Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Australasian Correctional Management Pty Ltd [2003] QIRC 232 (2004) 175 QGIG 19

9 January, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s .75 – Conciliation before application heard Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Australasian Correctional Management Pty Ltd (No. B768 of 2002) DEPUTY PRESIDENT SWAN 11 December 2003 DECISION This matter relates to the Commission determining whether an application made to the Commission for a reinstatement hearing pursuant to s. 74 of the Industrial Relations Act 1999 (the Act) and of which a s. 75 certificate has been issued, has lapsed according to s. 75(4)(a) of the Act. Section 75 of the Act states: “75 Conciliation before application heard (1) The commission must hold a conference to attempt to settle an application under section 74 by conciliation before it hears the application. (2) The commission may, by written notice, require the applicant, employee or employer to attend the conference at a stated time and place. (3) If the commission is satisfied all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as it relates to at least 1 ground of the application or because the applicant is a person to whom section 73(1) does not apply, it – (a) must issue a written certificate stating that the commission – (i) is so satisfied for a stated ground; or (ii) considers the applicant is a person to whom section 73(1) does not apply; and (b) inform the parties to the conciliation of – (i) the commission's assessment of the merits of the application in relation to the stated ground or in relation to how the applicant is a person to whom section 73(1) does not apply; (ii) the possible consequences of further proceeding on the application; and (c) may recommend the application be discontinued, whether or not it also recommends another way of resolving the matter. (4) The application lapses if the applicant has not, within 6 months after the applicant has been informed by the commission under subsection (3) – (a) taken any action in relation to the application; or (b) discontinued the application. (5) The parties may seek further conciliation, or settle the matter, at any time before an order is made under section 78, 79 or 80. (6) The vice president may delegate the functions of the commission under this section to the registrar or a deputy registrar.”. In this matter, which has been called on by the Commission, the Australian Liquor, Hospitality and Miscellaneous Workers Union Queensland Branch, Union of Employees (the Union) (representing its member Mr D. Ryan) has submitted that the application should not be deemed to have lapsed and Australasian Correctional Management Pty Ltd (the employer) believes that the matter has lapsed. The history of the matter is as follows: • On 15 May 2002, the Union made an application for the reinstatement of Mr D. Ryan to his former employment with the employer. • On 30 May 2002 and 2 October 2002, conferences were held before the Commission. • On 2 October 2002, the Commissioner conducting the conference determined that the Commission was satisfied that all reasonable attempts to settle the matter by conciliation had been, or would be likely to be, unsuccessful and therefore issued a s.75 certificate on that day. This certificate was received by the Union on 3 October 2003. • On 12 March 2003, the Union wrote to the Registry acknowledging that a certificate had been issued on 2 October 2003, but advised that it did not want the matter to lapse. -- 1 of 3 -- 20 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 January, 2004 The content of that communication was as follows: “Re No B768/2002 I refer to the above matter which was subject to a certificate issued under s. 75(3)(a) of the Act on 2 of October 2002. I advise that the applicant does not wish this matter to lapse.”. • On 19 March 2003, the Union wrote to the Registry in the following terms: “Re: D Ryan - No B768/2002 I advise that the applicant’s representative and the respondent are currently attempting to settle this matter. If the parties are unsuccessful in settling the matter, I advise that we will request the matter to be listed for directions at the next available call- over.”. • On 28 April 2003, the Union wrote to the Commissioner who had conducted the conferences stating: “Re: B768/02 ALHMWU v Australasian Correctional Management Settlement discussions between the parties have recommenced regarding the above matter, despite a certificate having been issued on the basis that, at that time, conciliation was unlikely to be successful. The Union seeks the further assistance of the Commission to finally settle the matter. To this end we request a further compulsory conference be held.”. • By 28 April 2003, the six months as referred to in s. 75(4) of the Act had expired. • While a further conciliation conference was scheduled for 28 May 2003, this was subsequently cancelled on 26 May 2003. The cancellation was requested by the Union as the parties were continuing their negotiations. • On 29 September 2003, the Union wrote to the Registrar as follows: “Re: ALHMWU (OBO Mr D Ryan v Australasian Correctional Management B768/02 We wish to advise that the Union no longer acts for Mr Ryan in the above matter. Mr Ryan says however, that he wishes to pursue the matter by himself or with alternative representation. We seek that the application be amended to substitute the name of Dennis Ryan for the Union’s name as the applicant.”