Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Queensland Urban Utilities [2014] QIRC 217

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Queensland Urban Utilities [2014] QIRC 217 PARTIES: Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (Applicant) v Queensland Urban Utilities (Respondent) CASE NOS: TD/2014/77; TD/2014/78 PROCEEDING: Applications for Extension of Time DELIVERED ON: 19 December 2014 HEARING DATE: 23 October 2014 MEMBER: Industrial Commissioner Fisher ORDERS: The applications are dismissed CATCHWORDS: INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - applications for extension of time - whether Commission should exercise its discretion - length of delay - explanation for the delay - whether prejudice caused to applicants if not granted - whether prejudice caused to respondent if granted - employees following directions and custom and practice - statutory time limit not respected - not satisfied applicant discharged the positive burden required to warrant Commission exercising its discretion in its favour - applications dismissed. CASES: Industrial Relations Act 1999, s 74(2), (3), (4) Industrial Relations Act 1990, s 295(2) Breust v QANTAS Airways Ltd (1995) 149 QGIG 777 Paterson v Medical Benefits Fund of Australia Ltd (1998) 159 QGIG 232 Jones v Dunkel [1959] HCA 8 Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543 Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353 -- 1 of 6 -- 2 Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers appointed) (1996) 151 QGIG 1010 Shane Rich v Chubb (2001) 167 QGIG 159 APPEARANCES: Mr T. O'Brien for the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland, the Applicant. Mr A. Stirling, Allens Lawyers for Queensland Urban Utilities, the Respondent. Decision [1] On 4 August 2014 the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEUQ) filed two applications for reinstatement on behalf of their members, both of whom had been employed by Queensland Urban Utilities (QUU). Both employees were dismissed on 8 July 2014. [2] Section 74(2)(a) of the Industrial Relations Act 1999 provides that an application for reinstatement is to be filed within 21 days after the dismissal takes effect. The applications were filed five days outside that time period. In the circumstances the CFMEUQ requests the Commission to exercise its discretion available under s 74(2)(b) of the Act to extend the time for filing to 4 August 2014. [3] The applications for extension of time are opposed by QUU. [4] By consent, the applications were heard together. Only one decision will be issued dealing with both matters. [5] In Breust v QANTAS Airways Ltd1 ('Breust') Chief Commissioner Hall identified the key factors the Commission might, in ordinary circumstances, take into account in determining whether to exercise its discretion to grant an extension of time: (i) the length of the delay; (ii) the explanation for the delay; (iii) the prejudice to the applicant if the extension of time is not granted; (iv) the prejudice to the respondent if the extension of time is granted; and (v) any relevant conduct of the respondent. [6] In the decision of Paterson v Medical Benefits Fund of Australia Limited,2 ('Paterson') Chief Commissioner Hall placed three caveats on the approach taken in Breust: "First, s. 295(2)(b) vests an unlimited statutory discretion. The discretion may never be surrendered to precedent or so called settled principles. It must always be exercised. Second, the time limit of 21 days which is imposed by s. 295(2)(a) is a time limit imposed not by rule of practice or a rule of court, but 1 Breust v QANTAS Airways Ltd (1995) 149 QGIG 777, 778. 2 Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232, 233. -- 2 of 6 -- 3 by the Legislature. It must be respected. Third, the applicant's prospects of success at the substantive hearing are always a relevant matter. Where it appears the applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time." (references omitted.) (Note: s 74(2) is in substantially similar terms to s 295(2) of the Industrial Relations Act 1990.) [7] Each of these matters will now be considered in turn. (i) Length of the delay [8] The delay was not lengthy. This much was conceded by QUU. However, as Hall CC said, the time limit is established by the Legislature and must be respected. (ii) Explanation for the delay [9] This is one of the key issues pressed by QUU. The debate centered on the submission by the CFMEUQ claiming representative error for the delay. Affidavits in support of the application for an extension of time were filed by Barry Higgins, Organiser and Travis O'Brien, Senior Industrial Officer of the CFMEUQ. Mr Higgins deposes to being present at the termination meeting