REVIEW OF INDUSTRIAL RELATIONS LAWS AND TRIBUNALS - QUEENSLAND

Transcription

1 REVIEW OF INDUSTRIAL RELATIONS LAWS AND TRIBUNALS - QUEENSLAND Issues Paper 5: Functions, powers and composition of the Industrial Court of Queensland and the Queensland Industrial Relations Commission.

2 Terms of reference Background The Queensland Government is committed to a comprehensive review of the state s industrial relations laws and tribunals, including the structure, functions and powers of those tribunals. Queensland s industrial relations laws were last comprehensively reviewed in Since that time industrial relations in Queensland has been transformed through the development of a national Fair Work workplace relations system and the Queensland Government s referral of its private sector industrial relations powers to the Commonwealth. This review provides the Government with an opportunity to consider the State s industrial relations regulatory framework and recommendations for industrial relations reform. Purpose The Industrial Relations Legislative Reform Reference Group will provide advice and recommendations to the Treasurer for legislative reform of Queensland industrial relations laws and tribunals. In particular the Industrial Relations Legislative Reform Reference Group will examine: 1. The best arrangements for the regulation of industrial relations in Queensland which better reflect Queensland s reduced industrial relations jurisdiction; and support and balance the sustainable achievement of job security and fair wages and conditions; workplace productivity improvement and best practice service delivery; 2. Whether local government industrial relations needs are better served within the State or Federal industrial relations jurisdiction; 3. Any potential benefits of further harmonising the state s industrial relations legislation with the Fair Work Act 2009 and where such harmonisation could occur; 4. The appropriate structure, role, functions, powers and independence of tribunals in the State industrial relations system; 5. How best to provide statutory support for a Westminster-style model of public sector employment which promotes permanent employment and preserves the independent determination of wages and employment conditions; 6. The most suitable model for the regulation of industrial organisations in the State industrial relations system; 7. How best to deal with contemporary and emerging industrial relations matters in the State jurisdiction (for example, workplace bullying, domestic and family violence, gender equality, work-life balance, changes in standard working arrangements such as telecommuting/working from home ); and 8. Any other matter the Industrial Relations Legislative Reform Reference Group considers relevant to reform in the State s industrial relations jurisdiction. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 2

3 How to participate in this review This is a public review, and the Reference Group welcomes participation from interested individuals and organisations. The Issues Papers are intended to facilitate broader discussions regarding the need for legislative change and to assist people and organisations to participate in the review process. The Reference Group welcomes brief comments from people who want to share their experiences or view on any topic within the scope of the review. Alternatively, people and organisations may choose to make a more substantial submission covering a range of matters raised in the Issues Papers, or any other issues relevant to the Terms of Reference for the review. As such, submissions may range from a short letter outlining your views on a particular topic or a more substantial submission covering a range of issues. All submissions will be published unless provided in confidence. Material provided in confidence should be clearly marked IN CONFIDENCE. For submissions received from individuals, all personal details (for example, home and address, signatures, phone, mobile and fax numbers) will be removed before it is published on the website for privacy reasons. Submissions should be received as a Microsoft Word (.docx) files. PDF files are acceptable if produced from a Word document or similar text based software. Do not send password-protected files. Do not send us material for which you are not the copyright owner, such as newspaper articles. Please provide a reference or link to such material in your submission. Please remove track changes, editing marks, hidden text and internal links from submissions before sending to the Reference Group. The Queensland Treasurer has asked the Reference Group to provide a Final Report to Government in December To meet this timetable, the Reference Group is seeking written submissions by Wednesday 21 October Submissions can be made By irreview@qld.gov.au By post: The Chair Industrial Relations Legislative Reform Reference Group C/o Office of Industrial Relations PO Box 69 BRISBANE QLD 4001 The Issues Papers and details on how to provide a submission are also available at or via Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 3

4 Contents 5.0 Introduction Functions and Powers The Queensland Industrial Relations Commission Appeals Comparison with other State tribunals Composition of the QIRC and ICQ Administration of the QIRC and ICQ Independence of the QIRC Attachment Attachment Attachment Attachment Attachment Attachment Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 4

