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CITATION: The Queensland Public Sector Union of Employees AND Department of Transport and Main Roads (C/2009/50) - Decision <http://www.qirc.qld.gov.au>

INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 282 - case stated to court The Queensland Public Sector Union of Employees AND Department of Transport and Main Roads (C/2009/50) PRESIDENT HALL DECISION [1] Section 282 of the Industrial Relations Act 1999 (the IR Act) authorises the Queensland Industrial Relations Commission (the Commission) to state a case for the Court's opinion on a question of law relevant to proceedings in the Commission. The Court is authorised to answer the question of law. The Commission is bound by the Court's Order in dealing further with the proceedings in the Commission. On 19 October 2009, the Commission stated a case to the Court on questions of law relevant to proceedings in the Commission in Matter No. D/2009/94. Although the case is stated by the Commission (as it must be), the Agreed Facts were settled by negotiation between the parties to Matter No. D/2009/94, viz., The Queensland Public Sector Union of Employees (the QPSU) and the Department of Transport and Main Roads. The parties were also responsible for drafting the questions. The Commission has adopted the Agreed Facts and the questions developed by the parties. The parties have appeared on the Case Stated and have put submissions as to how the questions should be answered. It is convenient to commence by reproducing the Agreed Facts and the Agreed Questions: "CASE STATED Facts 1. Pursuant to the Public Service Act 1996 ('the 1996 Act'), the Governor in Council had, by gazette notice, established as separate departments of government, the Department of Transport and the Department of Main Roads. Prior to 1 July 2008, the persons employed in the Department of Transport and the Department of Main Roads were public service employees employed under the 1996 Act. Under section 51 of the 1996 Act, the chief executives of the Department of Transport and the Department of Main Roads were responsible respectively for the employment of public service employees of those departments. From 1 July 2008, the persons employed in the Department of Transport and the Department of Main Roads were public service employees employed under the Public Service Act 2008 ('the 2008 Act'). From 1 July 2008, under section 11 of the 2008 Act, the chief executives of the Department of Transport and the Department of Main Roads were responsible respectively for the employment of public service employees of those departments. Under paragraphs 6 (1)(b) of the Industrial Relations Act 1999 ('the IR Act'), the chief executive of a department of government is the employer of employees employed in a department of government for the purposes of the IR Act. Under section 116A(1) of the 1996 Act public service employees were employees for purposes [sic.] the IR Act. Under section 9(2) of the 2008 Act, public service employees were employees for purposes of the IR Act. On 22 December 2006, the Queensland Industrial Relations Commission ('the QIRC'), certified the State Government Departments' Certified Agreement 2006 ('the Core Agreement'). The Core Agreement is a certified agreement within the meaning of section 141 of the IR Act. The nominal expiry date of the Core Agreement was 31 July 2009. By sub-clause 1.3(2) of the Core Agreement, all employees of the Department of Transport other than: (a) the Chief Executive, senior executives and senior officers; 10 December 2009

[2]

[3]

2. 3.

4. 5.

[sic.] 5.

6. 7. 8.

9.

2 employees appointed on a fixed term declared under section 69 of the Public Service Act 1996; employees engaged under contractual arrangements (other than employees employed under sections 112 and 113 of the Public Service Act 1996 engaged for a fixed term); and (d) banded officers were covered by the Core Agreement. 10. By sub-clause 1.3(1) and Appendix 1 of the Core Agreement, employees of the Department of Transport to whom the following agreements applied: (a) (b) (c) (d) the Maritime Safety Queensland, Marine Operations Certified Agreement 2004; the Maritime Safety Queensland Gladstone Pilot Transfer Crew Agreement 2003-2006; any agreements made pursuant to the Workplace Relations Act 1996; and any agreements that replaced the agreements mentioned paragraph 4(a) to (c) hereof (b) (c)

