B v Department of Family Services and Aboriginal and Islander Affairs [1995] QIRC 25 (1995) 148 QGIG 430

430 QUEEi SLAND GOVERNMENT INDUSTRI AL GAZETTE [ 17 February, 1995 Ql "Er:NSLA:--JO I DUST RIAL REIAi !O l\ S CO MMIS~IO lndu.Hrial Re/uJi{)m Act I 990 s. 297 - application for reinstatcm..:nt B /\)\;I) De p,1rtmc nt of Fami ly Sen ·i ccs and Aboriginal ;i nd Islander A ffairs ( \"o. 8356 of /9 9./ / Cl lll·.r INDLiS I RIA L C O'v1\11 S~IONER IIALL 2 F.:bruary 19 95 Fi xed term cn gagcm ~n t - c :1. 1t.: ns inns - no further offer o f c 111 plo ymc11t - no d ism issal - 1nuu sma l dispute re instatem e nt o f B rd~v(Ull to reso lution o f' - co nc ili at ion confcnrnc~ t<) be c ondutt ed. 13 98<J I DOC 17 February, 1995] QUE ENSLAND GOVE RNME NT I ND USTRlAL GAZETTE 43 1 DECISIO How it came about that the Appl icant (to whom I shall re fe r as B) came to seek emp loyment in the s en,ice o f the Departmen t of Family Services and Abo ri ginal and Is lander Affairs (he reafler ·'the Department") I have not been told. I know only that B was interviewed and that Mr Murrin the then Acting Senior Residential Officer at Sandgate Cen tre (perh aps among others) was present at the interview. B appears to h ave created a fa vou rab le impress ion. On 17 May 1993 the Department d ec ided 10 appoint him as a Temporary Part-time Residential Care Officer (Training). TI1e terms o f thc o ffer were reduced to ,,Tiling and communicated to B by a letter dated 2 1 June 1993 The letter (fonnal pans omitted) was in the fo llowing te nr1 s :- ··1 wish to advi se that it has been appro,ed that you be appo inted Re sidential Care Officer (Training), Intellectual Disability Office, Brisbane North R egion, Division of Intellectual Disability Services, D epartmen t of Family Services im d Aborigi nal and Islander Affairs., Brisbane (PO/3-033672B). on a temporary pan-time basis. The tenns of yo ur temporary part-time emp loyment are out lined hereunder:- The term of your appointment is fr om date of duty to 26th July, 199 3. Remuneralion payab le is calculated on a pro rata basis of the full-time sa lary for a Re siden tia l Care O ffi cer ( Tra ining) as contained in the Public Service (Remuneration) Interim Award - State. Your rate of remunera ti on as calculated above is $38 2. 45 per fortnight. This is hased on the 002 -0 I salaf} s ca le. Your hours of duty arc ~et out hereunder:- Days Sunday Wednesday Thursday Fri day Saturday Hour s Per Day 2. 00 p.m. to 6.00 p.m. 2.00 p.m. to 6.00 p.111 . 2.00 p.rn. to 6 00 p.m. 2.00 p. rn . to 6.00 p.m. 2. 00 p.m. to 6.00 p.m. Such hours s hall not be varied withou t the prior approva l o f the D irector-Genera l. Except in the case o f the 10:: m1 ina1ion of your services fo r mi sconduct. ) Our appointment will be tenninable at any time by the giving of two (2) weeks no ti ce. Please note that if you arc a member of a reg istered lrade un ion or alternatively have signed an undertaking to join a relevant union, you will be required to fom ·ard co pi es of the s ame to Personnel Branch within 14 days of com mencement of duty. Your payroll reference number whi ch should he quoted on all o fficial correspondence is P A/501 3079. Yours sin cerel y." ". At the foot of the letter was the warni ng ""Any vanations 10 these conditions of employ ment "ill require the pri or approval o f the Director-Generar ·. I draw attention to the warn ing because B has placed reliance on ora l repre sen ta ti ons made to h im by va ri ous officers of the Dcpa nm e nt in the Brisbane North Re gion. There