5 5. 0 Introduction This Issues Paper discusses the current functions and powers of the Queensland Industrial Relations Commission (QIRC) and the Industrial Court of Queensland (ICQ). It also compares the current functions and powers with other state tribunals. The paper then provides a summary of the composition of the QIRC and the ICQ. Finally, the paper addresses the issue of the independence of tribunals and considers why it is considered important and the potential means by which independence can be supported and maintained. 5.1 Functions and Powers Researchers have typically defined tribunals as having four main functions, these are: judicial or normative role; legislative or administrative function; facilitative or accommodative arbitration; and policing function. 1 Judicial Role Although tribunals can be classed as quasi-judicial, functions associated with settling disputes and determining arbitrations are akin to a judicial role. 2 Further, there is an increasing reliance on the doctrine of precedent in relation to these types of matters. 3 This position clearly applies to practice within the QIRC. The change in practice has been as a result of two factors: firstly, the increasing reliance and use of legal practitioners within the sphere of the lay jurisdiction; and secondly, to provide certainty and stability within the scope of industrial relations law. Legislative Role Thornthwaite and Sheldon note that the Australian experience of tribunals has seen arbitrators adopt a more inquisitorial role, formulating principles that regulated the parties relationships to benefit broader societal and public interests. 4 The issues become blurred when legislative policy frameworks are required to be taken into account. An example of this was contained within sections 3 and 339AA of the Industrial Relations (Fair Work Harmonisation) and Other Legislation Amendment Act 2012 (Qld) which required the Commission to take into account the financial position of the State, fiscal strategy and related matters without allowing cross examination of the information presented. 1 Louise Thornthwaite and Peter Sheldon, Fair Work Australia: Employer Association Policies, Industrial Law and the Changing Role of the Tribunal (2011) 53 (5), Journal of Industrial Relations < 2 Ibid. 3 Ibid. 4 Ibid. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 5

6 Facilitative Arbitration The role of the tribunal to seek compromises and to mediate/conciliate matters has been a vital function within the Australian tribunal experience. The conciliations have been conducted on a case by case basis, taking into account the needs of all parties. Thornthwaite and Sheldon note that: This role also points to crucial differences between the tribunal and courts: first, that industrial parties in the tribunal have continuing relationships with each other and with tribunal members; and second, while ritualized and adversarial, that the arbitral process has also involved considerable compromise and negotiation. 5 Policing Function Finally, there has been a clear development of a fourth factor in relation to tribunals which is the policing of the behaviour of the parties. The range of the policing related matters include: enforcing orders; trade union registration; industrial action (inclusive of protected industrial action); compliance with increasing provisions around good faith bargaining, union governance; and compliance with awards and certified agreements The Queensland Industrial Relations Commission The Bligh Government s decision to refer Queensland s State industrial relations powers for the private sector to the Commonwealth as from 1 January 2010 (the Referral) has resulted in a reduction of the number of matters filed in the QIRC (and ICQ). The Referral also caused a shift in the types of matters referred to the QIRC and ICQ. This paper considers the current functions and powers of the QIRC and ICQ and the implications of the changed jurisdiction for the work undertaken. The QIRC has powers and responsibilities under several pieces of legislation. Attachment 1 outlines the relevant legislation under the jurisdiction of the QIRC and ICQ. The overall impact of the loss of jurisdiction has been a reduction in the number of matters heard, particularly of core industrial relations matters. Correspondingly, however, there has been a broadening of the types of matters now considered by the QIRC and ICQ. Significantly, (as outlined in Attachment 1), the QIRC also holds a number of powers in relation to the Public Service Act 2008 (Qld), the Work, Health and Safety Act 2011 (Qld), and the Workers Compensation and Rehabilitation Act 2003 (Qld). 5 Louise Thornthwaite and Peter Sheldon, Fair Work Australia: Employer Association Policies, Industrial Law and the Changing Role of the Tribunal (2011) 53 (5), Journal of Industrial Relations < 6 Ibid. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 6

7 At an aggregate level, during , 3,728 matters were filed in the QIRC compared with 2,068 in ; a reduction of 45 per cent. 7 The hearing of core industrial matters, such as certified agreements and unfair dismissal applications reduced to less than 1 per cent of total matters in Figure 1 provides a breakdown of the work performed by the QIRC since 1995 and clearly shows that the amount and nature of the work performed by the QIRC has changed substantially since that time: 9 Figure 1: Work performed by the QIC from As indicated in figure 1, responsibility for matters beyond the core industrial relations system has widened. The QIRC has, since November 2012, had sole responsibility for hearing Workers Compensation Regulator appeals (formerly known as Q Comp appeals) with these matters now representing the largest activity of the QIRC, constituting approximately 18 per cent of the total matters filed. 10 Since 2012, the QIRC also hears Public Service appeals which were formerly undertaken by an Independent Appeals Officer who was appointed as a Senior Executive in the Public Service Commission. 7 Queensland Industrial Relations Commission. (2015). Annual Report <http// 8 Queensland Industrial Relations Commission. (2015). Annual Report < 9 Please note, this does not include certain functions such as authorisations to take industrial action and organisational matters that are dealt with by the Industrial Registry. 10 Queensland Industrial Relations Commission. (2015). Annual Report < Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 7