of each of the members. He also deposes to advising the representative of QUU at each meeting, after the member had been dismissed, "We'll see you in the Commission." [10] After the meetings Mr Higgins asked each member whether they wished the CFMEUQ to file applications for reinstatement. They both gave their authority. Mr Higgins then consulted Mr O'Brien who asked for documentation to be collected. Mr Higgins obtained the documentation "within a couple of days." [11] Mr O'Brien deposes that he understood that the dismissals were effective on 15 July 2014. He made a note (not exhibited to his affidavit) that the applications were to be filed by 5 August 2014. The applications were signed by the Secretary of the CFMEUQ on 1 August 2014, and as noted above, were filed in the Registry on 4 August 2014. It was only when he received Form 12B filed by QUU raising the question of whether the applications were filed within the prescribed time that Mr O'Brien reviewed the file and found that the dismissals were effective on 8 July 2014. [12] Mr O'Brien does not seek to attribute delay to the members. He accepts responsibility for the late filing and claims representative error. By this argument, Mr O'Brien does not wish his members to be disadvantaged by his actions. QUU submits that this argument cannot be sustained as the CFMEUQ was the applicant. [13] Section 74(3) of the Act provides that an application for reinstatement can either be made by an employee or with the employee's consent, by an organisation whose rules entitle it to represent the employee's industrial interests. It is the second provision which is relevant. QUU argues that the CFMEUQ cannot be both the applicant and the representative and submits there is no legal authority to support the CFMEUQ's contention. -- 3 of 6 -- 4 [14] The system of conciliation and arbitration in Queensland has, since its inception, established a role for representative industrial organisations.3 The current Act continues to recognise this role. In this system, unions are able to represent certain classes of workers within their registered list of callings and rules and are considered to have that role as party principal. Unions can be a party principal in an application or dispute but act in a representative capacity. Section 74(3)(b) is the embodiment of this principle. (iii) Prejudice to the Applicant [15] QUU contends this factor is not relevant as the employees are not the applicants. There can be no prejudice to the CFMEUQ. Were the employees' circumstances to be considered, there is no direct evidence from either of them which could satisfy the Commission in relation to this factor. For example, there is no evidence they continue to seek a remedy or the remedy that is now sought. Against that, Mr O'Brien relies on Mr Higgins' affidavit which deposes to each member contacting him weekly to ascertain progress of their respective cases. (iv) Prejudice to the Respondent [16] The Respondent does not press this factor. (v) Any relevant conduct of the Respondent [17] QUU submits, and the CFMEUQ concedes, this is not a relevant matter in assessing the extension of time. Other considerations [18] As Hall CC said in Paterson, a relevant matter is always the dismissed employee's prospects of success at hearing. QUU relied heavily on this factor to further support its opposition to the applications for the extension of time. [19] In this case, the reasons for the dismissals were breaches of QUU's Code of Conduct which were deemed to be serious. The CFMEUQ contends that the employees were following directions and long standing custom and practice. Further, this was explained during the show cause process but disregarded by QUU. As a result, the CFMEUQ contends that as the members acted in an accepted way, it cannot be said that the applications are without merit. If these allegations are substantiated at hearing then it is submitted the applications are likely to succeed. [20] QUU submits that the CFMEUQ cannot give evidence on the merits; only the employees can do so. On the basis of their absence from the hearing, QUU invited the Commission to draw a Jones v Dunkel4 inference that their evidence would not have assisted the Commission. 3 See, for example, Report of the Committee of Inquiry into the Industrial Conciliation and Arbitration Act, 1961-1987 of Queensland, November 1988, 313. 