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 [email protected] 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

24 Based on the discussion by O Connor, factors which will assist in increasing the actual and perceived independence of the QIRC in this regard include: advertising expressions of interest in the appointment of tribunal members; requiring open recruitment and a merit-based, transparent selection process before appointments are made; and ensuring that appointment processes are fair and transparent, including the reappointment and removal of members. 66 At the Federal level, the Commonwealth s Merit and Transparency framework preserves full ministerial discretion, whilst seeking to ensure fair, open and merit-based appointments for certain Australian Public Service agency heads, statutory officers, Principal and senior members of the Commonwealth tribunals. 67 The framework specifies a full selection process for appointments to vacancies, except where the Prime Minister on the application of a Minister approves a departure due to special circumstances. It requires consultation with the Minister about the scope of advertising and any additional selection criteria, assessment of candidates by a panel against approved selection criteria, and a report to the Minister recommending a shortlist of suitable candidates for the Minister s consideration. The Federal Merit and Transparency framework and Cabinet Handbook jointly specify the processes required at the appointment stage. The Cabinet Handbook requires that in any proposal for appointment or reappointment, the Minister must explain the selection process and how Merit and Transparency was applied. 68 The Minister is also required to confirm that the person proposed has appropriate qualification and experience. Merit and Transparency requires that if the Minister selects a person who has not been recommended by the panel, or decides to appoint a candidate who has not been recommended by the panel, the Minister must write to the Prime Minister giving the reasons, which Cabinet will see if the appointment requires Cabinet approval. This approach retains full Ministerial in selection, whilst ensuring accountability of the Minister to Cabinet in the event of departures from the panel s advice. The United Kingdom has a unique approach to judicial and tribunal member appointments via a Judicial Appointments Commission, which has the function of selecting both judicial officers and tribunal members. 69 This model circumscribes ministerial discretion and requires selection of judicial and tribunal members solely on merit and good character. There has been little support in Australia, to date, for this type of limit on the Minister s discretion on the basis that ministers should have a choice among candidates which have been pre-assessed as suitable to appoint. 66 Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Institute of Judicial Administration, 2013 at Australian Public Service Commission, Merit and Transparency: Merit-based selection of APS heads and APS Statutory Officers (4 th ed, Oct 2012) ( Merit and Transparency ). 68 Ibid. 69 Ibid. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 24

25 Security of tenure and remuneration Institutional independence is intrinsically linked with structural guarantees to ensure that members are reasonably independent of those who appoint and remunerate them and that such tenure and remuneration cannot be reduced following appointment. 70 The importance of this was highlighted in the High Court decision of MIMA v Jia [2001] HCA 17, where in considering the decision of a tribunal member, Justice Hayne said the decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. Although courts in Australia and Canada have said that fixed term appointments can be consistent with institutional independence, renewable terms can affect the appearance of independence. On the basis that the Minister is responsible for reappointment, the perception can arise that members will not be reappointed if they set aside decisions of the department or decide matters against its interests or policies. 71 The availability of fixed-term appointments to accommodate fluctuations in workloads is important, but appropriate measures are needed to ensure that tribunal members are, and are publically perceived to be, independent. It should be noted that the Productivity Commission Draft Report recommended limited engagement periods for all members of the Fair Work Commission. 72 This view is contrary to recommendations by academics and the findings from previous reviews and, in turn, impacts on transparency and accountability. This is particularly the case when comparing tribunal members who are on limited tenure with judicial officers. O Connor commented on the position of judicial officers, noting that: Because judicial officers have secure tenure in their current appointment to the court, they are not financially dependent upon reappointment to the tribunal. They are in a strong position to withstand pressure from the government. Politically sensitive cases can be listed for hearing before them, to protect other members from any perceived threat to their reappointment Canadian Pacific Ltd v Masqui Indian Band [1995] 1 SCR 3 [104]. 71 Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Institute of Judicial Administration, Australian Government Productivity Commission Workplace Relations Framework. (August 2015) Productivity Commission Draft Report Overview. Retrieved from 73 Tribunal Independence, Associate Professor Pamela O Connor, Monash University, The Australasian Institute of Judicial Administration, 2013 at 65. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 25

26 There is also potential for misuse of vague legislative criteria for removing tribunal members from office. Even if no misuse occurs, the provisions give limited assurance that members are protected against arbitrary interference by the executive. For example the IR Act provides in section 246E that the Vice President or Deputy President of the QIRC can be removed by the Governor for mental or physical incapacity or misbehaviour. While mental or physical incapacity can be corroborated by independent medical advice, misbehaviour could be used to justify removal in a number of subjectively determined circumstances. This ought to be compared with like legislative provisions of existing tribunals. Attachment 6 outlines the comparative sections of Acts governing independence of tribunals. Benchmarking of performance Benchmarking generally refers to the pursuit by organisations of enhanced performance by learning from the successful practices of others and adopting key processes which contribute to organisational success. 74 Benchmarking is a continuous activity, not a one-off project; internal processes are adjusted, performance is monitored, new comparisons are made with the current best performers and further changes are explored, all with the ultimate goal of achieving world class status. 75 Tribunals all have common objectives which is to provide a dispute resolution forum that is: fair; just; timely; cost/efficient/economical; informal and no-adversarial; professional; accessible and approachable; flexible; and responsive. 76 Key performance indicators demonstrate that the tribunal takes seriously its responsibility to meet statutory obligations and to monitor and evaluate performance. An example of this is the Fair Work Commission key performance indicators. The key performance indicators for the Fair Work Commission are: improve or maintain the time elapsed from lodging applications to finalising conciliations in unfair dismissal applications; annual wage review to be completed to enable an operative date of 1 July; improve or maintain the agreement approval time; and 74 Jacky Holloway, Matthew Hinton, David Mayle, Centre for Information and Innovation; Graham Francis, Centre for the Development and Financial Management of Organizations. Open University Business School, Walton Hall, Milton Keynes. WHY BENCHMARK? UNDERSTANDING THE PROCESSES OF BEST PRACTICE BENCHMARKING Retrieved from: MK7 6AA. www7.open.ac.uk/oubs/research/pdf/wp97_8.pdf. 75 Ibid. 76 Dr Gabriel Fleming, Deputy President Workers Compensation Commission of NSW (2003) Tribunal Independence: Maintaining Public Trust and Confidence Paper Presented to the 6 th AIJA Tribunals Conference Retrieved from: aija.org.au/tribs03/fleming.pdf. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 26

