October 28, 2014 | Download as PDF

QTU application for referral of TAFE EB to arbitration rejected on legal grounds.

Yesterday evening (27 October), the QTU received the Queensland Industrial Relations Commission decision in relation to the application by the QTU to have TAFE enterprise bargaining negotiations for a new certified agreement referred to arbitration.

Unfortunately, the decision brought down by Deputy President Bloomfield was that due to changes to the Industrial Relations Act by the State Government, the Commission “no longer possesses the capacity to refer the claim to arbitration”.

The issues considered in this decision, as in the previous Industrial Court decision, were legal ones and do not relate in any way to the merits of either the TAFE Queensland or QTU enterprise bargaining positions. The approach of TAFE Queensland throughout this prolonged process has been to focus exclusively on technical legal issues to prevent the Commission from dealing with the substantive issues relating to TAFE teachers’ salaries and conditions. They have been assisted by a Government that has no compunction about “shifting the goal posts” and changing the rules.

The QTU is currently investigating what, if any, further actions can be taken with respect to this decision.

Background

In July 2013, DP Bloomfield had concluded that negotiations on the TAFE certified agreement had broken down and had rejected DETE’s proposal to put an alternative draft agreement covering all TAFE employees to a ballot. He referred the QTU claim for an agreement covering education employees only to arbitration.

The Government appealed this decision to the Industrial Court, which delivered a decision in May this year. The Court upheld the appeal and referred the matter back to the Commission.

In the period during which the Court’s decision was pending, the State Government significantly amended the Industrial Relations Act (in November 2013). One important change was a provision that no new certified agreements could be made until their underlying industrial awards were “modernised”.

The Decision

The QTU and DETE returned to the Commission in June and August this year. At the final conference, the QTU argued that the Commission should refer the negotiations to arbitration. The QTU argued that since it has commenced the process of seeking a referral to arbitration before the changes to the legislation, it had an “accrued right” to proceed with its application. TAFE Queensland engaged legal counsel to oppose the referral on the basis that the Industrial Court had rejected DP Bloomfield’s original decision “in total”, therefore the QTU application was a “new” application, which was prohibited by the changes to the Industrial Relations Act. DP Bloomfield accepted the legal argument put by the employer that the Commission “no longer possesses the capacity to refer the claim to arbitration”.

Commentary and Implications

While TAFE members should be outraged by the way their employer has conducted itself in this process, they need to remember that in the absence of a new Certified Agreement or “modernised” TAFE Award, the conditions as set out in the current agreement and award still apply and must be adhered to.

The decision will be studied carefully and the options available to the QTU explored.


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