Auld v Zupps Group of Companies [1993] QIRC 157 (1993) 143 QGUG 142

142 QUEENSLAND GOVERNMENT INDUST RI AL GAZETTE [4 June, 1993 ######################################################### QUEENSLAND INDUSTRIAL RELATIOI\S CO\lt\llSSION fnJr,srnal Rel,ll10ns ;J Cl /9 90 s. I 1.11 - appli cation for rei nsta tement Gk nn Aul d AND Z upr s Group of Co111pan i.:s (N o. IJ 190 a/ /9Y:!I COMMISSIONER F ISHER 21 1-lav 19 93 Re-open ing - Reinst~tl(!ml!'nt - Confor-.! nci: -- Prdi min:,ry H~aring _ Legal Re presentation - S tatul<1ry 2 1 Dav i'eri,>d Matter Referred Rack to Cll mmi ssion for Funher C,m<.:i lia1ion --- .-\ppro val of Wit hd rawa l of Bl90/ 92 Prdiminary Point Raised hy Responde nt - Commission Decided to I kar S11hm_is.s i1>ns in R_da1ion 10 the Subs tantive Case - s. 4.26 Proccdur~s lor Re-,1pen ,ng - D iscretional)' Powers - Breaching of (\>n tiden 1i,1litv Provisi,>ns - s. 11.37(4) of the Ac t - Ru l~ 37 .5 of the Ruks of Cou11 - Arbitrated Matter - C,1 11u n issio n N,,1 Prepared 10 Exer.:is~ i1 s Discretion - Application for Re-Clpe ning Refus.:d - Rcsp,)lllknt ha s not been Disad v:11naged - Matter 1,, he R.:fc,wd Bad. h> Commiss ion for Conl'o! rence. DECIS ION Th is is an applica tion filed on b ehalf o f lilenn .-'\uld sed-i11g the re-open ing of h, s app li cation for re instat ement. T he application fo r reinsrntement has had a chequered hist ory whic h is relevant to out line in o rd er to understand the basis of th e application n ow ma de. On 16 Ap ril 1992, Mr Auld fikd an appl ication seeki ng reins tatement in his former posi ti on of Used Car Whol esa le Man age r with the Zupps Group of Compan i es . TI1': ap plication also sou~ht a variation of his contract pursuant 10 Sections 4.21 and 8.22 ol the lnd,w ri al Relarions A er /990 . At t he time of filing the application, Mr Auld was represente d by a fi nn of solicitors. In accordance with ( th en) s. I 1. 1 1 of the Act , a confe ren ce of the part ies was con vened before a member of this Co m~1ission. As th e m atter was unab le to be resolved. it proceeded to arb1 trat1on. 111e applica tion w as listed for preliminary he aring on 24 July 1992 whereat the applicant was a ga in legally representc_d. At that heanng. d ebate centred around t he lega l re prescn tat ,on . o'. the app licant as well as whet her the a pp li cat ion had been filed w 1tl11n the pre scribed sta tut ory 2 1 da y period. The he aring was adjo u mcd to allow the soli ci to r to ob tain fu11her ins tnictions . The applicat ion was re listed on 30 Sep tem ber I 992 following wri tten advi ce from R.H. St einitz & Associate s. Ylr Au ld's new repres wtn1ivc. Mr Steinitz _sought. and was granted._ le ave to_ "va,atc " those. pa ,1 s of the apphca t1l,n wh,c h so ught rd ,cf 111 te m1 s ol the variation of the contract of e mpl oyment. Deba te was renewed on the question of whether the appl ication ha d b een filed within the prescri bed period and the appl ican t's representative sought that the matter be remitted bac k to conc il iation. In my decision of 14 Octobu I 992, l stated that the . matter wo uld be referred ba ck to t he Co mm ission for fu,1her conc il1 at 1on l,ut. in the even t a reso luti on was u nable 10 be achieved, th e Commission wou ld proceed to hear and dete m1 ine th e application in fonnal proceedin gs (141 QGIG 525-- 6). Fo lil)Wing advice from the appl icant 's re presentati ve that the matter was incapable of reso lut ion. the Commiss ion listed the matter fo r hearing on 10 and 11 D ecember 199 2. On 9 D:c_em ber 1992, the Industrial R eg istrar rece ived a l etter fr o111 R.H. S te 1111t z & Assoc ,ates in the fo ll owing tcnns: - "W~ are i ,1 s1ructed to seek lea ve to withd raw this Applic at ion . presently sch edu led for h ear ing by Commissione r G. K. Fisher al 10 a.m . tomorrow. Proceedings ar~ now u nn ecessa ry because an agreement has today· bee n negotiated reso lving th e issue lo o ur client's sat isfrtct io n." . As a res ult of this letter, the Co mm ission approved the withdrawal o f 8 190 of 1992. l l1e da te of Commissio n's ap proval was 9 l)ecember 1992. The co nsequen ce of this act ion was that the hearing schedu led for 10 and 11 December 1992 did not proceed. Al this s ta ge it is wo11h repea ting po ints 6. 