Atkinson v Internal Health Group Pty Ltd t/a DJ'S Fitness Studio [2005] QIRC 31 (2005) 178 QGIG 272

[Extract from Queensland Government Industrial Gazette, dated 24 March, 2005, Vol. 178, No.12, pages 272-273] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages Colin Atkinson AND Internal Health Group Pty Ltd t/a DJ’S Fitness Studio (No. W146 of 2004) COMMISSIONER EDWARDS 9 March 2005 Application for Recovery of Unpaid Wages – Threshold Matter – Deed of Settlement – Recital D – Evidence – Statutory Entitlements – Threshold Matter Rejected – Hearing Listed. DECISION Application B69 of 2004 filed on 13 January 2004 sought relief under s. 74 of the Industrial Relations Act 1999. The conciliation process resulted in a Settlement Deed dated 24 May 2004. On 6 October 2004, application W146 of 2004 was filed with the respondent named as DJ’S Fitness Studio. On 27 January 2005 an amended application was filed with the respondent named as Internal Health Group Pty Ltd t/a DJ’s Fitness Studio. At the Commission hearing on 24 February 2005, Mr Dempsey, on behalf of the respondent, indicated that it was the view of his client that the Settlement Deed of 24 May 2004 bars application W146 of 2004 from proceeding. Mr Dempsey outlined that recital D of the Deed states: “The parties have agreed to resolve the dispute and all claims between them relating to the Employee’s employment with the Employer except either party reserves the right to pursue any other statutory entitlement.”. By this recital he submitted that the employer has settled all matters arising out of the employment as the savings clause “other statutory entitlements” relates to matters which would not form part of the employer/employee relationship. As a result of the terms of the Settlement Deed this application which relates to employment should not proceed and should be struck out. An affidavit was filed by Mr Royce on 28 January 2005. At the request of Mr Dempsey, Mr Royce made himself available for cross-examination. Mr Royce confirmed that at the conference resulting from application B69 of 2004 he represented the applicant and the respondent was represented by the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA). He advised that his client’s offer to settle on a global basis was rejected by the respondent and it was agreed that any settlement would be isolated to the dismissal application. He reaffirmed that the respondent only wished to address B69 of 2004 and no other issues were raised. The Settlement Deed was prepared by the QRTSA on that basis. The Commission accepts the evidence of Mr Royce. For the purposes of the Settlement Deed entitlements mean wages and other award conditions. The Commission does not accept the submissions of Mr Dempsey that the Settlement Deed was intended to settle all aspects of the employer/employee relationship. If such was the case the parties had the opportunity to use the words “in Full and Final Settlement of all and any claims arising out of the employment/dismissal. As already indicated application B69 of 2004 was not an application for statutory entitlements but an application under s. 74 of the Industrial Relations Act 1999. The submissions by Mr Dempsey on the threshold matter are rejected. Application W164 of 2004 is listed for hearing on Monday 14 and Tuesday 15 March 2005, at Sittings commencing at 10.00 am each day. K.L. EDWARDS, Commissioner. Hearing Details: 2005 24 and 25 February Released: 10 March 2005 Appearances: Mr S. Royce of Australian Industrial Reinstatement Services on behalf of the applicant. Mr R. Dempsey of Dempsey Consulting and with him Mr F. Angus on behalf of the respondent. Government Printer, Queensland The State of Queensland 2005. -- 1 of 1 --