Caloundra Power Boat Club Inc. v Badke and Dolan [1999] ICQ 30 (1999) 161 QGIG 265

265 TheQu nsland Government I ustrial GazettePUBLISHED BY AUTHORITY pp 451207100086 Annual Subscription $297 ISSN 0155-9362 Vol. 161 FRIDAY, 30 JULY, 1999 No. 15 QUEENSLAND INDUSTRIAL COURT Workplace Relations Act 1997 - s. 360(2) appeal from decision of industrial commission Caloundra Power Boat Club Inc. AND Janet Badke and Jennifer Dolan C�o. C83 of 1998) JUSTICE MOYNIHAN, ACTING PRESIDENT 16 July 1999 JUDGMENT The appellant appeals against the Commis�ion' s dismissal (No. B89:'i of 1998: No. B896 of 1998) of its application to have dismissed the respondents' reinstatement applications which were founded on their unlawful dismissal for an invalid reason. The appellant's application for the dismissal was founded on a contention that the dispute had been resolved in a conference convened by the Commission (the conference). The Commission was differently constituted for the confe1ence and the appellant's application for dismissal which gives rise to this appeal. The respondents were represented at the conference by the Australian Liquor, Hospitality and Miscellaneous Worker.s Union, Queensland Branch, Union of Employees (the Union) of which they were members and the appellant, their employer, was represented by The Registered and Licensed Clubs Associat10n ot Queensland, 1Jmon of Employers. The respondents were present a1 the conference as were officers of the employer. The app01lant' s case is that the respondents claims were settled at the conference on the basis of the respondents being paid specific amounts, confidentiality of all proceedings, notification to the Union of any further changes to staffing by the appellant relating to its members and each of the respondents receiving a reference from the appellant. It was apparently contemplated that the terms of the settlement be reduced to writing. The respondents, however, have refused to sign proffered deeds and have indicated that they consider that the amount to be paid is inadequate. The evidence establishes that the appellant and the Commission were entitled to regard the Union as authorised to conclude an agreement on behalf of the employees. The Union 1s a registered crganisation whose rules may be accepted as entitling it to represent the industnal interests of persons in the position of the re�pondents as may the fact that it did so represent the resp:mdents in the conference. The Union apparently had the authority of the respondents to settle the matter on their behalf although at least one of them now suggests that she did not agree to accept the amount said by the appellant to have been agreed at the time of the conference and neither of the respondents is irepared to accept it now. An issue has also been raised before me as to whether the forms of authority completed by the respondents went so far as to authorise the Union to compromise the cl;iim. A seconct issue has al.so been raised as to whether the Union was in a position of apparent conflict between the interests of rhe respondents and the interests of its members employed by the appellant as a whole. I express no view as to the merits of those contentions. They raise issues between the respondents and the Union. The Union was not represented before me and it is inappropriate to deal with the two issues I have 3ust identified in these proceedings. In arriving at the decision the subject of appeal, the Commission's decision seems to have been tainted by contentions that writing was necessary before an agreement of the kind in issue could be considered binding. The relevant law remains as stated by the High Court in Masters v. Cameron (1954) 91 CLR 353 at 360:- "Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain an<l intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of on0 or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. 208842-25 -- 1 of 2 -- 266 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 July, 1999 In uch of the first 1wo case� there 1, a bindmg con1tact: m lhe fir� case a contract bmding lhe parucs al once to perfocm 1he agreed turns whether the contemplMed formal document comes mto existence or no t, and 10 jom (1f they have so agreed) ID sc tthng and execuung the formal document: and ,n the �econd case a con1tact b1ndmg lhe pasties to join in bringing lhe formal con1tact into existence and then 10 carry II into existence. Of lhe,e rwo CAses the first is the more common.... It follo,.s that m lhe firsi and second of the caiegories, a party may refuse to Mccept a proffered document only if 11 does nOI reflect the terms of the ai:reement which has been reached. A peiusal of the e,1dence ID th1.1 case 1n the lighl of the applicauon of the principle stated as laid down by Masttrs v. Cameron foundi a con clusion that the Comrruss1on's dectSJon is apparently flawed by a constderauon that "'TillDll was neces sary foe there to be a binding conlt.lCI and lhat an agreement was reached which was wilhin the first of the MaJters v . Cameron cate gories. It i s therefore nOI open 10 the respondents 10 contend, as ,ga1nst the appellant that they are not bound by the agreement reached and are free 10 pursue different terms lbe reinsta1ement apphcations should therefore be durrussed. The appellant should nave 1u costs on the Magistrate Court scale 11ppropria1e to the amounts m issue. Dated this sixteenth day of July, 1999. M.P. MOYNIHAN, ActJng President Released· 16 Jui) 1999 Apptara,1us :- '.\ir J. �iurdoch (instructed by Deacons Graham ,md James) for the Appellant. Mr P. O'Brien (of Pttu O'Brien and Assoctate.s} for the Respondents. ####/lffl#ffl######## ####-## ###11##################ffl###ffl##########ffl ###ffl # ###### ######lt##ffl########ffl### #ffl## ###ff### 30 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 267 -- 2 of 2 --