were not covered by the Core Agreement. 11. On 28 January 2009, the QIRC certified the Main Roads Enterprise Development Agreement 7 (2008) - Certified Agreement (the 'Main Roads Agreement'). The Main Roads Agreement is a certified agreement within the meaning of section 141 of the IR Act. The nominal expiry date of the Main Roads Agreement is 30 June 2011. By clause 1.3 of the Main Roads Agreement, all employees of the Department of Main Roads, other than members of the Senior Executive Service and senior officers were covered by the Main Roads Agreement. On 26 March 2009, as published in the Queensland Government Gazette No. 71, the Governor in Council made the Public Service Departmental Arrangements Notice (No. 2) 2009 (the 'Notice'). By part 16 of the Notice and under sections 14(2) and 15(a) of the 2008 Act, the Department of Transport was established as a government entity. By part 17 of the Notice and under sections 14(2) and 15(a) of the 2008 Act, the Department of Main Roads was established as a government entity. By part 41 of the Notice and under sections 15(a) and 15(e) of the 2008 Act, a department of government was established and named as the Department of Transport and Main Roads. By part 42 of the Notice and under sections 14(2) and 15(b) of the 2008 Act, the Department of Main Roads, as established as a government entity by part 17 of the Notice, was amalgamated with and declared to be part of the Department of Transport and Main Roads. By part 45 of the Notice and under sections 14(2) and 15(b) of the 2008 Act, the Department of Transport, as established as a government entity by part 16 of the Notice, was amalgamated with and declared to be part of the Department of Transport and Main Roads. By part 57 of the Notice and under section 15(f) of the 2008 Act, the Department of Transport was abolished. By part 58 of the Notice and under section 15(f) of the 2008 Act, the Department of Main Roads was abolished. As a consequence of the provisions of the Notice, on and from 26 March 2009: (a) (b) the persons employed in the Department of Transport and Main Roads are public service employees employed under the 2008 Act; the employees who were, for the purposes of the IR Act, previously employed in the Department of Transport by the Chief Executive of the Department of Transport, were employed, for the purposes of the IR Act, by the Chief Executive of the Department of Transport and Main Roads; and the employees who were for the purposes of the IR Act, previously employed in the Department of Main Roads by the Chief Executive of the Department of Main Roads, were employed, for the purposes of the IR Act, by the Chief Executive of the Department of Transport and Main Roads.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

(c)

3 22. There is no certified agreement within the meaning of the IR Act that expressly covers public service employees employed in the Department of Transport and Main Roads. The Department of Transport and Main Roads performs the sum of the functions of the former Department of Main Roads and the former Department of Transport. The creation of the Department of Transport and Main Roads has, since 26 March 2009, resulted in: (a) some public service employees, formerly employed in the Department of Main Roads, performing the same roles and engaging in the same functions in the Department of Transport and Main Roads as they did in the Department of Main Roads; some public service employees, formerly employed in the Department of Transport, performing the same roles and engaging in the same functions in the Department of Transport and Main Roads as they did in the Department of Transport; some public service employees, formerly employed in the Department of Main Roads, performing a role in the Department of Transport and Main Roads of a nature formerly performed in both the Department of Main Roads and the Department of Transport, where such employees predominately perform the role and predominately engage in the same functions as they did in the Department of Main Roads; some public service employees, formerly employed in the Department of Transport, performing a role in the Department of Transport and Main Roads of a nature formerly performed in both the Department of Transport and the Department of Main Roads, where such employees predominately perform the role and predominately engage in the same functions as they did in the Department of Transport; some public service employees, formerly employed in the Department of Transport or in the Department of Main Roads, performing a role in the Department of Transport and Main Roads of a nature as formerly performed in both the Department of Transport and the Department of Main Roads, where there is no predomination of Department of Main Roads or of Department of Transport functions; some public service employees who are performing a role and/or engaging in functions that did not exist or form part of either of the former Departments; some public service employees who were employees of either of the former Departments who have been appointed, transferred or promoted to one of the roles set out in paragraphs (a) to (f) herein; some public service employees who have been employed from outside of one of the former Departments to perform one of the roles set out in paragraphs (a) to (f) herein.

23.

24.

(b)

(c)

(d)

(e)

(f) (g)

(h)

25.