7 and 8 of the Sta tement of Facts and Issues acc,,n,panying th l! a pp lication for rc,>pening: -- "6 . On that s ame day - 9t h December - a . dispute arose betwee n the parties ove r the preservation of co nfiden tiah ty: and the respond ent t hen instantly w ithdrew fr om the agree,ne nt that had hrought about the C om mis sion's decision to grant wi thd rawa l of the App li cati on and to cancel ;,ny further pro ceedings upon that i\ppl ication. 7. S ubsequent attempts to renegot iate a resoluti on of the issue ha ving faikd. a situation has now developed whe reby an agrcem_en l between the parties that led the Commission to cancel t he _s ubJecl proceedings has not been consummat ed. T he so le ren~on f l>r that .:ancellat ion of proceedings has thus vanished; and 11 has now transpired that. ,n effoct. the di scont inuance of th ose proceedings w.L~ sought and granted upon false prem ises. 8. A r<! - opening of s uch proceeding s is 1lw.refore warranted 10 re~t ify an error whereby the App lican t and t he Commiss ion were wrongly of the bel ief tha t th~ subject issue had been finally rs:solved hy agreement betw een the pa11ies. and 10 ena ble the App li cant to now have due recourse to arbitration upo n the matter ". T he re-open111g app li c,1110 11 fi led o n 18 March 1993 was listed f,,r 20 April 1993. At the co mm encement o f 1h ese proceedings. Mr Bdfield, for the respondent. raised a prel im inary po ,nt that. as _the app lication for rein~tatement had ken withdraw n, it . was 1101 _p oss1_ble for the case to be reope ned. Alter hearing the par1 1es on th,s pomt, th e Commi ssion decided to proceed to hear sub mi ssions in rel at ion to the substantive case. i.e. whether the ma tte r sho uld he re-opened. 4 June, I 9931 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 143 Mr Ste initz . at'ier travers ing the hist<>ry of th is matte r. brought the Co mmi ss io n to the events of 9 Decemher 1992. On that day . a sett lement of the matter was achicwd. Mr S tci n itz c·<>n lim 1ed the agreemen t w ith his clien t wh o ind icated that he had had a discussion with one of th e prospective witnesses. :Sfr S1e ini1z then c<>nlact<!d that wi tn ess to advise that the proce~dings listed for the ne.,1 two days would not be pr ocee ding. He denied that ei1hcr he or his cl ient had in fonne d the witness of the le nns o t' the sd t lemcnt. Reference wa.s ma de to s. 4. 26 1'1o<"cdu1cs for Rc -openi ne a nd vario us decisions whic h were made under the pre vious s. 32 of the !ndusrrial Conc,liarion and A rh,rrarion A er I 961 I 989. Mr Steinitz also provided th e Commiss ion wi th :111 ~x1rnct from tlw h,,ok. Judicial ;\·leani ngs of W ords a nd Phrases. as it relat ed to the tenn "proceedings". In essence . Mr St~ ini1 2 argued tha t the (\1m mi ssion was mi sled into taking the acti,>n ll> approve the w ithdraw al of the application for reinst atement as a settkmcn t was 1101 ultimalely able to be reached bel\wen the r:111ies. lk argw d the proceed in gs remained on foot unt il the deci sio n lo approve th e withdrawal o f the app licati on was made. Give n that deci sion was a rri ved at erroneously. the Com1nissio n sh1.w ld cxcn: i ~c it s di~cret io nary P'-)wcrs to reopen the proceedings. Mr Steinitz also relied upon s. 8.4 of the Act to argue that technica lit ies sh ould 110 1 s tand in the wav or the c,, 111111 iss inn so that equity and j ust i ce c an pr~vai l. • Mr Belfield s tro ngly opp (>sed th e daim for r~o r~nin g. I le argued that Mr S tei nitz's clie nt had brea ched the co nliJen 1i:1 l i1 y provis ions of the sett lement and s hould 1101 he allowe.d ano the r oppo rtunity for p ursui ng his claim. If this were allo \\ ed. llfr Hellield argut!d that a travc~ty of j u~tic~ would occur. Mr Belfield infom1ed the (\>mm issio n thal on 9 D ecembe r 1992. he a nd Mr Ste initz were ahk to concl ude n swkme nl whi c h included a strong conlid~ntialitv r rovi,i,, n. Later 1ha1 day. Mr Be lfie ld was contacted hv his clien t w h,> ad vised th at one ,,r th eir e mplo yees had mel w ith ihe potential witness t<l whom rei'eren cc had been made l.!:ar lier. This emphlyec provid('d a st:lt u h>ry d~clarntion outli ning the tcnn s of th ei r c,,nversativn. In p a11 icu lar. it includes comme nts to the e lli:ct that Mr Au ld had advised the po 1e n1ial wi tn~ss th~ n1.1ttcr h ad bl!t: n Sl.!llled ou t ._,f c1.)u 11 and ~re.;ilit.!s th \! p:trt icular quantum involved. Mr Belfield argued that . in addi1i,>n ll> lhe mailer ,,lini ng b.:fore the Com missi on by way or C<.H1l'er1-!nct!' nnd h..