek injunctive relief pursuant to s 277(1) of the IR Act because:

(a) at the time he lodged his Application for Injunction, Mr Ganly was not "a party to ... an industrial dispute;" and/or

(b) Mr Ganly is no longer a party to an industrial dispute.

[32] For the Respondent to succeed, the Commission must accept the Respondent's interpretation of s 277(2)(a) of the IR Act.

[33] Schedule 5 to the IR Act includes the following definition:

(a) a dispute, including a threatened or probable dispute, about an industrial matter; or

(b) a situation that is likely to give rise to a dispute about an industrial matter." (emphasis added)

[34] Section 7 of the IR Act contains a detailed definition of "industrial matter."

"(1) An industrial matter is a matter that affects or relates to-

(ii) persons who have been, or proposed to be, or who may become, employers or employees; or

(c) a matter (whether or not an industrial matter as defined in this section) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.

(2) However, a matter is not an industrial matter if it is the subject of proceedings for an indictable offence.

(3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1."

[35] In support of the first limb of its submission, the Respondent notes that:

(a) on 24 November 2014, Mr Ganly filed the present Application for Injunction;

(b) on 26 November 2014, Mr Ganly filed a Notice of Industrial Dispute which was made pursuant to s 229 of the IR Act; and

(c) the present Application and the Industrial Dispute concern the same subject matter.

[36] The Respondent submits that it is not sufficient for the purposes of s 277(2)(a) of the IR Act that Mr Ganly merely be engaged in a dispute with his employer or that he has lodged a grievance with his employer that, in his view, remains unresolved. The language of s 277(2)(a) requires Mr Ganly to be "a party to ... an industrial dispute." Until such time as Mr Ganly initiated an industrial dispute pursuant to s 229 of the IR Act, he was not a party to an industrial dispute and hence he lacked standing to make the present Application for Injunction.

[37] In support of that submission, the Respondent refers to the following statement by Fisher C in State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura:[2]

"Section 229 of the IR Act provides that a dispute is initiated by way of notice given to the Industrial Registrar."

[38] The Respondent submits that the step of initiating an industrial dispute pursuant to s 229 was entirely within Mr Ganly's control. To adopt what Heerey J said in another context in Fernando v Minister for Immigration and Multicultural Affairs:[3]

"This is not a case where individuals would suffer if invalidity were to flow from some default within the administration of a public authority that is entirely beyond the control of the individual."

[39] In these circumstances, the Respondent submits, Mr Ganly's Application for Injunction is invalid and, being invalid, the Commission lacks jurisdiction to deal with his Application.

[40] As a second limb, or in the alternative, the Respondent submits that Mr Ganly lacks standing to pursue the Application because the Notice of Industrial Dispute (and hence any underlying industrial dispute) is no longer on foot.

[41] In support of that submission, the Respondent notes that:

(a) on 11 December 2014, a conciliation conference was held by the Commission before Deputy President Kaufman but a satisfactory resolution could not be reached during that conference; and

(b) at the conclusion of that conference, Mr Ganly's counsel said that they were content for the file for this matter to be closed and sent back to the registry.

[42] In those circumstances, the Respondent submits that there is no industrial dispute on foot and Mr Ganly lacks standing to pursue the Application for Injunction because he is no longer a party to an industrial dispute. Consequently, the Commission lacks power to hear and determine the Application.

[43] The Applicant's submissions: The Applicant's submissions in response also refer to the definitions of "industrial dispute" and "industrial matter" quoted above.

[44] First, the Applicant submits that the documentation before the Commission clearly demonstrates that there is an industrial dispute involving the Appellant and the Respondent. In the absence of a definition in the IR Act of "dispute", that word should be read according to its primary meaning namely "to engage in argument or discussion."[4] The Appellant also relies on the following statement of Stephen J in The Queen v Turbet; ex parte Australian Building Construction Employees' and Building Labourers' Federation:[5]

"The essence of an industrial dispute is 'disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship'."

Although that case concerned the meaning of the words "industrial disputes" as used in s 51(xxxv) of the Australian Constitution, the Applicant submits that the notion that there needs to be disagreement is common to the definition in the IR Act as well as the term used in the Constitution.

[45] The Applicant also refers to the following statement by the High Court in The Queen v Coldham; ex parte Australian Social Welfare Union,[6] in relation to the same Constitutional expression:

"It is, we think, beyond question that the popular meaning of 'industrial disputes' includes disputes between employees and employers about the terms of employment and the conditions of work."

[46] The Applicant submits that there is disagreement here between the Applicant and the Respondent concerning whether or not the disciplinary process under the PS Act should apply to the Applicant having regard to the allegation which has been made against him. This is a disagreement concerning a term of his employment or condition of his work. The dispute is clearly articulated in the Applicant's grievance letter dated 13 November 2014.

[47] Furthermore, the Applicant seeks to refute the Respondent's submission that the words "industrial dispute" as used in s 277 of the IR Act refer to a Notice of Industrial Dispute given under s 229 of that Act. In particular, the Appellant submits that:

(a) the Respondent misreads the passage on which it relies from the decision in State of Queensland v Misiura;

(b) the plain reading of s 229 requires an industrial dispute to exist before a Notice of Industrial Dispute is given to the Industrial Registrar;

(c) an industrial dispute can exist between a single employer and a single employee;[7] and

(d) s 277 refers to a party to an industrial dispute, not to a person who has given a Notice of Industrial dispute under s 229.

[48] Given that an industrial dispute is a dispute about an "industrial matter," the Applicant also submits that:

(a) the reference in s 7(1)(b) of the IR Act to the privileges, rights or functions of employers or employees carries the implication that there are two parties, one of whom owes a duty or possesses a right as against the other;[8]

(b) the definition requires that there be the relationship of employer and employee;[9]

(c) Mr Ganly has been and remains an employee with the Respondent;

(d) the right which is an issue here is the employer's right under s 187 of the PS Act to discipline Mr Ganly for an alleged breach of a Code of Conduct (which is the matter that Mr Ganly disputes, given his assertion that the allegation against him is not supported and that the proposed penalty is out of proportion to the alleged breach).

[49] The existence or non-existence of an industrial dispute is a question of fact.[10]

[50] The Applicant submits that the dispute has not been settled or resolved. The non-pursuit of the Notice of Industrial Dispute is not a resolution of the industrial dispute. The dispute about whether Mr Ganly is liable for disciplinary action:

(a) came into existence when the Respondent rejected Mr Ganly's arguments, i.e. in Mr Close's letter of 17 October 2014;

(b) was given form through Mr Ganly's letter of 13 November 2014 when he launched his grievance;

(c) has not gone away or been resolved and hence still exists.

In other words, the Applicant submits, the industrial dispute to which Mr Ganly referred in his Notice of Industrial Dispute existed at the time he filed his Application for Injunction and continues to exist.

[51] The Applicant also refutes the Respondent's assertion that the Application for Injunction is the same matter as the Notice of Industrial Dispute. According to the Applicant:

(a) the Notice of Industrial Dispute concerned the dispute which he has with the way he is being treated and his future treatment by the Respondent; and

(b) the Application for an Injunction seeks to hold the Respondent accountable for the proper application of the grievance procedure set out in the 2012 Award.

[52] Consideration and conclusion: Having considered the parties' submissions in light of the relevant documents filed with the Industrial Registrar and the provisions of the IR Act quoted above, I am satisfied that:

(a) at the dates when the Application for Injunction and the Notice of Industrial Dispute were filed and subsequently, Mr Ganly had a dispute with the Respondent about whether the Respondent should deal with his grievance made under clause 3.2 of the 2012 Award before taking further disciplinary action (if any) under the PS Act; and

(b) Mr Ganly continues to have that dispute with the Respondent.

I will assume for the purpose of dealing with the standing issue that the subject of the dispute is an "industrial matter" (an issue dealt with later in these reasons).

[53] A careful reading of Commissioner Fisher's reasons for decision in State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura,[11] including the reference to Rule 8 of the Industrial Relations (Tribunals) Rules 2011, shows that the Commissioner was referring to the process by which industrial dispute proceedings are commenced before the Commission.

[54] In any case, s 229(1) of the IR Act provides that subsection (2) applies "if an industrial dispute ... exists" between specified parties and "remains unresolved" after the parties have genuinely attempted to settle the dispute. Clearly an industrial dispute must exist before and at the time when each party gives "notice of" the dispute to the industrial registrar under subsection (2). The Notice of Industrial Dispute is not that dispute.

[55] Consequently, I conclude that Mr Ganly is a party to an industrial dispute and has standing to continue with the proceedings commenced by his Application for an Injunction.

[56] Given the way the parties approached the three issues for determination (as identified in paragraph [26]), it is appropriate that those issues be resolved by answering the following questions.

(a) Is Mr Ganly's grievance an "industrial matter" within the meaning of the IR Act?

(b) If it might otherwise be characterised as an "industrial matter," is Mr Ganly's grievance excluded from being an "industrial matter" because the PS Act provides a code for dealing with the disciplining of public service employees?

(c) Is Mr Ganly a party to an "industrial dispute", or a person who is likely to be affected by an industrial dispute?

(d) Is the 2012 Award an "industrial instrument"?

(e) If the 2012 Award is an industrial instrument, what is the status quo referred to in clause 3.2.8 in the circumstances of this application?

(f) Is there a contravention or threatened contravention of that industrial instrument?

(g) Should the Commission exercise its discretionary power to grant the orders sought by Mr Ganly?

Is Mr Ganly's grievance is an "industrial matter" within the meaning of the IR Act?

[57] The answer to this question involves analysis of the meaning of ss 7 and 277 of the IR Act (quoted earlier) and the operation of clause 3.2 of the 2012 Award.

[58] The Applicant notes that under s 277(1), the Commission may grant the "injunctive order it considers appropriate". In s 277(12), "injunctive order" is defined to mean an order in the nature of a mandatory or restrictive injunction. As the Applicant submits, the Commission's power is restricted by s 277 to making such an order for the purposes specified in that section. In the circumstances of this case, an injunctive order might be made to:

(a) compel compliance with an industrial instrument; or

(b) restrain a contravention, or continuance of a contravention, of the industrial instrument.

