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  4. McHardy v Queensland Rail Transit Authority t/a Queensland Rail - [2020] QIRC 202

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McHardy v Queensland Rail Transit Authority t/a Queensland Rail[2020] QIRC 202

McHardy v Queensland Rail Transit Authority t/a Queensland Rail[2020] QIRC 202

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McHardy v Queensland Rail Transit Authority t/a Queensland Rail [2020] QIRC 202

PARTIES:

McHardy, Kyle

(Applicant)

v

Queensland Rail Transit Authority t/a Queensland Rail

(Respondent)

CASE NO:

B/2020/14

PROCEEDING:

Application to recover unpaid wages

DELIVERED ON:

25 November 2020

CONFERENCE:

15 May 2020

HEARING DATE:

On the papers

MEMBER:

Power IC

ORDER:

The Application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR RECOVERY OF UNPAID WAGES – where applicant seeking recognition for continuity of service – where applicant re‑employed after three months – whether applicant entitled to recognition for continuity of service – whether employer is estopped from relying upon alleged representations.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 133, s 475

Industrial Relations Act 1999, (Qld), Chapter 2, Part 6

Acts Interpretation Act 1954 (Qld), s 14A

CASES:

Gregg Alan Miles AND Q-COMP (B/2013/31) - Decision

Hawkins Road Transport Pty Ltd v Transport Workers’ Union of Australia [1999] QIC 20

WorkCover Queensland v Trevor Ernest Markwell (No.2) (2001) 165 QGIG 351

Owners Corporation SP82070 v Taricon Pty Ltd [2017] NSWCATCD 37

Re: Beckford Nominees Pty Ltd v Shell Co of Australia Limited [1986] FCA 328

Jack Gordon Kidd v Savage River Mines (1984) 6 FCR 398

Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784

Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Walsh v Commercial Travellers Association of Victoria (1940) VLR 259

The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Gersten v Cape York Land Council Aboriginal Corporation (2004) QGIG 335

APPEARANCES:

Mr L. Kennedy, Australian Rail Tram & Bus Industry Union of Employees, Queensland Branch for the Applicant.

Mr M. Reeves, Queensland Rail Transit Authority t/a Queensland Rail, the Respondent.

Reasons for Decision

Background

  1. [1]
    Mr Kyle McHardy ('the Applicant') filed an Application on 14 February 2020 to recover unpaid wages pursuant to s 475 of the Industrial Relations Act 2016 ('the Act') seeking recognition for his continuity of service with the Queensland Rail Transit Authority t/a Queensland Rail (QR) ('the Respondent').
  1. [2]
    The Applicant seeks an order that the Respondent recognise his service from 12 October 2009 to 24 March 2014 for the purposes of long service leave entitlement.
  1. [3]
    The Applicant states that he is not seeking payment of long service leave monies, rather recognition of continuity of service on which his entitlement is based.
  1. [4]
    The following facts are not in dispute between the parties:
  1. (a)
    the Applicant was employed by the Respondent on 12 October 2009 as an electrical apprentice;
  1. (b)
    on 13 October 2013, the Applicant ceased employment upon completion of his apprenticeship; and
  1. (c)
    on 24 March 2014, the Applicant commenced work with the Respondent in the position of Signal Electrician
  1. [5]
    The issue for determination is whether the period between the end of the Applicant's apprenticeship (13 October 2013) and the commencement of his employment as a Signal Electrician (24 March 2014) should be recognised under the continuity provisions of the Industrial Relations Act 2016.  If this continuity is recognised, it follows that the Applicant's long service leave entitlement would be adjusted accordingly.

Jurisdictional issue - time limitation period

  1. [6]
    The Respondent submits that seeking to have the period 12 October 2009 to 24 March 2014 recognised for the purposes of long service leave accrual is contrary to the time limitation period provided for under s 475 of the Act.
  1. [7]
    Section 475 of Act provides as follows:

475 Power to recover unpaid wages and superannuation contribution etc.

  1. (1)
    On application by a person under section 476, the commission may order payment of the following for the period of 6 years before the date of the application -
  1. (a)
    An employee's unpaid wages;

. . .