-;"a ring on six 0(:1.'.:asio n s. th e n: were a number of mceli ngs ht! t Wel!n thi! pa11i('s to If'"'.'' to r~so l v~ the matkr. II1 the ligh t <>f th .:, nu m.:rous atk 111 rt s 10 s.: ttk t he mau.:r and the ap plication heing wit hdrawn. the readiv;it inn ,,f th.: 111a1ter would 11 01 he in the int erests of fairness and j ustice. Argmnent \Va}: at:-.o p ut that a re-o pl.!n ing o t' prc.)1..~.:-edings Wt) uld prej u dice Zupps he cm1se of the s heer kn gth of tim., that has e.~pired since Mr Auld's tem1i na ti on. In repl y. Mr Steinitz submi tt ed thal the agreeme nt he1we.:11 the parties has van ished and cannot h~ rcstor..:d. lh~rdt)r\.' tit\.' ri:ason Hlf seeki ng the withdrawal no longer ex ists . In the light of the new circumst ances. and having regard 10 s. 8.4 o f !he Act. th.: Comm ission o ught In a llow a re -,1penin g. The application hi:for~ lhe C\m1111 ission is a most unu:-. ua1 one. Applicat ions fo r re-openi ng usuall~· occur al1er lhc merits of th.: case have been argued with a de,isi<>n l>v th e (\1 mmi ss ion fol low ing. In this p:u1icular instance. th e m.-.ltcr h:-i ~ n.! i th..!r h..:1,.~n hl! ar<l in ful l nc1r n decision give n on the merits . Whilst it is ,,pen 1,, Mr .-\uld 10 file a fresh appli cat ion. the deci sion w,·,~ mad~ to see k h) f ('Sl <Ht? th ~ original appl icati on to the list of m at1e1-s beforl'.'. tht C'nmmission by way of reop e ning . Mr St"ini1 2. dur ing his submiss ions. expr.:ssed concern over the prospec1 of tili ng afresh as this w,,uld also inv,,Jve arguments over en largement of time but. h.:t,,re th is was f ,> nn a lly argued. the conci liati on proce ss would ncl.! d to h~ r~~~1..' mm ~111.:!i!d in accordance w ith the pr"visiMs of s. 11.:17(4) of the Acl 1-.lr Steinitz held fears ove r the additional le11g1 l1 ,,f t ime 1he m,11t~r Wl>u ld thus take to he presented fonna ll y to the C,11n111issio11 "i th no guaran1ee that the case would he h.:ard. The question f()r C()nsidl!rntion i$ wh (" th \'." r lhc (.\)mmission has the power to re-op~n an applica tion which has b""" wit hdraw n. As Mr St ein,tz al'.'.k1ww l~d ged . the cise law ' """"red hy him did not d irectly touch 011 the p,,in t before the (.\,n uni ssio n for determination. No mat(!'ri al on rl!k\'ant ('ascs w:,s put hy 1h~ r(!spondeot to a5;sls1 the: Comm ission. T h~ (.\)mnl i $S i (m'~ ow n research has frl i1td 10 di$covcr any prec~d~nt ...-a sc~ - :it k :"ls t in this ju risd ict ion - wh id1 s it n"at ly ,~ilh the rnrre nl ma llc r. ·11111s . in the absence of relevant ..:-:tsc t\w. the! Commissi")n nt'~ds to give consideration to its ju risd iction foundered in the Industrial Relat ions Ac t. Section 8. 4(2) confers a broad jurisdichon to the Commiss ion in respec t of its decision s. Essentially, this provision al lows the Commission to m ake decisions on the merits of the case w ith out being stri ctl y bound by either legal fonns or techn ical legal points. Th e process 10 wi th draw an app li cat ion is se t o ut in Ru le 37 of the Ru les o f Court. In the inst ant case, Rule 37.5 was fol lowed . It was clear from the letter forwarded by R. Ii . Steini tz & Associates to the Commission on 9 December I 992 that lhe app licant ha d no int ention o f proceeding with t he app lication for reinstatement o r oth er rel ief in the light of the se ttl emen t reached between the parties that day. At the time the Co mm ission granted leave to withdraw the a pplication no e rror on the pa l1 of the app licant or th e Commi ssion had bee n mad e. In the circum st an c es it is also s tre tching th e point to argue that the Comm issio n had been m isled into m aking th e decision to g rant l eave to withdraw . The Commi ssio n made its d ecision based on the infomiatio n which had b ee n presented by the applicant. 