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Queensland Industrial Relations Commission |
Last Updated: 17 July 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
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CITATION:
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Tucker v State of Queensland (Queensland Corrective Services, Department
of Justice and Attorney-General) [2015] QIRC 130
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PARTIES:
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David Tucker
(Applicant)
v
State of Queensland (Queensland Corrective Services, Department of
Justice and Attorney-General)
(Respondent)
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CASE NO:
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D/2015/32
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PROCEEDING:
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Notice of Industrial Dispute
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DELIVERED ON:
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14 July 2015
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HEARING DATES:
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6 July 2015
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MEMBER:
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Industrial Commissioner Neate
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ORDERS:
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David John Tucker was not entitled to move from Classification Level 1
to Classification Level 2 in accordance with clause 5.6 of
the Department of
Community Safety - Queensland Corrective Services Correctional Employees'
Award - State 2012 from 6 August 2013, the date on which he was awarded the
degrees of Bachelor of Laws and Bachelor of Psychological Sciences.
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CATCHWORDS:
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INDUSTRIAL RELATIONS - ACTION ON INDUSTRIAL DISPUTE - industrial award
provides for employees with specified qualifications to move
between Paypoints
and Classification Levels - whether applicant was entitled to move to next
Classification Level when awarded two
relevant university degrees - purposive
approach to interpretation of industrial award - application of a decision of
Industrial
Court about substantially the same provisions in previous award
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CASES:
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Department of Employment and Industrial Relations AND Peace Lutheran
Church Gatton Inc t/as Anuha Services (2008) 189 QGIG 779
Department of Employment, Training and Industrial Relations v Enright
Bros Pty Ltd [2001] QIRComm 59; (2001) 167 QGIG 4
Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182
Queensland Chamber of Commerce and Industry Limited, Industrial
Organisation of Employers AND Judy Modistach [2005] QIRComm 178; (2005) 180 QGIG 905
Queensland Public Sector Union of Employees AND Department of Corrective
Services [2002] QIC 39; (2002) 170 QGIG 422
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APPEARANCES:
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Mr D. Tucker, Applicant, in person
Mr L. Casey, representative for the Respondent
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Decision
[1] David John Tucker has worked at the Queensland Corrective Services Commission and then at its successor, Queensland Corrective Services ("QCS"), since 10 May 1999. He is employed as a custodial correction officer within the Corrections Stream. He is covered by the Department of Community Safety - Queensland Corrective Services Correctional Employees' Award - State 2012 ("the Award").
[2] On 6 August 2013, Griffith University conferred on Mr Tucker two degrees - a Bachelor of Laws and a Bachelor of Psychological Sciences. He provided a copy of these qualifications to the Department of Justice and Attorney-General ("the Department") in the expectation that the qualifications would allow him to move from his current Paypoint in Classification Level 1 to Classification Level 2. He was advised that he would not progress in that way.
[3] The industrial dispute is about whether Mr Tucker is entitled under the Award to move from Classification Level 1 to Classification Level 2 as a consequence of him obtaining the two university degrees since he became employed. The Department accepts that the degrees are "relevant Degrees" for the purpose of the Award, but disputes the existence of such an entitlement.
[4] Mr Tucker filed a Notice of Industrial Dispute with the Industrial Registrar on 26 November 2013 (Matter No D/2013/197). The subject matter of the dispute was described as "Movement between the Classification Levels, upon completion of relevant degree I requested to move from classification level 1 to classification level 2." That dispute was not resolved but has been overtaken or replaced by these subsequent proceedings.
[5] On 8 May 2015, Mr Tucker filed a Notice of Industrial Dispute with the Industrial Registrar (Matter No D/2015/32) in which the subject matter of the dispute was described as:
"Pay dispute involving the movement between classification levels, in December 2014 I was request (sic) to provide a written response to the Industrial Registrar. On 24 April 2015 I was advised to resubmit the dispute making reference to matter D/2013/197."
[6] The parties did not resolve the industrial dispute at a conciliation conference before a Deputy President of the Queensland Industrial Relations Commission ("the Commission") on 11 May 2015. The dispute was referred to the Commission for arbitration under s 230 of the Industrial Relations Act 1999 ("the Act").
[7] Following the conciliation conference, the parties prepared a Statement of Agreed Facts. In summary, the Statement of Agreed Facts sets out:
(a) the history of the relevant Award provisions that applied to employees of the Queensland Corrective Services Commission and its successor QCS; and
(b) the history of Mr Tucker's service since he commenced employment with Queensland Corrective Services Commission on 10 May 1999, including the dates on which he moved to different Paypoints in Classification Level 1 and the reasons why he moved to different Paypoints.
The issue and relief sought
[8] After the conciliation conference, Mr Tucker provided the Commission with two questions in relation to the industrial dispute. The questions and the background to them are as follows:
"The first question I would like to pose would deal with what I believe to be the major difference of opinion between the Department and myself in interpreting President Hall's decision. A question that I would then like to ask would be,
Are the Departments current progression arrangements in relation to the
acquisition of a degree after appointment consistent with the then
Presidents comments in regards to the acquisition of a relevant degree
after appointment?
