Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland v Brisbane City Council [2022] QIRC 339

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland v Brisbane City Council [2022] QIRC 339 PARTIES: Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland (Applicant) v Brisbane City Council (Respondent) CASE NO: TD/2022/12, TD/2022/13 PROCEEDING: Interlocutory Application DELIVERED ON: 29 August 2022 HEARING DATE: 9 May 2022 MEMBER: HEARD AT: O'Connor VP Brisbane ORDER: 1. That TD/2022/12 and TD/2022/13 be struck-out. 2. Pursuant to s 317(2)(b) of the Industrial Relations Act 2016 (Qld) Joshua Laurie Wall and Berhane Talke Dahlak are granted leave to file an application for reinstatement outside the statutory time limit prescribed in s 317(2)(a) of the Industrial Relations Act 2016. CATCHWORDS: INDUSTRIAL LAW – DISMISSAL – APPLICANTS – where original applications brought in the name of unions – where objection arose regarding coverage – where relevant union does not have coverage for -- 1 of 9 -- 2 LEGISLATION: CASES: APPEARANCES: employees – where employee seeks extension of time to refile applications – whether extension of time should be granted – whether statutory time limits exclude ability to refile – whether discretion ought to be exercised Industrial Relations Act 2016 (Qld) s 317, s 447, s 536 Industrial Relations (Tribunals) Rules 2018 (Qld) r 18, r 98 ASMOF Queensland v State of Queensland (No 2) [2021] QIRC 278 Rich v Chubb Protective Services (2001) 167 QGIG 159 Robertson v Interstate Transport [2011] FWAFB 2728 Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43. Weaver v Ipswich City Council [2021] QIRC 234 No appearance for the applicant Mr J Kennedy of Hall Payne for Mr J Wall and Mr B Dahlak Mr A Herbert of counsel, instructed by Brisbane City Legal for the Respondent. Decision Background [1] Messrs Wall and Dahlak were previously employed by the Respondent in the Parks and Gardens area – Mr Wall as a team leader and Mr Dahlak as a team member. [2] In September 2021 the Respondent asked both Mr Wall and Mr Dahlak to show cause as to why they should not be terminated. Being members of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland ('the CFMEU'), they sought their assistance of their union. -- 2 of 9 -- 3 [3] The CFMEU represented Mr Wall and Mr Dahlak throughout that process. No objection was raised by the Respondent. [4] On 2 February 2022, the CFMEU filed two applications seeking reinstatement of two former Brisbane City Council ('the Council') employees, Mr Wall and Mr Dahlak respectively. [5] These matters were mentioned before me on 25 February 2022 for the purpose of exploring whether a joinder order ought to be made. With the consent of the parties I ordered that the matters be joined pursuant to r 98 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules'). [6] It was at this this mention that Mr Evans for the Respondent raised a jurisdictional issue. In brief, Council submitted that Messrs Wall and Dahlak were not employed in a capacity that would afford them coverage by the CFMEU.1 [7] Amended applications were filed in both matters on 15 March 2022. In brief, the applications sought: (a) to amend the Applications pursuant to Rule 18 of the Rules; and (b) in the alternative, an extension of time pursuant to s 317(2)(b) of the Industrial Relations Act 2016 (Qld) ('the IR Act') to file the amended application as a new application. [8] The Respondent formally objected to both applications on 18 March 2022. [9] On 25 March 2022 the Commission was advised that the CFMEU had ceased acting for both Mr Wall and Mr Dahlak.2 The argument before the Commission [10] The Respondent submits that the application is incompetent and, as a consequence, the Commission does not have the jurisdiction to entertain it. [11] It does not appear to be in contention before me that the CFMEU did not have at the time of lodging the application for reinstatement coverage for either Mr Wall or Mr Dahlak. [12] Notwithstanding the issue of coverage, Messrs Wall and Dahlak contend that r 18 of the Rules allows for the amendment of an application before the hearing. It relevantly provides: 1 TR 1-4, LL:11-21. 2 Email from the CFMEU sent to the Industrial Registry, 25 March 2022. -- 3 of 9 -- 4 18 Amending an application before hearing (1) An application may be amended, before the hearing of the application, by the applicant filing an amended application that incorporates the amendments. (2) The amended application must replace the whole of the application. (3) The registrar may make a directions order if the registrar considers it necessary because of the amended application. [13] In support of its argument before the Commission, Mr Wall and Mr Dahlak make reference to s 536(a) of the IR Act which permits matters the Commission considers just and necessary in relation to interlocutory matters to be taken before the hearing of the proceedings, including to name parties. [14] It is correct to submit that r 18 allows for the amendment of an application before the hearing. Equally, it is correct to assert that there is no express prohibition in the Rules to prevent an amendment or substitution of a party’s name. [15] The Respondent submitted that s 536 of the IR Act is of no assistance to Messrs Wall and Dahlak as it does not contemplate the commencement of proceedings as significant of those contemplated under s 317 of the Act by utilising the mechanism of the substitution of approach proposed by Mr Wall and Mr Dahlak to invalidate proceedings reportedly commenced by another person who was not competent to do so. [16] It is submitted that the objects of the IR Act are to ensure that the industrial relations regime in Queensland is fair and just and provide for the resolution of disputes. Mr Wall and Mr Dahlak contend that the Act in combination with the IR Rules can be utilised to substitute a new party. [17] The Commission was referred to the decision in ASMOF Queensland v State of Queensland (No 2),3 where his Honour Merrell DP was called on to consider an application to amend pursuant to r 18 of the IR Tribunal Rules. His Honour wrote at [23]: There are provisions of the Act which are also relevant. Pursuant to s 447(2) of the Act, the Commission must perform its functions in a way that is consistent with the objects of the Act and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act. Furthermore, pursuant to s 539(k) of the Act, except as otherwise provided for by the Act or the Rules, the Commission may waive compliance with the Rules. [18] His Honour further said:4 3 [2021] QIRC 278. 