[59] The Applicant seeks to restrain the Respondent from further proceeding with the disciplinary process it has initiated under the PS Act without, the Applicant submits, proper regard to the dispute which has been initiated by the Applicant pursuant to the relevant Award.

[60] The heading to clause 3.2 of the 2012 Award is "Employee grievance procedures." Clause 3.2.1 states:

"The objectives of the procedure are to promote the prompt resolution of grievances by consultation, co-operation and discussion; to reduce the level of disputation; and to promote efficiency, effectiveness and equity in the workplace."

[61] Clause 3.2.2 states that this procedure "applies to all industrial matters within the meaning of the Act"[12] (emphasis added). The 2012 Award is binding on, among others, the Chief Executives (clauses 1.6, 1.3.2).

[62] Clauses 3.2.3 to 3.2.6 describe a three stage process for resolving (or at least attempting to resolve) a grievance, and prescribe the usual timeframes within which each stage is to be completed. Clause 3.2.7 states:

"If the grievance is not settled the matter may be referred to the chief executive of the Public Service Commission or the Commission by the employee or the Union, as appropriate, in accordance with the respective jurisdictions of the tribunals."

[63] Clause 3.2.8, the clause referred to in the Amended Application for Injunction, states:

"Subject to legislation, while the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work."[13]

[64] Applicant's submissions: The Applicant submits, by reference to s 7 of the IR Act, that the grievance lodged by Mr Ganly is an "industrial matter" for the purpose of the 2012 Award.

[65] In particular, the Applicant relies on s 7(3) which provides that "without limiting subsection (1)" a matter is an industrial matter if it "relates to" a matter contained in Schedule 1.

[66] Two observations can be made about subsection (3):

(a) a matter is an industrial matter if it is "relates to" a matter contained in Schedule 1, so that a matter contained in Schedule 1 provides the subject to which an industrial matter "relates"; and

(b) subsection (3) does not limit subsection (1), so that subsection (1) does not depend for its operation on a matter being contained in Schedule 1. Rather, as a Full Bench of the Commission has said, s 7(1)(b) is "augmented by" s 7(3).[14]

[67] None of the 28 matters listed in Schedule 1 refers to the disciplining of employees. However, the Applicant submits that the opening words of item 21, "the regulation of relations between employer and employee," apply in relation to the present application. In particular, the Applicant submits, the dispute is about the manner in which a person can be disciplined under the PS Act and whether, in this case, the Respondent has a proper basis for disciplining him.

[68] In the alternative, the Applicant submits that the dispute about disciplinary procedures falls within the scope of that part of s 7(1)(b) that refers to "a matter that affects or relates to" the rights of employers or employees. Section 187 of the PS Act empowers a public service employee's chief executive to discipline the employee if the Chief Executive is reasonably satisfied that the employee has contravened, without reasonable cause, a standard of conduct applying to the employee under an approved code of conduct or a standard of conduct applying to the employee. In disciplining a public service employee, the employee's chief executive may take the disciplinary action that the Chief Executive considers reasonable in the circumstances (PS Act s 188) which could include anything from a reprimand to termination of employment.

[69] In this case, the Applicant contends that the Chief Executive could not be reasonably satisfied that the employee has contravened a standard of conduct applying to him and hence no disciplinary action should be taken by the Chief Executive under s 188 of the PS Act. Accordingly, the Applicant submits, there is a dispute about a matter that affects or relates to:

(a) the rights of the employer to discipline Mr Ganly in these circumstances; and

(b) the rights of Mr Ganly not to be subjected to disciplinary proceedings, which he submits have not been established by the Respondent in relation to the relevant allegations.

[70] In support of that submission, the Applicant refers to the decision of Hall P in The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees.[15] In that case, one union sought declaratory relief from the Commission against the other union. A Full Bench of the Commission stated a question for the Industrial Court of Queensland about whether the Commission had power under specific sections of the IR Act to make the orders and decisions sought. Hall P identified the question as whether the declaration sought was a declaration about an "industrial matter." Consequently, he concentrated on the application of s 7(1) and (3) of the IR Act.

[71] In respect of s 7(1), Hall P considered that the declarations sought was about an industrial matter "in that it affects the rights of the employees ... to participate in the enterprise bargaining regime for which the Act provides."[16]

[72] In respect of s 7(3), Hall P considered that the declaration sought was about an industrial matter "in that it relates to the regulation of relations between employer and employee." He continued:

"Of the expression 'relating to', Lord Macnaughten in Inland Revenue Commissioners v Maple and Co (Paris) Ltd [1908] AC 22 at 26, 'There is no expression more general or far reaching than that'. Of the expression it has been said that it 'can signify great width of association', compare Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 108 ALR 77 at 86 per Hill J, and 'should not be read down in the absence of some compelling reason for so doing', Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at 629 per Mason J. ... The phrase 'relates to' is of course a 'vague and indefinite' phrase, Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 108 ALR 77 at 94 per Cooper J and context will be everything, Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 104 CLR 602 at 620 and Secretary, Department of Foreign Affairs and Trade v Boswell op. cit., there is nothing remote or tenuous about the connection between the regulation of the relations between employer and employee and participation in and representation in the enterprise bargaining regime which is a means of regulation."[17]

[73] Respondent's submissions: The Respondent submits that the grievance lodged by Mr Ganly is not an "industrial matter." That is part of a broader submission, in which the Respondent also starts with s 277 of the IR Act, and submits that, in refusing to accept Mr Ganly's letter dated 13 November 2014 as an employee grievance under the Award, there has been no failure to comply with an industrial instrument or any contravention of an industrial instrument. That is because:

(a) clause 3.2 of the 2012 Award sets out the procedure for resolving employee grievances;

(b) clause 3.2.2 of the Award provides that the grievance procedure applies to all "industrial matters" within the meaning of the IR Act;

(c) Mr Ganly's compliance is not an "industrial matter" within the meaning of the IR Act; and hence

(d) Mr Ganly's complaint about the substantiation of the allegation, as well as the proposed penalty, cannot be the subject of a grievance under clause 3.2 of the 2012 Award.

[74] An "industrial matter" is defined in s 7 of the IR Act, the relevant passages from which were quoted earlier. I only repeat subsection (3).

"(3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1."

[75] Although the Respondent does not submit that all industrial matters are listed in Schedule 1 to the IR Act, it describes that Schedule as providing an indication of what an industrial matter is. The Respondent notes that there is nothing there listed about the discipline of employees, and in particular public service employees. It takes issue with the Applicant's reliance on item 21 in Schedule 1 which, when quoted in full, refers to:

"21 the regulation of relations between employer and employee, or between employees, and to that end the imposition of conditions on-

(b) the provision of benefits to persons engaged in a calling."

[76] The Respondent submits that the disciplining of public service employees does not fall within that notion. But even if it could be said to fall within that paragraph:

(a) s 215 of the PS Act makes clear what is an "industrial matter" that the Commission may hear and determine; and

(b) in any case, there is no need to list the disciplining of public service employees in Schedule 1 because there is a scheme, a code, under the PS Act to deal with that matter.

[77] Conclusion: The issue whether the scheme under the PS Act operates as a code and effectively excludes disputes about disciplinary decisions in relation to public service employees being "industrial matters" is dealt with below. Subject to being satisfied that the PS Act scheme does not so operate, I would conclude that the dispute between the Applicant and the Respondent about whether the allegations have been substantiated is an "industrial matter" because it affects or relates to the right of the Respondent as an employer to take disciplinary action against an employee. On one hand, the Applicant disputes the Respondent's capacity to exercise its rights under the PS Act in relation to him at this time because, he contends, he has invoked the grievance procedure under the 2012 Award to deal with whether there is a factual basis on which the Respondent can take that disciplinary action (i.e. exercise its rights under the PS Act). On the other hand, the Respondent contends that the grievance procedure has not been, and cannot be, invoked because the Appellant's complaint cannot be the subject of a grievance under clause 3.2.2 of the 2002 Award. Expressed in those terms, the dispute between the parties can be characterised as being about an "industrial matter," and hence within the scope of s 7(1)(b) of the IR Act.

[78] In light of that conclusion, it is not necessary for me to express a view about whether the dispute also "relates to a matter mentioned in" Schedule 1 of the IR Act. However, I observe that, given the opening words of s 7(3), the absence from Schedule 1 of a category of dispute such as arises in this case does not prevent it being characterised as an "industrial matter."

Is Mr Ganly's grievance excluded from being an "industrial matter" because the PS Act provides a code for dealing with the disciplining of public service employees?

[79] Respondent's submissions: The Respondent submits that the PS Act constitutes a code in respect of disciplinary matters not amounting to termination of employment and hence effectively displaces or excludes the provisions under the IR Act that would apply otherwise. In support of that submission, the Respondent relies on a series of decisions and on specified sections of the IR Act and the PS Act.

[80] First, the Respondent refers to and relies on (but did not make detailed submissions about) the decisions of the High Court in Director-General of Education v Suttling[18] ("Suttling") and Ferdinands v Commissioner for Public Employment[19] ("Ferdinands") and decisions of the Commission in Deidre Marie Gomm AND Department of Corrective Services[20] ("Gomm") and The Queensland Public Sector Union of Employees AND Queensland Corrective Services[21] ("QPSUE"). To follow the development of legal analysis on this issue, I will consider the decisions in chronological order.

[81] Suttling: Mr Suttling, a schoolteacher in New South Wales, applied successfully for appointment to a position with a higher salary than he was receiving. The appointment was by secondment and for two years. During the first year, the relevant service was reviewed and employees were told it would be reduced by 72 positions. The centre at which Mr Suttling was based was to be closed, and the centre for the amalgamated region was located in another suburb. In light of advice that his position was to be abolished, Mr Suttling accepted, of necessity, an appointment elsewhere at a lower salary than for his secondment position. Mr Suttling sued for a declaration that the defendant Director-General of Education had appointed him to be secondment position for a period of two years and for an order that the defendant accord him the salary condition and emoluments for that position for the two years.