The purpose of the amalgamation of the Department of Transport and the Department of Main Roads is to increase efficiency through the amalgamation of services, activities and human resources. The Department of Transport and Main Roads has been working through a process of true integration of its Divisions, of its workforce, its activities and its statutory functions so as to deliver expected efficiencies. The amalgamation of the Department of Transport and the Department of Main Roads is real and substantial in nature. In respect of the 10,184 public service employees now employed in the Department of Transport and Main Roads and who fall within the various circumstances in paragraph 24 herein, there is a dispute between the State Government and the Queensland Public Sector Union of Employees as to whether the Core Agreement or the Main Roads Agreement or no certified agreement covers those employees.

26.

Questions 1. Does the Core Agreement or does the Main Roads Agreement or do neither of those certified agreements apply to the following public service employees: (a) A public service employee, formerly employed in the Department of Main Roads, performing the same role and engaging in the same functions in the Department of Transport and Main Roads as he or she did in the Department of Main Roads. Example: a public service employee who (i) was formerly employed in the Department of Main Roads in the position of Project Administration Officer (Costing), classification AO2, in the division of RoadTek Asset Services; and

4 (ii) from 26 March 2009 has been and is presently employed in the Department of Transport and Main Roads in the position of Project Administration Officer (Costing), classification AO2, in the division of RoadTek, performing the same role and engaging in the same functions as that public service employee did in the Department of Main Roads; (b) A public service employee, formerly employed in the Department of Transport, performing the same role and engaging in the same functions in the Department of Transport and Main Roads as he or she did in the Department of Transport. Example: A public service employee who: (i) was formerly employed in the Department of Transport in the position of Transport Inspector, classification AO4, in the Transport Services Division - Regional Compliance Unit; and (ii) from 26 March 2009 has been and is presently employed in the Department of Transport and Main roads in the position of Transport Inspector, classification AO4, in the Operations Division - Technical Services, performing the same role and engaging in the same functions as that public service employee did in the Department of Transport; (c) A public service employee, formerly employed in the Department of Main Roads, performing a role in the Department of Transport and Main Roads of a nature formerly performed in both the Department of Main Roads and in the Department of Transport, where such an employee predominately performs the role and predominately engages in the same functions as he or she did in the Department of Main Roads. Example: A public service employee who: (i) was formerly employed in the Department of Main Roads performing the role of Principal Advisor, (Program Development), classification AO7 in the Road Business Group, Program Development and Delivery Division, Program Development and Performance Branch; and (ii) from 26 March 2009 has been and is presently employed in the Department of Transport and Main Roads in the position of Principal Advisor, (Program Development), classification AO7, in the Program Development and Management Division - State Programs Branch, performing a role of a nature formerly undertaken in both the Department of Transport and the Department of Main Roads, where that public service employee predominately performs the role and predominately engages in the same functions that the employee did in the Department of Main Roads; (d) A public service employee, formerly employed in the Department of Transport, performing a role in the Department of Transport and Main Roads of a nature formerly performed in both the Department of Transport and the Department of Main Roads, where such an employee predominately performs the role and predominately engages in the same functions as he or she did in the Department of Transport. Example: A public service employee who: (i) was formerly employed in the Department of Transport performing the role of Project Support Officer, classification AO4 in the Road Network and Governance Branch, Rail, Ports and Freight Division; and (ii) from 26 March 2009 has been and is presently employed in the Department of Transport and Main Roads in the position of Project Support Officer, classification AO4, in the Policy Planning Division - Rail, Ports and Freight, performing a role of a nature formerly undertaken in both the Department of Transport and the Department of Main Roads, where that public service employee predominately performs the role and predominately engages in the same functions that the employee did in the Department of Transport; (e) A public service employee, formerly employed in the Department of Transport or in the Department of Main Roads, performing a role in the Department of Transport and Main Roads of a nature as formerly performed in both the Department of Transport and the Department of Main Roads, where there is no predomination of Department of Main Roads or of Department of Transport functions.