27 95 per cent of financial reports required to be lodged under the Fair Work (Registered Organisations) Act 2009 are assessed for compliance within 40 working days. 77 In addition to basic underlying principles around tribunal performance lies the issue of accountability. Dr Fleming states that: accountability encompasses the totality of the process and outcome, and includes practical matters, reflecting on individual and systemic standards, such as: the timeliness of the process; the inclusiveness and fairness of practices and procedures, by reference to accessibility and flexibility; the adequacy of the reasons, given in plain English so that the parties can understand them, regardless of whether they had legal representation; predictability and consistency in decision making; public reporting, education and information on the tribunal s role; and clear and easily accessibly systems to encourage public feedback on tribunal effectiveness. 78 Academics, practitioners and tribunal members alike hold the same view that checks and balances ought to exist to reinforce tribunal behaviour and accountability. It is not uncommon for tribunal members to be required by legislation to adhere to a code of conduct. 79 The codes of conduct essentially publicise the standard of integrity and independence required, and demonstrates that the tribunal is able to regulate the actions of its own members without relying on executive oversight. 80 Interestingly, the Judicial Conduct Commissioner Bill 2015 is currently progressing through the South Australian parliament. Of particular note is the objects of the Bill, namely: 77 Fair Work Commission. (2015) Key Performance Indicators. <docs.employment.gov.au/system/files/doc/other/ _pbs_fwc.pdf>. 78 Dr Gabriel Fleming, Deputy President Workers Compensation Commission of NSW (2003) Tribunal Independence: Maintaining Public Trust and Confidence Paper Presented to the 6 th AIJA Tribunals Conference <aija.org.au/tribs03/fleming.pdf>. 79 See for example, the Victorian Civil and Administrative Tribunal Code Guide for VCAT Members < 80 See for example section 172(c)(i) of the Queensland Civil and Administrative Tribunal Act 2009 which enables the president to develop a code of conduct for QCAT. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 27

28 Section 3(1)- The objects of this Act are to enhance public confidence in the judicial system and to protect the impartiality and integrity of the judicial; system by (a) providing for the appointment of a Judicial Conduct Commissioner to receive and determine complaints regarding the conduct of judicial officers; and (b) providing a fair process for dealing with such complaints that recognises and protects judicial independence; and (c) enhancing the existing mechanisms for removal of judicial officers where they are unable or unwilling to appropriately discharge their duties. Section 2 - No power or discretion vested in the Commissioner or any other person by this Act may be exercised so as to impugn the independence of the judiciary. Given the structure of the South Australian Industrial Relations Tribunals and the ability for definition of judicial office to be prescribed by the regulations the Bill would apply to South Australian Industrial Relations Tribunals. 81 Are the current broader responsibilities of the QIRC and ICQ appropriate or should their functions be limited to core industrial matters? Does the legislative basis for appeals provide for sufficient separation within the QIRC? - Are the appeal pathways adequate? - Is it possible to have alternative appeal pathways to QCAT or other bodies? What legislative and administrative mechanisms are advisable in best supporting the independence of the QIRC and ICQ? What might be relevant key performance indicators and accountability measures to be considered in relation to the QIRC? 81 See clause (4)(g) of the Judicial Conduct Commissioner Bill Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 28

29 Attachment 1 Overview of Functions, Powers and Responsibilities of the Industrial Court of Queensland (ICQ) and the Queensland Industrial Relations Commission (QIRC). Legislation Function/Power/Responsibility Industrial Relations Act 1999 Modernising, approving, interpreting and enforcing awards that are non-discriminatory and provide fair wages and employment conditions. Workers' Compensation and Rehabilitation Act 2003 (WCR Act) Further Education and Training Act 2014 (FET Act) Trading (Allowable Hours) Act 1990 (TAH Act) Assisting enterprise bargaining and certifying agreements that are reached. Resolving industrial disputes by conciliation and where necessary by arbitration. Resolving disputes over union coverage. Dealing with reinstatement applications. Determining claims for unpaid wages and superannuation contributions where the total claim is $50,000 or less. Determining applications to amend the name or eligibility rule of an organisation of employers or employees. Conducting enquiries into a claimed irregularity in an election for office bearers of an industrial organisation. Approving amalgamations of industrial organisations. Deciding whether an organisation's rules comply with the IR Act. Deciding applications about membership of an organisation. Hearing appeals, by employers or employees, from review decisions of the Workers' Compensation Regulatory Authority (Q-Comp). Hearing appeals from decisions of the Chief Executive about registration or cancellation of vocational training contracts, cancellation of completion certificates or qualifications, or declaration of a prohibited employer and disciplinary orders. Hearing applications for reinstatement of vocational training contracts. Determining variations to trading hours on its own initiative or by application. Public Service Act 2008 (PS Act) Hearing appeals against certain decisions which affect public service employees. Contract Cleaning Industry (Portable Long Service Leave) Act 2005 (CCIPLSL Act) Public Interest Disclosure Act 2010 (PID Act) Hearing appeals from decisions of the Portable Long Service Leave Authority (QLeave). Hearing applications for injunctions about reprisals that have or may cause a detriment to an employee within the meaning of the IR Act and involve or may involve a breach of the IR Act or an industrial instrument. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 29