[82] Brennan J (with whom Mason ACJ and Deane J agreed) stated that the critical issues were whether Mr Suttling's appointment conferred an enforceable right to the "salary condition and emoluments" of the secondment position for a period of two years and, if so, whether the premature termination of the appointment was valid. Members of the Education Teaching Service ("the Service") were appointed pursuant to the Education Commission Act 1980 ("EC Act") and their rights must be ascertained by reference to its provisions. His Honour assumed that Mr Suttling's appointment was validly made and that he became entitled to the conditions of employment determined pursuant to the relevant section of the EC Act. Having considered other sections of the EC Act in relation to compulsory transfer and the power of the Director-General to dispense with the services of a teacher in certain circumstances, Brennan J noted that members of the Service are protected in their membership and salary by the provisions of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act"). His Honour stated:

"The legislature can hardly have intended that when it conferred on the Director-General power to determine staff establishments, the Director-General was thereby empowered to destroy the security of employment and conditions of employment which the GREAT Act was enacted to protect. The abolition of positions is no doubt necessary from time to time in order to achieve 'efficient, effective and economical management of the functions and activities of the Education Teaching Service' ... and, when a position is abolished, either the services of the person occupying the position must be dispensed with or he must be transferred to some other suitable post. But the express provisions [of the EC Act] confer the powers which the legislature deemed appropriate for this purpose and it may be inferred that the legislature did not intend the exercise of the general administrative powers of the Director-General (including the power to abolish positions) should otherwise prejudice the security of tenure and salary of permanent appointees to positions in the Service."[22]

[83] Brennan J held that if the Director-General proposes to remove a temporary appointee from his position for cause before the fixed term of his appointment has expired, it would be necessary to observe any of the applicable requirements of the GREAT Act. In this case, however, Director-General did not purport to remove Mr Suttling from his position for any cause other than his intention to close down the Service centre where Mr Suttling was located. That reason provided no ground for the exercise of the general power of removal. The power to abolish positions in determining staff establishments was general in nature and could not be exercised in derogation of the rights of members of the Service created pursuant to the power to make particular appointments under the EC Act. It followed that the premature termination of Mr Suttling's appointment was not supported by the relevant legislation and he was wrongfully required to quit his position.

[84] Gomm: In Gomm there was a challenge to the Commission's jurisdiction to hear an application for reinstatement under the IR Act consequent upon what was claimed to have been an unfair dismissal. Ms Gomm was a public servant who had been demoted as disciplinary action under the Public Service Act 1996. The central substantive issue was whether the demotion for disciplinary reasons constituted dismissal. Having decided that "termination" in relation to public servants means bringing employment to an end (not demotion), Bechley C wrote:

"It would seem to me that it was Parliament's intention when making the Public Service Act 1996 that all matters of appeal on disciplinary action are to be dealt with by the Public Service Commissioner except in the case where the disciplinary action involves a termination of employment from the Public Service. In such a case the appeal lies to the Industrial Relations Commission. In other words it is the clear scheme of the Public Service Act 1996 that the jurisdiction of the Industrial Relations Commission with respect to appeals relating to termination of employment is limited to the action taken by the employing authority to terminate the employment of a person as an officer or employee of the public service. That legislation does not enable later changes in employment law with respect to dismissal to be taken as being incorporated within it."[23] (Underlining in original)

Bechley C considered that the appeal provisions of the Public Service Act 1996 would not be denied to Ms Gomm.

[85] Ferdinands: Ferdinands involved action taken under s 40(1)(a) of the South Australian Police Act 1998 ("SA Police Act") which provided that if a member of the police force was found guilty of an offence, the Commissioner of Police may terminate the member's appointment. A police officer was convicted of assault and his appointment was terminated by the Commissioner of Police. He applied to the Industrial Relations Commission of South Australia for a determination pursuant to the Industrial and Employee Relations Act 1994 (SA) ("IER Act") that his dismissal was harsh, unjust or unreasonable. It was contended that the jurisdiction of that commission extended to all public employees in South Australia except those specifically exempted. The police force was not specifically exempted. The High Court[24] held that the exercise of the Commissioner's power under s 40(1)(a) of the SA Police Act was not subject to the wrongful dismissal provisions of the IER Act, because the SA Police Act had impliedly repealed the wrongful dismissal provisions of the IER Act to the extent that they otherwise would have applied to the termination of appointment of a member of the South Australian Police in consequence of conviction of an offence.

[86] To understand whether that decision is relevant to the present proceedings, it is important to consider the reasoning that led to that result.

[87] Gleeson CJ noted that it was not suggested that there was repugnancy between the two State statutes, in the sense that they create conflicting commands, which could not both be obeyed, or produce legal rights or obligations which cannot be reconciled. Rather, the contention which was upheld was that there is such contrariety in the two legislative schemes that, by necessary implication, the SA Police Act excluded the operation of the IER Act in its application to termination of the appointment of a person in the position of the Appellant. He characterised the problem as one of statutory interpretation which arose only because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first. His Honour stated that the legislature may, by necessary implication, manifest an intention of the latter kind, although partial repeal of an earlier statute by a later statute will only be inferred on "very strong grounds."[25]

[88] Gleeson CJ stated that the provisions of the SA Police Act concerning the control and management of the police force are to be understood in a context which includes the history and character of the police force.[26] Although there is an elaborate system of merits review of decisions relating to transfer, promotion, termination on certain grounds, and discipline, the SA Police Act reserves to the Commissioner the power to decide whether the appointment of a member of the police force should be terminated following a conviction.

"The evident reason for that reservation lies in the disciplined nature of the police force, the Commissioner's responsibilities of control and management, and the range of information and considerations that would need to be taken into account in deciding whether, in a particular case, retention of appointment is consistent with such a conviction. In particular, issues of morale and integrity, perhaps extending beyond the circumstances of the individual officer, are likely to arise. The arrangements for control and management of the police force, and for merits review of some kinds of decision by the Commissioner, and the absence of merits review of others, have the appearance of exhaustiveness."[27]

Having regard to the nature of the subject of police appointment, discipline, and termination, and to the scheme established by the SA Police Act to deal with that subject, his Honour held that it was right to conclude that it would be incompatible with that scheme to treat an exercise of the Commissioner's power under s 40(1)(a) of the SA Police Act as subject to the industrial regime of the IER Act.

[89] Gummow and Hayne JJ set out the long recognised proposition that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Although it is difficult to formulate a rule which will apply in every case of implied repeal, the two "cardinal considerations" are:

(a) there must be very strong grounds to support the implication, because there is a general presumption that the legislature intended that both provisions should operate; and

(b) deciding whether there is such inconsistency that the two cannot stand or live together requires the construction of, and close attention to, the particular provisions in question.[28]

No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an explicit or implicit contradiction between the two, the later act impliedly repeals the earlier.[29]

[90] Their Honours undertook a detailed examination of the provisions of the SA Police Act and the IER Act and concluded that the difficulties in reconciling the two Acts stemmed from two separate, but linked, features:

(a) different considerations inform the exercise of power under the SA Police Act from those that inform the exercise of power under the wrongful dismissal provisions of the IER Act; and

(b) the SA Police Act appears intended to deal comprehensively with questions of termination of appointment of a member of the South Australian police.[30]

[91] They also took into account the following matters in deciding whether the two Acts are contradictory:

(a) that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise; and

(b) when read as a whole, the SA Police Act reveals an intention to deal comprehensively not only with questions of appointment and termination of appointment of members of the South Australian police, but also with what decisions of the Police Commissioner to terminate appointment of a member are to be subject to review apart from the general supervisory jurisdiction of the Supreme Court.[31]

Their Honours held that the SA Police Act should be read as a comprehensive statement in relation to the termination of appointment of a member of the South Australian police and that the affirmative words of those provisions are to be read as also having a negative force and forbidding the doing of the thing otherwise under the IER Act. It followed that the SA Police Act explicitly or implicitly contradicts the wrongful dismissal provisions of the IER Act.[32]

[92] Callinan J accepted the respondent's submission that the SA Police Act "constitutes a self-contained scheme for challenges to decisions of the Police Commissioner." His Honour concluded that the correctness of that submission "follows from the detailed provisions that the Police Act makes for all aspects of the engagement and disciplining of members of the force, and by reason of the nature of the duties and obligations of police officers..."[33] In his Honour's view, it was not irrelevant that the Police Act is a later enactment. Had the legislature intended the IER Act to apply to police officers it would have said so in terms in the SA Police Act. It was not to the point that like provisions to the relevant ones in the two enactments may have appeared in earlier enactments.[34]

[93] Callinan J also referred to policy reasons why a legislature might take the view that conviction for criminal conduct should result in the liability of a police officer to termination without any further right of challenge. That the definition of "employee" in the IER Act may appear capable of embracing a police officer does not require a different conclusion. The SA Police Act with related legislation is a "specific statutory scheme, clear, explicit and comprehensive with respect to the matters with which it deals." Police officers may be public employees, "but public employees of a kind for whom specific provision is unnecessary and has not been made, they are not."[35]

[94] QPSUE: The QPSUE case concerned an urgent application to the Commission in relation to disciplinary action on a public servant who had been suspended under the PS Act. The Queensland Corrective Services argued that the matters were reserved to the Public Service Commissioner and the Commission lacks jurisdiction to deal with them. Blades C wrote:

"The guiding principle is that it is not the function of this Commission to interfere in the exercise of the right to discipline an employee or attempt to delay it, unless something extraordinary or unfair is apparent. An aggrieved public servant has certain appeal rights under the PSA or, if dismissal does occur, a right to take unfair dismissal proceedings in the Commission is available under the Industrial Relations Act 1999."[36]

[95] Having, in effect, dealt with the substantive issues, Blades C turned to the allegation that there is no jurisdiction in the Commission to deal with disciplinary processes under the PS Act. In dismissing the arbitration, Blades C reviewed relevant sections of the PS Act and referred to the remarks of Bechley C in Gomm and the statement of Callinan J in Ferdinands quoted earlier. Blades C wrote:

"The PSA contains detailed provisions in relation to the employment of public service officers and, in particular, discipline. ... It seems to me that the intent of the PSA is to provide a code in relation to the discipline of public service officers and it is part of that code that appeals lie to the Public Service Commissioner, with the exception of decisions to terminate employment. The Industrial Relations Commission maintains a jurisdiction over all matters, including a discipline decision where the parties would include the Public Service Commissioner or an employee of the Public Service Commissioner. The Industrial Relations Commission does not have jurisdiction over other decisions regarding discipline, not amounting to dismissal, or in those cases where an appeal has been made to the Public Service Commissioner. In my view, consistently with the view expressed by Bechley C, there is a self-contained scheme within the PSA similar to that in Ferdinands.