5 Example: A public service employee who: (i) was formerly employed in the Department of Transport performing the role of Legal Officer, Classification PO5 in the Corporate Services Division; and (ii) from 26 March 2009 has been and is presently employed in the Department of Transport and Main Roads in the position of Legal Officer classification PO5 in the Corporate Division - Business Services, performing a role formerly undertaken in both the Department of Transport and the Department of Main Roads, where that public service employee engages in about an equal amount of Department of Transport activities and former Department of Main Roads activities; (f) A public service employee who is performing a role and/or engaging in functions that did not exist or form part of either of the Department of Main Roads or of the Department of Transport. A public service employee who was an employee of either the Department of Main Roads or of the Department of Transport who has been appointed, transferred or promoted to one of the roles set out in sub-paragraphs (a) to (f) herein; A person who: (i) was not employed in either the Department of Transport or the Department of Main Roads as at 26 March 2009; and (ii) after 26 March 2009, was employed in the Department of Transport and Main Roads in one of the positions mentioned in sub paragraphs (a) to (f) herein.". [4] It is convenient to begin with s. 167 of the IR Act which provides: "167 Successor employers bound (1) This section applies if (a) an employer is bound by a certified agreement; and (b) at a later time a new employer becomes the successor (whether or not immediate) of the whole or a part of the business of the employer bound by the agreement. (2) From the later time (a) the new employer is bound by the certified agreement, to the extent it relates to the whole or part of the business; and (b) the previous employer stops being bound by the certified agreement, to the extent it relates to the whole or part of the business; and (c) a reference in this part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent the context relates to the whole or part of the business.". [5] [There is an inclusive definition of "successor" at Schedule 5 to the IR Act. "Successor" is defined to include "assignee and transmittee".] Section 167 is similar to ss. 149 and 170MB of the Workplace Relations Act 1996 (Cth) and directed to the same problem as those, viz., the effect of employer succession on an industrial instrument. It is legitimate to resort to the authorities dealing with those sections and their analogues, compare Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd1. Irrelevant provisions omitted and emphasis added, ss. 149 and 170MB provides: "149 Persons bound by awards (1) Subject to any order of the Commission, an award determining an industrial dispute is binding on: ...

(g)

(h)

[6]

1

Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v. Wilsons Parking Australia 1992 Pty Ltd (2002) 171 QGIG 323 at 325 to 326

6 (d) any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer.". "170MB 'Successor employers bound' (1) If: (a) an employer is bound by a certified agreement; and (b) the application for certification of the agreement stated that it was made under Division 3; and (c) at a later time, a new employer becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned;". [7] The decision of the High Court in PP Consultants Pty Ltd v Finance Sector Union of Australia2 (an earlier decision of the Full Court of the Federal Court to the same effect is North West Health Care Network v Health Services Union of Australia3), established that a government agency might be a "successor" to the "business" of another or an earlier government agency for the purposes of s. 149. Materially, Gleeson CJ, Gaudron, McHugh and Gummow JJ observed: "[12] As was pointed out in Australian Transport Officers Federation, the word 'business is notorious for taking its colour and its content from its surroundings ... [13] Whilst the notions of 'profit' and 'commercial enterprise' will ordinarily be significant in determining whether the activities of a private individual or corporation constitute a business, they play little, if any, role in identifying whether one government agency is engaged in the business of government previously undertaken by another government agency. In that situation, it is sufficient to ascertain whether or not the activities of the former are substantially identical to the activities or some part of the activities previously undertaken by the latter. That is because the word 'business' takes on a special or particular meaning in the expression 'the business of government'. It is not because, as a matter of ordinary language, 'business' means or includes activities undertaken in the course of business.". [8] The case referred to in the passage cited, viz., Re Australian Industrial Relations Commission; ex parte Australian Transport Officers' Federation4, concerned neither s. 149 nor s. 170MB. However, the point at issue was comparable. The case concerned a successor rule in the eligibility rule of a federally registered employee organisation. It was held that the rule extended to the case in which a government agency succeeded to the government functions of an earlier government agency in that there had been a "business" succession though no activity was carried on for profit. Whilst the authorities upon ss. 149 and 170MB of the Workplace Relations Act 1996 (Cth) established that one government agency may "succeed" to the "business" of another government agency, there will be cases in which a government agency will take over the functions of another government agency without there being a succession. In some cases there will be no succession because the Commonwealth or State will be the employer before and after the shift of functions from one agency to another because both agencies are "agents" and the Commonwealth or the State is (throughout) the principal. Hillman v The Commonwealth5 was such a case. Originally, through the Naval Board, the Minister for Navy and the Minister for Defence, but later through other agencies, the Commonwealth has always carried on the activities at the Cockatoo Island Dockyard. However, this is not such a case. The public service employees of each of the Department of Main Roads and the Department of Transport were employed under the Public Service Act 1996 (and from 1 July 2008 under the Public Service Act 2008). Under s. 51 of the Public Service Act 1996 the chief executive of the Department of Main Roads was responsible for the employment of the public service employees of the Department of Main Roads and the chief executive of the Department of Transport was responsible for the employment of the public service employees of the Department of Transport. However, s. 115(2) made plain that the chief executive of each of those Departments employed public service employees "as the authorised agent of the Crown". Similarly, s. 11(1) of the Public Service Act 2008 provides that the chief executive of a department is, "for the State" responsible for the employment of public service employees of that department. By s. 219(2) a person who employs another person under the