8 The table 1 below illustrates the current workload of the QIRC and shows matters filed between 2011 and 2014: QUEENSLAND INDUSTRIAL RELATIONS COMMISSION MATTERS (from QIRC Annual Reports) Number of Matters Industrial Matter Award Matters (includes award modernisation) Enterprise Agreement Matters Unfair Dismissal Long Service Leave - payment in lieu of notice Disputes Wage claims/superannuation Industrial Organisation Matters Protected Action Ballot Orders Public Service Appeals/Matters Trading Hours Matters Q-Comp Appeals Appeals against Workers' Compensation Regulator Apprentice and Trainee Matters Miscellaneous Matters TOTAL MATTERS Table 1: Matters filed in the QIRC in As already stated, appeals against the Workers Compensation Regulator (formerly Q Comp appeals) now account for the biggest proportion of work undertaken by the QIRC. An analysis of Workers Compensation Regulator decisions from October 2012 to the end of March 2013 indicates that approximately 28 per cent of all such cases were minor/administrative matters that likely involved a single hearing. 11 However 15 per cent of hearings during this period were complex appeals that required multiple sitting days (i.e. 6 to 12 separate dates), often over several months. 12 Attachment 2 highlights the appeals process within the Worker s Compensation scheme. 11 Queensland Government Data. (2015). Workers' Compensation Regulator - Core Database - Review. < 12 Queensland Government Data. (2015). Workers' Compensation Regulator - Core Database - Review. < Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 8

9 In a recent presentation to the Queensland Bar Association Conference, the Vice President of the QIRC reported that in the period from 1 January 2015 to 21 August 2015, appeals against the Workers' Compensation Regulator accounted for between 80 and 85% of the workload of Commission Members (as opposed to percentage of matters listed). Industrial disputes, unfair dismissal and other industrial matters accounted for between approximately 5 per cent and 7 per cent of the workload. Public Service Appeals accounted for 8-10 per cent while determination of trading hours were 2-3 per cent of the workload. Public Service appeals are a new area for the QIRC. From 1 July 2012, QIRC members were appointed as appeals officers under the Public Service Act 2008 (Qld) for the purpose of hearing and deciding appeals against certain decisions which affect public service employees. 13 From 1 January 2013, the public service appeals function was transferred from the Public Service Commission to the QIRC. During the 2013/2014 reporting period there were 94 public service appeals. Over 45 per cent of these appeals related to a decision under a disciplinary law to discipline under section 194(1B) of the Public Service Act 2008 (Qld) and over 22 per cent to appeals against a decision to transfer a public service officer under section 194(1D) Public Service Act 2008 (Qld). A breakdown of these matters is provided in Table 2 below. These appeals can be time consuming, although over half of the matters lodged never reach a hearing. Appeal numbers by section of Public Service Act 2008 (Qld) 14 Appeal against: Appeal against a decision under a directive (s194(1a)) 9 Appeal against a disciplinary decision (s194(1b)) 43 Appeal against a promotion decision(s194(1c)) 15 Appeal against a transfer decision (s194(1d)) 21 Appeal against decision under another Act (s194(1e)) 2 Appeal against a decision under another Act (s194(1f)) 4 Table 2: Appeals heard in the WIRC Protected Action Ballot Order (PABOs) No. of appeals In mid-2012, the QIRC was allocated responsibility for determining protected action ballot order (PABOs) applications. The Industrial Relations Act 1999 (Qld) (IR Act) requires a protected action ballot to be conducted by employees, or an employee organisation, for industrial action taken in relation to negotiation of a proposed certified agreement. 15 A PABO must first be obtained from QIRC. Although Table 1 shows that there were a large number (494) of PABO applications in , this was somewhat anomalous and considered by some to be a tactical response of the 13 Queensland Industrial Relations Commission. (2015). Public Service Appeals. < 14 Queensland Industrial Relations Commission. (2015). Annual Report < 15 Industrial Relations Act 1999 (Qld) s 176. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 9