I agree that this Commission lacks jurisdiction to deal with matters of discipline under the PSA, not amounting to dismissal and not falling within the exception provided for in s. 95(4) of the PSA."[37]

[96] Second, having relied on those decisions to support the conclusion that the PS Act constitutes a code in respect of disciplinary matters short of termination of employment,[38] the Respondent submits that such matters are excluded from the jurisdiction of the Commission by virtue of s 686(1)(b) of the IR Act. Section 686 provides:

(1) This Act binds the State, other than in relation to -

(a) a matter that has been, or is, the subject of an appeal under the Public Service Act 2008, chapter 7, part 1; or

(i) the jurisdiction of the court or commission about the matter; or

(ii) the application of a decision under this Act about the matter." (underlining added)

[97] Section 215 of the PS Act provides express jurisdiction for the Commission to hear appeals under the Act as industrial matters in very limited circumstances.

"215 Jurisdiction of IRC for industrial matters

(1) This section is to be read in conjunction with the Industrial Relations Act 1999.

(2) The IRC may hear and decide, as an industrial matter, an application by a person aggrieved by a matter mentioned in section 195(4).

Section 195(4) is about decisions that can not be appealed against because the appeal would involve the commission, a commissioner or a staff member of the commission, or a matter that has been heard by the IRC.

(3) The IRC can not hear or decide, as an industrial matter, an application by a person about a decision against which the person has appealed under part 1."

[98] Subsection 215(2) of the PS Act confers jurisdiction on the Commission to hear and decide, as an industrial matter, an application by a person aggrieved by a matter mentioned in s 195(4). A person mentioned in s 195(4) of the PS Act is unable to appeal against a decision to the Appeals Officer if the parties to the appeal would include the Public Service Commission, a Commissioner or a staff member of the Public Service Commission. Hence an alternative appeal process is provided by characterising grievances in relation to the matters specified in s 195(4) as industrial matters. Those provisions do not apply to the circumstances giving rise to the present proceedings.

[99] Although it is not part of the Respondent's submission, I note that s 215(3) precludes the Commission from hearing or deciding as an industrial matter and application about a decision which the person "has appealed" under Part 1 of Chapter 7 of the PS Act (i.e., ss 193-214B). For present purposes it is relevant to note that the Commission is precluded from hearing or deciding as an industrial matter an application about a decision under the PS Act to discipline that person (including the action taken in disciplining the person) where that person "has appealed" against the decision in accordance with the scheme under the PS Act. The potential significance of that expression will be apparent when considering the Applicant's submission (below).

[100] The Respondent submits that if matters that were the subject of an appeal under Part 1 of Chapter 7 of the PS Act were "industrial matters," there would be no requirement for the Commission to be given express powers to hear and decide such applications as industrial matters (in other words, if a disciplinary matter constituted an industrial matter there would be no need for s 215(2) because it would be understood and Public Service Commission employees would be no different from any other employees);

[101] As I understand it, the Respondent reasons from that premise that:

(a) a dispute about a disciplinary matter under the PS Act cannot be an "industrial matter;"

(b) if such a dispute is not an industrial matter then it is not a dispute to which clause 3.2 of the 2012 Award applies;

(c) in circumstances where Mr Ganly could not lodge an employee grievance within the meaning of the 2012 Award, it cannot be found that the QAO contravened the Award; and

(d) hence the Commission lacks jurisdiction to make the orders sought by Mr Ganly.

[102] Applicant's submissions: The Applicant also makes submissions in relation to decided cases and statutory provisions.

[103] First, the Applicant submits that the decisions on which the Respondent relies can and should be distinguished from the present application or provide no support for it.

[104] In particular, the Applicant submits that the result in Ferdinands can be distinguished on the basis that:

(a) the comprehensive legislation being considered in that case impliedly ousted the jurisdiction of the commission with respect to unfair dismissals of police officers; and

(b) there would have been serious consequences if the commission's jurisdiction was not ousted and a particular member of the Police Force was reinstated.

[105] By contrast, the Applicant submits, in the present proceedings:

(a) the two cardinal principles referred to by Gummow and Hayne JJ do not apply; and

(b) as a matter of practicality, there is no problem in the two schemes operating alongside each other. If necessary, the Commission can deal with the specific point under the grievance procedure.

[106] The Applicant also submits, by reference to the principles outlined in Ferdinands, that the complexity and cost of invoking one legislative scheme relative to the complexity and cost of another is not determinative of whether the two schemes are irreconcilable. The fact that it may seem not sensible for one person to proceed for one form of relief rather than the other is not the issue.

[107] The Applicant contends that the disciplinary scheme in the PS Act is not a code. In the alternative, he submits that even if Blades C was correct in so characterising those provisions, that does not make a difference in terms of the compatibility of legislation. The scheme is not an exclusive code in the sense that it does not expressly deal exclusively with these matters. It deals with the matters in a detailed way but not exclusive to this jurisdiction.

[108] The Applicant also submits that the following statement by Bechley C in Gomm:

"It would seem to me that it was Parliament's intention when making the Public Service Act 1996 that all matters of appeal on disciplinary action are to be dealt with by the Public Service Commissioner except in the case where the disciplinary action involves a termination of employment from the Public Service."[39]

is quite correct, as a matter of construction. However it begs the question whether a person who has not appealed under the PS Act can come to the Commission. That issue was not raised in Gomm. Consequently, that statement was not an authority on which Blades C could rely in the QPSUE case.[40]

[109] In any event, the Applicant submits, both Commissioners were dealing with the Public Service Act 1996 and there are significant differences between that Act and the PS Act. In particular, the 1996 Act did not contain an equivalent to s 216 of the PS Act (considered below), and the comparable provision to s 215 of the PS Act was not under the heading "Alternative jurisdiction."

[110] Second, the Applicant also refers to s 686(1) of the IR Act. He submits that, consistently with s 13 of the Acts Interpretation Act 1954, the Crown has chosen to be bound by the IR Act except in relation to enumerated matters. Because subsection (1)(a) expressly excludes appeals under the PS Act of a type different from the current proceeding (and the parties agree, Mr Ganly could not bring such an appeal at this stage), it could not impliedly also exclude appeals that might be brought at some later date. To conclude otherwise would require words being added to or read into the section. In other words, in the absence of any words in the PS Act excluding the operation of the IR Act to disciplinary proceedings under the PS Act, the legislature would not have intended that exclusion to be implied by reading s 686(1) in that way. The Respondent does not contend otherwise.

[111] In relation to s 686(1)(b), the Applicant submits that the PS Act cannot be construed as a code because the PS Act expressly contemplates other statutory instruments coming into play. That argument proceeds as follows:

(a) s 193 of the PS Act permits a person to appeal against a decision if both an appeal may be made against the decision under s 194 and the person is entitled to appeal against the decision under s 196;

(b) s 194(1)(b) provides that an appeal may be made against a decision under a disciplinary law to discipline a person (other than by termination of employment), including the action taken in disciplining the person; and

(c) s 196(b) provides that a person may appeal against a decision mentioned in s 194(1)(b) if that person is a public service employee (or former public service employee) aggrieved by the decision and if the employee is entitled to appeal under a directive of the commission chief executive;

(d) consequently, a right of appeal is not dealt with exhaustively under the PS Act but is conditioned by whether or not the Public Service Commissioner has issued a directive allowing a person who is subject to a disciplinary decision to appeal.

[112] The Applicant also refers to ss 216 and 217 of the PS Act to submit that the legislature did not choose to exclude the type of matter covered by the present application from the operation of the IR Act. Those sections are in Chapter 7 Part 3 of the PS Act headed "Exclusion of particular matters from jurisdiction under other Acts." Section 216 identifies specific matters each of which is an "excluded matter" for the purpose of Part 3. None of the excluded matters is relevant to the present application. Subsection 217(1) states:

"(1) An excluded matter, or a matter as affecting or relating to an excluded matter, is not an industrial matter for the Industrial Relations Act 1999."

Subsections 217(2) and (3) are not relevant to these proceedings.

(a) given that the legislature did not take the opportunity to specify matters of the type covered by the present application when enumerating those matters to be excluded from the jurisdiction of the Commission, there is no reason to imply that such matters are excluded; and

(b) because the Public Service Act 1996 did not include sections equivalent to ss 216 and 217, the decisions in Gomm and the QPSUE case were made in relation to different legislation and the Commissioners were not called on to look at such sections when they reached their decisions (quoted earlier).

[114] The Applicant also refers to s 215 of the PS Act (quoted earlier), which is in Chapter 7 Part 2 under the heading "Alternate jurisdiction." That heading, he submits, could only mean alternative to the appeals process under the PS Act. The Applicant notes that subsection (3) contains the only exclusion of a matter from the Commission, and that relates to an appeal against a decision different from the circumstances of the present application. Consequently, he submits, the present application is one that the Commission can hear and decide as an industrial matter.

[115] In reply to the Respondent's submissions about s 215(2) of the PS Act, the Applicant submits that:

(a) the legislature sometimes makes certain what might not be clear;

(b) while it is correct to say that s 195(4)(a) of the PS Act disentitles people to appeal if they are staff of the Public Service Commissioner, s 195(4)(b) provides that one cannot appeal against a decision if it is a matter that has been heard by the Commission; and

(c) contrary to the submissions of the Respondent, the section demonstrates that the two Acts can be read together.

[116] The Applicant acknowledges that if he fell within s 215(3) of the PS Act or s 686(1)(a) of the IR Act he would be excluded from bringing an application to the Commission. However, neither provision applies to the subject circumstances.

[117] The present case, the Appellant submits, does not involve competing processes because the appeal process has not been invoked and might never be invoked. What Mr Ganly is seeking is a finding that the allegation against him cannot be made out on the evidence, and hence an early termination of the proceedings.

[118] The Applicant also identified various situations which, he submits, are not covered by the scheme under the PS Act and might not be dealt with if the Respondent's arguments are accepted and the employee could not use the grievance procedure or bring the issue to the Commission as an industrial matter.

[119] Consideration and conclusion: The PS Act provides a detailed and comprehensive scheme for the disciplining of public servants. The scheme contemplates, and provides for, a range of circumstances and possible outcomes. The procedural steps, including for appeals against disciplinary decisions, do not refer to or depend on steps being taken under other legislation.

