Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 103 (26 March 2021)

Health Practitioners and Dental Officers (Queensland Health) Award - State 2015

Hospital and Health Service General Employees (Queensland Health) Award - State 2015

Anti-Discrimination Act 1991, s 164A, s 174B

Acts Interpretation Act 1954

Hospital and Health Boards Act 2011

Industrial Relations Act 2016, s 147, s 486

Industrial Relations Bill 2016

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, followed

Brisbane City Council v Construction, Forestry, Mining and Energy, Industrial Union of Employees Queensland [2017] QIRC 31, considered

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, followed

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, followed

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, followed

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, followed

Re variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 88, cited

Russell v Duke of Norfolk [1949] 1 All ER 109, cited

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936, followed

The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106, followed

• [1] In February 2021, Industrial Commissioner McLennan, sitting alone in the Queensland Industrial Relations Commission (the QIRC), heard an application by Together Queensland, Industrial Union of Employees (Together Union) to vary the Hospital and Health Service General Employees (Queensland Health) Award - State 2015 (the HHSGE Award).
• [2] The Industrial Commissioner referred the matter to the Full Bench pursuant to s 486(1) of the Industrial Relations Act 2016 (the 2016 IR Act). That decision will only take effect if I approve it under s 486(2). These are my reasons for approving the referral to the Full Bench.

• [3] "District Senior Officers" (DSOs) are employed under the Hospital and Health Boards Act 2011. DSOs employed in Allied Health are now included in the Health Practitioners and Dental Officers (Queensland Health) Award - State 2015 (the HPDO Award). Other DSOs do not fall within either the HHSGE or the HPDO Awards.
• [4] Together Union have applied under s 147(1)(b) of the 2016 IR Act to vary the HHSGE Award to include the DSOs not covered by the HPDO Award. Other unions[1] support the application. The employer of DSOs is the State of Queensland through Queensland Health. Queensland Health opposes the application to vary the HHSGE Award.
• [5] Before Industrial Commissioner McLennan, the Department made application pursuant to s 486 of the 2016 IR Act to refer the application to the Full Bench of the QIRC. Section 486 is in these terms:

(1) The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.

(2) A commissioner may refer the matter only with the president's approval.

(4) Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench.

(6) The full bench may hear and decide a matter referred to it and make the decision it considers appropriate."

• [7] Section 486(2) bestows a discretion which is not subject to any express limitations. There is, though, no statutory discretion in Australia which is unlimited. All statutory discretions are limited to the achievement of the purpose for which the power was granted.[2]
• [8] Section 486's predecessor was s 281 of the Industrial Relations Act 1999 (the 1999 IR Act) which was in these terms:

(1) The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.

(2) A commissioner, other than the president, may refer the matter only with the vice president's approval.

(3) Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the vice president for the matter to be referred to the full bench.

(4) The vice president may approve the referral of a matter to the full bench under subsection (2) only if the vice president is satisfied the matter is of substantial industrial significance.

(5) On application under subsection (3), the vice president may refer the matter to the full bench only if the vice president is satisfied the matter is of substantial industrial significance.

(6) The full bench may hear and decide a matter referred to it and make the decision it considers appropriate."

• [9] Section 281(4) of the 1999 IR Act achieved at least two purposes. Firstly, it limited the discretion created by s 281(2). Only when the President was satisfied that the matter was of "substantial industrial significance" could the approval be given pursuant to s 281(2). Secondly, s 281(4) otherwise informed the limits of the s 281(2) discretion. The clear purpose of s 281(2) was to manage the business of the QIRC so that matters, other than those of particular significance should be dealt with by a single commissioner.
• [10] Section 486 of the 2016 IR Act does not contain a limitation equivalent to s 281(4) so a discretion exists to approve the referral, notwithstanding that the matter might not be one "of substantial industrial significance". In construing s 486, it is necessary to consider the text of the section in the context of the legislation as a whole, including its legislative history, and its purpose.[3]
• [11] Here, the legislative history is of some significance. On 1 September 2016, the Industrial Relations Bill 2016 was introduced into the Queensland Parliament. It proposed the repeal of the 1999 IR Act and the amendment of various other pieces of legislation, including the Anti-Discrimination Act 1991. Upon the introduction of the Bill, the Minister for Employment and Industrial Relations, Minister for Racing and Minister for Multicultural Affairs, the Honourable Grace Grace, told the Parliament:

"In regard to strengthening Queensland's industrial tribunals, the bill provides the QIRC with exclusive jurisdiction to deal with all workplace related anti-discrimination matters, including those taken under the Anti-Discrimination Act 1991. These matters will still go to the Anti-Discrimination Commission Queensland in the first instance but, if they cannot be resolved through conciliation and they are work-related, the matter will be referred to the Queensland Industrial Relations Commission."