30 Legislation Work Health and Safety Act 2011 (WHS Act) Child Employment Act 2006 (CE Act) Magistrates Courts Act 1921 (MC Act) Local Government Act 2009 (LG Act) Function/Power/Responsibility Hearing applications to disqualify a health and safety representative; Hearing appeals from its own decisions on applications to disqualify health and safety representatives. Hearing applications for revocation of a WHS entry permit. Hearing appeals from its own decisions on applications regarding revocation of a WHS entry permit. Hearing disputes about the exercise or purported exercise of a right of entry by a WHS permit holder. Conducting reviews, upon application, of reviewable decisions (schedule 2A) made under the WHS Act. Determining whether an agreement or arrangement reduces a child s employment entitlements or protections. Hearing appeals by employers to compliance notices. Hearing applications by inspectors alleging contravention by an employer of their obligation not to disadvantage a child in their employment conditions. Hearing applications for orders relating to dismissal of a child. Hearing appeals from decisions of the Chief Executive under Part 2 of the CE Act Hearing claims from employees (earning up to $101,300) relating to a breach of their contract of employment otherwise outside the QIRC s jurisdiction. The Governor-in -Council has appointed Deputy President Bloomfield to act as the Chairperson of the Local Government Remuneration and Discipline Tribunal (the LGRDT). The LGRDT hears the most serious complaints of misconduct by councillors, and performs remuneration setting functions for elected representatives for all local governments in Queensland (except Brisbane City Council) on an annual basis. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 30

31 Attachment 2 Appeal Process within the Queensland workers compensation scheme Workers or employers having received an insurer s decision, are able to seek a review of certain types of decisions by lodging an application for review with the Workers Compensation Regulator. The Regulator conducts an impartial administrative file review and issues a fresh decision which generally either confirms or sets-aside the original insurer s decision. Workers or employers who are aggrieved by the Regulator s decision may then appeal the matter to the QIRC, who conduct proceedings on a de novo basis that is the entire matter is examined as a fresh claim taking into account factors such as credit which are not able to be considered at the review stage. Approximately 300 appeals are lodged per year and of these, around 25% (75) will proceed to hearing. Of those that proceed to hearing, approximately will be appealed to the Industrial Court each year. Based on the reported figures, the Industrial Court will normally uphold the appeal (that is, find the Commission s decision to be incorrect) in only 1 or 2 cases per year. The effectiveness of the QIRC s processes and structure allows 75 per cent of appeals to be resolved without having to go to hearing. With less than 5 per cent of the lodged appeals progressing to the Industrial Court, the QIRC demonstrates a very low disputation rate for an appeal body, with less than 1 per cent of decisions being overturned by the Industrial Court, the Commission demonstrates effective decision making. Overview The appeal process is straight forward and efficient, with the majority of appeals progressing from initial lodgement to hearing in under six months. Compared to many other jurisdictions and litigation processes, this is timely in comparison and assists to minimise costs, disruption and uncertainty for workers and employers. The main stages within the process are: 1. Appeal Lodgement: an applicant lodges their notice of appeal with the Commission, either in person, by post or electronically. 2. Callover: the Vice President considers the issues involved within an appeal, provides some initial directions of what each party is expected to do and by when, and sets the matter down to be heard at a specific time and place. Each party is involved in the discussion and this is a valuable experience for both parties, particularly for self-represented applicants who receive useful information on not only the appeal process but also the onus of proof required and likely issues they need to overcome during the appeal. This stage is well managed and normally occurs within only two weeks of the appeal being lodged. 3. Directions Orders - following the information provided at call over and the initial directions provided by the Vice President, a formal Directions Order is issued to both parties to the appeal which clearly sets out the activities each must undertake, in what Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 31