[120] However, apart from s 215(3) and specifically defined excluded matters, the PS Act does not expressly exclude the operation of other laws or the implementation of other instruments in addition to or, potentially concurrently with, the PS Act scheme.

[121] The wording of the Respondent's submission and passages from some of the decision cited by the Respondent are consistent with the following observation by the authors of Statutory Interpretation in Australia:

"The description 'code' has come to be used somewhat loosely in Australia. ... On occasions, reference is made to provisions of an Act being a code when what is really meant is that the Act deals with the particular subject to the exclusion of other Acts. This is more an application of the generalis specialibus non derogant principle ... The principal issue for a court in such a case is to determine the extent to which the statute applies."[41]

[122] The decisions referred to by the Respondent do not compel the conclusion that it seeks. It is clear from Ferdinands that a court will only find an implied repeal of one statutory scheme by another in very limited circumstances. The result in that case illustrates the point clearly. Despite the provision that the IER Act applied to public employees and that the police force was not specifically exempted, the particular circumstances underpinning the disciplining of police officers were such that the specific discipline proceedings under the Police Act were held to apply and oust the jurisdiction of the commission under the IER Act. As Callinan J wrote, police officers may be public employees, but public employees of a kind for whom specific provision is unnecessary and has not been made, they are not.[42]

[123] The more recent decision of the High Court[43] in Commissioner of Police v Eaton,[44] also illustrates the limited basis on which a court or tribunal should find that provisions of one statute impliedly repeal provisions of another. That case was precipitated by the purported dismissal of a probationary police constable by the NSW Commissioner of Police. It concerned the interrelationship between the Police Act 1900 (NSW) ("NSW Police Act") and the Industrial Relations Act 1996 (NSW) ("NSW IR Act"). Subsection 80(3) of the NSW Police Act empowered the Police Commissioner to dismiss any probationary police officer "at any time and without giving any reason." The question was whether a s 80(3) decision could be challenged under s 84(1) of the NSW IR Act which provided that if an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the NSW Industrial Relations Commission ("the commission") for the claim to be dealt with under that Act.

[124] The NSW IR Act applied to the dismissal of any "public sector employee," including a member of the NSW Police Force which in turn includes a probationary constable.[45] Section 218 of the NSW Police Act stated that:

(a) the NSW IR Act "is not affected by anything in" the NSW Police Act;

(b) subsection (1) "does not limit" two nominated sections "or any provision of" the NSW IR Act.

[125] A majority of the High Court held, in effect, that there is no jurisdiction in the commission under s 84(1) of the NSW IR Act to hear applications by persons dismissed under s 80(3) of the NSW Police Act.

[126] For the purpose of the present application, it is not necessary to consider the High Court's reasoning in detail. It is sufficient to note that the Justices in the majority reached that conclusion for reasons which included references to the following:

(a) the terms of s 80(3) of the NSW Police Act ("at any time," "without giving reasons" and "probationary") because, as Heydon J stated, the freedom with which an employer may dismiss can affect the capacity of an employee to challenge the dismissal, so that if a power to dismiss is unfettered (e.g. as in s 80(3)), then "its exercise is necessarily immune from challenge on the ground of harshness, unreasonableness or under fairness;"[46]

(b) the remedies available under the NSW IR Act (including an order for reinstatement or re-employment or payment for lost remuneration or for continuity of employment) are "clearly inconsistent" with the Police Commissioner's powers under s 80(3);[47]

(c) the general provision of s 84(1) of the NSW IR Act (which deals with the general subject of the remedies open to a broad range of employees dismissed harshly, unreasonably or unjustly) must give way to s 84(1) of the NSW Police Act (which deals with the specific and relatively narrow subject of dismissing probationary constables);[48]

(d) the Police Commissioner's powers under s 80(3) in relation to probationary constables were in contrast with the Commissioner's powers under s 181D in relation to non-probationary police officers (and if a probationary constable dismissed under s 80(3) of the NSW Police Act could apply to the commission under s 84(1) of the NSW IR Act, that probationary constable would enjoy a right of review superior to that of a confirmed constable or any police officer of higher rank, which would "produce remarkable anomalies").[49]

The Court also pointed to difficulties in the wording of s 218 of the NSW Police Act.[50]

[127] As Heydon J put it, although no provision in the NSW Police Act expressly excluded merits review under relevant provisions of the NSW IR Act of a decision to dismiss a probationary police officer, the "necessary implications of the two Acts read together, however, have that effect."[51]

[128] Crennan, Kiefel and Bell JJ referred to statements in Ferdinands respecting statutory interpretation that were relevant to that appeal to the effect that:

(a) inconsistency was at the root of the principle of implied repeal;

(b) the law presumes that statutes do not contradict one another;

(c) the question is not whether one law prevails, but whether that presumption is displaced;

(d) deciding whether two statutes could not "stand or live together" in the relevant respect "requires the construction of, and close attention to, the particular provisions in question."[52]

Their Honours concluded that the NSW IR Act may apply generally to the NSW Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the NSW Police Act were subject to review under Part 6 of NSW IR Act, could not be taken as intended. For that and other reasons, the general provisions of the NSW IR Act "do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act."[53]

[129] In relation to the present issue, the legislature did not state an express intention either that the two statutory regimes should both apply in the circumstances of this case, or that the PS Act regime should apply to the exclusion of the IR Act regime. Having regard to the tests set out in the judgments cited by the parties, and obiter statements by the Commission in relation to different circumstances, I do not consider that there is such contrariety in the two legislative schemes that, by necessary implication, the procedure under the IR Act is excluded in its application to the parties in the circumstances of this case, i.e. before a decision is made to take disciplinary action under the PS Act. This is not the case where there is such inconsistency that the two schemes cannot stand or live together. Hence, the applicable PS Act provisions do not impliedly repeal the relevant IR Act provision. The presumption that two statutes do not contradict one another is not displaced.

[130] The judgement in Commissioner of Police v Eaton reinforces my conclusion that the scheme for disciplining public service employees under the PS Act does not impliedly repeal or exclude the application of any other rights, however limited, an employee might have under the IR Act and a relevant industrial instrument.

[131] It follows from that conclusion that s 686(1)(b) of the IR Act does not apply to these proceedings in the sense that the matter in dispute is not a matter about which the PS Act excludes the jurisdiction of the Commission.

[132] Finally, the three component subsections of s 215 of the PS Act have the effect that:

(a) the IR Act applies alongside, or in conjunction with, the PS Act;

(b) the Commission may hear and decide, as an industrial matter, an application of the type specified in respect of which an appeal under the PS Act scheme is otherwise precluded; and

(c) the Commission can not hear or decide, as an industrial matter, an application by a person against a decision of a specified type against which the person has appealed.

As stated earlier, the Commission is expressly precluded from hearing or deciding as an industrial matter an application about a decision under the PS Act to discipline that person (including the action taken in disciplining the person) where that person "has appealed" against the decision in accordance with the scheme under the PS Act. There is no such appeal in this case.

[133] It is common ground between the legal representatives of the parties that Mr Ganly could not have appealed to an Appeals Officer in relation to the determination (set out in the letter of Mr Close dated 17 October 2014) that the allegation against Mr Ganly was substantiated on the balance of probabilities. Mr Watson submitted that an appeal under the PS Act can only be made in relation to a decision to discipline a person. Such a decision is made at the time when a penalty is imposed. The Appellant could then appeal that decision on two bases, namely that the finding that the allegation was substantiated was wrong and that the penalty was inappropriate. Dr Spry agreed. They relied on s 194(1)(b) of the PS Act which states that an appeal may be made against specified decisions including:

"a decision under a disciplinary law to discipline-

(i) a person ..., including the action taken in disciplining the person."

[134] As I understand it, the submission is that the legislation in its terms leads to the result that a person can only appeal against a disciplinary decision which includes the imposition of a penalty. In other words, a decision to discipline includes the action taken in disciplining the person. Action taken to determine whether or not disciplinary action will be taken against an employee (although it may be characterised as part of the system or process to maintain discipline) is not a "decision ... to discipline" that person. Consequently, it is neither the purpose nor the provision of the legislation that each step along the way to the taking of a decision to discipline a public service employee can be the subject of an appeal under the PS Act.

[135] When I informed counsel that there was a Directive of the Public Service Commissioner to the effect that decisions involving a disciplinary finding could be appealed,[54] Mr Watson submitted that the directive could not expand the operation of the PS Act.

[136] It was agreed that I do not need to express a concluded view on this issue. However, the submissions of counsel in relation to it contribute to an understanding of the broader legislative picture advanced for each party as the basis on which the present application has to be decided.

[137] I conclude that the scheme for disciplining public service employees under the PS Act does not prevent Mr Ganly from exercising his rights in relation to the grievance procedure provided for in clause 3.2 of the 2012 Award.

[138] Although the legislature might not have contemplated that outcome, the legislature did not expressly exclude it. Neither the words of the legislation nor the practical operation of the schemes alongside each other compel a contrary conclusion.

Is Mr Ganly a party to an "industrial dispute," or a person likely to be affected by an industrial dispute?

[139] The Appellant submits that he is a party to an industrial dispute, or a person likely to be affected by an industrial dispute. The essence of the industrial dispute is Mr Ganly's complaint that the Respondent, by Mr Close's letter of 17 October 2014, found that the allegation of wrongdoing alleged against Mr Ganly in Mr Close's letter of 22 August 2014 had been made out when, the Applicant submits, the allegation should not have been substantiated. Mr Ganly has raised a dispute concerning his rights as an employee being violated, and notice of that dispute was given by Mr Ganly on 26 November 2014.

[140] Consistently with my earlier ruling in relation to whether Mr Ganly had standing to bring the Application for Injunction, I am satisfied that he is a party to an industrial dispute.

[141] Schedule 5 of the IR Act defines "industrial instrument" to mean, among other things, "an award". "Award" is also defined in Schedule 5. The Queensland Public Service Award - State 2012 satisfies the statutory definitions.

[142] The Applicant submits that the 2012 Award is an "industrial instrument." The Respondent does not dispute that the 2012 Award is an industrial instrument. I am satisfied that the 2012 Award is an industrial instrument.

