Important decision on Queensland public sector enterprise bargaining

The Queensland Industrial Relations Commission (QIRC) has decided that all union parties to an enterprise bargaining process must agree to put a proposed certified agreement to ballot before a ballot can occur.

In The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers’ Union v Brisbane City Council (No. 2) [2018] QIRC 15, the QIRC had to interpret section 171 of the Industrial Relations Act 2016 (Qld). That section details the steps that an employer must take to ballot employees on a proposed certified agreement. Relevantly, the section states that it applies if ‘during negotiations … the negotiating parties propose to (a) make a certified agreement’ (emphasis added).

In late 2017, Brisbane City Council (Council) sought to put out to ballot a new certified agreement. A number of unions opposed the ballot taking place. Those unions sought orders from the QIRC restraining Council proceeding with the ballot of its workforce on the basis that not all of the negotiating parties proposed to make the new certified agreement.

The unions argued that s 171 required all negotiating unions to agree to put an agreement to a ballot of employees before an employer could ballot its workforce. Council argued that, as the unions had ceased negotiating some time before the balloting process commenced, they were no longer negotiating parties and therefore did not need to agree to the ballot taking place.

The QIRC agreed with the unions.

This decision means that any union which receives a notice of intention to bargain (or is involved in negotiating) can prevent a ballot of that workforce. This is the case regardless of whether 9 out of 10 negotiating unions, representing 90% of the workforce, want to proceed with the ballot – the remaining union which represents the 10% can prevent a ballot taking place.

The decision also means that, once a union receives a notice of intention to bargain (or is involved in negotiating), the union can never cease being a negotiating party (even though the union may have refused to negotiate) and therefore they must agree to the workforce being balloted before a ballot can take place.

This decision has the potential to increase the complexity of public sector bargaining if that bargaining involves more than one union. Public sector employers will need to consider bargaining strategies carefully in light of the decision.

The McCullough Robertson Employment Relations and Safety team regularly advises public sector employers on bargaining strategy and process. If this decision potentially impacts on your next bargaining round, you should contact a member of the team.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.