The second question deals with an issue that I raised at the conciliation conference, that in my situation my qualifications do nothing for a move within classification 1 and are not needed for a move to classification 2, so I would ask:
Do the Departments current progression arrangements conflict/contravene the underlying purpose of the award provisions." (Emphasis and errors in original)
[9] The questions do not:
(a) specify the Department's "current progression arrangements;"
(b) identify the "then President's comments" (although it appears from the Statement of Agreed Facts that the expression refers to comments made by former President Hall in Queensland Public Sector Union of Employees AND Department of Corrective Services[1] in relation to the Queensland Corrective Services Commission Employees' Award - State); and
(c) identify the Award.
[10] At the hearing of this industrial dispute, the parties agreed that the issue to be resolved is whether Mr Tucker was entitled to move from Classification Level 1 to Classification Level 2 in accordance with clause 5.6 of the Award from the date on which he was awarded the degrees of Bachelor of Laws and a Bachelor of Psychological Sciences.
[11] The parties did not identify precisely the form of relief that the Commission should grant if Mr Tucker were to succeed, or the relevant section or sections of the Act under which the Commission should act. Mr Casey referred to s 230(4) of the Act which provides that the Commission may do one or more of the listed actions (most of which are not applicable to this dispute) or "make another order or exercise another power the commission considers appropriate" for the settlement of the dispute.
[12] On that basis the Commission heard submissions, and received evidence, from the parties in relation to Mr Tucker's two questions.
The relevant provisions of the Award
[13] The issue raised by this industrial dispute must be resolved by reference to clauses 5.5, 5.6 and 5.7 of the Award. The parts of those clauses relevant to the dispute provide as follows:
"5.5 Qualifications
5.5.1 Corrections stream - Except for Trades Instructors and Farm Officers whose qualification requirements are set out in clause 5.5.1(a), an Employee appointed to the Corrections Stream who has satisfied the requirements of the Diploma in Correctional Administration, shall be paid not less than Classification Level 1, Paypoint 3. An employee appointed to the Corrections Stream who satisfies the requirement for a Degree, shall be paid not less than Classification Level I, Paypoint 5. An Employee appointed to the Corrections Stream who satisfies the requirement for a Degree that requires in excess of 3 years to complete, shall be paid not less than Classification Level 1, Paypoint 6.
...
5.6 Movement between Classification Levels
5.6.1 Subject to clause 5.6.2, movement between Classification Levels will be based on appointment on merit to advertised vacancies.
5.6.2 Movement between Classification Levels in the corrections stream is prescribed as follows:
(a) Except for Trades Instructors and Farm Officers whose progression arrangements are set out in clause 5.7.5, movement from Classification Level 1 to Classification Level 2 of the Corrections Stream will be restricted to persons who possess a relevant Degree or equivalent qualification or experience as deemed appropriate by the Department of Community Safety.
...
5.7 Movement within Classification Levels
5.7.1 Incremental progression within Classification Levels will occur only when the conduct, diligence and general efficiency of such Employee has been certified by the Department to have been and to be satisfactory.
...
5.7.3 Except in the case of a promotion, or transfer and promotion from one Classification Level to another, an increase is not to be made to the salary of any Employee until:
(a) in the case of a full-time Employee the Employee has received a salary at a particular classification and Paypoint for a period of 12 months.
...
5.7.4 In addition to clause 5.7.3, an Employee in the Corrections Stream, other than an Employee appointed as a Trade Instructor or Farm Officer, will be restricted in movement beyond Paypoint 2 of Classification Level I until the Certificate III in Correctional Practice is obtained. Movement beyond Paypoint 4 of Classification Level 1 will be restricted to Employees who possess a Certificate IV in Correctional Practice. Movement beyond Paypoint 7 of Classification Level 1 will be restricted to Employees who possess a Diploma in Correctional Administration.
(a) Provided that in accordance with clause 5.5, graduates who are appointed to the Corrections Stream, other than Trade Instructors and Farm Officers, will automatically progress through the following Paypoints:
− Classification Level 1, Paypoint 5
− Classification Level 1, Paypoint 6
− Classification Level 1, Paypoint 8
− Classification Level 2, Paypoint 1
− Classification Level 2, Paypoint 2
− Classification Level 2, Paypoint 3
− Classification Level 2, Paypoint 4".
[14] There are no definitions of terms such as "degree," "relevant Degree" or "graduates" in the Award.