If the 2012 Award is an industrial instrument, what is the status quo referred to in clause 3.2.8 in the circumstances of this application?

"Subject to legislation, while the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work."

[144] The parties are in dispute as to what constitutes the status quo for the purpose of clause 3.2.8 of the 2012 Award.

[145] Applicant's submissions: The Applicant submits that because:

(a) there was no grievance or dispute prior to the letter from Mr Close of 17 October 2014;

(b) in that letter Mr Close stated that he had determined that the allegation against Mr Ganly was substantiated;

(c) the Applicant disputes that determination on the basis that the particular allegation against him has not been substantiated; and

(d) that dispute is the reason for lodging the employee grievance on 13 November 2014,

the "status quo existing before the emergence of a grievance or dispute" is the situation immediately before the letter of 17 October 2014. In other words, the status quo is a situation where an allegation has been made against Mr Ganly but no decision has been made as to whether that allegation was substantiated on the balance of probabilities. If the letter of 17 October 2014 had been to the effect that the Respondent accepted Mr Ganly's response and the Respondent concluded that the allegations were not substantiated, then there would have been no grievance.

[146] In support of that submission, the Applicant refers to the decision in Hart v State of Queensland.[55] In that case, Ms Hart, a public servant, sought relief under the IR Act on the ground that her dismissal was unfair. The Commission dismissed her application. She appealed successfully to the Industrial Court of Queensland.

[147] In February 2005, Ms Hart was demoted by way of a disciplinary penalty arising out of enquiries into allegations of misconduct made against her. As part of the disciplinary penalty, her performance requirements were to be documented and monitored through a process in which she was required to participate. That process was not developed and Ms Hart did not enter into an agreement in relation to it. On 29 August 2005, a manager wrote to Ms Hart redirecting her to participate in that process (although there was no direction to reinforce). Ms Hart responded in September 2005 by lodging a grievance pursuant to clause 3.2 of the relevant award which included, at clause 3.2.8, "The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed." (Those words are identical to the status quo provision in clause 3.2.8 of the 2012 Award relevant to the present proceedings.) Ms Hart's grievance was not acted upon. On the contrary, she received a letter on later that month which informed her that a more senior officer had concluded that she may be liable to disciplinary action pursuant to the PS Act and which gave her the opportunity to make a written response.

[148] Hall P held, on the facts in that case, that the letter should not have been written. He continued:

"It is not suggested that the lodging of a grievance in itself prohibits disciplinary action under the Public Service Act 1996. If authority be wanted for the proposition that disciplinary action is still available it is to be found in the decision of the Court of Appeal in Ivers v McCubbin and Others [2005] QCA 200. Rather, the proposition is that once a grievance is lodged clause 3.2.8 of the Award operates to preserve the status quo whilst the grievance is resolved. It seems to me to be entirely inconsistent with the maintenance of the status quo to give added force and effect to the "redirection" of 29 August 2005 by calling up the spectre of disciplinary action and giving Ms Hart the opportunity to "show cause" when the "redirection" of 29 August 2005 is the very subject matter of the grievance."[56]

[149] The facts in Ivers v McCubbin and Others were different from the circumstances of the present application. Relevantly, however, Mr Ivers (a public servant) was the subject of disciplinary proceedings in response to complaints made by a co-worker. An inquiry had made some adverse findings in relation to his conduct, and he had been asked to show cause why the Director should not be reasonably satisfied that Mr Ivers had breached the Department's code of conduct. Mr Ivers responded to the request by an application for a statutory order of review in the Supreme Court seeking various orders including that the Director take no further action or decisions based on the report or its findings. Mr Ivers relied on Directive No 04/03 - Grievance Resolutions, issued by the Public Service Commissioner under s 34 of the PS Act and binding on public service employees unless inconsistent with the PS Act or other legislation. That Guideline authorises a public service employee to lodge a grievance in writing with the Chief Executive of the employee's Department or the Chief Executive's delegate. A grievance may not be lodged unless the complaining employee has made reasonable endeavours to resolve the matter locally, or unless the Chief Executive determines that local resolution is not reasonable or appropriate. Upon receipt of a grievance, the Chief Executive is required to institute mediation, unless he or she determines that mediation is not an appropriate remedy. If so, the Chief Executive is to investigate promptly appropriate action to resolve the grievance, which may include engaging the services of an independent investigator to investigate it and prepare a report.

[150] Mr Ivers submitted that the Director was obliged to treat the co-worker's complaints as conduct by which she lodged a grievance against him. Accordingly, the Director should have required her to make reasonable endeavours to resolve the matter locally and should have taken the other steps set out in the Directive. Mr Ivers argued that the Director had acted incorrectly by immediately taking action in purported accordance with the general provisions of another document dealing with discipline (Corporate Standard HR.4.002) and that the Director ought to have acted first in accordance with Directive 04/03 or another document (Corporate Standard HR.8.003 - Workplace Harassment).

[151] The Court of Appeal noted that the trial judge had found that the co-worker had not lodged a grievance, and that there was no obligation on her to lodge one. Accordingly, the judge held that Directive 04/03 was irrelevant. Jerrard JA, with whom MacPherson JA and White J agreed, wrote that even if the co-worker had lodged a grievance:

"that does not invalidate a decision to begin immediately a process of disciplinary action following receipt of a complaint. The Chief Executive's delegate cannot be prevented from conducting an appropriate investigation into allegations of misconduct either because no grievance has been lodged, or because one has been. The objective of Directive 04/03 (expressed in its clause 5.2), namely to ensure that wherever possible grievances are resolved locally and informally, cannot be allowed to frustrate either the investigation of misconduct or disciplining the officers who are committing it. One of the main objects declared in the Public Service Act 1996 is that of maintaining integrity and appropriate standards of conduct for public service employees, and s 25 of that act declares that a public service employee's work performance and personal conduct must be directed towards, amongst other things, ensuring that the employee's personal conduct does not adversely impact on the reputation of the public service, and towards carrying out that employee's duties impartially and integrity."[57]

[152] Later in his reasons, Jerrard JA wrote that he agreed with the trial judge that if the co-worker did lodge a grievance:

"that did not necessarily prevent the discipline process beginning without any determination first being made that local resolution was not reasonable and that neither it nor mediation was appropriate. The learned judge wrote that 'If there is more than one possible procedure which is authorised, choosing one over the other cannot, without more, render the procedure chosen unlawful.' I agree. It is a matter of judgement whether a complaint can be dealt with as a grievance by one public employee to be negotiated with another employee, or whether if proved the matters complained of constitute misconduct and unreasonable contravention of a department's code of conduct, justifying - if not necessitating - immediate application of the process of investigation with a view to taking disciplinary action."[58]

[153] Although the principle expressed in those passages may appear to apply to the present case, the circumstances that the Court of Appeal dealt with are different in one significant respect. There appears to have been no equivalent to a status quo provision which might have operated to halt the completion of the disciplinary process. Rather, both possible procedures were available under the PS Act and relevant directives. Consequently, as Hall P observed, the decision in that case stands for the proposition that disciplinary action is not prohibited by the lodging of a grievance.

[154] Respondent's submissions: The Respondent submits that the status quo is the situation that existed at the time that the application was made for an injunction, as set out in Mr Close's letter of 17 October 2014. In other words, the status quo that is to continue is a situation where:

(a) the Respondent has determined that the allegation has been substantiated and that disciplinary action should be taken;

(b) the Respondent gave Mr Ganly an opportunity to make submissions in relation to the proposed disciplinary action, but he did not make a submission within the period specified (as extended); and

(c) the Respondent can take disciplinary action at any time, given that the time afforded to Mr Ganly to make submissions in relation to the proposed penalty has passed.

[155] The Respondent seeks to distinguish the decision in Hart on the basis that the facts are so different from the circumstances in the present case where the disciplinary process is well advanced, and the first part of the process is complete (i.e., there is a finding that the allegations have been substantiated) and the stage of the second show cause has been reached. Hart dealt with an alleged unfair dismissal, not with the issues in the present case, in particular whether there is an industrial dispute in relation to the grievance procedure that Mr Ganly has commenced. A fresh disciplinary process was commenced against Ms Hart, whereas in this case the Respondent had advised what action would be taken and was in a position to take that action, there being nothing to prevent it doing so.

[156] However, the Respondent does rely on the statement of Jerrard J in Ivers v McCubbin at [32] quoted earlier.

[157] Counsel for the Respondent points out that the decision in Hart was made under the Public Service Act 1996 which, in relation to an earlier issue, counsel for the Applicant has pointed out was different in material respects from the PS Act operating in relation to the present proceedings. In reply, the Applicant submits that although Hart was decided while the Public Service Act 1996 was in force, the matters in issue in this case were not matters which arose in Hart, and the legislation was in the background and did not have anything to do with the issue.

[158] Conclusion: The issue is not resolved by reference to decisions on cases which arose in quite different circumstances, but by reference to the terms of clause 3.2.8, namely: "The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed."

[159] I accept that the "status quo existing before the emergence of a grievance or dispute" in the circumstances of this case is as characterised by the Applicant. Accordingly, clause 3.2.8 would preserve the situation immediately before the determination that the allegation against Mr Ganly was substantiated.

Is there a contravention or threatened contravention of the 2012 Award?

[160] As noted earlier, clause 3.2 of the 2012 Award sets out the employee grievance procedures, which includes a three stage process if the matter is dealt with internally. Clause 3.2.8 provides that the status quo existing before the emergence of the grievance or dispute is to continue while procedure is being followed. The way the 2012 Award operates in relation to the QAO means that the Auditor-General or that person's nominee would have the final decision on the outcome of the grievance. Clause 3.2.7 provides that, if the matter is not resolved internally, it may be referred to the chief executive of the Public Service Commission or this Commission in accordance with their respective jurisdictions.

[161] The Applicant submits that the Respondent is contravening clause 3.2.8 of the 2012 Award because:

(a) it is clear from Mr Greaves' letter dated 20 November 2014, not accepting the grievance, that the Respondent is not following the disputes procedure set out in the 2012 Award;

(b) it is clear from Mr Close's letter dated 20 November 2014 that the Respondent intends to proceed to decide whether a penalty should be visited upon Mr Ganly as a result of the finding that the allegation of wrongdoing by Mr Ganly has been made out;

(c) in the grievance which Mr Ganly lodged, he put in issue the matter which is the subject of the finding by Mr Close;

(d) by ignoring the grievance initiated by Mr Ganly, and by informing Mr Ganly that the Respondent intends to consider what penalty should be visited upon him under the PS Act, the Respondent is contravening clause 3.2.8 by not abiding by the status quo existing before the emergence of the grievance, which status quo is to continue while the grievance procedure set out in clause 3.2 is followed.

