A Full Bench of the QIRC finds it has no jurisdiction to order a separate Certified Agreement be negotiated after the commencement of Arbitration
By Sewar Mitanis, Senior Associate & Lesleigh Buxton, Workplace Relations Consultant
A major union has received a big win with a recent decision handed down by a Full Bench of the Queensland Industrial Relations Commission (QIRC) in Mackay Regional Council v Queensland Services, Industrial Union of Employees & Ors (No. 2)  QIRC 011.
The Full Bench found that the QIRC has no powers to order that a portion of the workforce have their own agreement after the commencement of arbitration.
Mackay Regional Council (Council) commenced enterprise negotiations on 7 November 2019 to replace the single Certified Agreement, Mackay Regional Council Certified Agreement 2017 (Certified Agreement). The Certified Agreement covers all Council employees who are covered by the Queensland Local Government Industry Awards Streams A, B and C.
During the enterprise bargaining process, it was clearly identified that logs of claims, and a draft proposed agreement provided by Council, were based on the single Certified Agreement covering employees under the Streams A, B and C Awards. Having reached an impasse during the enterprise bargaining process, Council filed an application under s 175 of the Industrial Relations Act 2016 (Qld) (Act), seeking assistance for the QIRC to negotiate a Certified agreement. Having not reached agreement in conciliation, the matter was referred to a Full Bench for arbitration.
As unions representing employees covered by Streams B and C Awards agreed to the majority of terms with Council, the unions considered that it is in the best of interest of their members to have a separate Certified Agreement. As such, they wished to secure a separate agreement for employees covered by Streams B and C Awards after the matter was referred to arbitration.
Scope orders cannot be made after commencement of arbitration
The Full Bench found that while the Act provides at s 184 (1) that applications of scope orders may be submitted by unions, scope orders cannot be made after the commencement of Arbitration. At no stage did either union make an application for a scope order in relation to employees covered by Streams B and C Awards in this matter.
Furthermore, the Full Bench also found that General Powers given to the QIRC under s 451(2)(c) of the Act, does not give the QIRC jurisdiction to determine that employees covered by Streams B and C Awards should have their own Certified Agreement as such a determination would, in effect, mean that the Full Bench is making a scope order which is prohibited after the commencement of arbitration.
How does this impact your enterprise negotiations?
Enterprise Bargaining is a complex and highly strategic process. Before the commencement of enterprise negotiations, employers should undertake strategic preparation and research in order to understand the needs of the business, the employees who are proposed to be covered by the industrial instrument/s, items to be included on the logs of claims, and the financial impact of those claims on the employers’ budgets.
Any fundamental decisions made in relation to the logs of claims may later cause roadblocks for the remainder of the enterprise bargaining process. Long term strategic plans should be established and re-assessed during the enterprise bargaining process to ensure an outcome that is effective operationally and economically.
Contact our Employment and Workplace Relations team for any matters relating to enterprise bargaining and strategic planning.
The information in this publication is of a general nature and is not intended to address the circumstances of any specific entity or individual. Although MBA Lawyers endeavours to provide accurate and timely information, no guarantee is provided that the information is accurate at the date it published or that it will continue to be accurate in the future.