. • On 30 September 2003, Mr Ryan approached the Registry requesting that the matter go on the call-over list. Mr Ryan was advised that the matter had lapsed and that it was the Union which was in fact the applicant. The Union’s Claim on Behalf of Mr Ryan For its part, the Union says that its case centres upon two primary points: (1) that pursuant to s. 75(4)(a) of the Act, the Union has taken “action” in relation to the application; and (2) the Union had not been sent a sealed certificate notwithstanding the fact that a sealed certificate was incorporated within the Registry file relating to this matter. The Union stated that the matter had not lapsed in the eyes of the Commission, as the Commissioner had scheduled conferences beyond the expiry of the six months since the issue of the Certificate. Further, the Union believed that the employer was aware that during this whole period in question there were continued discussions between the parties with a view to settlement. The Union had been awaiting responses from the employer for some time and, in the belief that the time taken by the employer was excessive, had sought another conference before the Commissioner on 28 May 2003. A Deed of Settlement had been signed and forwarded by the employer to the Union on 23 May 2003. This was then forwarded to Mr Ryan but on 3 June 2003 Mr Ryan indicated that he would not sign the Deed. A further Deed was drafted by the employer on 3 September 2003, but no agreement was reached. In all, the Union submits that considerable “action” had occurred around the resolution of this matter and those instances should be accepted by the Commission as grounds for seeing s. 75(4)(a) satisfied. Cases relied upon by the Union to support its position were: • Suzanne Rimland AND Queensland Health (No. C47 of 2002) (Rimland’s Case), a decision by President Hall of the Queensland Industrial Court • Daniel Raymond Guymen AND ANA Hotel (No. B1192 of 1999) a decision of the Queensland Industrial Relations Commission. • Vibe Allerup AND Heka Pty Ltd t/a Brisbane Dental Group (No. C9 of 1999) (Vibe Allerup’s case), a decision by Williams J of the Queensland Industrial Court. -- 2 of 3 -- 9 January, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 The Employer’s Submissions in Response For its part, the employer had elicited from the Union’s submissions two primary issues for consideration. The first related to whether the Union had taken “action” sufficient to satisfy s. 74(4)(a) of the Act and the second relates to the question of the sealed certificate. In relation to the first proposition, the employer stated that the six month time frame operated from the date when the s. 75 certificate was actually communicated to the Union. In this case, that would be 3 October 2002. Reliance was placed on the decision of Vibe Allerup. In that case, it was clear that a formal step made towards progressing the application towards the final determination of the matter was necessary. That type of progression was not evident in this matter with the mere communication to the Commission that the matter not lapse. Once a time period has lapsed, that is the end of the matter unless “action” is taken sufficient to satisfy that section of the Act. With regard to the second limb of the Union’s submission, the records show that the copy of the Certificate on the Registry file which had been issued to the applicant had been sealed. Reference was made to the comments made by Hall P in Rimland’s case as being obiter on the question of the sealing of Commission section 75 certificates. Consideration of Submissions I have found the submissions made on behalf of the employer to be the more substantive in this matter. On the two discrete points in question, I would state as follows: There was no “action” taken by the applicant (see s. 74(4)(a) of the Act) sufficient to satisfy the Commission that the time period had not lapsed. The correspondence sent to the Commission does no more than ask for the matter not to lapse and to suggest what might happen if the matter is not resolved. On the second issue, I agree that the comments made by Hall P were obiter in Rimland’s case on the question of s. 75 certificates being sealed. The fact that the Commission now undertakes that process was not as a consequence of any finding of law by the Queensland Industrial Court. In any event, the Registry copy was sealed and there is no question whatsoever that the Union was fully aware and accepted that the Certificate had been issued on the particular date in question (this is referenced in correspondence from the Union to the Registrar on 12 March 2003). I have found that the application for reinstatement has lapsed pursuant to s. 74(4)(a) of the Act. I dismiss the application. Order Accordingly. D.A. Swan, Deputy President. Appearances: Hearing Details: 2003 6 November Mr J. Spreckley, with him Mr K. Crank of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees on behalf of the Applicant. Mr S. Bennett of Blake Dawson Waldron, with him Mr G. Rothwell of Australasian Correctional Management Pty Ltd. -- 3 of 3 --