(a) if the Respondent were to proceed to take disciplinary action in relation to Mr Ganly, as foreshadowed in Mr Close's letter dated 17 October 2014, before the grievance procedure under clause 3.2 of the 2012 Award is complete (or the grievance is withdrawn), that would contravene the status quo provision in clause 3.2.8 of the 2012 Award; and

(b) given the Respondent's determination not to accept Mr Ganly's letter dated 13 November 2014 as an employee grievance and the Respondent's assertion that it is entitled at any time to take such disciplinary action and intends to do so, there is a basis for finding that there is a threatened contravention of the 2012 Award.

Does the Commission have jurisdiction to deal with the matter?

[163] Although the question is framed in terms of whether the Commission has jurisdiction to deal with this matter, it would be more correct to ask whether the Commission can exercise its power under s 277 in relation to the Application for Injunction.[59]

[164] For the reasons given above, I have concluded that:

(a) Mr Ganly's grievance is an "industrial matter" within the meaning of the IR Act;

(b) Mr Ganly's grievance is not excluded from being an "industrial matter" by operation of the scheme in the PS Act for dealing with the disciplining of public service employees;

(c) Mr Ganly is a party to an "industrial dispute;"

(d) the 2012 Award is an "industrial instrument;"

(e) the status quo referred to in clause 3.2.8 of the 2012 Award is the situation immediately before the determination by the Respondent that the allegation against Mr Ganly was substantiated;

(f) if the Respondent were to proceed to take disciplinary action in relation to Mr Ganly, as foreshadowed in Mr Close's letter dated 17 October 2014, before the grievance procedure under clause 3.2 of the 2012 Award is complete (or the grievance is withdrawn), that would contravene status quo provision in clause 3.2.8 of the 2012 Award;

(g) given the Respondent's determination not to accept Mr Ganly's letter dated 13 November 2014 as an employee grievance, and the Respondent's assertion that it is entitled at any time to take such disciplinary action and intends to do so, there is a basis for finding that there is a threatened contravention of the 2012 Award.

[165] Consequently, I am satisfied that the criteria in s 277 of the IR Act are met and the Commission has power to grant an injunction of the type sought by the Applicant.

Should the Commission exercise its discretion to grant the orders sought by Mr Ganly?

[166] Given the conclusions set out above, it is necessary to decide what orders should be made. As noted earlier, s 277(1) of the IR Act provides that the Commission "may, on application, grant the injunctive order it considers appropriate" to compel compliance with an industrial instrument or restrain a contravention of an industrial instrument. As counsel for the Applicant pointed out, the word "may" in s 277(1) might operate in both a permissive as well as a facultative sense.

[167] Applicant's submissions: The main thrust of the Applicant's submission is that if it is clear that there has been a breach of the 2012 Award or a proposed continued breach, there is nothing to convince the Commission not to exercise the power under s 277 to make the orders sought.

[168] The Applicant submits that it is not unusual for alternative remedies to be provided to a party who may choose the remedy that best suits his or her circumstances. In support of that proposition he refers to the following passage from the judgment of Kirby P (as he then was) in Walker v Industrial Court of New South Wales:[60]

"It is by no means unusual in our legal system for the one set of circumstances to give rise to a number of remedies which the person affected may pursue, sometimes in the one court, sometimes in differing courts, to the full extent of that person's entitlement. The commonest example is the entitlement of an injured worker to bring proceedings for benefits under the Workers Compensation Act, and to maintain a claim for damages at common law. The ingredients of the various entitlements may be different. But the existence of alternatives has never excluded a person from pursuing rights expressly conferred by statute. Unless those rights are expressly, or by necessary implication, excluded by the alternative claim, or controlled an obligation to elect or by time limits, the beneficiary of the statutory right can pursue any, or all, or no entitlement."

[169] The Applicant repeats that he seeks to pursue his rights to have his grievance dealt with under the applicable grievance procedure set out in the 2012 Award. That procedure seeks, in the first instance, to have the matter resolved internally. As the Applicant remains employed by the Respondent, and has the benefit of the status quo provision is of the 2012 Award, he submits that there is good reason why he would seek that goodwill prevail and the matter concerning his being subjected to disciplinary action should be resolved in that manner. He recognises that ultimately the matter may have to be referred to the Commission under the grievance procedure, but that would be a last resort. However, he submits, the Respondent wrongly denies him the right to proceed in that way.

[170] The Applicant also submits that, since the Crown is bound by the 2012 Award and it is an offence to contravene an award, it is not appropriate for the executive arm of government to seek to avoid what the legislative arm has proscribed by resort to the Commission's discretion and thus avoid the grievance procedure. Grievance procedures should not be the subject of selective application, nor should they be ignored.[61] Yet that is what, in effect, the Respondent is inviting the Commission to do.

[171] Furthermore, the Applicant submits, if the Commission makes the orders he seeks, the process provided for in the PS Act would not be stymied. Rather those orders would lead to a just outcome because Mr Ganly would not have to be subjected to an appeal process that would be expensive, should not apply to him and could lead to an outcome that (in terms of his damaged reputation) would be unfair to him. There is nothing so valuable or sacrosanct about the process under the PS Act that it cannot and should not be exposed before the Commission if the Respondent has made an incorrect finding with respect to the allegations against Mr Ganly. Furthermore, if the grievance procedure applies, the Respondent has no justification to ignore it.

[172] In summary, the Applicant submits that the effect of granting the injunction he seeks would be that:

(a) as much of the grievance process as remains relevant in these circumstances would be followed and, if the Applicant is not satisfied with the outcome of the process internal to the Respondent, he could take the matter to the Commission;

(b) the disciplinary process under the PS Act would be put on hold while the grievance process is followed; and

(c) if the Applicant did not succeed in achieving the outcome he seeks under the grievance process, and the Respondent wanted to take disciplinary action in relation to the Applicant, the PS Act disciplinary process would be reactivated and Mr Close could then decide whether to impose a penalty.

[173] Respondent's submissions: The Respondent highlights the discretionary nature of the exercise of the power to grant injunctions under s 277 of the IR Act. The Respondent submits that, by contrast to some other provisions, the Commission is not obliged to grant an injunction even if the preconditions for such a grant are met. The Commission has discretion both as to whether to grant an injunction and the type of injunctive order it considers appropriate.

[174] In the Respondent's submission, even if the Commission found against it on all the preceding matters raised in relation to the application for the injunction, the discretion should not be exercised in Mr Ganly's favour because:

(a) Mr Ganly decided not to continue with the industrial dispute proceedings which he commenced on 26 November 2014;

(b) there is a comprehensive scheme under the PS Act for dealing with misconduct and disciplining public servants which is quick and relatively cheap, and the processes under the IR Act should not be used to subvert the discipline process under the PS Act (with added expense and the involvement of lawyers); and

(c) the two legislative schemes are not capable of sensible operation together.[62]

[175] In relation to the latter point the Respondent submits that it would not be a sensible operation to have a public service employee who is midway through a disciplinary procedure bringing an industrial dispute and a separate injunction, and then saying that the disciplinary procedure is halted until at least any appeals process in relation to the other scheme is complete. If the orders sought by Mr Ganly were made, the process provided for in the PS Act would be stymied. Mr Ganly would not be required to respond in relation to the proposed penalty despite the allegation against him being substantiated. This would clearly undermine the disciplinary process provided in the PS Act. For this reason alone, the Commission should not exercise its discretion and Mr Ganly's favour.

[176] In relation to the exercise of the Commission's discretion, the Respondent also submits that:

(a) despite numerous extensions of time given to the Applicant and the fact that (although the Applicant has not responded with a submission) the Respondent has not taken disciplinary action against him, the Applicant wants to proceed with other options and, if he does not like the decision made under the 2012 Award, he can take the matter to the Commission;

(b) although the Applicant submits that his reputation will be damaged if the disciplinary action is taken, he has not sought withdrawal of the first show cause notice;

(c) in particular, the individual employee has extensive appeal rights and the appeals process under the PS Act allows for careful consideration of relevant matters and enables an independent Appeals Officer to make the decision that the Appeals Officer considers is the correct decision, rather than return the matter to the primary decision-maker for reconsideration. (s 208(1)(c) PS Act)

[177] Applicant's submissions in reply: In reply, the Applicant submits that expense of the current proceedings is due to actions taken by the Respondent. Had the Respondent abided by the disputes procedure under the 2012 Award then the Applicant would not be seeking an injunction.

[178] In response to the Respondent's submission that the disciplinary process under the PS Act needs to be upheld, the Applicant contends that the process can only be pursued properly if the Applicant is liable to disciplinary action. That question is at the heart of his industrial dispute, which he seeks to have addressed through the grievance procedure. The fact that the question might be answered in his favour in the appeal proceedings under the PS Act is of no comfort to the Applicant:

(a) if in the meantime he has to invest unnecessary time and money in pursuing proceedings which could be obviated by a proper utilisation of the grievance procedure; and

(b) because ultimate vindication could not redress the damage done to his reputation and standing within the QAO (e.g. as a result of demotion) if the wrongful disciplinary action achieves the conclusion foreshadowed by the Respondent.

[179] In other words, the Applicant contends that if:

(a) the disciplinary process under the PS Act were to run its course; and

(b) the Applicant were to successfully appeal to an Appeals Officer in relation to either the decision that he breached the code of conduct or the nature or scale of the disciplinary action,

that outcome would not obviate the harm to his reputation from having an adverse finding made against him and a penalty exacted.

[180] Consideration and conclusion: It is clear that interlocutory injunctions may be granted to preserve the status quo "because that may be the best means of ensuring that the issues between the parties are resolved and justice accordingly done."[63] Having concluded that the Applicant is entitled to have his grievance dealt with in accordance with the procedure set out in clause 3.2 of the 2012 Award, I am not persuaded that I should exercise the discretionary power under s 277 of the IR Act to refuse to grant an appropriate injunction.