4 Jones v Dunkel [1959] HCA 8. -- 4 of 6 -- 5 [21] QUU also notes the applications filed by the CFMEUQ admit the conduct but then seek to excuse it. QUU contends that the CFMEUQ has not satisfied the burden of proof to establish reasonable prospects of success. [22] In relation to the weight to be given to the prospects of success, QUU relied on the decision in Petruch v Davy Kinhill Fluor Daniel Joint Venture5 ('Petruch') where de Jersey P said: "…if it appeared that the proposed reinstatement application had no, or very limited, prospects of success, then that might legitimately influence a Commissioner, taken with other relevant considerations, in the determination whether or not to extend time. Such an applicant should in my opinion ordinarily provide at least prima facie evidence that his application has some merit." [23] In this matter the Commission does not have any evidence from the affected employees. All that is before the Commission is the statements made in the applications and submissions from the CFMEUQ that the employees were following directions given to them and custom and practice. Conclusion [24] The Commission accepts that the applications were filed a few days beyond the statutory 21 day time limit. However, Mr Higgins was present at the dismissal meetings and it can be reasonably inferred that he would have been aware of the termination date. Certainly, there is nothing in his affidavit to suggest otherwise. He also deposes to advising Mr O'Brien of what had occurred. While his affidavit is silent, it could again be reasonably inferred that Mr Higgins mentioned the termination date as Mr O'Brien was being asked to prepare the applications. [25] Mr O'Brien asked for documentation and neither his nor Mr Higgins' affidavit states what documentation was sought and provided. The termination letters clearly state the termination date. The note made by Mr O'Brien as to when the applications had to be filed was not attached to his affidavit. It is clear that Mr O'Brien was remiss in his responsibility of ascertaining the outer limit for filing the applications. [26] It is evident that the statutory time limit was not respected and the CFMEUQ relies on its errors to seek to persuade the Commission to exercise its discretion to extend time. The Commission has difficulty in excusing the errors made by the CFMEUQ which is an organisation registered under the Act with knowledge of its responsibilities. [27] QUU did not challenge the evidence of Mr Higgins in his affidavit that he said after each termination meeting that the matters would be taken to the Commission. However, it rejected that by his words Mr Higgins was putting QUU on notice in the sense accepted by the authorities. It may not have been a conventional or even desirable approach, but there is no evidence before me that QUU did not understand that the dismissals were to be challenged in the Commission. In any event QUU do not claim any prejudice were the extension of time to be granted. 5 Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543. -- 5 of 6 -- 6 [28] The submissions of the QUU are that representative error cannot be sustained. However, the criticisms of the CFMEUQ made by the Commission apply both as the party principal as well as their representative capacity. In relation to the latter role, its mistakes are visited on its members. [29] The decision of de Jersey P in Petruch establishes that where the prospects of success are limited that might be taken into account with other relevant considerations in determining whether an extension of time should be granted. Other decisions of the Commission show that the decision must be clear cut6 and the extension of time hearing is not a preview of the trial.7 Here, QUU asserts that by engaging in particular conduct the employees were in breach of the Code of Conduct. The applications appear to admit the conduct which the CFMEUQ then seeks to excuse by relying on directions given to them by unnamed persons and custom and practice. The employees directly affected did not give evidence which might establish a prima facie case that the applications have some merit. In the absence of that evidence I have some difficulty with the plausibility of the contention that either the directions given or custom and practice could excuse the conduct. While I accept the failure to call such evidence is a failure of the CFMEUQ, I am not satisfied that given the nature of the breach that a remedy is likely to result from a hearing of the applications. [30] In Shane Rich v Chubb,8 Hall P said: "The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period." [31] Despite the minimal delay, I am not satisfied that the CFMEUQ has discharged the positive burden required so as to warrant the Commission exercising its discretion in its favour. [32] The applications are dismissed. [33] Order accordingly. 6 Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353. 7 Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers appointed) (1996) 151 QGIG 1010. 8 Shane Rich v Chubb (2001) 167 QGIG 159,160. -- 6 of 6 --