32 order and the dates by which they must be completed in order for the appeal to proceed as planned. Direction Orders are particularly valuable for workers who choose to represent themselves as they provide not only an indication of the various stages to progress an appeal to hearing, but also clearly set out the expectations of the Commission to help complete the entire process in a timely manner. 4. Conferences: Normally held within two months of the call over, a conference takes place and provides an important opportunity for a Commissioner (who will not be involved in the hearing) to meet with both parties at once and allow everyone involved to outline their position, current evidence, understand on which areas both parties can agree and narrow the issues in dispute that will form the basis of the appeal. This stage provides additional information which both parties can use to evaluate the merits of their case. Self-represented parties often have additional time with the Commissioner where a more detailed explanation of the hearing mechanics and onus of proof requirements are provided. The Regulator supports the conference stage and consistently sees a range of efficiencies achieved through the process. Workers with particularly weak cases gain an understanding of the level of evidence required to demonstrate their entitlement and those unlikely to obtain the necessary evidence frequently withdraw their appeal saving all involved considerable time and resources. For appeals that continue to hearing, significant time is saved by narrowing the scope of issues in dispute so that the hearing is focused on the relevant areas of the legislation. 5. Review Mention: In line with the Commission s focus on a smooth, timely and efficient appeals process, the review mention is used to confirm that each party has complied with the Directions Orders and is prepared for the scheduled hearing. This stage is very useful and allows any outstanding issues or important updates to be noted and appropriate action taken, rather than discovering this on the first day of a hearing. 6. Hearing: The Commissioner hears the matter over, on average, a three day hearing. Commissioners have consistently demonstrated balance between overseeing the proceedings in an impartial manner and ensuring the hearing provides all parties with a fair opportunity to present their case. 7. Decision: The Commission will deliberate on the evidence produced during the hearing, consider existing and recent case law and subsequently issue a decision. The decisions are issued, depending on complexity, between 4 and 8 months after hearing which demonstrates the ability to issue quality decisions in an efficient timeframe. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 32

33 Commission Performance 1. Abeyance matters: Where an appeal is not ready to proceed to hearing, generally because one party has not taken the necessary steps to prepare or further their appeal, the matter is adjourned to the registry, where it sits in abeyance. The Commission over the last three years has systematically and strategically sought to resolve these abeyance matters and ensure they are appropriately finalised. The large volume of appeals in abeyance has now been cleared which was a significant undertaking and overall successfully managed. 2. Electronic communication: The Regulator as a party to all workers compensation appeals has established a positive and effective relationship with the Commission. Regular communication and engagement has led to a number of process improvements, including the exchange of documentation and forms electronically, increasing efficiency and making the process quicker and more streamlined. 3. Trial plans: Are used within the appeal process and this assists all parties to understand the order of events within the hearing, how long each witness is likely to require, when cross-examination will take place and when each person is likely to have the floor. These trial plans are prepared before the hearing and agreed to by all parties which helps to make the hearing more predictable and efficient. 4. Submission outlines: In the preparation for hearing phases, the Commission seeks an outline of the submissions and evidence each party will be putting forward as part of their case. This assists in keeping an appeal focused on the relevant areas of law and provides a further opportunity to narrow the scope of the appeal and hearing, making it quicker, less expensive and more efficient. 5. Statement of stressors and facts in contention: These documents are used by the Commission depending on the circumstances of the appeal and provide for a more efficient appeal process. The statement of stressors has recently gained more importance as it assists in clearly identifying the cause of an injury and ensures the hearing is focused on the relevant issues, rather than all the other side issues commonly raised in disputes. The Commission considers using facts in contention where an appeal will be strictly limited to the contents of the document put forward, in the circumstances where this tool is critical to the effective management of an appeal. 6. Regions: The Commission regularly holds hearings in regional locations and the Commissioners regularly travel to Townsville, Cairns, Mackay and other regional centres to conduct hearings. The Commission actively encourages hearings to take place in the location of the worker and employer. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 33

34 Attachment 3 State-based Comparison with Queensland Industrial Relations Commission. State Jurisdiction Workforce 82 Similarities with QIRC Differences with QIRC NSW State public sector and local government 525,800 Jurisdiction for: Terms and conditions of employment. Right of entry disputes (workplace health and safety). Disciplinary matters relating to NSW public sector employees Rural workers accommodation. Ordering repayment of fees received by private employment agents. No jurisdiction for: Workers compensation appeals. Contract cleaning portable long service leave. Applications for payment of long service leave. Claims for unpaid superannuation. Local government wage setting and misconduct hearings. Apprentice and trainee matters. Trading hour applications. Child employment matters. Public interest disclosure or whistleblowing protection. Ordering repayment of fees by private employment agents. Conciliating cost claims by employees (earning up to around $100,000) relating to breach of employment contract. Jurisdiction for: Appeals from decisions relating to leave for police officers hurt on duty. SA State public sector and local govt 124,700 Jurisdiction for: Terms and conditions of employment, including: a. Conciliation and arbitration of industrial disputes; b. Unfair dismissal; No jurisdiction for: Workers compensation appeals. Amending or declaring void unfair contracts; Determining applications for payment instead of long service leave. Contract cleaning portable long service leave. Local government wage setting and misconduct hearings. 82 Approximate size of workforce within state jurisdiction (ABS 6248 Employment and Earnings Public Sector) Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 34

35 State Jurisdiction Workforce 82 Similarities with QIRC Differences with QIRC c. Making declarations about industrial matters; d. Dealing with industrial organisations (although the extent of this jurisdiction in South Australia does not cover all of the same transparency and accountability requirements that exist under the IR Act); e. Conciliating cost claims by employees (earning up to around $100,000/annum) relating to breach of employment contract; f. State wage cases; and g. Modernising, approving, interpreting and enforcing industrial awards (although the SAIRC is not currently going through a comprehensive award modernisation process as is the QIRC). Apprentice and trainee matters. Right of entry disputes (workplace health and safety). Disciplinary matters, remuneration and transfers relating to SA public sector employees. Apprentice and trainee matters such as those covered by the FET Act. Trading hour applications. Claims for unpaid wages and superannuation. Child employment matters. Public interest disclosure or whistleblowing protection. Ordering repayment of fees by private employment agents. Conciliating cost claims by employees (earning up to around $100,000 /annum) relating to breach of employment contract. Jurisdiction for: Applications for disciplinary actions, reviews of the decisions of the Commissioner for Liquor and Gambling and applications referred by the Commissioner to the Licensing Court. Hearing and determining appeals by officers in the teaching service as part of the Teachers Appeal Board. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 35