[9]

[10]

PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 North West Health Care Network v Health Services Union of Australia (1999) 92 FCR 477 4 Re Australian Industrial Relations Commission; ex parte Australian Transport Officers' Federation (1990) 170 CLR 216 5 Hillman v The Commonwealth (1924) 35 CLR 260

3

2

7 Public Service Act 2008 "employs the person as the authorised agent of the State". If one were concerned only with the Public Service Act 1996 and the Public Service Act 2008 the decision in Hillman v The Commonwealth, ibid, would preclude any argument that the Department of Transport and Main Roads had succeeded to the "business" of each of Department of Transport and Department of Main Roads. However, one has to consider also the provision of the IR Act. [11] By s. 116A of the Public Service Act 1996 (s. 9(2) of the Public Service Act 2008) the public service employees of the Department of Main Roads and Department of Transport were employees for the purposes of the IR Act. By s. 6(1)(b) of the IR Act, the chief executive of the Department of Main Roads was the employer of the Department of Main Roads public service employees and the chief executive of the Department of Transport was the employer of the Department of Transport public service employees. At the core of the legislative scheme is the artificial creation of the relationship of employer and employee between public service employees for the purposes of the IR Act. After 26 March 2009 and the Public Service Departmental Arrangements Notice (No. 2) 2009, the same artificial employment relationship was brought into existence between the chief executive of the Department of Transport and Main Roads and the public service employees of the Department of Transport and Main Roads. It would frustrate the legislative scheme to ignore the fiction and treat the State of Queensland as the employer for the purposes of s. 167 of the IR Act both before and after 26 March 2009. A principal attraction of the fiction is that if the Department of Transport and Main Roads has succeeded to the "business" of the Department of the Main Roads and the Department of Transport, settled conditions of employment will continue to apply until a new certified agreement may be made. By s. 14A of the Acts Interpretation Act 1954, an interpretation which will best achieve the purposes of an act is to be preferred to any other interpretation. Respect for the artificial creation of the relationship of employer and employee between a chief executive of a department and the employees within the department will promote collective bargaining with the public service. It is a chief object of the IR Act to promote collective bargaining, see s. 3(o) of that Act. Neither QPSU nor the Department of Transport and Main Roads, I should add, dispute that for the purposes of s. 167 of the IR Act the Department has succeeded to the business of the earlier Department of Transport and the earlier Department of Main Roads. Indeed, Senior Counsel for the Department of Transport and Main roads contends for a more expansive construction of s. 167 of the IR Act. Consistently with the decision of the High Court in PP Consultants Pty Ltd v Finance Sector Union of Australia6 it is contended by the Department of Transport and Main Roads that those of its activities which were previously activities of the Department of Transport continue to be regulated by the Core Agreement whereas those of its activities which were previously activities of the Department of Main Roads continue to be regulated by the Main Roads Agreement. So much appears from the Department's written answers to questions 1(g) and 1(h): "Question 1(g) 30. Does the Core Agreement or does the Main Roads Agreement or do neither of those certified agreements apply to a public service employee who was an employee of either the Department of Main roads or of the Department of Transport who has been appointed, transferred or promoted to one of the roles set out in sub-paragraphs (a) to (f) of the case stated;