  1. [8]
    The Respondent further submits that pursuant to s 475 of the Act, the application is limited to consideration of the period following 14 February 2014, that being the period of 6 years before the date of the Applicant's application.
  1. [9]
    It is the Respondent's view that the Applicant's claim pertaining to long service leave accrual prior to 14 February 2014 should be dismissed on the grounds there is no jurisdiction to determine at least that portion of the matter.
  1. [10]
    The Respondent submits that the intent of the six year limitation is to ensure that employers are not required to defend against claims for matters that occurred in excess of six years prior, given the difficulties that can be faced in attempting to submit evidence and recall events in such situations.
  1. [11]
    The Applicant claims that an application made pursuant to s 475 of the Act cannot prohibit a person from recovering monies/wages born from an entitlement that has yet to be activated by an employee's conduct or, in this case, years of service.
  1. [12]
    Clause 39 of the Queensland Rail Network Enterprise Agreement 2016 (the Agreement) provides for the following entitlement:

39.1 Employees are entitled to 345.8 hours of long service leave on completion of 7 years continuous service.

  1. [13]
    The Applicant states that based on a calculation commencing in November 2009, the completion of his seven years of service occurs at a point in November 2016.  The entitlement for which the Applicant is seeking to recover could only come into existence at the earliest in November 2016.  Consequently, the Applicant argues that he could not make an application under s 475 of the Act prior to November 2016 as he had not yet met the seven year requirement imposed by clause 39.1 of the Agreement.  The period between November 2016 and the date of filing this Application approximates three years and three months making it within the six year limitation period.

Consideration of time limit

  1. [14]
    It is my view that the six year limit for a claim of this type operates from the date at which the entitlement vests.  As submitted by the Applicant, there is no entitlement for long service leave under the Agreement or the Act until the Applicant reached seven years of service.
  1. [15]
    The entitlement for long service leave in this matter only arises on the date upon which the Applicant has reached seven years of service.  The six year time limit commences on this date, which at the earliest point based upon commencement in November 2009, would be November 2016.  This application was filed approximately three years following the earliest point in which the entitlement arose and as such is within the statutory time limitation period.
  1. [16]
    The Respondent correctly submits that the six year limitation period is to provide certainty to employers with respect to claims.  This interpretation does not upset that policy objective, rather it simply confirms that the six year limit arises from a time in which the entitlement arises and not an earlier point in the employment history.
  1. [17]
    I accept that the application was filed within the required timeframe.

Continuity of service

  1. [18]
    As noted above, the Applicant seeks recognition of his entitlement to long service leave based on his service commencing on 12 October 2009 as an apprentice with the same employer.
  1. [19]
    Section 133(1(b)(ii) of the Act creates the following entitlement to the recognition of continuity of service:

133 Continuity of service - apprentices or trainees

  1. (1)
    This section applies if -
  1. (a)
    an employee, while employed with the employer, starts an apprenticeship or traineeship; or
  1. (b)
    the employer -
  1. (i)
    continues to employ an apprentice or trainee (the "employee") on the completion of the apprenticeship or traineeship; or
  1. (ii)
    re-employs the employee within 3 months after completion of the employee's apprenticeship or traineeship.
  1. (2)
    The period of the apprenticeship or traineeship does not break the employee's continuity of service.
  1. [20]
    It is not disputed that the Applicant was re-employed with the Respondent outside of the three month period provided in s 133(1)(b)(ii) of the Act.

Applicant's submissions

  1. [21]
    The following submissions, in summary, were made by the Applicant's representative, Mr L. Kennedy of the Australian Rail Tram & Bus Industry Union of Employees, Queensland Branch:
  • in October 2013, Mr McHardy and his apprenticeship cohort were told at several meetings that upon completion of their apprenticeships they would be able to secure ongoing employment with QR as Facility electricians;
  • in the weeks leading up to the completion of Mr McHardy's apprenticeship, QR Management notified the apprenticeship cohort that the Facility electrician positions would be eliminated from QR Network Division;
  • prior to the completion of his apprenticeship, Mr McHardy was informed by his Manager, Mr Phil Clarke, that the apprenticeship cohort would be able to apply for the newly created position of Signal electrician;
  • Mr McHardy was informed that successful applicants would have their service numbers carried over and their continuity of service recognised;
  • in November 2013, Mr McHardy was provided two documents titled, "Change Notification and Redeployment Opportunities SEQ Facilities Electricians and Electrical Apprentices Network" and "Expression of Interest";
  • these documents set out the recruitment process for the new Signal electrician role, with applicants to complete EOI forms by 27 November 2013 and successful applicants recommencing their employment in the role by 16 December 2013;
  • if QR had complied with this timeline Mr McHardy would have recommenced his employment within two months and six days from the date he completed his apprenticeship;
  • Mr McHardy was successfully re-employed by QR recommencing his employment five months and seven days after the completion of his apprenticeship and three months and one day after the expected recommencement date;
  • the Acts Interpretation Act 1954 (Qld)(AIA) requires the Commission, when interpreting a provision to comply with s 14A of the AIA which provides:

"In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation."