is a total absence of evidence that the officers co ncerned had any authority to make representations about the nature o f 13 •s empl oy ment and B was told at the outset that the conditions o f his emp loy ment could be varied on ly with the prior approva l of the Director-Genera l. II is common ground that B accepted the offer. Some attempt wa~ made to persuade me that in doing so 8 executed a standard fonn doc ument headed Residen tia l Care Officer (Training). TI1e o bstac le to acce ptance of the argument is the handwritten date adjacen t to B's s ignature, viz. 19 April 19 93. In my op in ion the fair inference is that the Department procured B" s signature at or about the time of the interview in order that, if difficulty arose, the Department might show that B had been made aware of the cond itions of engagement and se rvice of Res idential Care Officers (Training). In any event. B was not o ffered employment as a R es idential Care Oflicer (Training). He was offered employment :is a Temporary Part-time Residential Care Officer (Train ing). In those circumstances I do no t consi de r clause 4 of the document to modify in any way the clear terms of the o ffer o f 21 June . Clause 4 assens :- ·'Rcsidential Care Officer (Traming) shall be engaged for a time limited period. which normally shall be for a period ending twe lve months atler the commencement of the fi rst week or participation in lhc C erti fi ca te of Res identi al Care course. The serv ices of a Residential Care Officer (Training) may be terminated prior to the completion of the period in accordance with clause 13 .'". Having rega rd to lhe training to which R es ide ntial Care Officers (Traini ng) were then exposed. th t: clause is entire ly appropriate. But in 199 3 Temporary Part-time Residential Care Officers (Training) received only rud imentary induct ion and on the job training. Clause 4 was inappropriate to the circumstances of temporary part-time appo int ees. I do not co ns ider that any reaso nable person would have read the letter as detracting in any way from the letter of 21 June 1993. In fact B" s engagement did not tcm1i natc on 26 Ju ly 1993. On 15 Jul y 1993 the Department dec ided to extend the engagement unt il 26 Aug ust 19 93. Hov, B was made aware of the ex tension. I have no t bee n told. It is however. common ground that B reported for du t) . and was p.iid, over the peri od o r the extens ion. At so me time during the month of August t 993, probab ly on or about 22 August. Mr Murrin telephoned B and enquired whether 0 wou ld like to work full-time. I s ay "probably on or about 22 August'·. n0twithstanding that B appears cenain it was in late September, hecause the d ocuments show that O wa~ appointed as a Temporary Fu ll-time Re siden tia l Care Officer (Train in g) on 23 August 1993 and commenced duty the same day and becau se A tells me that he accepted the offer and commenced " ork the day afler the telephone call. 0 ·s e ngagement as a Temporary Officer (Training) was for a fixed 1em1 expiring on 23 October 1993. How O was informed of that. if mdeed he was. I am un able 10 detem1ine on the evidence b e fo re me . On 2 October 1993 the Depan ment extended B 's engagement until 28 February 1994. B was infonne d of thi s decis ion by a letter dated 3 November 1993 and addressed 10 him at his place of work. The letter (formal parts omitted ) was in the following tenns :- .. , wish to adv ise that it has been approved that your appoin tmen t as Res idential Care Officer (Tra ining). Intellectu al Di sabi li ty O0.ce . Brisbane orth Re g ion, Division of intellectual Dis ab ility Services. Depanment of fam ily Services and Aboriginal and Islander Affairs, Brisbane, be extend ed to 28th February. 