[15] Read literally, the clauses seem to provide in relation to employees in the Corrections Stream (other than Trade Instructors or Farm Officers) that, generally speaking:
(a) where a person is appointed without a degree, or the specified certificate or diploma, they:
(b) where a person who has satisfied the requirements of the Diploma in Correctional Administration is appointed they are paid not less than Classification Level 1 Paypoint 3 (clause 5.5.1)
(c) where a person who has a satisfied the requirements for a degree is appointed, they are paid:
(d) movement between Classification Level 1 and Classification Level 2:
[16] It seems to follow from that scheme that where a person:
(a) is appointed without a degree, or the specified certificate or diploma; and
(b) they subsequently obtain a "relevant Degree",
they cannot move beyond Paypoints specified in clause 5.7.4 until they have
obtained the specified certificate or diploma. That is
the circumstance that
has prompted the present industrial dispute.
Mr Tucker's progress to
successive Paypoints
[17] When Mr Tucker commenced work at the Queensland Corrective Services Commission in May 1999, he did not possess an Associate Diploma or any degree qualification that would have otherwise entitled him to be paid no less than Classification Level 1 Paypoint 3 or 5, respectively, on appointment. Consequently, he was appointed at Classification Level 1 Paypoint 1.
[18] On 10 May 2000, Mr Tucker's classification was progressed to Classification Level 1 Paypoint 2 after 12 months service. He remained on Paypoint 2 until 10 May 2001 when he was progressed to Paypoint 3 in recognition of his obtaining the Certificate III in Corrections. He then progressed to Paypoint 4 on 10 May 2002, having been at Paypoint 3 for 12 months.
[19] As at 10 May 2013, Mr Tucker's classification remained at Paypoint 4 as he had not obtained a Certificate IV in Correctional Practice to progress pursuant to clause 5.7 of the Award.
[20] Mr Tucker's classification did not change after he obtained the degrees of Bachelor of Laws and a Bachelor of Psychological Sciences in August 2013, although the Department accepts that each degree would be considered as a "relevant Degree" for the purpose of clause 5.6 of the Award. His classification remained at Paypoint 4 because he had not obtained a Certificate IV in Correctional Practice to progress pursuant to clause 5.7 of the Award.
[21] Mr Tucker submits that, as a consequence of him obtaining relevant Degrees since he became employed, he now has the right (without a Certificate IV in Correctional Practice and without a Diploma in Correctional Administration) to progress to Classification Level 2 in the same manner as a graduate appointed pursuant to clause 5.5 of the Award.
Interpreting the
Award
[22] In approaching the interpretation of the relevant clauses of the Award for the purpose of this industrial dispute, the parties referred to and relied on the decision of Hall P in Queensland Public Sector Union of Employees AND Department of Corrective Services.[2] That case involved the interpretation of comparable (although not always identical) clauses in an award that preceded the Award. In particular, Hall P considered clauses 3.7(2) (comparable to clause 5.5.1 of the Award), 3.8(1) and (3)(a) (comparable to clauses 5.6.1 and 5.6.2(a) of the Award) and clause 3.9(1) (comparable to clauses 5.7.3(a) and 5.7.4 of the Award).
[23] Included in his reasons for decision in that case are statements to the following effect (adapted by reference to comparable clauses in the Award) about how to interpret an award and notional clauses of it:
(a) the Award is to be read as a whole;[3]
(b) the relevant clauses present as clauses dealing with separate matters (i.e., clause 5.5 deals with the classification level to which the Paypoint at which a new recruit is to be appointed; clause 5.6 deals with the movement from one classification to another; and clause 5.7 deals with progression from one Paypoint to another within a Classification Level);[4]
(c) an award of the Commission is a statutory instrument within the meaning of the Statutory Instruments Act 1992, by s 14(1) of which certain provision of the Acts Interpretation Act 1954 (including s 35C) are applied to the award so that headings to sections of an award are to be treated as part of the award and may be taken into consideration in determining the meaning of provisions where a provision is ambiguous and in determining the scope of a provision;[5]
(d) the starting point in the construction of an award is the identification of the purpose of the award, including its policy objective, because an interpretation which will best achieve that purpose is to be preferred to any other interpretation;[6]
(e) the test of relevance of a degree for the purpose of clause 5.6 is
objective, and is not to be determined by the opinion of the
Department.[7]
[24] Hall P stated, by reference to the relevant clauses[8] as a whole, that "it is apparent that the person or persons responsible for the drafting, who apparently entertained a rather limited and narrow view of the nature and purpose of tertiary education, had a concern about the appointment and advancement of graduates holding degrees which were not 'relevant'."[9]
[25] In his analysis, Hall P suggested that a system under which graduate recruits move "automatically" through both Paypoints and classification is "containable" if those making the selection on behalf of the Department are able to withhold appointment from applicants of whom it might be thought desirable that they did not so progress.[10] In other words, the Department may simply decline to appoint graduates with degrees that are not "relevant Degrees."