  • section 3(a) of the IR Act sets out the purpose of the Act, providing for a "framework for cooperative industrial relations that is fair and balanced";
  • it is imposed upon the Commission to seek a reading of s 133(1)(b)(ii) that emphasises a fair, right, equitable, and reasonable interpretation of the provision; and
  • for the Applicant, a fair and equitable reading of the provision would be that an employer may provide an employee a more beneficial entitlement than that created under s 133(1)(b)(ii).
  1. [22]
    The Applicant made further submissions with respect to equitable remedies, including the following -

● the Applicant satisfied the test imposed on a party seeking a remedy for promissory estoppel;

● the Applicant was presented with representations concerning his opportunity of future employment with the Respondent;

● these representations included that the Applicant would have his continuity recognised;

● the Applicant has relied upon these representations and suffered detriment;

● the Respondent's refusal to recognise the Applicant's continuity constitutes unconscionable conduct under the doctrine of equity;

● had the Respondent not resiled from its promises, the Applicant would have been entitled to claim $15, 983.37 [1] (444.6 hours) in wages connected to his long service leave balance;

● consistent with doctrines of promissory estoppel, the Applicant has satisfied the conditions imposed by the courts to permit the Commission to apply an equitable remedy to estop the Respondent from relying on s 133 of the IR Act as a shield from the Applicant's claim; and

● the Applicant relied upon Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.

Respondent's submissions

  1. [23]
    The Respondent made the following submissions, in summary:
  • the criteria for recognising continuity of service under the Act is unambiguous and provides no alternative discretion to the Commission;
  • the Applicant commenced employment with the Respondent as an electrical apprentice on 12 October 2009 within the Facilities team. The Applicant's apprenticeship and subsequent employment with the Respondent ceased on 13 October 2013;
  • in late November 2013 the Respondent commenced a consultation exercise with the Facilities employees employed at that time about a proposed downsizing restructure within the Facilities team;
  • the Applicant was not employed, either as an electrical apprentice or as a Facilities electrician, by the Respondent during this consultation process;
  • this consultation information was not given to the Applicant by the Respondent;
  • the consultation process, including any associated documentation, from November 2013 is irrelevant to the application of the Applicant.  In any event, it does not provide the guarantees or promises so alleged by the Applicant;
  • the Respondent denies any verbal or written promises, guarantees or commitments were given to the Applicant that would indicate a guarantee of further employment with the Respondent; and/or that would indicate a guarantee that continuity of service would be maintained should he gain future employment with the Respondent;
  • the Applicant applied for a signal electrician position in the Respondent's Signalling team in late 2013. The Applicant applied as an external applicant via an open recruitment and selection process through the external QR careers website, and competed for the signal electrician roles with both internal and other external applicants;
  • the Applicant acknowledges he had obtained alternative employment following the termination of his employment in October 2013;
  • the Applicant was initially unsuccessful in obtain a signal electrician role and was advised accordingly, however with more positions becoming available on 18 February 2014 the Applicant was offered the opportunity to interview for a role;
  • the Applicant was successful in obtaining one of these additional positions and was offered employment as a signal electrician with the Respondent to commence on 24 March 2014;
  • with respect to the Applicant's reliance on the doctrine of equitable estoppel, the Respondent submits it is not open on the facts for equitable estoppel to be enlivened in this matter.  This is based on the following:
  1. (a)
    no promise was made to the Applicant by the Respondent; and in the alternative;
  1. (b)
    in the event a promise was made as submitted by the Applicant, a failure to fulfil a promise does not of itself amount to unconscionable conduct to enliven the doctrine of equitable estoppel.
  • Mr John Detering was employed as the Senior Manager Facilities at the time the Applicant was employed as a Facilities electrical apprentice;
  • in November 2013, Mr Detering submits that a consultation exercise was commenced with the Facilities employees employed about a proposed downsizing restructure within the Facilities team;
  • Mr Detering submits that at no time did he provide the Applicant with any commitment that he would be provided with any guarantee to ongoing employment with QR following the completion of his apprenticeship and subsequent cessation of employment on 10 October 2013;
  • in a statement provided by Mr Philip Clark, former Facilities Maintenance Manager, he states the following, in summary:
  1. -the Applicant approached Mr Clark in September 2019 regarding his continuity of service.  Mr Clark did not confirm details of his eligibility at the time he responded via email in October 2019;
  2. -Mr Clark did not provide the Applicant with any commitment that his continuity of service would be maintained should he be successful in obtaining employment with QR post the completion of his apprenticeship and subsequent cessation of employment; and
  3. -Mr Clark did not provide such commitments and would have no authority to make such commitments.
  • it is not open on the facts for equitable estoppel to be enlivened in this matter.  This is based on the fact that no promise was made to the Applicant by the Respondent; and in the event a promise was made as submitted by the Applicant, a failure to fulfil a promise does not of itself amount to unconscionable conduct to enliven the doctrine of equitable estoppel;
  • notwithstanding no promise was made by the Respondent to the Applicant, in the alternative, the Respondent had no knowledge of the Applicant's alleged reliance.  This has not been positively proven on the Applicant's submissions.  In any event, the alleged reliance is unreasonable.  The alleged voluntary promise was alleged to have been made in the context of a recruitment process in which the Applicant was not successful.  Therefore, the Applicant would not be able to safely reply upon it; and
  • this is a matter that can and should be determined by very specific statute law.