1994 (u nl ess o therwise de term ined) wi th classi fi ca ti on and salary arrangements as at present. 13989_ 1 DOC -- 1 of 3 -- 432 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ l 7 February. 1995 f'xccpt in the case of tennination of ) our services for an) misconduct. your appointment will be terminable at any ttmc D) the giving of two weeks notice. I wish you well in your work. Yours sincerely_"· The infelicity invohed in describing l3 as a Residential Care Officer (Training) rather than as Temporary Full-time Residential Care Officer (Training) was. I should add. repeated in addressing the letter. In fact, !rs engagement did not come to an end on 28 l·ebruary. 1994. On 24 January 1994 the engagement \\ as extended to 30 March I 994. An attempt was made to infonn B of the decision by way of a letter dated 27 January ! 994. B says that he did not rcccl\ c the letter. Given 1hat the letter was addressed to B at a residential address which he had vacated in August 1994 that is hardl) surprising. I note that the Department" s rernrds show that B notified the Department of the change of address on 26 August l 993. ] low B became aware that his engagement had been extcnds:d does not appear from the evidence. It is however clear that he continued to attend for duty and to be paid until 28 March l 994 On 23 March 1994 the Department decided to cxtrnd Ifs engagement until I O April I 994. A letter dated 24 March I 994 \,as prepared to inform B of the extension. Save for the substitution of I (J April I 994 for 28 February 1994 it was in the same terms as the letter of 3 NO\ ember l 994 and I do not reproduce it. What became of the letter ! know not. It is not materiai. It is nut material b"cau,c on 28 March l 994 Mr Murrin banded B a letter which was identical in every respect, save that it was signed b) the Regional Manager /Mr Rohan) himself rather than on his hchall. In handing tile letter to B. Mr Murrin said ··It's not e,cry Ja) :,(,u iose, our _ioh Chri, • lt appears from the evidence that the c.,pianation of Mr \fornn·s remark was that in deciding to extend !rs engagement to 10 Aprii 1994 the Department had decided also that B"s engagement \\ould not he further extended. B experienced some dirticultly in accepting "hat he ,, as being told. That is perhaps not surprising. The letter is in the same terms as earlier letters and contains no suggestion that further cxtcn,1011s \\Ould not he made. If that was the prnbkm It \\ as rcmo\ cd at a mcetmg held on 6 Apnl 1994 and attended by Mr Johnston of the 'itate Public Services Federation Queensland Uninn of l .mployccs. the Applicant. Mr Rohan (then the acting Regional Manager) and Mr I iunter (Manager (AdministratiYe Scrv ices)) \\Jlhin the rdn ant Di, ision of the Department. At that meeting B v,a, handed a letter dated 28 March 1994 in the followin[! terms:- --1 refer to my letter dated 24 March l 994 anJ ad\ r:-;c that in accordance \\ith the terms and condillons of y,iur employment as a Residential Care Officer Brisbane l\orth Region Divi,ion nl Intellectual Disability Sen ices. ) our services w111 no longer he required as from the completion of) our shift 0:1 Sunda) Wth April l 994 ., The letter was signed on Mr Rohan· s behalf. '\otw1th-;tanding the gaps in the evidence tu which ! hi!