36 State Jurisdiction Workforce 82 Similarities with QIRC Differences with QIRC TAS State public 43,200 Jurisdiction for: No jurisdiction for: sector and local govt Workers compensation appeals. Amending or declaring void unfair contracts. Terms and conditions of employment, including: a. Conciliation and arbitration of industrial disputes; b. Unfair dismissal; c. Modernising, approving, interpreting and enforcing industrial awards (although the TIC is not currently going through an award modernisation process); d. Making declarations about industrial matters; e. Dealing with industrial organisations (although the extent of this jurisdiction does not cover all of the same transparency and accountability requirements that exist under the IR Act); Appeals to decisions relating to Tasmanian public sector employees regarding selection and certain other decisions relating to employment. Determining applications for payment instead of long service leave. Claims for unpaid wages or superannuation. Ordering repayment of fees received by private employment agents. Apprentice and trainee matters. Trading hour applications. Contract cleaning portable long service leave. Right of entry disputes. Child employment matters. Workers accommodation. Conciliating cost claims by employees relating to breach of employment contract. Local government wage setting and misconduct hearings Public interest disclosure or whistleblowing protection. The TIC also forms part of the Parliamentary and Salaries Tribunal. WA Public sector and local govt and Estimated to be between Jurisdiction for: Terms and conditions of employment, including: No jurisdiction for: Workers compensation appeals. Claims for unpaid wages or superannuation. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 36

37 State Jurisdiction Workforce 82 Similarities with QIRC Differences with QIRC un-incorporated private sector ,000 and 500, a. Conciliation and arbitration of industrial disputes; b. Declarations about industrial matters; c. Unfair dismissal matters (for employees with salaries up to $90,000); d. Dealing with industrial organisations (although the extent of this jurisdiction in West Australia does not cover all of the same transparency and accountability requirements that exist under the IR Act); and e. Modernising, approving, interpreting and enforcing industrial awards (although the WAIRC is not currently going through a comprehensive award modernisation process). Apprentice and trainee matters Public sector employee appeals Authorising and revoking right of entry permits and dealing with Determining applications for payment of long service leave. Amending or declaring void unfair contracts. Contract cleaning portable long service leave. Local government wage setting and misconduct hearings where the local government entity is a corporation. Ordering repayment of fees received by private employment agents. Trading hour applications. Child employment matters. Public interest disclosure or whistleblowing protection. Workers accommodation. Conciliating cost claims by employees relating to breach of employment contract. Jurisdiction for: Appeals against removal decisions made by the Commissioner of Police relating to members of the WA police force; Regulating the relationship between parties engaged in the transport of goods in heavy vehicles (sitting as the Road Freight Transport Industry Tribunal); Providing mediation services for the prevention and resolution of workplace disputes, including for those employers and employees 83 Unlike the other Australian state jurisdictions Western Australia retains some of its private sector responsibilities. Businesses that are not corporations such as sole traders and partnerships remain under the Western Australian system. Thus the WAIRC has a larger proportion of Western Australian employees under its jurisdiction than other states around double the proportion of Queensland employees covered by the QIRC. 84 The WA Department of Commerce s most recent estimate of the number of workers retained in the WA industrial relations jurisdiction is between 21.7% (approximately 300,000) and 36.2% (approximately 500,000) of the Western Australian workforce. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 37

38 State Jurisdiction Workforce 82 Similarities with QIRC Differences with QIRC some appeals in accordance with the State s workplace, health and safety legislation. covered by the federal industrial relations system, and relating to any topic associated with employment in a workplace. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 38

39 Attachment 4 NSW IRC announcement ANNOUNCEMENT - COOPERATIVE EMPLOYMENT RELATIONS 14 July 2015 An object of the Industrial Relations Act 1996 is the encouragement and facilitation of "cooperative workplace reform and equitable, innovative and productive workplace relations" (s 3(h)). Chapter 3 of the Act provides mechanisms for the resolution of industrial disputes upon their notification to the Industrial Relations Commission of New South Wales ('the Commission') or by the Commission acting of its own initiative. An industrial dispute is defined under the Act as "a dispute (including a question or difficulty) about an industrial matter" and includes "a situation that is likely to give rise to an industrial dispute if preventative action is not taken" (paragraph (c) of the definition of 'industrial dispute' in Sch 5, Dictionary). Situations that are likely to give rise to an industrial dispute vary greatly between industries, enterprises and workplaces. They may be affected by cultural factors, historical unresolved grievances or issues or temporal considerations such as the proximity to bargaining for enterprise agreements or awards. However, employment relationships, particularly those of a collective nature, which are characterised by collaborative arrangements based upon mutual and reciprocal cooperation or cooperative endeavour and/or mutual recognition are more likely to avoid disputative relations and create a harmonious work environment. Over many years, the Commission has encouraged and brought about innovation in industrial relations and, in particular, in dispute resolution. The 'Bluescope arbitration' process and interest based bargaining associated with the 'Hunter model' are recent examples. The success of, and increased interest in, these methods has led to the conclusion that 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. An increased emphasis on the objective referred to in the previous paragraph as a component of the regular work of its members and, where applicable, in its interaction with industrial parties is a key component of this approach. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 39