Consideration

  1. [24]
    It is not disputed between the parties that the relevant provision in this matter, s 133 of the Act, is unambiguous in its meaning.  That is, where an employer re-employs an apprentice within three months after completion of the employee's apprenticeship, the employee's continuity of service is recognised.
  1. [25]
    However, this matter turns upon the proposition by the Applicant that estoppel may be raised in circumstances in which the Respondent is said to have made representations relied upon by the Applicant, to the Applicant's detriment.
  1. [26]
    Firstly, I note the general proposition that the Commission has no inherent jurisdiction.[2]  The Commission is a statutory tribunal which exercises jurisdiction conferred only by statute.  Whilst the Commission is guided by equitable principles in the exercise of its powers, remedies ordered must be consistent the provisions of the Industrial Relations Act 1999.
  1. [27]
    With respect to the issue of whether estoppel may be enlivened in this matter, it is a general principle that a party cannot rely upon estoppel in the context of a statutory right or prohibition, although this principle is dependent upon the terms of the statute.[3]
  1. [28]
    Generally, statutes which preclude contracting out of the rights and obligations they confer will defeat the application of estoppel and waiver to like effect.[4]  The Federal Court noted in Jack Gordon Kidd v Savage River Mines,[5] that statutory rights should not be defeated by estoppel within an industrial relations context generally.
  1. [29]
    There is a well-established line of judicial authority inimical to the use of estoppel for industrial instruments.[6] It follows that in most circumstances, the conduct of neither employee nor employer can waive these rights and obligations.
  1. [30]
    There are however some circumstances in which estoppel may be raised with respect to industrial rights and obligations.  As outlined in Metropolitan Health Service Board v Australian Nursing Federation,[7] the application of the principles of estoppel and waiver to the enforcement of statutory rights depends upon their consistency with the terms and purpose of the statue creating the rights.  The relevant consideration is whether the benefit conferred by the statute is personal or private or whether it rests upon public policy or expediency.[8]
  1. [31]
    In the matter of The Commonwealth of Australia v Verwayen, Mason CJ of the High Court provides guidance on this point:

The issue is not whether the relevant provisions are beneficial to the public, but whether they are 'dictated by public policy' and enacted 'not for the benefit of any individuals or body of individuals, but for considerations of state'.  Although in one sense all statutes give effect to some public policy … the critical question is whether the benefit is personal or private or whether it rests upon public policy of expediency.[9]

  1. [32]
    The Act provides the statutory framework in which the State regulates the rights and obligations of two groups of people - employees and employers.  To this end, the statutory provision detailed in s 133 of the Act does not, in my view, confer a personal or private benefit to the parties.  Rather the section creates a regulatory obligation based upon public policy with respect to recognition of continuity of service for the purposes of industrial entitlements.
  1. [33]
    The reliance on equitable estoppel is not enlivened on the basis that s 133 of the Act is not a provision that can be waived via the conduct of either party.  The employer cannot obviate the obligation to recognise continuity of service if the employee is re-employed within three months, even if the employee's conduct appears to waive his or her right to such recognition.  Conversely, the employer's conduct cannot be accepted as waiving their rights and obligations under this statutory provision.
  1. [34]
    Provisions within the Act exist to provide certainty to both employers and employees with respect to rights and obligations within the Queensland industrial relations system.  The provisions within are not, in my view, intended to provide private benefits that may be waived but to provide protections for a class of persons (employers and employees) in the public interest.
  1. [35]
    The legislature has determined that the appropriate timeframe within which employers are obligated to recognise continuity of service is three months.  The statutory timeframe within which continuity of service must be recognised is not a provision in which the Commission is vested with any discretion under the Act.  The provision is not subject to any qualification and may only be interpreted in keeping with the clear words of the statute.
  1. [36]
    To make an order directing the Respondent to recognise continuity of service outside of the three-month statutory period would be to override the intent of the legislature in determining the appropriate time frame.
  1. [37]
    With respect to the Applicant's submissions that the Commission is bound to ensure "a fair, right, equitable, and reasonable interpretation of the provision", I note that whilst this submission correctly identifies principles by which the power of Commission must be exercised, it does not address the vesting of power.[10] The Commission is simply not vested with power to make the orders sought by the Applicant.
  1. [38]
    Both parties made submissions with respect to representations alleged to have been made by the Respondent.  On the basis that the equitable remedy sought cannot be ordered in this matter, it is not necessary to consider these submissions.
  1. [39]
    For the foregoing reasons, the application is dismissed.