10 trade union movement. Practice Note 4 in relation to PABO applications was issued in July 2012 and has streamlined the process. 16 Trading hours Orders The QIRC continues to hear and determine applications to vary trading hours and applications for extended trading hours. Trading hours applications usually involve lengthy hearings with detailed submissions from concerned parties and onsite inspections. Therefore while the number of trading hours applications is relatively small (15 in ), they tend to be resource intensive. 17 Award Modernisation The Annual Report of the President of the ICQ indicated that for that reporting period, the award modernisation process had a significant impact on the QIRC s workload. 18 The award modernisation process, initiated in 2014 by way of Ministerial Request required the QIRC to facilitate the replacement of pre-modernised awards with new modern awards. The award modernisation process is being overseen by Deputy President Adrian Bloomfield, who is leading an Award Modernisation Team (AMOD Team). The vast majority of Deputy President Bloomfield s time since the commencement of the process has been spent dealing with award modernisation, and this will likely continue to be the case until the process is concluded. In addition, other QIRC members have been and will be required to hear award modernisation matters when participating in Full Bench hearings and other matters which may be heard by a Commissioner sitting alone. A significant proportion of the workload and capacity of the QIRC is therefore tied up with attending to all the elements of the award modernisation process. These include: preparing exposure drafts of modern awards consistent with the legislative provisions; consulting with the parties in relation to these drafts before and after release, in multiple informal and formal conferences (QIRC hearings) for each draft award; hearing matters before single Commissioners and the Full Bench in relation to the process (for example, the Full Bench has heard matters relating to the arrangement of award coverage or appropriate number of awards for particular groups);and Full Bench hearings in all cases to make the modern award, and under the recently recommenced process, to review and vary existing modern awards. Some of these Full Bench hearings have been quite lengthy, generally because of matters in dispute, and the programming of Full Benches will have been difficult for the Vice President. The Vice President s Award Modernisation Report of 19 December 2014 indicates: 16 Queensland Industrial Relations Commission, (2015). Practice Note 4, Protected Action Ballots s.176 and Schedule 4 of the Industrial Relations Act < 17 Queensland Industrial Relations Commission. (2015). Annual Report < 18 Queensland Industrial Relations Commission. (2015). Annual Report < Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 10

11 The Full Bench has often had to hear and determine such referrals within relatively short periods of time and this has required them to work exceedingly long hours at various times. 19 The Vice President s Report also acknowledges the short time frames faced by the parties to the process: They have also been required to prepare and present their respective evidence and submissions on claims and counter-claims within those relatively short periods. 20 There is also more administrative (but still time consuming) work involved in, for example, repealing awards and developing practice notes, therefore the workload of the Full Bench and the QIRC will continue for the foreseeable future. The award modernisation process was suspended between 17 March and 17 July 2015; it has now recommenced and is anticipated to conclude by 30 June 2016 in accordance with the Minister s Variation to the Request. 21 It is also worth noting, however, that the award modernisation process has also lessened work in some areas. To prevent certified agreements being made under pre-modernised provisions, the creation of new certified agreements has been delayed until the underpinning modern award has been made. 22 As a result, in the time period from February 2014 to the present date, there has been an associated reduction in applications relating to award reviews, protected industrial action ballots and the making, arbitrating or seeking assistance with negotiating certified agreements. A further point of note is that the IR Act currently provides for four yearly reviews of modern awards at section 140F. The Commission may also vary an award of its own initiative or by application to achieve the modern awards objectives pursuant to section 140G. Given the experience of the modern award review process currently being undertaken by the Fair Work Commission (FWC), the four yearly reviews are likely to be time and resource intensive exercises. 19 QIRC Vice President Linnane (2014) Award modernisation report to the Attorney-General, 19 December 2014< pdf>. 20 Ibid. 21 Queensland Industrial Relations Commission. (2015). Award Modernisation. < 22 Industrial Relations Act 1999 (Qld) s872. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 11

12 5.3 Appeals Appeals to the ICQ Section 248(1) of the IR Act states that the ICQ has the capacity to: (b) (d) hear and decide cases stated to it by the commission; and hear and decide appeals from an industrial magistrate s decision in proceedings for (i) an offence against this Act; or (ii) recovery of damages, or other amounts, under this Act. During , 58 matters were filed in the ICQ, mostly appeals against QIRC decisions. 23 If the court is constituted by the president of the ICQ, it is taken that the court exercises the jurisdiction and powers of the Supreme Court. 24 As such, ICQ decisions can only be heard by the Court of Appeal under limited circumstances such as offences provisions 25 and issues associated with contempt of court. 26 Appeals to court and to the full bench The QIRC has capacity to hear appeals without constituting a full bench (i.e. commissioner hearing the appeal of another matter or the appeal of an industrial magistrate s decision) only on the grounds of error of law or excess, or want, of jurisdiction. 27 Decisions of the commission may be appealed by leave to the full bench on a ground other than error of law, or excess, or want of jurisdiction. 28 For matters dealt with at first instance by the commission relating to grounds other than error of law, or excess, or want of jurisdiction, the full bench may give leave to hear the appeal only if it considers the matter important enough in the public interest, to give leave. 29 Appeals to commission Further, there is a limited capacity to appeal to the commission around decisions of the registrar and stand-downs. 30 Appeals in the Industrial Court of Queensland In relation to the role of the ICQ, it decides on appeals from decisions of the QIRC regarding: appeals from review decisions on claims for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld): (see sub section. 561 and 562); Trading (Allowable Hours) Act 1990 (Qld) (section 43); Public Interest Disclosure Act 2010 (Qld) (section 48(4)); 23 Queensland Industrial Relations Commission. (2015). Annual Report Retrieved from < 24 Industrial Relations Act 1999 (Qld) s 248(1)(e). 25 Ibid s 248(1)(c). 26 Ibid s Ibid s Ibid s 342(1). 29 Industrial Relations Act 1999 (Qld) s 342(3). 30 Industrial Relations Act 1999 (Qld) s 343, s 344. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 12

