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The Industrial Court of Queensland has ruled that an employee engaged under either a federal award or a federally certified agreement is still entitled to the benefit of Queensland's unfair dismissal laws.

Background

When Wayne Gant applied to the Queensland Industrial Relations Commission (QIRC) for reinstatement, the employer (Multi-Group) argued that the Queensland unfair termination laws could not extend to employees covered under the federal system.

Referral of questions to the Industrial Court

Two questions were referred to the Industrial Court for determination:

1. Does the QIRC have jurisdiction to hear and determine an application for reinstatement made by an employee covered by an award of the Australian Industrial Relations Commission (AIRC)?


2. Does the QIRC have jurisdiction to hear and determine an application for reinstatement made by an employee whose employment is regulated by a certified agreement approved by the AIRC?

Question 1

The court noted that the federal unfair dismissal provisions did not intend to 'cover the field' so as to exclude the operation of the Industrial Relations Act 1999 (Qld) (IRA). While the unfair dismissal provisions in the IRA and the Workplace Relations Act 1996 (Cth) (WRA) were similar, there was no 'direct collision' between them. Also, section 170HB of the WRA provided that matters commenced under the law of a state (such as Mr Gant's) expressly excluded the operation of the WRA unfair dismissal provisions.

As to the effect of the federal award, the court observed that it could not create any inconsistency with state laws, because matters relating to harsh, unjust or unreasonable termination of employment were not allowable award matters under s89A of the WRA.

Question 2

The court held that there were different considerations for certified agreements. The critical provision was s170LZ of the WRA, which provides that where a state law provides protection for an employee, it is not intended that this be affected by the provisions of a federal certified agreement – as long as the state law is able to operate concurrently with the certified agreement.

Through its certified agreement, Multi-Group had introduced a 'Fair Dealing Policy' that established certain appeal processes on dismissal of an employee. Multi-Group submitted that these could not operate concurrently with the unfair dismissal provisions of the IRA and therefore should prevail. However, the court considered that the appeal processes were not intended to be read in that way, so as to avoid the jurisdiction of a formal tribunal.

Conclusion

With the re-election of the Howard Government, the matter of state unfair dismissal jurisdiction will again be in the spotlight. As things stand, there is still scope for differences in approach between the states in dealing with the termination of federal award and agreement employees. Uniformity of approach might be pressed by the Commonwealth, using the corporations power, and this has been floated as a possibility in the past. Until then, federal award and agreement employees based in Queensland retain the right to choose their jurisdiction and take advantage of the system that best suits their circumstances.