[181] The internal grievance process is meant to be completed within about one month of the employee informing his supervisor of the grievance. If the Applicant disagrees with the outcome of his grievance procedure, the matter could be brought to the Commission. If the Commission decided against the Applicant, the disciplinary process under the PS Act could be reactivated at the point at which its operation was suspended and could take its course, including if appropriate, to an Appeals Officer.

[182] Given the delays already experienced in litigating the issues raised by his Application for Injunction, any further delays occasioned by the implementation of the grievance process will only prove to have been unnecessarily costly if the matter in dispute is not resolved by that process and the disciplinary process under the PS Act subsequently runs its course, whatever the outcome. It is not possible to predict with certainty how far the applicable procedure (or procedures) will run.

[183] The decision in relation to this Application for Injunction may come as a surprise to some, given the comprehensive disciplinary scheme contained in the PS Act. There might be concerns about the implications of this decision for other public service employees in circumstances similar to that of the Applicant. For that reason I make three observations.

[184] First, the conclusion reached in this decision could only be replicated in similar circumstances.

[185] Second, given the existence of Directive No 02/14 Commission Chief Executive: Appeals, an employee in similar circumstances to the Applicant could appeal to an Appeals Officer in relation to a decision that an allegation against them had been substantiated. As noted earlier, neither party submitted that such an appeal was open to the Applicant, because of their interpretation of s 194(1)(b) of the PS Act. It is not necessary for me to express a view in relation to that issue. I simply observe that, unless the Directive is successfully challenged or rescinded, it provides an avenue to public service employees in similar circumstances to challenge a finding that their behaviour warrants disciplinary action before any such action is taken.

[186] Third, if there is concern that this decision opens the way for (or, at least, alerts some employees to the possibility of) procedural remedies to be sought outside the disciplinary scheme provided in the PS Act, there is at least one method of removing that outcome. The Parliament could enact appropriate amendments to ensure that the scheme under the PS Act is clearly prescribed as the only scheme by which disciplinary action can be taken and under which a public service employee can appeal against any disciplinary decision or determination in the disciplinary process.

[187] The amended Application for Injunction seeks an injunction pursuant to s 277 of the IR Act:

(a) compelling the Respondent to comply with the status quo provision in clause 3.2.8 of the Queensland Public Service Award - State 2012 ("the Award") which is a certified industrial instrument; and

(b) restraining the continuance of a contravention of the Award by the Respondent by requiring the Respondent to withdraw the letter continuing the "show cause" process issued by the Respondent to the Applicant dated 20 November 2014; and

(c) restraining the Respondent from contravening the Award by prohibiting the Respondent from taking any further action that would result in non-compliance with the terms of clause 3.2.8 of the Award.

[188] The Respondent took issue with the form of orders sought by the Applicant, particularly order 1(b) which the Respondent described as a final, rather than interim, order.

[189] Although the Applicant identified the type of relief sought, the terms of any injunction were not specified in his submissions. As counsel for the Applicant pointed out, s 274(2)(b) of the IR Act empowers the Commission to make a decision it considers appropriate irrespective of the specific relief sought by a party. Although the Commission has that power, it would assist me to have the benefit of draft orders that reflect my conclusions in relation to the Application for Injunction and my assessment of the implications of those conclusions for the operation of the two procedures. Accordingly, it is appropriate that draft minutes of orders be prepared by the parties.

[190] I note that, despite the Respondent's repeated assertions that, in the absence of an injunction, it could proceed at any time to take disciplinary action of the type described by Mr Close in his letter dated 17 October 2014, the Respondent agreed:

(a) not to take any action until the Commission released its decision; and.

(b) that if the Applicant is unsuccessful in his application for an injunction, the Respondent would allow him a further two weeks from the date of the Commission's decision to respond to the second show cause letter.

[191] I will proceed on the basis that the Respondent will take no disciplinary action in relation to the Applicant pending the finalisation of orders giving effect to this decision.

[192] However, in the absence of an undertaking by the Respondent not to take any disciplinary action until the grievance procedure has been followed, the Applicant is entitled to an injunction against the Respondent.

[193] I direct that by 4.00 pm on Tuesday 9 June 2015:

(a) the parties are to file with the Industrial Registrar agreed draft minutes of orders to give effect to the decision in relation to the Application for Injunction; or

(b) if the parties do not agree on draft minutes of orders, each party is to file with the Industrial Registrar and serve on the other party draft minutes of orders to give effect to the decision in relation to the Application for Injunction.

[1] The question whether there is an issue relating to the Commission's power rather than jurisdiction is considered later in these reasons.

[2] State of Queensland (Metro South Hospital and Health Service) v Misiura [2015] QIRC 030, [61].

[3] Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2007) 97 FCR 407, 415 [31].

[4] Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009), 484.

[5] The Queen v Turbet and Others; Ex parte Australian Building Construction Employees and Building Labourers' Federation [1980] HCA 47; (1980) 144 CLR 335, 341.

[6] The Queen v Coldham and Others; ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297, 312.

[7] Acts Interpretation Act 1954 s 32C

[8] See Richard Clancy v Butchers' Shop Employees Union, James John News Secretary, and the President and Members of the Court of Arbitration N.S.W [1904] HCA 9; (1904) 1 CLR 181, 201.

[9] See The Mutual Life and Citizens Assurance Company Ltd v Attorney General for the State of Queensland and Another [1961] HCA 51; (1961) 106 CLR 48, 57.

[10] See The Queen v Coldham and Others; ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297, 312.

[11] State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura [2015] QIRC 030, [61].

[12] i.e., the IR Act see clause 1.3.1

[13] Clause 8.2(f) of the 2014 Award, referred to in the original Application for Injunction, is in terms similar to those of clause 3.2.8 of the 2012 Award. Clause 8.2(f) is part of clause 8.2 "Procedure for resolution of individual disputes" and states: "Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue. Further, the status quo existing before the emergence of the grievance or dispute is to continue whilst the disputes procedure is being followed."

[14] The Australian Workers' Union of Employees, Queensland AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No B879 of 1999) AND Queensland Council of Unions and Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No B1049 of 1999) [2000] QIRComm 26; (2000) 163 QGIG 277, 279.

[15] The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees (C/2009/31) [2009] QIC 27; (2009) 192 QGIG 39.

[16] The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees [2009] QIC 27; (2009) 192 QGIG 39, 41.

[17] The Queensland Public Sector Union of Employees AND Queensland Fire and Rescue - Senior Officers Union of Employees [2009] QIC 27; (2009) 192 QGIG 39, 41-2.

[18] Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427.

[19] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130.

[20] Deidre Marie Gomm AND Department of Corrective Services (No. B45 of 2004) (2004) 176 QGIG 319.

[21] The Queensland Public Sector Union of Employees AND Queensland Corrective Services [2006] QIRComm 136; (2006) 183 QGIG 964.

[22] Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427, [15].

[23] Deidre Marie Gomm AND Department of Corrective Services (No. B45 of 2004) (2004) 176 QGIG 319, 320.

[24] Gleeson CJ, Gummow, Hayne and Callinan JJ, Kirby J dissenting.

[25] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 133-4.

[26] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 134.

[27] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 136.

[28] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 137-8.

[29] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 145-6.

[30] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 147.

[31] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 148

[32] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 148-9.

[33] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 175.

[34] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 175.

[35] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 178.

[36] The Queensland Public Sector Union of Employees AND Queensland Corrective Services [2006] QIRComm 136; (2006) 183 QGIG 964, 965.

[37] The Queensland Public Sector Union of Employees AND Queensland Corrective Services [2006] QIRComm 136; (2006) 183 QGIG 964, 967-8.

[38] See Public Service Act 2008 (Qld), s 194(1)(b)(i).

[39] Deidre Marie Gomm AND Department of Corrective Services (No. B45 of 2004) (2004) 176 QGIG 319, 320. (underlining added)

[40] The Queensland Public Sector Union of Employees AND Queensland Corrective Services [2006] QIRComm 136; (2006) 183 QGIG 964.

[41] DC Pearce and RS Geddes_, Statutory Interpretation in Australia_ (LexisNexis Butterworths, 7th ed, 2011) [8.7].

[42] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 178.

[43] Heydon, Crennan, Kiefel and Bell JJ, Gageler J dissenting.

[44] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1.

[45] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [7], [40], [61], [62].

[46] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [17]; [11]-[17] (Heydon J); see also [73]-[75] (Crennan, Kiefel and Bell JJ).

[47] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [19] (Heydon J).

[48] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1 [21] (Heydon J); see also [43], [63]-[65] (Crennan, Kiefel and Bell JJ).

[49] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [22]-[30] (Heydon J); see also [56]-[60], [71] (Crennan, Kiefel and Bell JJ).

[50] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [32]-[35] (Heydon J); see also [50], [82]-[91] (Crennan, Kiefel and Bell JJ).

[51] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [31].

[52] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [47], [48].

[53] Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1, [92].

[54] Clause 7.2 of Directive 02/14 Commission Chief Executive Directive: Appeals states: "For section 194(1)(b) an appeal may be made against a disciplinary finding decision and a decision on disciplinary action."

[55] Irene Hart v State of Queensland (Queensland Health - Gold Coast City Health Service District) (2007) 185 QGIG 410, 413.

[56] Irene Hart v State of Queensland (Queensland Health - Gold Coast City Health Service District) (2007) 185 QGIG 410, 412-413.

[57] Ivers v McCubbin & Ors [2005] QCA 200, [32].

[58] Ivers v McCubbin & Ors [2005] QCA 200, [33].

[59] See e.g. FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49; (2009) 175 FCR 141, [11]; St Justins Properties Pty Ltd v Rule Holdings Pty Ltd [1980] FCA 11; (1980) 40 FLR 282.

[60] Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121, 134-5.

[61] See Delaney AND Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197, 199 (Hall P) for the proposition that there is no room for selective observance of a grievance procedure established by an award.

[62] DC Pearce and RS Geddes_, Statutory Interpretation in Australia_ (LexisNexis Butterworths, 7th ed, 2011) [8.7].

[63] See St Justins Properties Pty Ltd v Rule Holdings Pty Ltd [1980] FCA 11; (1980) 40 FLR 282, 286 (Toohey J).