\C rcolen-cd I am disposed to accept the Respondem •s ,uhmission that H ,,as initiall) engaged under a contract of cmpiu 1 rncnt. \\htch. if not , aried_ \1ould expire on 26 July 1993 \11th the effluxion of lime. t\J«·, h:, agreement between B and the Respondent the contract was firsli\ extended and subsequent!:, c,ml'erted from a contract for L:rnporar) part-tin1e ernpln:,. n1ent tn a contract for ternper\!t:, full-tin1t: cn1pln) n1cnt 2nd thereafter C\.tcndcd frprn tn:1...: tP tirnc until. h: th~~ effluxion of" time and in consequence of the Respor1dent' ,; urniss1on to n1akc a further of!f.:;r of extcn'.~ion. it ca111c to ar~ end on 10 :\pri1 l 99.i, l con~1dcr that I an1 ju~tifi~d in infcning the ncc-:s~ar: dcmcnt uf agreement because - (a) The agrcemcnt(s) to \,hich h;nc rcfrrr,;d arc the· agreements into \\hich the Rcspondc,11 inknd,:d to enter. Indeed. it i.s appdrcnt from the files of the Respondent ,1hich \\ ere put in C\ idcrH.:e" that Lhc Rc~pondcnt had not autbori:.;cd its Officers to enter intu any oths:r agrccrru:nt(s) than the agrccrncnt(~) in \vhich I ha\e n.:fcrrcd. l can think of nu reason, and certainly non~ \\as sugge:--t<:d, for thinking thm the Rc-.;ponJcnt had dn:y· interest in doing anything other than teL n \\hat the reality was I'hc rnost iikcly course of evcnb is that B -.va:, told hut that cith-.:r no one consiJercd i1 ncccS'.')ar) to n1aintain a record of corrnnunication or alten1ati\cly. no one appreciated the significance of tendering the recnrd at the trial. ( h) Mr Murrin. who had the supcr,ision of B anJ a number of other persons in the same sitiiatinn. tdb me that as the end oi each cxu:mion drn, near B ,,ouid appn)ach him and ask what was tr, happen in n,,rcct of his employment. :\1r 'Vlurrin \\ib not cross examined on that c, idcncc. I think I must accept it. !he inference is. t\JJt all material times B \\as aw,m: that he was employed on a Cllntract ,,-lw:h would terminate\\ ith the effluxion of time on a date known to him unless \"aricd h: agreement hcl\\CCn Band the Respondent ( c) ll docs not complain in tcnns that he was ur1<m ,ire of the basis of his cmplo:, mcnt from time to time. I fr, complain, h not that he did not kmm hut llMt he was told that he \\ou:d he mfom1t:d in writing if l1i, employment \\ib to be ntcndcd and he ,,as not. It ,,as suhm1ttcd on hehalfofthc Rcopondcnt that if that :mal:si, he acct·pkd. I1"s applicaLlon !or reinstatcrr1cnt n1U\i. fail it i~ ,..,aid that ~ 2Y 1 is triggered onl) \\·here an cmpld) er di~n11\'."ICS an cmpio) cc and !hat neither the lcnmnaliPn (If the contract pf cn1ploy rneni h: the effluxion of tirnc nor a:--1 ernploy er·~ 1Jn1]s<..;i1Jn ki offer fr1rthcr c1nployrr1cnt can lie Lh~ractcri:..;cd as d1-,;1ni;--;sal h:, an c1nph1) t:, It is subn1ittcJ on behalf cif" B that the acangu11cnt bd\\·ccn thl~ D1..:p:uir11..:nt and H \\":J'.~ a sh~nn" that the true arrang.cn1cn~ \Vas that B \Vi:1~ engaged on an lndctinitc l11riug. and t!Jat on 28 \fard1 1994 the lkpartmcnt brnught the ;ndclilllllC hmnt! tu an end in cnn'.)equcn(e ot an inciJcnt lrn oh:ing B ath.i a client nf the Dl'.partmcnt \\itllln tr,, care. !he endcncc i, that from time tu time cmp!o:, cs:s of" the Department arc absent fron1 their nonnal \\urk hccau'.