[26] Hall P continued:
"At a policy level, the problem is with the employee who acquires a degree
after appointment. That problem may be, and I think is,
dealt with by denying
such a person advancement beyond the classification level to which the person
was appointed without a degree,
save where the person acquires a 'relevant
degree' or otherwise satisfies s. 3.8" (now clause
5.6).[11]
[27] Hall P concluded that full effect may be given to each of the relevant clauses on "the purposive approach to construction." He described the apparent proviso to s 3.9(1)(b) of the award which he was considering (now clause 5.7.4(a)) as "not a true proviso." As noted earlier, it deals with a matter of progression of graduate recruits through the Paypoints and through the Classification Levels. Full effect is given to the adverb "automatically." According to Hall P, treating the apparent proviso as an independent provision rather than a qualification of the clause explains why the apparent proviso commences "Provided that in accordance with" the nominated clause rather than "Provided that."[12]
[28] Relevantly to the present industrial dispute, Hall P wrote that neither the clause equivalent to clause 5.5 of the Award nor the apparent proviso:
"touch upon the situation of employees who satisfy the requirements of a
degree some time after commencement of employment with the
department.
Progression of such employees through the various paypoints, both before and
after the acquisition of a degree, is regulated
by [clause 5.7.3(a)]. Movement
of such persons from classification level 1 to classification level 2 is
regulated by [clause
5.6.2(a)].[13]
[29] Accordingly, Hall P concluded that (using current Award clause numbers):
(a) employees in the Corrections Stream who, on appointment, satisfy the requirements for a degree, have the right to automatically progress through the Paypoints as specified in clause 5.7.4(a); but
(b) employees in the Corrections Stream who, after they are appointed, satisfy the requirements for a degree do not have the right to automatically progress through the Paypoints as specified in clause 5.7.4(a); and
(c) employees in the Corrections Stream who satisfy the requirements for a degree may move (by progression) from Classification Level 1 to Classification Level 2 only by satisfying clause 5.6. Such employees progress through the Paypoints pursuant to clause 5.7.3.[14]
[30] Both parties refer to that decision of Hall P, and his reasons for it. The Department also points to s 349 of the Act and submits that, by operation of that section, the decision of the Industrial Court is final and conclusive. I proceed on the basis that I am bound by the decision in that case. As I understand his submissions, Mr Tucker does not suggest otherwise. Rather, he seeks to glean support for his interpretation of the relevant clauses of the Award from his reading of (or inference drawn from) the reasons given by Hall P.
Mr Tucker's submissions
[31] Question 1: Mr Tucker submits that the answer to his question 1:
"Are the Department's current progression arrangements in relation to the acquisition of a degree after appointment consistent with the then President's comments in regards to the acquisition of a relevant degree after appointment?
is No. As I understand it, there are three limbs to his submission in support of his conclusion.
[32] First, Mr Tucker submits that "relevant Degrees" are distinct from other degrees and should not be treated in the same way. He:
(a) acknowledges that Hall P ruled that employees in the Correctional Stream who after they are appointed satisfy the requirements for a degree do not have the right to progress automatically through the Paypoints as outlined in (current) clause 5.7.4(a); and
(b) suggests (correctly) that the Department is applying that reference to "a degree" to all degrees whether they are "relevant" or not.
[33] However, Mr Tucker submits that such a broad application is inconsistent with the views of Hall P about tertiary education and relevant degrees, and his statement that there was not sufficient explanation of the use of the words "degree", "relevant Degree" and "graduate" in the award. Mr Tucker submits that Hall P was conscious of the difference between a "degree" and a "relevant Degree", did not view those terms as interchangeable, was aware of the possible implications of the difference in the workplace, and was critical of the people responsible for drafting the award provisions in question (quoted above). In light of those comments by Hall P, Mr Tucker submits that the reference to "degree" was not to be applied so broadly.
[34] Mr Tucker specifically relies on the following statement of Hall P:
"At a policy level, the problem is with the employee who acquires a degree after appointment. That problem may be, and I think is, dealt with denying such person advancement beyond the classification level to which the person was appointed without a degree, save where the person acquires a "relevant degree" or otherwise satisfies s. 3.8." [now clause 5.6][15]
In particular, Mr Tucker interprets the statement to mean that someone in his position has two options in order to move from Classification 1 to Classification 2:
(a) acquire a "relevant degree;" or
(b) satisfy the requirements of clause 5.6.
[35] Mr Tucker also states that there is no mention of the need for such an employee to obtain additional qualifications and there is no mention of what is now clause 5.7 (which, it should be noted, deals with movement within Classification Levels). In his submission, had Hall P wanted an employee such as Mr Tucker to do either of those things, he would have stated that there.
[36] Second, Mr Tucker submits that the Department's interpretation leads to a conclusion that the exemption provision in clause 5.7.3 of the Award is void. His reasoning is that there is no mention of (the current) clause 5.7 because an individual in Mr Tucker's situation would satisfy the criteria set out in clause 5.7.3 for an exemption to the progression structure set out in clause 5.7. That exemption is expressed as follows:
"Except in the case of a promotion, or transfer and promotion from one Classification Level to another, an increase is not to be made to the salary of any Employee until:
(a) in the case of a full-time Employee the Employee has received a salary at a particular classification and Pay point for a period of 12 months."