40 As to the practical application of this approach, the role of the Commission may be illustrated, non-exhaustively, by the following three examples. First, the Commission may engage with stakeholders at various levels, ranging from peak to localised, in order to discuss processes for the introduction of cooperative workplace measures. Secondly, the Commission may assist parties by facilitating the establishment and maintenance of workplace partnerships for particular projects. Thirdly, the Commission may become involved, at an early stage, in anticipation of future enterprise agreement or award negotiations (independent of claims and counterclaims). The third illustration may result, at some later stage, in interest based bargaining. In all such cases, the President of the Commission should be consulted about an intention to invoke cooperative employment relations' processes with a view to considering appropriate arrangements and, where applicable, resource allocation. Such approaches should be made in writing to Mr James Wiseman, Industrial Registrar, via [email protected]. However, given the present statutory scheme, in order to ultimately obtain the assistance of the Commission, the person(s) or entity(ies) consulting with the President would need to notify the existence of an industrial dispute (with such notification specifying, in a covering letter to the Industrial Registrar, that the matter concerns cooperative employment relations' process). The matter will then act as the foundation for the informal processes which would normally follow before the Commission. When, in the course of an existing matter, these processes are invoked by the parties, the President and Industrial Registrar will be advised by the member of the Commission accordingly. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 40

41 Attachment 5 International Framework for Tribunal Excellence - Eight Core Tribunal Values Topic Area Administrative Independence Funding Budget allocation and control Facilities and services President Staff Types of provisions Stronger Intermediate (examples) Weaker The tribunal is an independent statutory body with its own parliamentary appropriation and is responsible for its own budget and expenditure. The tribunal controls its premises and in any given year has secure and sufficient funds to ensure provision of the resources, facilities and services it needs to perform its functions. The President has statutory powers to manage and direct the tribunal s case management system, constitution of panels and chairs and general administration, and can delegate functions to the Registrar or other members. The tribunal is a statutory agency for purposes of managing its staff. Assistant Registrars and staff appointed by the Minister or department have the powers, functions and duties given by the Act or by the President. The tribunal is separately funded from an appropriation for a courts and tribunals service, jointly managed by the heads of the jurisdiction. The department (agency) provides accommodation, facilities management, security, IT, corporate, personnel management and other services on terms agreed between the President and the department. The President has the responsibility to manage caseload and tribunal administration but is unable to delegate management and administrate functions due to lack of senior or full time members. The department must provide registry facilities for the tribunal and any staff that may be necessary; and the officers act under the general direction of the head. The tribunal is funded from the budget of the portfolio department, which determines budget priorities, controls expenditures and can reallocate the tribunal s budget to other program areas. The tribunal occupies or sits in premises shared with or provided by a host agency whose decisions it reviews, and relies upon the host agency to provide facilities and services. The President may have limited powers or time, and is dependent on the department or host agency to manage tribunal caseload, business and administration. The Act is silent as to the provision for staff of the tribunal. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 41

42 Topic Area Types of provisions Stronger Intermediate (examples) Weaker Institutional Independence Process for Power to appoint appointment Recruitment strategy Advertising Diversity Assessment criteria Assessment process Assessment The Governor (General) in Council appoints on nomination of the Justice Minister. The Minister and the President agree on the recruitment strategy. Vacancies for new members are generally advertised publicly. Recruitment strategy is designed to attract a diverse field of suitable applicants including underrepresented groups. Competency-based assessment criteria are provided for applicants to address. The President oversees the assessment process, constitutes the assessment panel and ensures the process complies with procedures required by the Minister. A panel assesses each applicant s relative suitability against competency-based criteria and evidence. The Governor (General) in Council appoints on nomination of the portfolio Minister. The Minister or department determines the recruitment strategy. Advertising is occasional or restricted, e.g. to professional publications. Recruitment encourages diverse applicants but targets traditional sources. Applicants address the statutory qualifications and general criteria. The department oversees the assessment process, constitutes the panel in consultation with the President and ensures compliance with government policies. A panel assesses each applicant s relative suitability based on general criteria determined by the panel. The portfolio Minister appoints The Minister and department identify suitable appointees and invite expressions of interest from them. Professional, stakeholder or government bodies may be consulted or invited to nominate. Diversity is considered at selection stage rather than in recruitment. Apart from statutory qualifications, criteria are adhoc, implicit, opaque. The assessment process and panel is managed by the department. A member of the Minister s office may be on the panel. The President is consulted about the tribunal s needs. Candidates suitability is not assessed relative to others, or is not assessed against explicit criteria, or is not based on best evidence. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 42