13 Contract Cleaning Industry (Portable Long Service Leave) Act 2005(Qld)(section 100); appeals relating to the right of entry of authorised representatives under Part 7 of the Work Health and Safety Act 2011 (Qld)(section 142(6); appeals for persons dissatisfied with a decision, on internal review, by the Regulator under the Work Health and Safety Act 2011 (Qld)(section 229F); appeals relating to decisions of Skills Queensland about apprentice or trainees under the Vocational Educational, Training and Employment Act 2000 (Qld); and Child Employment Act 2006 (Qld). The ICQ also determines appeals from decisions of the Industrial Magistrates Court regarding: offences and wage claims under the IR Act (see section 341(2)); offences under the Pastoral Workers Accommodation Act 1980 (Qld) (see section 30 (2)) offences under the Workers Accommodation Act 1952 (Qld)(see section 19 (3A)) offences under the Electrical Safety Act 2002 (Qld) (see section 186(2)); offences and cancellation or suspension of certificate of competency under the Coal Mining Safety and Health Act 1999 (Qld)(see sub section. 255 and 258); offences and cancellation or suspension of certificate of competency under the Mining and Quarrying Safety and Health Act 1999 (Qld)(see sub section.234 and 237); offences under the Child Employment Act 2006 (Qld) (section 30) appeals from non-reviewable decisions, on claims for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) (see sub section. 561 and 562); appeals under the Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld) (see. Section 89);and the Private Employment Agents Act 2005 (Qld) (see section 47). Appeals are also available under the Coal Mining Safety and Health Act 1999 (Qld) (section 244), the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (section 825) and the Mining and Quarrying Safety and Health Act 1999 (Qld) (section 224) for persons dissatisfied with decisions on internal review. The change in jurisdiction has also had a considerable impact on the workload of the ICQ. Figure 2 below shows the number of matters filed since : Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 13

14 Figure 2: The number of matters filed in the ICQ in Queensland review of Tribunals The Bligh Government s review of tribunals in 2008 sought to: create a single recognisable body for deciding certain civil disputes and reviewing administrative decisions; improve consistency and quality of decision making; improve recruitment and retention of suitably qualified tribunal members and staff; improve service delivery to tribunal users, particularly in regional areas; increase the independence and standing of tribunal decisions; and create a flexible tribunal able to accrue new jurisdictions over time. 31 It was assumed all tribunals would be amalgamated with few exemptions. The submissions by unions to the Queensland Civil and Administrative Tribunal (QCAT) review opposed any transfer of QIRC jurisdiction to such a tribunal arguing that the level of expertise and timeliness require to resolve industrial relations issues would be jeopardised. 31 Department of Justice and Attorney-General. (2015) Review of the Queensland Civil and Administrative Tribunal Act < Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 14

15 The review resulted in the amalgamation of 18 tribunals (23 bodies in total) into the QCAT. 32 The review recommended that Local Government and Public Service disciplinary appeals should be heard by QCAT. It was also proposed to 'split' Public Service appeals by leaving fair treatment and promotional appeals outside QCAT's jurisdiction. The Government approved all recommendations except two: those relating to the Anti-Discrimination Tribunal and the "split" of Public Service appeals. 5.4 Comparison with other State tribunals Compared to other industrial relations tribunals in Australia, the QIRC has jurisdiction over matters which its state counterparts either have no jurisdiction over, or have more limited jurisdiction over, namely: the QIRC is the only Australian industrial relations tribunal exercising jurisdiction for appeals from the state s Workers Compensation Regulator; the QIRC s jurisdiction regarding industrial organisations is more extensive than that of the other states, particularly in relation to the recent transparency and accountability amendments to the IR Act; the QIRC is the only tribunal undertaking a comprehensive award modernisation process; the QIRC is the only Australian industrial relations tribunal exercising jurisdiction to hear trading hour applications; the QIRC has a role in determining applications for the payment of accrued long service leave; and the QIRC conducted 25 conciliation conferences in for claims by employees relating to a breach of contract of employment. In the other states, these matters would be dealt with in the relevant Magistrates Courts (or in South Australia, the South Australian Industrial Relations Court). 33 Conversely, there are some matters which the QIRC s counterparts have jurisdiction for which the QIRC does not. Attachment 3 highlights the key similarities and differences of each state s industrial relations jurisdictions compared to the QIRC. 32 The Queensland Cabinet and Ministerial Directory, Media Statements Attorney-General and Minister for Industrial Relations - The Honourable Cameron Dick: (Central tribunal to simplify access to civil and administrative justice, 17 June 2009), < 33 Department of Justice and Attorney General (2015) Service Standards and other Measures. < Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 15