--ic of illncs'.). long service kaYe and secondrncnt In ordinar~ cirGurnstancc:-, ~i subordinate ,1ili ""act up"" in the ph)sicall, vacant position !n cPnsequencc an absence of the type to which I have referred sets ofl a chain rcacti1)n •,shich \vlll uften lead to a \ acancy mnnn1;st the fnot suidiers at the base of the Departmental hciradi\ It is th<.: foot soldiers who mtcrfacc \,ith the Department·, client:-; It is ncccssar:; t,, hring '<omehody into the Depar1mcnt to perform the dutic:, of the ahscnt person. In fact. that is not dnne hy \\a; of filling the \·acmh.:)" ln fact. wllhin the r<.:k\ ant Division, \ acanc1cs. applicants and fomb arc pooled a!ld then sprcDd to r11atch talent\\ ith need 21t least cost, A \ acJ.rH:; n1ay lea;,! to tht: appointrncnt ,Jf mnrc than one person on a kn;porary bas1s and fiJr a lir11itcd number ot hours in each ca~c. indccJ_ the systetn has becornc sn sophisticated that not onl: \\ill there not nccc\-;arily be a tctnporary c1nployec filling: a temporary \·ac~HiC). a panicular ternporary crnpluyee n1a: hold an cngage1nent attnhutahlc to more than one \·acancy It is the Cl'idcnce. for example. that of one tune the 1emporan full--tirne engagement held hy B \\cts attribulabk tl) t\\U half Yacm1cics, 13989 ! lJOC 17 February, 1995] QUEENSLAND GOVERNMENT lNDl!STRIAL GAZETTE 433 The do\\nsidc of the sophi,t1catiun of ,he S) stem i, that when the ""absent"' cmplo: cc return, and pamanent stair "•actinf! ur"' c,iscadc down rnto their mmnal pus1t1ons. the returning foot sc;ldic:r "ii! not nccc;;sari!y Jispt1cc a particular tcn1porary appointee. ll nEl) be. that the Department could unra\cl :ts decisions by engaging all tcrnporary einplo; ccs un an indefinite hiring_ tennin~tting such nunibcr ofthen1 a~ necessary to retrieve a pcisitioii \\hen the "absent" crnplo) er.: returns and pron1ptly re-engaging so1nc of then1 to co\t:r continuing ·•vacancies I can unJcrstanJ ho\vcvcr that tht.~ Dcpartrnclll might honestl} and reasonably come to the conclu,ion that such a system would be difficult lo manage and traum,itic m its impact ,md. for those reasons. choose to adopt the p,,lic:,. ,,hid1 it claims to hdvc adoptd. oipulling a!l temporary cmplo:,cc,, on !i,cd tshortJ term comracts in order that reassessments ma:, he made from time to time 111 the light of pending returns and <lll) ncce,sar:, rc- .i igg1ng of the \\Cb UIH.lcrt~:kcn, Add1tionai!y _ as i have: said. the transaction bet1,ccn B and the Department \\ as real. !he documents reiating to the Department" s decision lo appoint B from time lo time were put into C\ idcncc h) consent. The documents sho,, a mmchmg of the tcmprnar} apprnnlm<:nt with a .. \ acancy •• or a number of --, acancics" The C'- idcncc of witnesses who participated in the process i, that rn fact that procc,s was undertaken. !"he e,idcncc of witnesses \,ho did not particip.:1te in the pruccss. but \\ ho understand the po lie: of the Di, 1sion. is that it \\Ould have hecn contrary to poliv, and practice if the process had not occurred. ! con,idcr that the transaction ,,as real. There is a hint m the evidence of 13. as distinct from the suhIT1isc.;1ons \\hich \\\?re n1adc on hi½ behalf that hi~ con1p!aint is not that the: transact10n w3s a sham but that he \\ib lead to hclic,c that it would be treated as a sham and that nffcrs of cxlcn,ion \\ould be forthcommg indclinikly. rli<.: lindtng that at or about the time the particular cngagcn1cnts v/erc ab,-1ut to expire H c.;oug.ht rC<lS'~urarH.::C about hi, future frnm Mr 'vlur:rin is a cmnpietc ansv1cr to am such suggestion. r'urthcr, fr:. clairn that he \\a;-; told that the Lran:-sacti;.n1 \'-."a'.