[12]

Answer 31. The certified agreement that will apply to these persons will be the one which applied to the part of the activities of one of the former departments from which the major and substantial part of the work of the position in which they work is drawn. The fact that the employees are appointed after the creation of DOTMR is irrelevant as the certified agreements apply to the relevant part of the business, not to particular employees. Therefore, the answer to this question will be the same answer as for questions 1(a) to (f), applied to the work of the position of the promoted employees.

32.

33.

Question 1(h) 34. Does the Core Agreement or does the Main Roads Agreement or do neither of those certified agreements apply to a person who: (i) was not employed in either the Department of Transport or the Department of Main Roads as at 26 March 2009; and

6

PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) CLR 648

8 (ii) after 26 March 2009, was employed in the Department of Transport and Main roads in one of the positions mentioned in sub-paragraphs (a) to (f) of the case stated. Answer 35. The certified agreement that will apply to these persons will be the one which applied to the part of the activities of one of the former departments from which the major and substantial part of the work of the position in which they work is drawn. The fact that the employees are appointed after the creation of DOTMR is irrelevant as the certified agreements apply to the relevant part of the business, not to particular employees. Therefore, the answer to this question will be the same answer as for questions 1(a) to (f), applied to the work of the position of the new employees.".

36. 37. [13]

However, describing the word "business" as chameleonic in nature, Senior Counsel contends also that, where a public service employee of the Department of Transport and Main Roads was previously a public service employee of either the earlier Department of Transport or the earlier Department of Main Roads, the certified agreement which previously applied to his employment will continue to apply if his role is unchanged. A consequence of that approach is the written answer to question 1(e): "Question 1(e) 23. Does the Core Agreement or does the Main Roads Agreement or do neither of those certified agreements apply to a public service employee, formerly employed in the Department of Transport or in the Department Main Roads, performing a role in the Department of Transport and Main Roads of a nature as formerly performed in both the Department of Transport and the Department of Main Roads, where there is no predomination of the Department of Main Roads or of Department of Transport functions. Example: A public service employee who: (i) was formerly employed in the Department of Transport performing the role of Legal Officer, Classification PO 5 in the Corporate Services Division; and (ii) from 26 March 2009 has been and is presently employed in the Department of Transport and Main Roads in the position of Legal Officer, classification PO 5 in the Corporate Division - Business Services, performing a role formerly undertaken in both the Department of Transport and the Department of Main Roads, where that public service employee engages in about an equal amount of Transport activities and former Department of Main Roads activities. Answer 24. The certified agreement that will apply to these persons will be the one which applied to the part of the activities of one of the former departments from which the major and substantial (or principal) part of the work of the position is drawn. Here, the employees are carrying out the same role, the provision of legal services, as carried out in the former departments, for the new organisation as a whole. It follows that part of the activities of the former departments continue to be carried on, in an integrated manner. There are identifiable substantially identical activities to a part of the activities of the former departments that are now being carried on by DOTMR. By reference to the example, the activity is the provision of legal services. Accordingly, the employee whose work involves or relates to the activities of one of the former departments will continue to be bound by the respective former certified agreement that applied to that work in the applicable former department.".

25.

26.

27.

[14]

That argument seems to me to be a step too far. The scheme at s. 167 of the IR Act is for the certified agreement to follow the "business" (in the case of the business of government, the "activities") of the employer. The scheme at s. 167 does not provide for the certified agreement to follow an employee who follows his/her role into a new employment.