[37] Mr Tucker submits that, in order to be promoted from Classification Level 1 to Classification Level 2 and have this exemption apply, an individual would need to satisfy one of the criteria set out in clause 5.6.2(a) including a "relevant Degree." Because, in light of the Department's interpretation of the Award, it appears that the exemption does not operate in the way contended for by Mr Tucker, he submits that there does not seem to be any circumstance whereby an employee covered by the Award[16] can qualify to use these exemptions. Accordingly, he submits, the clause would be made void. However he also submits that that interpretation cannot be correct because, as a general principle, an award should be interpreted so that as far as possible "no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent.[17]"
[38] Third, Mr Tucker submits that the Department's interpretation creates situations that are unfair, unjust and absurd, and hence exhibits a departure from any consistency with Hall P's expressed views in relation to tertiary education and relevant degrees. In support of that submission, Mr Tucker points to the following aspects of his own circumstances:
(a) Mr Tucker is working with other officers who obtained non-relevant degrees before their appointment and who are automatically progressing to Classification Level 2 Paypoint 4 (and skipping some Paypoints) in seven years, whereas he would have to take at least nine years from his present level to reach that Paypoint;
(b) unlike employees with non-relevant degrees who are not required to do any job specific or job-related study in order to progress, he would need to obtain two lesser qualifications[18] (i.e., a Certificate IV in Correctional Practice and a Diploma in Correctional Administration) in addition to the two relevant degrees that he has been awarded before he could start his nine year progression to Paypoint 2.4; and
(c) Mr Tucker regularly trains new recruits without any experience in the job who are being paid at a higher level than him because they have non-relevant degrees.
[39] In these circumstances, Mr Tucker states that his qualifications do nothing for him in relation to a move within his current classification and are therefore "worthless." Those qualifications are "unnecessary" for a move between Classification Levels as there are other means (e.g. experiential progression[19]) to enable him to so move. Despite the considerable cost (in time, effort and money) in relation to acquiring a degree, the Department's current progression arrangements render those qualifications "both worthless and unnecessary." Accordingly, he submits, those arrangements would discourage an employee from acquiring those qualifications and hence conflict with the underlying purpose of the provisions.
[40] Accordingly, Mr Tucker submits that the interpretation of "degree" adopted by the Department leads to an unfair, unjust or absurd situation, and that it follows that the Award should be read so as to minimise that possibility.[20]
[41] In support of his case, Mr Tucker also refers to the following statement of Hall P:
"Employees in the Corrections Stream who satisfy the requirements for a
degree may move (by progression) from Classification Level
1 to Classification 2
only by satisfying s. 3.8 [now clause 5.6]. Such employees progress through
paypoints pursuant to s. 3.9(1)(a) [now clause 5.7.3(a)]."
[42] Mr Tucker submits that Hall P arrived at that conclusion in order to:
(a) prevent a specific harm to the Department whereby an employee who acquires a non-relevant degree which has no benefit to the Department could progress automatically to Paypoint 1.9; and
(b) act as a safeguard in relation to current employees (Hall P having stated that the Department could exercise its discretion not to employ people with non-relevant degrees).
[43] By contrast, Mr Tucker submits, the Department would derive a benefit from employees obtaining "relevant Degrees" because those qualifications in relation to the field of study would have a direct application to the workplace.
[44] Mr Tucker notes that, in his case, he informed the Department of his study choices which were endorsed by the Department before and after he had commenced study in February 2007 (see Exhibit 4).
[45] Question 2: The second question posed by Mr Tucker is:
"Do the Department's current progression arrangements conflict/contravene the underlying purpose of the award provisions?"
His answer to that question is Yes.
[46] As noted earlier, Hall P stated that the starting point in the construction of an award is the identification of the purpose of the award, including its policy objective, because an interpretation which will best achieve that purpose is to be preferred to any other interpretation.[21]
[47] Mr Tucker submits that the "underlying purpose" of clauses 5.5, 5.6 and 5.7 when read as a whole is to encourage and reward skill acquisition and development. He notes that:
(a) s 8B(1) of the Act provides "An employer must, if it is appropriate to the employer's industry and the calling or callings of the employer's employees, structure the employees' wages in a way that encourages the development of the employees' skills;"
(b) the Public Service Act 2008 outlines employment principles that would apply to the Department and that s 25(2)(c) states "Public service employment is to be directed towards promoting ... a diverse and highly skilled workforce;"
(c) the Public Service Commission has policy statements that refer to values such as "Empower people" that include "Develop yourself and those around you;"[22]
(d) the Department has policy statements including reference to "clear targets to develop staff and team capability;"[23]
(e) the Department states that QCS encourages career development and offers training programs to that end (such as Certificate IV in Correctional Practice, Certificate IV in Training and Assessment, Diploma in Correctional Administration, Advanced Diploma in Correctional Management);[24] and
(f) the structure of the pay scale for QCS officers also places a premium upon the skills, knowledge and abilities developed when acquiring a degree (as demonstrated, in particular, by provisions in the Award that officers who have a degree when they are appointed are "fast tracked" to the top Paypoint).