Orders

  1. [40]
    I make the following Order:

The application in Matter No. B/2020/14 is dismissed.

Footnotes

[1]The Application at page 5 shows the amount of $15,983.37 however the Applicant's Submissions filed on 8 June 2020 state at paragraph 2 the amount of $15,938.37.

[2]Hawkins Road Transport Pty Ltd v Transport Workers’ Union of Australia [1999] QIC 20;  WorkCover Queensland v Trevor Ernest Markwell (No.2) (2001) 165 QGIG 351;  Gregg Alan Miles AND Q-COMP (B/2013/31) - Decision .

[3]Owners Corporation SP82070 v Taricon Pty Ltd [2017] NSWCATCD 37.

[4]Re: Beckford Nominees Pty Ltd v the Shell Company of Australia Limited [1986] FCA 328.

[5](1984) 6 FCR 398.

[6]Duncan v Ellis (1916) 21 CLR 379; Walsh v Commercial Travellers Association of Victoria (1940) VLR 259.

[7][2000] FCA 784.

[8]The Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

[9]Ibid, 405.

[10]Gersten v Cape York Land Council Aboriginal Corporation (2004) QGIG 335 (No. B2047 of 2003).

Close

Editorial Notes

  • Published Case Name:

    McHardy v Queensland Rail Transit Authority t/a Queensland Rail

  • Shortened Case Name:

    McHardy v Queensland Rail Transit Authority t/a Queensland Rail

  • MNC:

    [2020] QIRC 202

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    25 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commonwealth v Verwayen (1990) 170 CLR 394
3 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Cite 3 - (1990) 170 CLR 394
Decision Hawkins Road Transport Pty Ltd v Transport Workers' Union of Australia [1999] QIC 20
2 citations
Jump To
Cite 1 - [1999] QIC 20
Cite 2 - [1999] QIC 20
Duncan v Ellis (1916) 21 CLR 379
1 citation
Jump To
Cite 1 - (1916) 21 CLR 379
Gersten v Cape York Land Council Aboriginal Corporation (2004) QGIG 335
2 citations
Jump To
Cite 1 - (2004) QGIG 335
Cite 2 - (2004) QGIG 335
Jack Gordon Kidd v Savage River Mines (1984) 6 FCR 398
2 citations
Jump To
Cite 1 - (1984) 6 FCR 398
Cite 2 - (1984) 6 FCR 398
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784
2 citations
Jump To
Cite 1 - [2000] FCA 784
Cite 2 - [2000] FCA 784
Miles v Q-COMP [2013] QIRC 133
1 citation
Jump To
Cite 1 - [2013] QIRC 133
Owners Corporation SP82070 v Taricon Pty Ltd [2017] NSWCATCD 37
2 citations
Jump To
Cite 1 - [2017] NSWCATCD 37
Cite 2 - [2017] NSWCATCD 37
Re: Beckford Nominees Pty Ltd v Shell Co of Australia Limited [1986] FCA 328
2 citations
Jump To
Cite 1 - [1986] FCA 328
Cite 2 - [1986] FCA 328
Walsh v Commercial Travellers Association of Victoria (1940) VLR 259
2 citations
Jump To
Cite 1 - (1940) VLR 259
Cite 2 - (1940) VLR 259
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
2 citations
Jump To
Cite 1 - (1988) 164 CLR 387
Cite 2 - (1988) 164 CLR 387
WorkCover Queensland v Trevor Ernest Markwell (No.2) (2001) 165 QGIG 351
2 citations
Jump To
Cite 1 - (2001) 165 QGIG 351
Cite 2 - (2001) 165 QGIG 351

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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