State of Queensland v Shankar [2014] QIRC 159

'I recently applied for a registrar post on the RMO (registered medical officer) campaign for 2014, but have not been offered a post at the initial two preferenced hospitals, ie, the Royal Brisbane Hospital and the Prince Charles Hospital. I know other colleagues less qualified than myself who have been awarded posts at these hospitals. Given this, I have approached the RMO coordination team and the recruitment teams at the above-named hospitals, but to date I have not received an explanation as to why I wasn't offered a registrar post (this is important because I need to be in a hospital with two years ACEM accreditation to further my training). As I have not received are response to my query from the above-named parties, I have led to believe the process is unfair.'

In the affidavit of Samantha Nicole Blanche Tucker, which is exhibit 1 in the proceedings, and affirmed on 19 August 2014, the following chronology is provided:

'On 18 October 2013, Dr Shankar lodged a dispute with the Queensland Industrial Relations Commission. ... A conciliation conference was held on 28 October 2013 and reconvened on 29 November 2013. On 29 November 2013, Dr Shankar indicated to Commissioner Thompson that he sought to refer the dispute to arbitration.'

The question referred to arbitration and, as I understand, by agreement, was framed in the following terms:

'[W]hether or not Metro North Hospital and Health Service have complied with legislative requirements regarding the selection process for emergency medicine registrar positions at the Royal Brisbane and Women's Hospital and the Prince Charles Hospital for 2014 year.'

Following this, a notice of callover listing was issued by the Commission which advised the parties, including Dr Shankar, of a callover on 10 December 2013.

The callover was conducted on 10 December 2013. Dr Shankar made no appearance at the callover, and the industrial dispute was adjourned to the Registry. Despite requesting that the matter be referred to arbitration on or about 29 November 2013, Dr Shankar did not progress the matter for in excess of six months.

On or about 9 July 2014, a notice of callover listing was issued by the Commission which advised the parties, including Dr Shankar, of a callover on 15 July 2014. The callover was conducted on 15 July 2014. Dr Shankar made no appearance at the callover, and the dispute was adjourned to the Registry. On or about 22 July 2014, a notice of callover listing was issued by the Commission, which advised the parties, including Dr Shankar, of a callover on 29 July 2014. The callover was conducted on 29 July 2014, and as I was advised today, attended by Mr Merrell of counsel. A further directions order was issued to the parties on 31 July 2014, and that further directions order listed the matter for hearing on 23 and 24 October 2014. I have been advised by the respondent today that he does not object to the background material as set out in the submissions of Mr Merrell, in particular, at paragraphs 3 to 16 inclusive.

Turning now to the two bases upon which it's been submitted to me that the Commission should exercise its powers to strike out this matter. In particular, I refer to s 274 of the Act, which gives the Commission a power in appropriate circumstances to dismiss an application where that application may not succeed on any view of the facts or law. It relevantly provides:

(1) The commission has the power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

(2) Without limiting subsection (1), the commission in proceedings may-

(a) give directions about the hearing of a matter; or

(b) make a decision it considers appropriate, irrespective of the specific relief sought by a party; or

It's been submitted to me by the applicant that if the Commission were able to provide a decision in this matter immediately, with the listed dates for 23 October and 24 October 2014, and if the decision favoured the respondent because of a finding that the 2014 RMO campaign selection process was unfair, it would be too late for a decision to have any relevant impact on the position of the respondent that he currently holds, being a temporary appointment as an emergency medicine registrar at the Toowoomba Hospital, which, as I understand from the material before me, comes to an end in February 2015.

The applicant submits that, by reason of the respondent's delay, any decision of the Commission in relation to the dispute could not promptly settle the dispute because the respondent's temporary appointment at Toowoomba Hospital will almost be at an end. The rationale for the dispute handling processes of the Commission is to ensure that disputes are settled in a prompt manner.

The respondent, as outlined previously, has taken no action to progress the dispute in the intervening months after he failed conciliation and consistently failed to attend callovers convened to progress the matter. In his material before the Commission today and in his submissions, he states that the reason for his non-attendance was his lack of understanding of the processes of the Commission. But irrespective of that, as a result of this delay, the Commission has been placed in a position where any order that it would make as a consequence of its hearing of the arbitrated question would have limited value. As it was noted in Mr McNulty's evidence, the 2015 RMO campaign has already commenced and will conclude before the listed dates.

The other point which is raised in the submissions by the applicant is the question of the Commission's lack of jurisdiction. In particular, it has raised that the powers given to the Commission under s 230 would not permit it to make the orders that the respondent seeks. In that regard, it was submitted to the Commission that the Commission is being asked to exercise what is, in effect, judicial and not arbitral powers. I accept that submission. The Commission does not have a power under

s 230 of the Act requiring the hospital or health service to breach any contract between them and the successful candidates for a 2014 RMO campaign selection process; it doesn't have the power to order the Darling Downs Hospital and Health Services to release the respondent from his current contract, which will not conclude until February 2015; and it doesn't have the power to order the health and hospital services to create a temporary emergency medicine registrar position for the respondent for the remainder of the clinical year to February 2015.

It is submitted to the Commission that the remedy the applicant wants for the arbitration of his dispute is beyond the arbitral power of the Commission to make such an order. I accept that submission. In support of the proposition, the Commission was referred to The Australian Workers' Union of Employees, Queensland v State of Queensland [2012] QCA 353, a recent decision of the Queensland Court of Appeal in which the Court considered the nature of judicial power.

It is true, as the submission suggests, that the arbitral powers can involve the determination of existing rights and obligations as a step in arriving at arbitral determination. However, what is asked of the Commission in these circumstances is for it to exercise judicial powers well beyond the powers conferred upon it under

s 230 of the Act. The question before the Commission is a distinct one, and as noted previously, it asks a particular question. It does not allow the Commission to go beyond answering that question and to make any further orders that the respondent may seek.

Section 230 of the Act is designed to answer the discrete question that's before it, to resolve a dispute between the relevant parties. It does not permit the Commission to do any more. In the alternative, the applicant has argued that there is a power for the Commission, pursuant to s 331(b) of the Act. This alternative submission is based upon the argument that the proceedings before the Commission are not necessary or desirable in the public interest. Section 331(b) relevantly provides that the court or commission may, in an industrial cause:

'dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers-

(ii) further proceedings by the court or commission are not necessary or desirable in the public interest; ...'

Counsel for the applicant refers the Commission to the Full Bench decision of this Commission as to the meaning of 'public interest' in s 331(b)(ii) of the Act. The decision Agforce Queensland Industrial Union of Employers v The Australian Workers' Union of Employees, Queensland [2001] QIRComm 113; (2001) 167 QGIG 297 notes the lack of authority on the meaning to be given to the term 'public interest'. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, the expression 'in the public interest' was described as follows:

'[T]he expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "insofar as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.'

I refer, also, to the decision of GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, a decision of the Full Bench of Fair Work Australia considering what constitutes the 'public interest'. In that decision, the Full Bench wrote:

'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms, and we do not intend so. The expression "in the public interest", when used in a statue, classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the objects of the legislature in question.

Although the public interest may be attracted where a matter raises issues of importance and general application, or where there is diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counterintuitive, or that the legal principals applied appear disharmonious when compared to other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.'

Having considered the submissions of both parties and having reference to both the Act and the relevant case law, I've come to the conclusion that in the present case the applicant has been successful in making out its case in relation to both orders that it seeks.

1. The dispute (D/2013/172) is dismissed; and
2. No order as to costs."