--> a 5han1 1~ based on statcnicnh n1adc hy pcr:~un::, 1.,\hn had nn authont:. to \ ar) the nature of 1-r ::-i cmplu) rn~n1 anJ \\h(i~c ½L:.!.icn1cnb rcall) \\Cnt td the tuning_ nf tra1nin~ lor It On the \.'CT\ \ ague C\ idcn..:e of the tcrn1s of th~ rtpr~scntatidrb I do nut con~~id;r that ! an1 justiticd 1n infciTing that it \\·a~. ccn\c::,cd to B that he ,,uuld be m the s~rvicc of lhc l lcpartmcnt and a, ail able 1ix trainini;. at son1c futur~ tin1c. it scenis to 1nc that 1!1c statcr11cnt:-i ~\1 n<, further than suggc:,ting that B \\Otdd rccei1.'C certain training if he v-.·a<:.. ~till in th,.: cn1plu: •Jf the f kpartrnenL In an; C\ cnL if an: unc \\ itll autlioril~"' to do ')0 did rnaki: such a prnn1isc, it \', a"' a pnnnisc '.\ hich \\·a;) not '.',uppunc-1 b) considt:n1t1on ( )n the didin;_ff) principk:) rcbting Lo '"pru1n1:-,,sory c:-;toppcl'· the Ucpartrncnt n11ght j1cn c rid 1tscil ui the prorni-;c not to msi,ct of its rights under the comract h, gi\ mg reasonable notice to B of its intention so to do. I lcrc, B \\c;S t<dd on 28 March l 994 that no it1rthcr exkn:,Hm would he olkrcu to h1m and that his cngc1gement \1uuld therefore come to an cTJd on l I) \pnl 1994. Gi\cn that B"s ~ngagemcnt \\as at all lllnes on the bc:sis that the contract rn1ght be brought 10 an end h:, tv,:o \\ccks noticl'. l consider that B \\a'.'I. in an_> C\'CHL g:i\ en reasonable nntJ..:.:c of 1ntcnt1011 to depart lron1 :.rn; pron1isc to treat the eng.ag.~rncnt t.h a sharn. I n1akc ciain1 that I hJ\,: ~ought to Jccidc the case in \" hich it ha'-i iKcn argued and no rnorc. On 'SOrnc future cccasion it \\'ill doubtlc:-;) he ncc;.>-.;:,.,ar) to <letcnnine \\·licther the 1not1~)n of the "di\rni:-.~ar' at s 2')7 1s a:, narrO\\' a:, the Rc:-;pnndcnt c,mtcnds, I han.-: nut recalled the parties to hear further argun1cnt upon the n1attcr fr1r each df the t\\O reason~ I'ir:,t. on the evidence bcfr.1rc 1nc as to rr::-i health. if i \\·a:-i :-;at1~ficd that he had been Ui~rnissi:d \\ ithout a \·a]id rca:,;orL l \,;ould not he _iustiiied m ordering his reinstatement. i unher. I would tind it difficult tn conclude that H had suffCreci any financial los~ a~ a rc:,uH of the di')mi:,"t.tl \v1thnut i! \'alid rCll'"-On. B has not been fit tc) rcrfonn work for th,: lkpar1mc11t ,rnce 28 f\iarch l 99-1 and i, 0 till un l1t l<' perform ,;uch 11ork. On lhe nuteriais before me f could not rauonall) nominate an:-, date at which he might be tit to pcrf'onn -,uch \\'Ork. 1-'ur:hcr arg.mnent t1hout part 12. Ji\ J:-:ion 5 \\duid in rny vic\v h\ fut1k. iV1y \CCond rca:-.on for Lkclining to rcco!1\ enc in urder that further aq.;utnen: niight be h~ard upon :,. 19,.., i~ that in ffi) YiC\\" the rnatlcr n1:..ist be dealt \Vith on a broad..:r hasi:,,. -\ dispute bcrn ccn an individual former crnplo) ce and the employee, former cmpluyer i, not an industrial dispute. ft wi!I be diff~rcnt v.,hcrc an industrial organisation of i.:.;r11ployces agitates the dl:-ipulL'., not 1ne1elJ on bch<llf of the fon11cr ernplo)CC, but on behalf of remaining cmplo:, ccs who have 11 direct industrial interest in the security of their U\VIl Cinploy111ent and a din:ct industrial intcre~t 1n the employment prnctices, particularl) those rdatcd to tennination. adopted h 1 their cmplo) er, compare Re Ranrzer [ra11iwn _\fines Pt_i l.id. ex par/e Federated .