4 Ibid [25]. -- 4 of 9 -- 5 [25] In terms of considering whether or not to allow a party to amend an application, there are authoritative considerations. Relevantly to the further amendment sought to the Union's application, they include: (a) the object is to do justice between the parties according to law; (b) having regard to r 6 of the Rules, important considerations are the effect of the delay and costs; (c) the point the litigation has reached; (d) the nature and importance of the amendment to the applying party; (e) whether the amendment is brought in good faith; and (f) the explanation given by the party seeking the amendment weighed against the effects of any delay and the objectives of the Rules. (citations omitted) [19] Messrs Wall and Dahlak submit that the Act and IR Rules favour the amendments sought. [20] The Respondent contends that the purported applications are incompetent and do not invoke the Commission's jurisdiction. It is argued that the withdrawal of the CFMEU results in an effective abandoning of the proceedings by them. [21] What is argued on behalf of the Respondent is that the Commission has no power to make the orders purporting to amend clearly invalid proceedings where orders are intended to have the effect of permitting different persons who are strangers to the proceedings to commence a new proceeding in their place. [22] The gravamen of the Respondent's argument is that the proceedings are taken not to have been commenced. [23] Further, it is submitted that even if the Commission can deduce some power that permitted it to make the necessary amendments, it should refrain from doing so on the basis that the Act provides a clear pathway for persons in the position of the applicants to commence fresh proceedings outside the time limitation. [24] I accept the Respondent's argument that r 18 of the IR Rules does not avail Messrs Wall and Dahlak of the power to amend an application before the hearing as the application currently before the Commission is not capable of amendment. [25] The application made in this case is to create a new application for reinstatement for the first time in substitution for prior purported invalid applications which were made by an entity which is not entitled to commence such proceedings. [26] Whilst it is appreciated that pursuant to s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the Act and avoids -- 5 of 9 -- 6 unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act, it must do so strictly according to law. [27] In my view, Messrs Wall and Dahlak cannot rely either on s 536 of the IR Act or r 18 of the IR Rules to amend an application which on the face of it is invalid. Extension of time [28] In the alternative to the amendments, Mr Wall and Mr Dahlak seek for the amended applications to be accepted as new applications, filed on 15 March 2022. Given the 21- day time limit expired on 2 February 2022, an extension of time of 41 days is sought. [29] Messrs Wall and Dahlak submit that the amended applications be accepted as new applications, filed on 15 March 2022. [30] Section 317 of the IR Act prescribes the limitation period for bringing an application for reinstatement and empowers the Commission to extend time. [31] The approach to be adopted by the Commission in considering an extension of time to file an application to appeal was considered by Hall P in Rich v Chubb Protective Services,5 where it was observed: The view which I expressed in Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109 about the counterpart provision in the Workplace Relations Act 1997 (s 218(3)) is equally applicable here. The power to allow a further period of time within which an application about an alleged unfair dismissal may be made is vested in the Commission by statute because by statute a time limit of 21 days is imposed and because the legislature recognised "that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case", Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553; 139 ALR 1; 70 ALJR 866; BC9604531 per McHugh J (with whom Dawson J agreed). In exercising the power the legislature's choice of a 21 day limitation period must be respected, Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060 at 1060; Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. The limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the Act. It should be treated as representing the legislature's judgement that industry will best be served by applications about unfair dismissals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case: compare Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553; 139 ALR 1; 70 ALJR 866; BC9604531 per McHugh (with whom Dawson J agreed). Section 74(2)(b) should not be treated as having equal standing with s 24(2)(a). Section 74(2) is not the equivalent of a rule of court providing that if a matter is not commenced within 21 days it may be commenced only with leave of the relevant tribunal. It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland 5 (2001) 167 QGIG 159, 160. -- 6 of 9 -- 7 industry and of those who work in it are best served by the 21 day limitation period at s 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; 139 ALR 1; 70 ALJR 866; BC9604531 