• [12] The Minister was there referring to what ultimately became ss 164A and 174B of the Anti-Discrimination Act 1991. The effect of those sections (and others) is that if a discrimination complaint concerns "a work related matter" and the complaint is not resolved by conciliation, then the complaint could be referred to the QIRC to be ultimately heard and determined.
• [13] Section 486, as it originally appeared in the Industrial Relations Bill 2016, was in the same form as s 281 of the 1999 IR Act, so that the power to approve a referral to the Full Bench could only be exercised where the matter was of "substantial industrial significance".
• [14] The Bill was referred to the Finance and Administration Committee and ultimately amendments were proposed. Amendment to clause 486[4] was proposed to remove the necessity for the President to be satisfied that the matter was of "substantial industrial significance" before an approval could be given. In the Explanatory Memorandum to the amendments, this appeared:

"Amendment 14 amends clause 486 (Referring matter to full bench) by removing subclauses (3) which provides that the president may approve the referral of a matter from the commission to the full bench under subsection (2) only if satisfied the matter is of 'substantial industrial significance'. This amendment is necessary to reflect the expanded jurisdiction of the commission under the Bill.

Amendment 15 amends clause 486 (Referring matter to full bench) by removing subclause (5) which provides that on application under subsection (3), the president may refer a matter to the full bench only if satisfied the matter is of 'substantial industrial significance'. This amendment is necessary to reflect the expanded jurisdiction of the commission under the Bill."

• [15] The reference to "the expanded jurisdiction of the commission under the Bill" is obviously a reference to the jurisdiction of the QIRC bestowed in relation to anti-discrimination matters.[5] The removal of the restriction to approve only a referral to the Full Bench of matters "of substantial industrial significance" recognises that important matters might arise under the Anti-Discrimination Act which ought to be decided by a Full Bench but may not be ones "of substantial industrial significance".
• [16] The purpose of the power bestowed by s 286(2) is, though, in my view, the same as that bestowed by s 281(2), namely to manage the business of the QIRC. The structure of the QIRC, as provided in the 1999 IR Act, is basically equivalent to its structure provided in the 2016 IR Act and it must be that the starting point is an assumption that routine cases remain to be decided by a single commissioner. There must be something extra in a case before it is referred to the Full Bench. However, notwithstanding the repeal of s 281(4), if a matter is one of substantial industrial significance, that is a relevant consideration in favour of exercising the discretion under s 486(2) to approve the referral of the matter to the Full Bench. It is clearly desirable that such a matter is decided by a Full Bench with the authority that such a decision brings.
• [17] Here, Commissioner McLennan, after carefully recording the respective parties' submissions, decided to refer the matter to the Full Bench and gave the following reasons:

"[22] On 22 February 2021, I informed Together Union and Queensland Health representatives that I considered it was appropriate to refer the matter to the Full Bench.

1. The employment conditions of approximately 350 people are underpinned by a confused set of arrangements that have resulted in no wage increase since 2017. This means that there is both a significant number of people affected and a substantial detriment to them currently
2. Queensland Health has estimated Together Union's claim would result in significant potential back payment ramifications, if successful. The Department estimates this cost to be $13.2 million initially, with an ongoing cost of $7.9 million annually thereafter. That cost implication also weighs in favour of referral.
3. The DSO cohort are not confined to Brisbane or the south-east corner, but are located in departmental offices, hospitals, and health services throughout Queensland. Geographically, it is a state-wide issue.
4. Any potential change for DSOs may disturb the existing pay relativities with both colleagues below and above in the organisational hierarchy.
5. Any determination for DSOs in Queensland Health may inform a precedent for how other Departments address this issue. ...

[26] For the reasons outlined above, I am persuaded that these matters have particular significance warranting the referral of this matter to the Full Bench."[6]

• [18] There are no doubt two separate powers bestowed by s 486 of the 2016 IR Act. The first vests in the industrial commissioner sitting alone. That power is created by s 486(1) and is a power to refer the matter to the Full Bench. That must be exercised by the Commissioner.
• [19] Section 486 is awkward. Section 486(1) gives the Commission a power of referral but s 486(2), if taken literally, means that the referral can only be made if it is approved, thus suggesting that the approval precedes the order referring the case to the Full Bench. However, before an order of referral is made, there is nothing to approve.
• [20] The better construction of s 486 is that the Industrial Commissioner makes a referral under s 486(1), but that referral is not effective unless later approved pursuant to s 486(2).
• [21] There can be no doubt, in my view, that in most circumstances an industrial commissioner exercising the power under s 486(1) should:

(a) hear the parties on whether or not the matter should be referred. In some cases a full oral hearing may not be necessary. There will be cases where the parties can just be invited to make written submissions. What is required will depend upon the circumstances of the particular case;

(b) decide whether or not to refer the matter to the Full Bench;

(d) Refer the matter to the President and await a decision under s 486(2).