\f1scel!aneous WorAers • linion of Australia 11987) !63 CLR 656 :it 661. Here. the State Public Senices h:dcratil•ll ()uecnsland l!nion of Lmplo 1 ec, has taken up the matter on ll"s behalf. It is not surprising that the organisation has done so. I have previously rderrcd hoth to B"s state of health and to an incident imoh ing a client in B"s charge. Jn fact, B", un,atisfactm") state of health is the outcome ot" an assault upon him hj a client \vhich caused B ,cnous and continuing mental and ph) sical damagc. lt is apparent from the questioning of the witnesses that the orgm1isatwn is of the view that the assault is in part attributable to the Department" s failure to pn1, idc B \\ ith adequate training and the Dcpartmcnt·s failure adcquatcl;- to assess the suitabilit) of the clients for pa1ticular fornis of care. Th,:rc may of course be further evidence to he led but in my opinion, at least on the training issue. the organisation has established a pnmu jaC!e case. Additionally. it is apparent from the observations from the har table of the ,,rgani,atirni •s ad\ ocate ( .Mr Johnsrnn) that the organisation is sceptical (and critical) ,if the Department",, u:,c of fi,cd (short) term appointn1cnh \\hich arc< irt practice, frequcutl; extended On the fa1-:~ of the 1nat~rials ther;.; is in c.:,,.istcnce rt di~putc het\\'e~n the organi~ation and the i )cpartmcnt abuut the Dcranrn.:r:t" :-i t:catn1-.:nt nf B and a larger di~rutc Oct\\Cen the (irt-;_mi:-;ation and the Dcpartn1cnt about Lhc appoi.ntn1cnt a!1d training of t'-:n1porar) ~taf"f to t1a: rcsolutinL of \\·hich rcinsta~t:!ncnt of B ,-,,oul<l contrihutc. I o Ill\ mtn.J It ilEtltcr, th>t al all that the :r"lltcr came bclnrc the Ctr111n1i:-i:,icn h) \\ a) of an application purstfont t1_ 1 -::.297 rhi.½ is not a '",1r1t hascJ·- _jun,,diction !'he Cmnm1,s1on 1' express!) authorised to go b~;und the relie! that is sought I:-,. 90( lJJ and directed to cn:-urc that 1h dcci~iuns arc go\ crncd b; ""._:quit:,. guoJ con~clcncc and the ,ubstantrnl merits of the case. withnul regard of technicalities or !ci.!tti fon11:-. and ha\ mg regard to the lntcrests of the pcrc;un\ 1rnmcdiatcl:, C(111cerm;,J and the con1mtmit:, as a \,hulc"' !(s. 92(2)1- l fit appears from the c,idcnce that there 1s an industrial disnutc and that it is in the public interest that something be dune ah~rnt it. it ,ccrns to rnc thai the form of the pleadings cannot matter I accept of course that natural justice precludes the Conurnssion from dealing \\"Jlh the rnattcr on a ba~i~ \vhich \\as not argued. l lO\\t:\'Cr. in tn) \ ic\\. l am not prcciudl.'.d from referring this matter to the Co1mni,;,i,mcr responsihlc for the organ1sat1on of the relevant panel Ill orJcr to he prngrcssed a.s an mdustnal dispute pursuant to pan l] of the ln,lw 11·w/ !/clr1uo111 .-tcr 199/J. There \\"ill in proceedings under Pan I:: be ampk upponun1ty for the panics t,l put suhmissions as th~ appropriatc rc,olutiun uf the di,pute amL if the Respondent con,idcrs n ,ippropnatc. to re-litigate the que,tion whether there i, a d1oputc. l prnposc to refer this matter for resolution nursuant to Pat1 i 3 ..-\t the +,k of impcrtrnrncc to State Public Sen ices Federation ()uccnsland Lnion of Ernplo;ces I urge that B he g1\cn the ad\ <lntagc of ad-,,:ice fron1 the org.anisatHm' ~ solicitor\ as to B •s pr:J:-;pecb of success in a personal mjurics anJ thDt the 3d\ ice he (Jhtaint.:d t1cfi:-irc the L:oncillation t.:onkrence is c1__ff11,-,..:ncJ l.1989 iDO( -- 2 of 3 -- 434 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [17 Februar y, 1995 D.R. HALL, Ch ief Indus tri al Commissioner. Appearances:- Mr K. Johnston, State Pu bl ic Services Fed erai ion Queensland Union of Employe~s. Mr B. Lyons. with his Ms A. Byrne an d P. Crossan, Department of Fa mi ly Services and Aboriginal and Islander Affairs. Operati ve Da te: NIA Decision - Reference to Conciliation Released: 2 Febniary 1995 ####################################################### 13989_1.DOC 17 February, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT E 435 -- 3 of 3 --