21 May 2014

Industrial Court overturns referral of TAFE EB to arbitration

Justice Martin, sitting as President of the Industrial Court, has allowed an appeal by the Department of Education, Training and Employment against the decision of Deputy President Bloomfield of the Industrial Relations Commission to refer the TAFE Educational Employees Certified Agreement enterprise bargaining negotiations to arbitration (i.e. DP Bloomfield’s decision has been overturned).

DP Bloomfield had concluded that negotiations on the certified agreement had broken down and had rejected DETE’s proposal to put an alternative draft agreement covering all TAFE employees to a ballot.

This means that arbitration will not proceed at this stage and the matter has been remitted to the Commission.

Where to from here?

The QTU is analysing the ramifications of the decision and will consult with members through TAFE Council and Executive regarding appropriate courses of action. Whatever steps are taken by the Commission, the QTU or by the employer, it is unlikely that the issues will be able to be resolved before the transfer of TAFE employees to TAFE Queensland on 1 July this year.

The focus in the short term therefore must be on working to ensure that existing TAFE teacher salaries and conditions are preserved in the “transfer regulation” which moves employees over to the TAFE authority.

Summary of the reasons for the decision

Justice Martin concluded that “it was open to the Deputy President to refer the QTU matter to arbitration”. However, he found that the DP had failed to specifically identify that it was the QTU’s claim (and not the alternative whole of TAFE claim made by DETE) that he was referring to arbitration (though how any reasonable person reading DP Bloomfield’s decision could be in doubt about this is a bit mystifying). Further, “it was not open to the Deputy President  to prevent the holding of a ballot, nor was it open for him to conclude that a ballot would be void and of no effect …” In effect, Justice Martin found that DP Bloomfield had overstepped in not allowing a ballot to take place. In his view, the referral to arbitration did not preclude the employer from pursuing an alternative agreement.
As we have noted previously, the issues considered here were legal ones and did not relate in any way to the merits of either the DETE or QTU enterprise bargaining positions.

 Authorised by Graham Moloney, General Secretary, Queensland Teachers' Union