• [22] Questions then arise as to whether and/or to what extent the President must hear the parties when determining whether or not to approve the referral under s 486(2).
• [23] In Brisbane City Council v Construction, Forestry, Mining and Energy, Industrial Union of Employees Queensland,[7] Martin J, President, made an order under s 486(1) without hearing the parties. If it is the President who makes the referral under s 486(1), then obviously there would be no separate approval under s 486(2).
• [24] The case concerned a dispute about the making of a "scope order" under Part 4 of Chapter 4 of the 2016 IR Act. The Brisbane City Council sought an order referring the matter to the Full Bench under s 486. The referral was made without hearing the parties and the CFMEU had the matter listed for further hearing before his Honour.
• [25] His Honour observed:

"[6] One of the arguments put forward by the CFMEU is that a reference to a Full Bench made without allowing an entity such as a union to be heard, is a denial of procedural fairness. I do not agree. But, in order to remove any doubt, I will not take into account the references which have already been made in determining these applications. In other words, I will approach these applications as if they were the first to be made."

• [26] His Honour's rejection of the submissions "that a reference to a Full Bench made without allowing an entity such as a union to be heard, is a denial of procedural fairness" must be looked at in context. As a general proposition, the submission is, I agree, wrong. In administrative law terms, the right and extent to which a party has to be heard is often called "the hearing rule". The hearing rule has been described as one that is flexible and its application depends much upon the circumstances of the particular case, the statutory framework in which the decision is being made, and the effect of the decision.[8]
• [27] It may not always be the case that the parties must be heard before a referral is made. However, an application will be made under s 486(1) to an industrial commissioner in a matter which is already on foot and if opposed the rules of natural justice will normally require that the parties be heard. For that reason, the QIRC should adopt the procedure I have outlined in paragraph [21] above.
• [28] Because any decision made under s 486(2) is a separate exercise of power, questions of natural justice, and in particular the hearing rule, arise in relation to that proposed decision.
• [29] It might be that the President, exercising the discretion under s 486(2), takes into account considerations not raised before the QIRC. For example, listing considerations might be thought relevant. If the QIRC refers a matter but the President understands that a Full Bench cannot be conveniently and quickly convened for some reason, then that might militate against approving the referral. However, if that matter was not raised during the argument for referral under s 486(1), the parties have not been heard on it and have not had the opportunity to make submissions as to the urgency or otherwise of getting the matter on.
• [30] If in considering the exercise of discretion under s 486(2), the President is contemplating taking into account matters not raised in the QIRC, then the hearing rule may well require the parties to be heard on the exercise of the discretion under s 486(2). That does not, of course, mean that a full oral hearing would have to be undertaken. What may be necessary to fulfil the hearing rule will vary from case to case.
• [31] However, it will generally not be necessary to afford any opportunity to the parties to be heard on the exercise of the power under s 486(2) where the parties have had the opportunity to make submissions before the QIRC on the question of referral under s 486(1) and the President does not take into account any matters not submitted to and considered by the commissioner who made the referral.

• [32] The matters which Industrial Commissioner McLennan has taken into account are all, in my view, relevant considerations on the exercise of the discretion under s 486(1). They are, therefore, relevant considerations in the exercise of discretion under s 486(2).
• [33] I do not take into account any matter beyond those considered by Industrial Commissioner McLennan. I, therefore, do not consider that it is necessary to hear the parties on the question of approval of the referral.
• [34] In my view, the matter should be referred to the Full Bench and I therefore approve the referral.

• [35] The order made on 19 March 2021 referring the application of Together Queensland, Industrial Union of Employees made under s 147(1)(b) of the Industrial Relations Act 2016 to the Full Bench is approved.

[1] The Australian Workers' Union of Employees, Queensland; Transport Workers' Union of Australia, Union of Employees (Queensland Branch); United Voice, Industrial Union of Employees, Queensland; Queensland Services, Industrial Union of Employees.

[2] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [70] and Wotton v Queensland (2012) 246 CLR 1 at [10].

[3] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [47], Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 at [14] and [35]-[40], The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106 at [32], Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Acts Interpretation Act 1954, ss 14A and 14B.

[5] And probably also the further jurisdiction granted in relation to the Workers' Compensation and Rehabilitation Act 2003.

[6] Re: variation of Hospital and Health Service General Employees (Queensland Health) Award - State 2015 [2021] QIRC 88.

[7] [2017] QIRC 31; I shall refer to the union as "the CFMEU".

[8] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553 and see also Russell v Duke of Norfolk [1949] 1 All ER 109 at 118.