[48] By reference to his circumstances, Mr Tucker submits that the Department's interpretation of the relevant clauses of the Award operates contrary to their underlying purpose and discourages skill acquisition and development.
Department's submissions
[49] The Department submits that the answer to Mr Tucker's Question 1 is Yes. In the Department's submission, the ordinary meaning of clauses 5.7.3(a) and 5.7.4 of the Award and the unequivocal determination by Hall P (in relation to substantially the same previous clauses) have the effect that:
(a) officers who obtain a "relevant" degree post-engagement are not entitled to the automatic or advanced progression all arrangements under clause 5.5 of the Award; and
(b) the progression all arrangements for such employees is through Paypoints pursuant to clause 5.7.4 of the Award.
[50] Consequently, Mr Tucker is restricted from moving from his current Paypoint 4 until he secures a Certificate IV in Correctional Practice.
[51] The Department submits that the answer to Mr Tucker's Question 2 is No. In making that submission the Department acknowledges that, whatever may have been the intention of the parties when the original provisions were inserted into the predecessor of the Award, by 2002 the parties were at "significant odds." Hence the matter was argued before the Commission and then the Industrial Court. In particular, the Department notes that Hall P criticised the construction contended for by the Department in that it did not explain why the predecessors of clause 5.5 refers to a "degree", clause 5.6 refers to a "relevant Degree," and clause 5.7 refers to "graduates."
[52] However, having adopted the purposive approach to construction of the relevant clauses of the predecessor to the Award, Hall P answered the questions in the ways set out above and for the reasons summarised above. The Department submits that the underlying purpose of the award provisions was resolved by Hall P in that decision.
[53] Furthermore, the Department submits that, in effect, both parties to the Award have accepted and acquiesced to the correctness of the decision of Hall P because, with the exception of minor amendments, the core elements of those provisions remain unchanged in the current Award some 13 years after that decision.
Consideration
[54] This dispute must be resolved by reference to clauses 5.5, 5.6 and 5.7 of the Award and the decision of Hall P in Queensland Public Sector Union of Employees AND Department of Corrective Services,[25] which decision is binding on the Commission.
[55] As noted earlier, Hall P concluded that (using current Award clause numbers):
(a) employees in the Corrections Stream who, on appointment, satisfy the requirements for a degree, have the right to automatically progress through the pay points as specified in clause 5.7.4(a); but
(b) employees in the Corrections Stream who, after they are appointed, satisfy the requirements for a degree do not have the right to automatically progress through the pay points as specified in clause 5.7.4(a); and
(c) employees in the Corrections Stream who satisfy the requirements for a degree may move (by progression) from Classification Level 1 to Classification 2 only by satisfying clause 5.6. Such employees progress through the Paypoints pursuant to clause 5.7.3.
Those answers provide, in essence, the basis for not accepting Mr Tucker's
submissions. However, it is appropriate to respond in
more detail to his
submissions.
[56] In relation to Mr Tucker's arguments in relation to the difference between "degrees" and "relevant Degrees," it is clear that Hall P understood that difference. However, it is not possible to extrapolate from his recognition of that distinction that the Department's practice is in error.
[57] As noted earlier, Mr Tucker specifically relies on the following statement of Hall P:
"At a policy level, the problem is with the employee who acquires a degree
after appointment. That problem may be, and I think is,
dealt with denying such
person advancement beyond the classification level to which the person was
appointed without a degree, save
where the person acquires a "relevant degree"
or otherwise satisfies s. 3.8." [now clause
5.6][26] (emphasis added)
Mr Tucker seems to rely on the use of "or" in the second sentence to interpret the statement to mean that someone in his position has two options in order to move from Classification Level 1 to Classification Level 2:
(a) acquire a "relevant degree;" or
(b) satisfy the requirements of clause 5.6.
[58] Whether or not Hall P's gloss on the effect of the relevant clause should have used "and" rather than "or", that summary does not replace the words used in the Award. Nor can Mr Tucker draw the result he desires from that statement because the answer that Hall P gave to Question 3[27] was that employees in the Corrections Stream who satisfy the requirements for a degree may move (by progression) from Classification Level 1 to Classification Level 2 only by satisfying clause 5.6. Such employees progress through the Paypoints pursuant to clause 5.7.3.[28] The Department is giving effect to that interpretation.
[59] I do not accept Mr Tucker's argument that the Department's interpretation results in the exemption part of a clause 5.7.3 being void and hence the interpretation cannot be sustained. That exemption operates in relation to categories of people other than Mr Tucker, and would apply to him if he satisfied clauses 5.6.1.