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed). Subject to the above, the Act gives no direct guidance as to the basis upon which the power at s 74(2)(b) is to be exercised. Notwithstanding the omission of the facilitative verb "may", it seems to me that like s 218(3) of the Workplace Relations Act 1997 the power has to be approached upon the basis that the power to extend time is a "full and unlimited" discretionary power, compare Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. It is useful to marshall up the cases in which the power has been exercised (or not exercised) and distil "principles" or "guidelines" for the disposition of other cases in which the power at s 74(2)(b) is invoked. However, any such set of "principles" or "guidelines" may not be treated as exhaustive. Neither may testing the circumstances of a particular case against the "principles" or "guidelines" become a substitute for the exercise of the power itself: compare Breust v Qantas Airways Ltd (1995) 149 QGIG 777 at 778. [32] It is recognised that the time limit prescribed under s 317(2) of the IR Act should only be departed from in the most compelling of circumstances and where it is necessary to ensure that justice is done between the parties.6 [33] Section 317 of the IR Act prescribes the limitation period for bringing an application for reinstatement and empowers the Commission to extend this period. [34] In Wantling v Department of Community Safety (Queensland Corrective Services),7 and more recently in Weaver v Ipswich City Council,8 the Commission articulated the following key factors bearing upon the discretion under s 317(2)(b) of the IR Act: [12] It is possible to distil from the relevant authorities the following principles which ought to be considered by the Commission when exercising its discretion to extend time within which to make an application for reinstatement under s 317(2)(b) of the Act: (i) the explanation for the delay; (iii) the prejudice to the Applicant if the extension of time is not granted; (iv) the prejudice to the Respondent if the extension of time is granted; (v) any relevant conduct of the Respondent; and (vi) the prospects of success of the substantive application. [35] On the material before the Commission the extension sought is some 41 days. The reason for the delay is wholly explained by the circumstances of the case. It is not necessary to again rehearse the history of this application. It is not in dispute that Mr Wall and Mr Dahlak challenged their dismissals and made that clear to the Respondent. 6 Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43 [59]. 7 [2013] QIRC 43 [59]. 8 [2021] QIRC 234. -- 7 of 9 -- 8 [36] The difficulty for Mr Wall and Mr Dahlak, as has become apparent, is the approach adopted by them, namely, to allow the CFMEU, an industrial organisation of which they were a member to commence the proceedings on their behalf. [37] The Full Bench in Robertson v Interstate Transport,9 gave detailed consideration to the interplay between a client's instructions to file an application and a failure of lawyers to act on those instructions. In overturning the decision of the Commissioner not to allow an extension of time, the Full Bench stipulated: It is unsurprising that [the applicant], having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative's requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to [his solicitors] to lodge his application.10 [38] I accept that the first occasion on which an objection was raised by the Respondent was in February 2022, some 6 weeks after the applications were filed. Shortly thereafter, Messrs Wall and Dahlak took steps to address the concern of the Respondent, which steps culminated in the filing of the present applications. [39] Both Wall and Dahlak depose that had they been aware that there was any doubt regarding their eligibility to be a member of the CFMEU they would not have instructed the CFMEU to commence proceedings in their name.11 [40] As can be seen, the causes of the delay are a range of circumstances that are exceptional. [41] I accept that if the extension of time in which to file the applications for reinstatement are refused, then Mr Wall and Mr Dahlak will undoubtedly suffer prejudice. They will be denied their right to challenge what they contend are unfair dismissals through no fault of their own. [42] The proceedings are at an early stage, directions have yet to be issued and the matter still requires conciliation. In those circumstances, it is difficult to be in a position to properly assess the merits of the matter. [43] These factors, together with the lack of any prejudice caused to the Respondent ought to lead the Commission to decide that an extension of time is appropriate. 9 [2011] FWAFB 2728. 10 Ibid [30]. 11 Affidavit of Joshua Wall filed 29 March 2022; Affidavit of Berhane Dahlak filed 30 March 2022. -- 8 of 9 -- 9 [44] On balance, I have formed the view that the statutory time limit in s 317(2) should, in all the circumstances, be extended to ensure that justice is done between the parties. As Hall P observed in Rich, the limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the IR Act. [45] In light of the conclusions expressed above, I would give leave to Mr Wall and Mr Dahlak to file their respective applications for reinstatement outside the statutory time limit in s 317(2) of the IR Act. [46] Having also concluded that applications TD/2022/12 and TD/2022/13 were commenced by an entity that was not entitled to bring such proceedings, it must follow that they should be struck out. Order 1. That TD/2022/12 and TD/2022/13 be struck out. 2. Pursuant to s 317(2)(b) of the Industrial Relations Act 2016 (Qld) Joshua Laurie Wall and Berhane Talked Dahlak are granted leave to file an application for reinstatement outside the statutory time limit prescribed in s 317(2)(a) of the Industrial Relations Act 2016. -- 9 of 9 --