9 [15] It does not follow that comparison of an employee's present and past role may not be relevant. This case is not Re Australian Industrial Relations Commission and Ors; ex parte Australian Transport Officers Federation7. There is no suggestion that, in transmission to Department of Transport and Main Roads, the activities of the earlier Departments have merged into such a different setting that the activities have transmogrified. However, the similarities of certain of the activities of the two earlier Departments were such that some of the activities of Department of Transport and Main Roads will attract both the Core Agreement and the Main Roads Agreement. In determining whether an industrial instrument applies to an employee's engagement, this Court has traditionally enquired as to the principal purpose of the employee's engagement, compare Queensland Independent Education Union of Employees v Educang Ltd t/as Forest Lake College8 and the cases there cited. As a matter of principle one would think the same test to be apposite here. The observations of O'Mara J in The Federated Engine Drivers and Firemen's Association of Australasia v Maffra Co-operative Milk Products Co. Ltd.9, though not part of the ratio decidendi of the case and about awards (not certified agreements), seem to me to confirm that view. In the case of Question (1)(g) that principle should be applied. I have to acknowledge that in attempting to answer Question (1)(g) in a particular fact situation one may be forced to admit that the question cannot be answered. Hopefully, such situations will be (very) rare. The questions should be answered as follows: Question (1)(a): The Main Roads Agreement applies to the public service employee. Question (1)(b): The Core Agreement applies to the public service employee. Question (1)(c): The Main Roads Agreement applies to the public service employee. Question (1)(d): The Core Agreement applies to the public service employee. Question (1)(e): Neither the Core Agreement nor the Main Roads Agreement applies to the public service employee. Question (1)(f): Neither the Core Agreement nor the Main Roads Agreement applies to the public service employee. Question (1)(g): With reference to (a) to (f) above: (a) The Core Agreement applies if the employee was a former Department of Transport employee and was appointed, transferred or promoted to a position in the Department of Transport and Main Roads where the employee predominantly performs a Department of Transport role and function. The Main Roads Agreement applies if the employee was a former Department of Main Roads employee and was appointed, transferred or promoted to a position in the Department of Transport and Main Roads where the employee predominantly performs a Department of Main Roads role and function. The Core Agreement applies if the employee was a former Department of Main Roads employee and was appointed, transferred or promoted to a position in the Department of Transport and Main Roads where the employee predominantly performs a Department of Transport role and function. The Main Roads Agreement applies if the employee was a former Department of Transport employee and was appointed, transferred or promoted to a position in the Department of Transport and Main Roads where the employee predominantly performs a Department of Main Roads role and function. Neither the Core Agreement nor the Main Roads Agreement applies. Neither the Core Agreement nor the Main Roads Agreement applies.

[16]

(b)

(c)

(d)

(e) (f)

Re Australian Industrial Relations Commission and Ors; ex parte Australian Transport Officers Federation (1990) 171 CLR 216 at 230 to 231 8 Queensland Independent Education Union of Employees v Educang Ltd t/as Forest Lake College (2004) 177 QGIG 856 at 857 9 The Federated Engine Drivers and Firemen's Association of Australasia v Maffra Co-operative Milk Products Co. Ltd. (1940) 42 CA R 836 at 839

7

10 Question (1)(h)(i): The Core Agreement applies if the employee is employed in a position in the Department of Transport and Main Roads where the employee predominantly performs a Department of Transport role and function. The Main Roads Agreement applies if the employee is employed in a position in the Department of Transport and Main Roads where the employee predominantly performs a Department of Main Roads role and function.

Question 1(h)(ii):

Dated 10 December 2009. D.R. HALL, President. Appearances: Mr R. Kenzie QC and Mr J. Merrell, instructed by Hall Payne Lawyers for the Queensland Public Sector Union of Employees. Mr J. Murdoch SC and Mr C. Murdoch instructed by Crown Solicitor for the Department of Transport and Main Roads.

Released: 10 December 2009

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The Queensland Public Sector Union of Employees AND Department of Transport and Main Roads (C/2009/50)

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