Department of Natural Resources v Willis [1999] QIRC 310 (1999) 162 QGIG 393

392 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 December, 1999 1o December, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 393 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999-s. 33 l(b)-dismissing a cause Department of Natural Resources AND Gregory Lawrence Willis (No. B1445 of 1999) VICE PRESIDENT LINNANE 19 November 1999 Dispute as 1.0 whelher an agreement had been reached at compulsory conciliation conference - intention of the parties to be bound by terms agreed at conciliation -alteration to Deed of Seulement to reflecl agreement - cause not necessary or desirable in the public interest DECISION This application by the Department of Natural Resources (the "Department") seeks to have matter B974 of 1999 dismissed pursuant to s. 331 (b) of the industrial Relations Act 1999 on the ground that further proceedings by 1he Commission is not necessary or desirable in 1he public interest. Mauer B974 of 1999 is an application by Gregory Lawrence Willis seeking reinstatement to his former position of Facilitator (Property Management Planning) with the Department. Matter B974 of 1999 was the subject of a s. 75 Conference before the Commission on 12th August. 1999. The Department submits that at the conclusion of tha1 Conference Mr Willis agreed to accept the Department's offer to resolve the matter. The Department subsequently forwarded Mr Willis a document setting out the terms that had been agreed to on I 2th August, I 999 asking Mr Willis to execute the document and return it. Mr Willis did not eitecute the document and has since sought to have matter B974 of I 999 listed for hearing. ::0DMA\GRPW!SE\QJRC-DOM.IRO-PO! .GENERA LI :30078. I -- 1 of 2 -- 394 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 December, 1999 The Department rehed upon the evidence of Clifton lsted, an Acting Senior Consultant (Employee Relations) with Corporate Services Agency and Ro bert Gillespie a Principal Consult.ant with Corporate Services Agency. Both Mr lsted and Mr Gillespi e repre sented the Department at the Conference and both were present during the course of the Conference. Mr Willis in evidence st ated that he did not dispute any of the material contained in Mr Ist ed's sworn statement of material facts or the Affidavit of Mr Gillespie. Mr lsted's statement of material facts state s that at the Conference on 12th August, 1999 Mr Willis had unconditionally accepted the offe r made by the Department to settle the matter. The Department's offer included the following terms:- (i) that Mr Wilhs be paid the equivalent of two wee k's pay; (ii) that the m onies be paid to Mr Willis within a certain timeframe; (iii) that the terms of th e se ttlem ent were to be kept confidential be tween the parties; I (iv) that the Department would prepare a document reflecting the terms agreed to which Mr Willis wa s to sign and return to the Department prior to it focwarding the monies to him. \ Mr Gillespie' s evidence corrobo rated that of Mr lsted as to what occurred at the Conference on 12th August, 1999. In particula r Mr Gillespie states that I an unconditional agreemem was reached with Mr Willis on that date. It was the evidence of Mr lsted that following the Conference he then forwarded a Deed of Settlem ent to Mr lsted for his execution. Mr lsted's evidence wa� that the document reflected the terms agreed to by the parties at the Conference. Mr Wilhs has refused to sign the document. When questioned as to what parts of the Deed of Settlement he had not agreed to at the Conference on 12th August, 1999 Mr Willis could really only point to the penultimate paragraph in the draft document which read as follows:- "The Apphcant and Respondent agree, except as may be required by Jaw, not to disclose any of the discussions taking place between the parties prior to or pursuant to the Apphcation, including those at the Conference and f urthermore agree not to disclose the terms of this Deed to any person, such terms remaining confidential between the Applicant and the Respondent. In the event that this clause is breached by th e Applicant, the Respondent shall ha ve the right to damages or any equitqable reme dy that the court may deem meet.". Mr Willis states that whilst there was agreement that the terms of the settlement were to re main confidential there was nothing said about the discussions which took place between the parties prior to or since the Apphcation remaining confidential. Mr Willis agreed that if the words "any of the discussions taking place between the parties prior to or pursuant to the Apphcation" were deleted from the draft Deed of Settlement then the remaining terms would reflect the agreement that was reach ed at the Conference on 12th August, 1999. It would appear that prior to this hearing Mr Willis had not indicated to the Department that the wording in the document did not reflect the terms agreed to on 12th August, 1999 in this respect. Had he done so I suspect that the Department would have amended the terms of the document forwarded to Mr Willis. Th e issue before me i s whether Mr Willis is entitled to p roceed to a hearing of matter B974 of I 999. That depends upon whether the parties intended to be immediately bound by the terms agreed to at the Conference or whether it was the intention of the parties not LO make a concluded bargain on that day but to await the execution of a formal contract. The evidence before me indicates that at the Conference before the Commission on 12th August, I 999 the parties reached agreement. The agreement see ms to me t.o fall into the first of the categorie s re ferred to by the High Court in Masters v. Cameron (1954) 91 CLR 353 at 360 i . e. "one in which the parties have reached finality in arranging all lhe te rms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time pro pose 10 have the terms restated in a form which will be fuller or more precise but not different in effect.". It should also be noted that the Commissioner dealing with the matter B974 of 1999 at Conference has not issued a Certificate pursuant to s. 219(3) of the Industrial Relations Act /999. Should the Department proffer to Mr Willis an amended document eJtc!uding the words "any of the discussions taking place between the parties prior to or pursuant to the Application" in the penultimate paragraph then th e documelll would reflect the terms agreed to on 12th. August, 1999. If the Department were to now proffer such an amended document to Mr Willis then I find that it would not be neces sary or desirable in the public interest for mauer B974 of 1999 to proceed to any hearing. I would however require the Department to file in the Registry an Affidavit as to th e following:- (i) a!lesting 10 the facl that a document so amended had been delivered to Mr Willis: (ii) whether Mr Willis had signed the document and return ed it to the Department; (iii) if the amended document is signed whether the Department had complied with its obligations under the document. Upon receipt of an Affidavit attesting to the fact that a document amended in accordance with this decision has been delivere d to Mr Willis matter B974 of 1999 will be dismissed. D ..M. LINNANE, Vice President. Released: 19 November 1999 Appearances:- • Mr G. Willis appearing on his own behalf. • Mr C. lste<l of Corporate Services Agency appearing on behalf of the Department of Natural Resources. ########################################################################################################################### 1O December, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 395 -- 2 of 2 --