11,e date of se tt lement between the pa11ies also saw the undoing of that settle ment. If the Commission h ad been made a wa re of the eve nts of that date at the ti me. the appl icat io n may have still stood. No twiths tand ing the considerable en de avours by Mr Steinitz to rectify the mail er . the fo m1al approa ch 10 the Co mmi ssion came t oo late 10 have an y chance of restoring the 0 rigi nal a p1>lica1ion for reinstat ement or alte mati ve relief. Mr Steinitz argues th at re-opening sho uld occur on the bas is that n ew and fresh ma terial demonstrat ing the failure of the settleme nt to be co ns111nmated is now avai lable. Th.: Com mi ss ion a ccepts that this infon nation was not 111ade kno wn to it at the ti me a ppro val wa s given 10 wi thdraw the re instatement applica tio n. It is well settled that the power vest ed to n:- ope n is entirely discretionary (see C.P. Co rcoran v. T. J. Watk ins Pty. Ltd. (4 1 QGIG 106)). Sec tion 4.26 of the lndu~tria l Relations Act (wh ich d ifl'o!rs from s . 32 of the earl ier Act) in my vi~w does not alter t he d iscret ion of the Com mi ss ion. Wh ilst the Comm iss ion is gove med by equity and go od co ns cie nce in making its decision. in all of the rel evant ci rcumstances. the Commission is not prepared lo e.,e rcise its discretion to the be nefit of the app licant. In my vi~w and in lh ~ circumstancl!s of th is par1i cu lar cas~, th e app li cat ion fo r reinsrn temenl was wi thdrawn and . having been fonnally wi thd raw n. is incapab le of be ing resto red to the list o f ma tters to be heard by the Commission . It is con sidered that it is an inapprop riate use of the re opc n,n g prov isions lo restore withdrawn n ianers - wh en wou ld a respondent be certa in that an application was not going to be proceeded with if it was capable of bei ng re- opened in accordance w ith s. 4.2 6? Sim il arly. the Commiss ion is of the view th at s. 8.4 should not be C<> nstn1e d · so as to e~1end the powers of the Com mission beyond that whic h are reasonable in the circumstances. Aga in. to uti lise th is sec tion of th e Act to restore the app li cation would not be an exercise of sound judgment. In reac hing my decision to refuse the appli cat ion for re -openmg, ma ke no j udgment on the person(s) responsihle for the breakdow n of the settlement or the reasons therefor. It is immaterial to the quest ion of re-op~n ing . I have e arlier sta ted that Mr Auld has b ee n unab le to haw his case d"tennin cd on the merits an d. in th e ci rcu m sta nces . it may he des irable for the applicant to co mmence proceedi n gs afresh . Wi thout prejud icing an applicaiion for ex1ension l>f time whi ch w ill be necessary if proceedi ngs are rei nstituted. but in r~spo nse tC1 specific submi ss ions p ut by Mr Belfield, I would conun ent that the respond en l has 1101. in my view, been d isadvantaged as it is we ll kn own that sin ce Mr Ste initz became the age nl fo r the appl ican t. proceed ings have been kept in trai n. The Commiss ion notes that the re spo ndent h as indicat ed that it is not averse to fur1her di sc ussions taking place betw ee n the par1ies in an ende avour to reso lve the matter . No tw ithstand ing the absence of a fom1a l app lication hefore th e Comm issio n seeki ng reinstatement or altemative rel ief. having n ow been seized of a di s pute between the p art ies. the Commiss ion decides to remit the dispute to Commiss ioner Bougoure who dealt with the origi nal c,,nc iliat ion co nfe rence. ..l11e plll1ies are required to contact the lndustrial Registrar so that a conference might be ainnged . The Commission orders accordi ng ly. G. K. FISHER, Commiss ioner. .4 ppeamnces: - \-1 r R. J. Steinitz on behalf of t he appli cant. -- 1 of 2 -- 144 QUEENSLAND GOVERNMENT rNDUSTRIAL GAZETTE Mr M. Belfield for the Metal Trad~, lndustrv Association of Australia, Queensland Branch. llnio n ,,f Emp l,,);~rs <lll bdla lf of Zupps Ply. Ltd. Operative Date: NIA Decision - Reopen ing Re leased: 21 May 1993 #############ti###########/1############################### [4June, 1993 4 June, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZET TE 145 -- 2 of 2 --