[60] Nor am I satisfied that the Department's interpretation leads to a result that is unfair, unjust and absurd or that it exhibits a departure from any consistency with Hall P's expressed views in relation to tertiary education and relevant degrees, or that it operates contrary to the underlying purpose of those clauses of the Award.
[61] The clauses as interpreted are not "absurd" in the sense usually meant when construing written instruments. There is not a linguistic absurdity such that the words used give rise to an error or defect that needs to be corrected, or to a patently unintended or absurd result. While Mr Tucker is clearly concerned about the policy underlying the language,[29] it is not the role of the Commission or a court to review that policy and then modify the language of the Award if it considers the result of the policy to be absurd.[30] As Madgwick J wrote in Kucks v CSR Ltd:[31]
"But the task remains one of interpreting a document produced by another or
others. A court is not free to give effect to some anteriorly
derived notion of
what would be fair or just, regardless of what has been written into the award.
Deciding what an existing award
means is a process quite different from
deciding, as an arbitral body does, what might fairly be put into an award. So,
for example,
ordinary or well-understood words are in general to be accorded
their ordinary or usual meaning."
[62] In a similar vein, although the outcome appears anomalous for Mr Tucker, it is not manifestly unfair or unjust such that the words of the clauses (and the interpretation of them by Hall P) can be ignored or construed in a way that was not intended by those who drafted them.
[63] It is clear from the evidence tendered by Mr Tucker and from the subject clauses of the Award that the Department encourages its officers to obtain qualifications relevant to their work in order to advance to higher Paypoints and move between Classification Levels. Indeed, as he acknowledges, the Department states that QCS encourages career development and offers training programs to that end (such as Certificate IV in Correctional Practice, Certificate IV in Training and Assessment, Diploma in Correctional Administration, and Advanced Diploma in Correctional Management).[32] Such training is presumably tailored precisely to the needs of the QCS. It is reasonable to infer from clause 5.7.4 that, so far as the QCS is concerned, that training is sufficient to meet its needs for employees in the Corrections Stream (other than an employee appointed as a Trade Instructor or Farm Officer). The fact that completion of that training can result in increased remuneration is presumably a recognition that employees so trained are better able to do their work and operates as an encouragement to employees to undertake that training.
[64] According to information provided to the Commission by Mr Casey on behalf of the Department, it is expected that an officer would complete the Certificate IV in Correctional Practice within 12 to 18 months, and the Diploma in Correctional Administration within 24 months of commencing the course.
[65] Although an officer who obtains a "relevant" degree might also be more capable of performing his or her duties, such qualifications are not required for advancement to higher Paypoints or Classification Levels. As clause 5.6 makes clear, movement from Classification Level 1 to Classification Level 2 of the Corrections Stream is:
(a) based on appointment on merit to advertised vacancies; and
(b) restricted to persons who possess one of the following:
[66] It cannot be said that the degrees obtained by Mr Tucker are "worthless." In addition to any intrinsic benefit that Mr Tucker gained from the courses of study, the qualifications provide a basis for movement between Classification Levels (in the absence of equivalent qualifications or appropriate experience) if he meets the requirements of clause 5.6.1 and clause 5.6.2(a).
[67] That said, I have some sympathy for the seemingly anomalous situation in which Mr Tucker finds himself. However, his particular circumstances cannot compel the interpretation of the relevant clauses of the Award that he seeks when:
(a) the terms of those clauses are sufficiently clear; and
(b) there is a decision of the Industrial Court expressly made by adopting a purposive approach to the interpretation of almost identical clauses in a previous award,
and their combined effect is contrary to
his interpretation.
[68] The history of clauses 5.5, 5.6 and 5.7 of the Award set out in the Statement of Agreed Facts and the Department's submission demonstrates that the parts of clauses relevant to this case are in identical or substantially the same terms as their counterparts in the previous awards from 1996 onwards. The Department and its predecessors have relied on, and applied, the decision of Hall P since it was delivered in 2002. The fact that the terms of successive awards have remained substantively unchanged since that decision suggests that both the outcome in that case and the policy reflected in it have been accepted, or at least that it has not caused sufficient inconvenience or concern to prompt some variation of the Award.
[69] There is no evidence in this case about whether circumstances similar to Mr Tucker's have arisen previously or subsequently, or whether other employees with relevant degrees obtained after their appointment have agitated for the Award to be varied so that they, and now Mr Tucker, could progress more quickly through Paypoints and between Classification Levels.
[70] The policy argument advanced by Mr Tucker, together with the result in this case, might inform future consideration by the parties to the Award about whether the apparent anomaly highlighted here should be rectified by some variation of the Award or in enterprise bargaining.
Conclusion and orders
[71] Having regard to clauses 5.5, 5.6 and 5.7 of the Award and the decision of Hall P in Queensland Public Sector Union of Employees AND Department of Corrective Services,[33] and for the reasons set out above, I am satisfied that Mr Tucker was not entitled to move from Classification Level 1 to Classification Level 2 in accordance with clause 5.6 of the Award from the date on which he was awarded the degrees of Bachelor of Laws and Bachelor of Psychological Sciences.