16 Of particular note is the fact that Victoria is the only state without a state industrial relations jurisdiction. In 1996, Victoria handed its industrial relations powers to the federal government, effectively ending State involvement with core industrial relations matters. Prior to 1992, Victoria s labour relations laws enshrined a system of arbitration, conciliation, award making and supervised collective agreements and the Victorian Industrial Relations Commission (VIRC) was much like its State counterparts. It performed the key functions of resolving industrial disputes (unfair dismissal, claims, etc.), fixing wages and setting terms and conditions of employment by making awards and agreements. Queensland, New South Wales, South Australia, Tasmania and Western Australia all have industrial courts. In the case of Queensland, New South Wales and Western Australia their respective industrial courts are superior courts of record and are considered the equivalent of Supreme Courts. In South Australia, the Industrial Court is a Court of Record and is considered on par with a District Court. As such, Industrial Courts are a far more formal setting subject to the rules of evidence. 34 The NSW IRC has recently expanded its focus under the Industrial Relations Act 1996 (NSW), which includes as an object the encouragement and facilitation of cooperative workplace reform and equitable, innovative and productive workplace relations. 35 It will increase its focus on collaborative arrangements through: The further facilitation or promotion of cooperative and collaborative workplace relations or partnerships by the Commission will improve its capacity to prevent or resolve industrial disputes with long term, positive and sustainable outcomes. It will also meet other objectives of the Act such as the development of productive workplace relations and the prevention of situations that could lead to industrial disputes. The Commission wishes, therefore, to encourage the parties to avail themselves of interest based approaches as far as possible. Parties who wish to invoke the Commission s assistance with cooperative employment relations processes do so by first consulting the President of the Commission cf The QIRC is not bound to observe the formal rules of evidence of procedure. 35 Industrial Relations Act 1996 (NSW) s 3 (h). 36 NSW Industrial Relations Commission Announcement: Cooperative Employment Relations (14 July 2015) < nts/irc_research_information_announcements_2015_03.aspx> also provided at Attachment 4. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 16

17 5.5 Composition of the QIRC and ICQ The QIRC is a lay tribunal and (with the exception of the President, the Vice President, and Deputy Presidents who are also appointed to the ICQ), members of the Commission are not required to be lawyers but are required to have a high level of experience in business, government or industrial relations. 37 Currently, the QIRC has 11 members: President Vice President Deputy Presidents Commissioners Justice Martin Ms Linnane Mr O Connor, Ms Swan, Mr Bloomfield and Mr Kaufman Ms Fisher, Mr Thompson, Mr Black, Ms Knight and Mr Neate The Industrial Court of Queensland (ICQ) is constituted by the President, Vice-President or a Deputy President sitting alone. Section 243(1) of the IR Act requires the President to be a Supreme Court judge. By virtue of section 257, the President of the ICQ is also President of the Commission. The President may preside on a Full Bench of the Commission and, for certain matters under the IR Act, the Full Bench must include the President. In , the President sat for a total of six times per year at regular intervals as a result of commitments in the Supreme Court. 38 In Western Australia, the Industrial Appeals Court is constituted by three Supreme Court judges. 39 In New South Wales, the Industrial Court is constituted by three judicial members Queensland Industrial Relations Commission. (2015) About us. < 38 Queensland Industrial Relations Commission. (2015). Annual Report < 39 Western Australian Industrial Relations Commission. (2015) The Western Australian Industrial Appeals Court. < >. 40 Industrial Relations Commission. (2015). About IRC < Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 17