43 Topic Terms and conditions Area Recommendations Consultation about nominations Departure from recommendations Member s usual term of appointment Tenure expectation Security of remuneration during term Conditions of appointment The President recommends suitable candidates or a shortlist to the Minister based on the panel s assessment. The Minister must consult the President about proposed Types of provisions Stronger Intermediate (examples) Weaker The President makes recommendations to the Minister based on the panel s assessment and the President s evaluation. nominations. The Minister must notify the Prime Minister if nominating a person who has not been recommended by panel. More than 5 years, with eligibility for reappointment. Terms for classes of member are standard. Appointee has limited term but as a serving judicial officer concurrently enjoys secure tenure during good behaviour. Rates for classes of member are determined and published by a statutory tribunal, reviewed at regular intervals, and cannot be reduced during term. A member holds office on the conditions stated in the Act. The Minister must consult another Minister or another office on nominations. The Minister may be required to justify the appointment process to Cabinet. 3 to 4 year term, with eligibility for reappointment. No security of tenure but a practice of multiple terms for certain classes of member has created career members. Rates are determined by the Governor or Minister for classes of member and specified in the instrument of appointment. Rates may be increased during the term. A member holds office on the statutory conditions and any conditions (not inconsistent with the Act) as decided by the Governor or the Minister and stated in the appointment. Recommendations are made through the department. Consultations are determined by Cabinet procedures. No explanation is required. Less than 3 years, or not standardised for classes of member. There is no expectation of multiple terms. A member is entitled to such remuneration as the Minister or the Governor determines from _me to _me in respect of the member. Rate reviews are infrequent, unprincipled and opaque. A member holds office on such terms and conditions as are provided for by the Act or otherwise as determined by the Minister in writing. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 43

44 Topic Re-appointment Area Re-appointment process Notification of decisions to reappoint or not to re-appoint The Minister agrees to nominate incumbents if the President or a panel so recommends based on assessment of their performance under a competency framework endorsed by the membership. Procedures require the Minister to notify incumbents in writing, not less than 4 months before expiry of term, whether they are to be reappointed, not reappointed, or whether it is intended to test the field by advertising. Promotion Promotion Process Governor may on the recommendation of the Minister and the President appoint a current member to a higher office for the balance of the term. Temporary and acting appointments Appointment of Registrar Termination of office Acting appointments Power to appoint Resignation Types of provisions Stronger Intermediate (examples) Weaker Incumbents are re-appointed for one or more terms without externally competitive process, based on the President s report on their performance and the needs of the tribunal. Acting appointments are limited to 6 months if made by Governor, or 3 months if made by a Minister. Consecutive acting appointments cannot exceed the time limits in total. The Registrar is appointed by the Governor on the nomination of the President. A member can resign only by notice given to and accepted by the Governor. There is no express requirement as to timing of notification, but the practice is to notify incumbents well before expiry of term whether they are to be reappointed or not. A member can apply for a new term of appointment to a higher office on expiry of current term. The tribunal has internal procedures to facilitate career progression. An acting or temporary appointment is limited to 12 months. The Registrar is appointed by the Minister. A member can resign unilaterally by notice to the Governor. Incumbents can apply for new term in completion with external applicants and are assessed under the same process and criteria. There are no procedures specifying timelines for notification. Notification may be before or even after expiry of the term. Re-appointment for new term at higher class is possible but there are no procedures to facilitate promotion. Acting and temporary appointments are not subject to any time limit on duration. The Registrar is appointed and employed by the head of the portfolio department. A member can resign unilaterally by notice to the Minister. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 44

45 Topic Area Vacation of office Process to remove a member of office Grounds for removal Suspension Adjudicative Independence Judicial review Judicial review and for lawfulness appeals and natural justice The office is deemed vacant upon death, resignation, removal, or loss of a qualification for office. Types of provisions Stronger Intermediate (examples) Weaker The office is deemed vacant on grounds that are matters of public record, such as insolvency or conviction for serious offence. The Governor may remove a member: on an address from both Houses of Parliament or on the Minister s recommendation following processes of suspension, investigation, report, provision of natural justice and consultation with the President. Proved misbehaviour or incapacity (same as for judiciary). The Governor may suspend a member for proved misbehaviour or incapacity and must report to Parliament. The suspension lifts if Parliament fails to pass a removal motion within 15 sitting days. There is provision for judicial review of tribunal decisions by a superior court, or, an appeal lies to a court on a question of law. The Governor or the Minister may remove a member, if satisfied that grounds exist, without any express statutory requirements as to the process. Broader grounds e.g. neglect of duty, or misconduct proved to the satisfaction of the Governor. Governor may remove member on the Minister s recommendation, or, the President may suspend a member if grounds of removal may exist, and must initiate processes of investigation, report, hearing, leading either to removal process or lifting of the suspension. There is provision for review on the merits by an appeal division constituted with judicial officers, or by a higher tribunal whose decisions are subject to judicial review. The office is deemed vacant on grounds that are disputable, such as incapacity or external employment. The Minister may remove a member from office at any time, without any express statutory requirements as to the grounds or the process. Vague grounds, e.g., carelessness, incompetence, inefficiency, failure or incapacity to carry out duties satisfactorily; breach of code or performance agreement. Governor or Minister may suspend a member on same grounds as for removal. There is no time limit on suspension and no provision for a process following suspension. Judicial review is restricted by a privative clause and there is no provision for appeal to a higher tribunal with judicial officers. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 45