[72] Order accordingly.
[1] [2002] QIC 39; (2002) 170 QGIG
422.
[2] [2002] QIC 39; (2002) 170 QGIG
422.
[3] Queensland Public
Sector Union of Employees AND Department of Corrective Services [2002] QIC 39; (2002) 170
QGIG 422, 423.
[4] Queensland
Public Sector Union of Employees AND Department of Corrective Services
[2002] QIC 39; (2002) 170 QGIG 422, 423.
[5]
Queensland Public Sector Union of Employees AND Department of Corrective
Services [2002] QIC 39; (2002) 170 QGIG 422,
423.
[6] Queensland Public
Sector Union of Employees AND Department of Corrective Services [2002] QIC 39; (2002) 170
QGIG 422, 424.
[7] Queensland
Public Sector Union of Employees AND Department of Corrective Services
[2002] QIC 39; (2002) 170 QGIG 422, 424.
[8]
Equivalent to clauses 5.5, 5.6 and 5.7 of the
Award.
[9] Queensland Public
Sector Union of Employees AND Department of Corrective Services [2002] QIC 39; (2002) 170
QGIG 422, 424.
[10] Queensland
Public Sector Union of Employees AND Department of Corrective Services
[2002] QIC 39; (2002) 170 QGIG 422, 424.
[11]
Queensland Public Sector Union of Employees AND Department of Corrective
Services [2002] QIC 39; (2002) 170 QGIG 422,
424.
[12] Queensland Public
Sector Union of Employees AND Department of Corrective Services [2002] QIC 39; (2002) 170
QGIG 422, 424.
[13] Queensland
Public Sector Union of Employees AND Department of Corrective Services
[2002] QIC 39; (2002) 170 QGIG 422, 424.
[14]
Queensland Public Sector Union of Employees AND Department of Corrective
Services [2002] QIC 39; (2002) 170 QGIG 422, 424.
[15] Queensland Public Sector
Union of Employees AND Department of Corrective Services [2002] QIC 39; (2002) 170 QGIG
422, 424.
[16] He asserts that he
has been advised that the exemption would not apply to a Supervisor as they are
dealt with in another industrial
instrument.
[17] See
Department of Employment, Training and Industrial Relations v Enright Bros
Pty Ltd [2001] QIRComm 59; (2001) 167 QGIG 4, 5 (Asbury C) and cases
cited.
[18] Australian
Qualifications Framework Council, Australian Qualifications Framework
(Australian Qualifications and Framework Council, 2nd ed, 2013) 35-49
(Exhibit 6).
[19] See Queensland
Corrective Services, Guidelines for Experiential Progression from CO1 to
CO2 (Queensland Government, 2005) (Exhibit
7).
[20] Citing Queensland
Chamber of Commerce and Industry Limited, Industrial Organisation of Employers
AND Judy Modistach [2005] QIRComm 178; (2005) 180 QGIG 905; Department of Employment and
Industrial Relations AND Peace Lutheran Church Gatton Inc t/as Anuha
Services (2008) 189 QGIG
779.
[21] Queensland Public
Sector Union of Employees AND Department of Corrective Services [2002] QIC 39; (2002) 170
QGIG 422, 424.
[22] Queensland
Government, About the public sector (27 April 2015) Public Service
Commission
<http://www.psc.qld.gov.au/about-us/about-the-public-sector.aspx>
.
[23]
Department of Justice and Attorney-General (Queensland), Annual Report
2013-14 (Queensland Government, 2014)
56.
[24] Queensland Government,
Benefits of working for QCS (23 September 2013) Queensland Corrective
Services
<http://www.correctiveservices.qld.gov.au/Employment/Custodial_Operations/cco_benefits.shtml>
.
[25]
[2002] QIC 39; (2002) 170 QGIG 422.
[26]
Queensland Public Sector Union of Employees AND Department of Corrective
Services [2002] QIC 39; (2002) 170 QGIG 422,
424.
[27] Adjusted to refer to
the numbers of comparable clauses in the
Award.
[28] This part of the
answer is a complete response to Mr Tucker's submission that there is no mention
of clause 5.7.
[29] A point
expressly acknowledged by Hall P when he referred to the problem "at a policy
level" being with the employee who acquires
a degree after
appointment.
[30] See DC Pearce
and RS Geddes, Statutory Interpretation in Australia (LexisNexis
Butterworths, 7th ed, 2011) [2.4], [2.28]-[2.30] and cases
cited.
[31] [1996] IRCA 166; (1996) 66 IR 182,
184.
[32] Queensland Government,
Benefits of working for QCS (23 September 2013) Queensland Corrective
Services
<http://www.correctiveservices.qld.gov.au/Employment/Custodial_Operations/cco_benefits.shtml>
.
[33]
[2002] QIC 39; (2002) 170 QGIG 422.
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