18 In South Australia, the Industrial Court is constituted by five judges and two Industrial Magistrates. 41 The Industrial Relations Commission is comprised of two judges as well as a deputy president and a commissioner. 42 There is a separate Workers Compensation Tribunal consisting of five judges and three deputy presidents. 43 Some of the judges and deputy presidents have dual roles within the South Australian Industrial Relations Tribunals (SAIRT), however, it should be noted that the jurisdiction of the SAIRT is quite broad and it oversees a large variety of matters. 44 Interestingly, the South Australian model is an anomaly in the Australian context, with judges either appointed as Judges to the Industrial Relations Court, or as Judges to the District Court, assigned to the Industrial Relations Court by proclamation. 45 It is difficult to compare the South Australian model with the current Queensland structure of the QIRC. This is largely because of the scope and range of the matters overseen by the SAIRT. 46 Queensland is unique in that the ICQ can be made up of a single member. From 1917 until 1999, the President of the ICQ was drawn from the ranks of the Supreme Court. 47 However, in 1999 as a result of legislative changes, Mr Hall (the former Chief Commissioner) become President and held that position until The position reverted back to a dual appointment of a Supreme Court judge as President of the ICQ after the retirement of Mr Hall and further legislative amendments. 49 Changes were made to the composition of the ICQ in 2013 with the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013 (Qld) providing for new positions within the Court, namely an additional Vice President and Deputy Presidents. In addition, that the President of the QIRC has a dual role as a Supreme Court Judge, actual sitting dates for the ICQ are scarce. 50 Justice Martin noted in the Annual Report that former President Hall was in a position to hear appeals on a weekly basis Fair Work Act 1994 (SA) s17, South Australian Industrial Relations Tribunals. (2015). Contact names. < 43 Ibid. 44 South Australian Industrial Relations Tribunals. (2015). What we do. < 45 Fair Work Act 1994 (SA) s 17, South Australian Industrial Relations Tribunal. (2015). Annual Report < 47 Queensland Industrial Relations Commission. (2015). Annual Report Retrieved < 48 Ibid. 49 Industrial Relations Act 1999 (Qld) s The sitting dates for the remainder of 2015 are 22, 23 and 25 September, 17, 18 and 19 November and the week commencing 23 November This should be compared with the allocated sitting dates for the ICQ listed for His Honour, Justice Martin to enable His Honour to address associated responsibilities 51 Queensland Industrial Relations Commission. (2015). Annual Report < Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 18

19 Until late 2012, the number of QIRC commissioners had been reducing. However to deal with an influx of Workers Compensation Regulator appeals in 2012, three new members were appointed to the QIRC. There were at 30 August 2012, over 300 matters of which were predominantly appeals of the Workers Compensation and Rehabilitation Regulation In 2013, two further commissioners were appointed on a permanent basis to the QIRC to assist with the award modernisation process and other backlog issues. The budget for the QIRC is $6.739 million, plus $1.706 million for the Registry, totaling $8.450 million. 53 This is an increase from a total of $6.2 million in With 11 commission members, Queensland has the second largest State tribunal. The number of members of industrial tribunals in other Australian state jurisdictions are: New South Wales 6 South Australia 12 Western Australia 6 Tasmania Administration of the QIRC and ICQ Queensland is also unique in its administrative responsibility arrangements for the QIRC and ICQ. Administrative responsibility for the QIRC and Registry currently rests exclusively with the Vice President of the QIRC. In 2012, amendments to the IR Act transferred administrative responsibility for the QIRC to the Vice President (VP) and gave the VP powers to require compliance. Amendments in 2009 returned responsibility for the administration of the QIRC to the President. This has not always been the case in Queensland with, Table 3, below, setting out the following legislative administrative arrangements in place during the history of the QIRC: 52 Ibid. 53 Department of Justice and Attorney General, Internal Budget Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 19

20 Period Administrative Responsibility lay with: President President - overall administrative control. Chief Commissioner administered the commission and organised and allocated its work President overall administrative control. Chief Commissioner - administered the commission and organised and allocated its work. President. Commissioner Administrator responsible to the President for the administration of the commission and registry and their orderly and expeditious exercise Vice President, assisted by two deputy presidents President now Vice President Table 3: History of administrative arrangements in the QIRC. In the FWC and other state industrial tribunals, administrative responsibility is attributed to either the President alone, or the President may delegate functions to the Vice President, Deputy President or Chief Industrial Commissioner. The issue of appropriate administration of the QIRC is also taken up in the following discussion of the independence of tribunals. 5.7 Independence of the QIRC In the Australasian Institute of Judicial Administration 2013 research paper, Tribunal Independence, Professor Pamela O Connor examined institutional provisions and arrangements that enable tribunals to perform their functions impartially and independently. 54 The research paper highlights the ambiguous position of Australian tribunals in the system of government. Unlike courts which have a clear separation from the executive and legislature, tribunals overlap across the executive and legislative branches: 54 Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Instituted of Judicial Administration, Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 20

21 Figure 2: Comparison between courts and tribunals 55 As tribunals are not considered to be part of the judiciary, their administrative independence must be based on what is required for impartial adjudication, as opposed to the separation of powers. Tribunals are unable to function effectively as impartial entities without the confidence of the public. Factors which influence this are the structural arrangements between tribunals and their respective host departments, the transparency of appointment and reappointment processes and the security of tenure and remuneration of its members. 56 Specifically, three key elements are seen as important in establishing a framework for tribunal independence, namely: - administrative independence (inclusive of control of staff, budget and expenditure, premises and facilities and all other resources required to carry out associated functions); - institutional independence (inclusive of provisions for appointments, tenure or term appointments, security of remuneration, and removal of office); - adjudicative independence (includes the ability to adjudicate without interference from the Executive or improper influence) Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Instituted of Judicial Administration, Tribunal Independence: Maintaining Public Trust and Confidence, AIJA Tribunals Conference 2003, Dr Gabriel Fleming, Deputy President, Workers Compensation Commission NSW. 57 Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Instituted of Judicial Administration, 2013 at 93. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 21