46 Topic Members duties Area Duty to decide impartially Oath of office Code of conduct Disclosure and disqualification Duty of confidentiality The statute states that the tribunal must act independently and is not subject to direction or control by anybody, including by any Minister. Before taking office, a member must take an oath or give an undertaking in a prescribed form to faithfully and impartially adjudicate. Members must comply with a code of conduct made by the President in consultation with tribunal members, staff and others about what the code should Types of provisions Stronger Intermediate (examples) Weaker There are indirect statutory references to independence, e.g., the Minister must consider an appointee s ability to adjudicate objectively and independently. contain Statute provides that a member must not, without the consent of all parties, take part in a proceeding in which the member has an interest, and must disclose the interest to the President who may direct the member not to take part. A member is under a statutory duty not to disclose information obtained in performing tribunal functions, except with the consent of the person to whom the information relates, or for other specified ground or reasonable The Minister may require presidential members to take an oath of office, or, tribunal members take a voluntary oath. The statute provides that the President may prescribe a code of conduct for members, or, the members have agreed to adopt a code of conduct The member is under a statutory duty to disclose the interest to the parties and to the panel chair, before the member decides whether to disqualify himself or herself. Oath of office includes undertaking not to disclose evidence brought before the tribunal except for the purposes of the Act. The legislation makes no direct or indirect reference to independence. There is no requirement for an oath of office and no oath is taken voluntarily. There is no legislative provision for a code of conduct; and no code has been voluntarily adopted by the members. No express provision. Disclosure and disqualification are regulated by the requirements of natural justice and any applicable code of conduct. No express statutory duty of confidentiality. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 46

47 Topic Restrictions on members Immunities and protections Efficacy or power Area Performance appraisal External employment Representing a party Immunity provision Ministerial policy directions Executive overruling of tribunal Types of provisions Stronger Intermediate (examples) Weaker excuse and cannot be compelled to disclose the information. The member participates in periodic appraisal against an individually negotiated competency-based performance plan for development and training purposes. A member must not take other paid employment without the President s consent. A member must not represent a party in any proceeding before the tribunal, list or division. A member has the same protection and immunity as a Supreme court judge has in performance of a judge s functions. The tribunal is free to apply or depart from government policy when reviewing a decision in accordance with the common law. The statute expressly states that no Minister or executive official or body can overrule or alter a decision of the tribunal in respect of a matter. The President or delegate reviews a member s performance against a competency framework to inform an appointment or promotion decision. Full time or presidential members require Minister s consent to undertake other paid employment. Representation may be restricted by the tribunal s code of conduct. A member is not personally liable for acts or omissions done in good faith in the intended performance of tribunal functions; and cannot be compelled to testify or produce documents relating to tribunal proceedings except in the circumstances specified in the Act. The tribunal must apply a lawful statement of policy that has been certified by the Minister but exercises an independent discretion as required by common law No executive body or Minister has power to revoke, overrule or alter a decision made or affirmed by the tribunal. Members must enter into performance agreements which unilaterally prescribe productivity and performance targets and measures. Failure to comply may lead to non-reappointment or removal. No statutory restriction on external paid employment. No express restrictions. No statutory immunity for members. Immunity depends on the common law. The Minister can give a written direction that is binding upon the tribunal to the extent that it is lawful. Statute allows the Minister or agency to revoke or terminate a decision or order of the tribunal, or to alter its operation or effect. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 47

48 Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 48

49 Attachment 6 Queensland legislation examples Legislation Section Content Queensland Independent Remuneration Tribunal Act 2013 Section 9 - Independence of tribunal and tribunal members In performing or exercising its function or powers, the tribunal (a) must act independently, impartially and fairly; and (b) is not subject to direction or control by any entity, including any Minister. Queensland Civil and Administrative Tribunal Act 2009 Section 162 Independence In exercising its jurisdiction, the tribunal (a) must act independently; and (b) is not subject to direction or control by any entity, including the Minister. Section 196 Independence (1) An adjudicator when constituting the tribunal is not subject to direction or control, other than as provided under this Act. (2) However, an adjudicator must comply with the procedural directions given by the president. Section 217 Influencing participants Section 172 President s functions generally Note Under section 203, an adjudicator may be removed from office if the adjudicator contravenes this subsection. A person must not improperly influence, or attempt to improperly influence, a person in relation to the person s participation in a proceeding, whether as a member, adjudicator, a party or a witness, to act other than in the course of the person s duty in relation to the proceeding. Maximum penalty 100 penalty units. (1) The president has the functions conferred on the president under this Act or an enabling Act that is an Act. (2) The functions of the president include (a) managing the business of the tribunal to ensure it operates efficiently; and (b) giving directions about the practices and procedures to be followed by the tribunal; and (c) managing the members of the tribunal and adjudicators including (i) developing a code of conduct for members and adjudicators; and Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 49

50 Legislation Section Content (ii) ensuring the members and adjudicators are adequately and appropriately trained to enable the tribunal to perform its functions effectively and efficiently; and (iii) undertaking performance management for members and adjudicators; and (d) deciding selection criteria for appointment of members and adjudicators, and overseeing the selection process; and (e) adjudicating in the tribunal; and (f) advising the Minister about the appointment of members of the tribunal and adjudicators, and the suspension and removal of the members and adjudicators from office; a (3) It is also a function of the president to advise the Minister about (a) how the tribunal could improve the carrying out of its functions to ensure the way it deals with matters is fair, just, economical, informal and quick; and (b) how this Act or enabling Act could be made more effective. (4) The president may do all things necessary or convenient to be done for the performance of the president s functions (5) In performing the president s functions, the president is not subject to direction or control by the Minister. Issues Paper 5: Functions, powers and compositions of the ICQ and QIRC Page 50