22 Appropriate independence between the Government and the industrial relations tribunal is particularly important given the Government s dual role as employer and industrial relations legislator. The industrial relations reforms which occurred between 2012 and 2014 with limited stakeholder consultation and in circumstances where significant reforms were ushered through the Consideration in Detail stage, attracted criticism of the former government. During the Legal Affairs and Community Safety Committee s consideration of the Industrial Relations (Fair Work Act Harmonisation No.2) and Other Legislation Amendment Bill (Qld), union submitters argued that in the case of the government s role of employer separation is more necessary than in any other employer/employee relationship because it must preserve the integrity and independence of the parliament. 58 Stakeholder concern was also raised about the ability of the Minister to issue a Ministerial Direction to the QIRC and erode its independence. The Honourable Peter Wellington MP issued a dissenting report noting his concern about the ability of the Minister to direct the QIRC and distort the balance of power too far towards the Government as the employer of public servants. 59 Structural arrangements The question of structural independence for tribunals is plagued by the reality that it is ultimately at the mercy of legislative discretion. Where this discretion is not exercised in an open and accountable way, it undermines public trust and confidence in the tribunal system. Finding ways to ensure openness and accountability and consultation on legislative change will be essential to avoid erosion of the perceived and actual independence of tribunals from the Departments which have administrative responsibility for enabling Acts. Issues around independence are not limited to government interference, but also encompass non-government organisations, pressure groups and individuals. The International Framework for Tribunal Excellence identifies eight core tribunal values which include impartiality, independence, integrity and accountability which can be found at Attachment 5. One potential response to reforming structural arrangements to better support independence would be to consider declaring the QIRC a court to exercise judicial authority. Parliament can grant judicial authority to a tribunal to allow the tribunal to become a court of the State if judicially defined standards of institutional independence and integrity are met Queensland Nurses Union (2013).Submission to the Legal Affairs and Community Safety Committee Related to the Industrial Relations (Fair Work Act Harmonisation No.2) and Other Legislation Amendment Bill. October Legal Affairs and Community Safety Committee, Industrial Relations (Fair Work Act Harmonisations No.2) and Other Legislation Amendment Bill (Qld), 2013, < 60 This is the case with QCAT. Owen v Menzies (2012) 293 ALR 571 held that QCT was a court of the State within the meaning of s77(iii) of the Constitution and capable of being invested with judicial power of the Commonwealth. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 22

23 Approaches to consider in increasing the independence of the QIRC might also include whether non-industrial relations matters (such as public sector appeals and Workers Compensation Regulator appeals) could be heard by the QCAT or another tribunal/court. Arguably, this would also serve to sharpen the QIRC s industrial relations focus and increase its efficiency. The consolidation of small tribunals embedded within a Department into larger, cross-agency tribunals helps to concentrate organisational resources and reduce dependency on host agencies. 61 The New Zealand Law Reform Commission has recommended that responsibility for tribunals be removed from host agencies, and that they instead be administered by a dedicated branch within the Ministry of Justice. 62 In contrast, the recommendations made by the Administrative Review Council noted that funding models based on annual one-line parliamentary appropriation, give the individual tribunal control over expenditure which, in turn provides a greater degree of administrative autonomy and control. Further, any changes in funding levels from year to year are transparent. 63 The fact that the Tribunal is functionally and structurally separate from the government (albeit, a government department) adds to tribunal independence. O Connor states that: There is a concern that actual or perceived independence may be compromised if tribunals are in the position of supplicants to executive government to obtain the resources they need to do their job, or if the executive unduly controls their management choices. 64 Tribunal member appointments/reappointments According to O Connor, control of appointments by the political executive involves a degree of secrecy that creates opportunities for political patronage and bias. 65 Improving transparency in the selection and appointment stages of appointments will assist in ameliorating perceptions of political bias. Currently in Queensland, the Queensland Cabinet Handbook requires the Minister to outline the appointment process followed in the Cabinet submission, and to certify to the Premier that the Minister is satisfied with the suitability of the nominees. The Minister is not required to state whether the proposed appointment is consistent with any recommendation or ranking that results from a panel assessment. 61 Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Institute of Judicial Administration, 2013 at NSLC, Delivering Justice for All: A vision for New Zealand Courts and Tribunals, Report No 85 (2004) 284 recommendation Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No. 39 (1995) at Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Institute of Judicial Administration, 2013 at Ibid. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 23