Together Queensland, Industrial Union of Employees v Scales (No 5)
[2022] QIRC 225
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- Together Queensland, Industrial Union of Employees v Scales (No 5)[2022] QIRC 225
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Together Queensland, Industrial Union of Employees v Scales (No 5)[2022] QIRC 225
Together Queensland, Industrial Union of Employees v Scales (No 5)[2022] QIRC 225
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Together Queensland, Industrial Union of Employees v Scales & Anor (No 5) [2022] QIRC 225 |
PARTIES: | TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES (Applicant) v NEIL SCALES (First Respondent) & STATE OF QUEENSLAND (DEPARTMENT OF TRANSPORT AND MAIN ROADS) (Second Respondent) |
CASE NO: | B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/33 |
PROCEEDING: | Applications |
DELIVERED ON: | 20 June 2022 |
HEARING DATE: | 10 and 11 February, 22 April 2022 |
MEMBERS: HEARD AT: | Davis J, President, O'Connor VP, Power IC BRISBANE |
ORDER: | Application dismissed |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – AWARDS – PRINCIPLES OF INTERPRETATION – where the Applicant Union had members who were Transport Inspectors – where the employment of the Transport Inspectors was governed by an award – where a dispute arose as to the entitlement of Transport Inspectors to be paid a day in lieu for the Boxing Day 2020 public holiday – where the Union brought applications for pecuniary penalties alleging breach of the Award – where the breach alleged was a failure to pay within the fortnightly pay cycle – where the provision obliging payment to employees within the pay cycle referred to “salary” – whether payment for a day in lieu of a public holiday is “salary” PROCEDURE – STATE AND TERRITORY COURTS – CASE MANAGEMENT – where a union brought pecuniary penalty applications alleging a breach of an award – where the breach alleged was a failure to pay a day’s pay in lieu of a public holiday – where the breach alleged was failure to pay that entitlement within the fortnightly pay cycle – where after the evidence was heard the Union attempted to argue a different case – whether the new case ought to be entertained |
LEGISLATION: | Industrial Relations Act 2016 (Qld) Ch 11, Pt 8, s 451, s 571 Workers Compensation and Rehabilitation Act 2003 |
CASES: | Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, followed Byrnes v Kendle (2011) 243 CLR 253, followed Cartlon v Workers' Compensation Regulator [2017] ICQ 1, followed Kim v Workers' Compensation Regulator [2019] ICQ 14, followed R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106, followed SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed Together Queensland Industrial Union of Employees v Scales & Anor [2021] QIRC 364, related Together Queensland Industrial Union of Employees v Scales & Anor (No 2) [2021] QIRC 428, related Together Queensland Industrial Union of Employees v Scales & Anor (No 3) [2022] QIRC 024, related Together Queensland Industrial Union of Employees v Scales & Anor (No 4) [2022] QIRC 026, related |
APPEARANCES: | Mr K McKay, Together Queensland, Industrial Union of Employees for the Applicant CJ Murdoch of Queen's Counsel, with him Ms AC Freeman of Counsel, instructed by Crown Law for the First and Second Respondents |
Reasons for Decision
- [1]The dispute arises from an alleged contravention of the Queensland Public Service Officers and Other Employees Award – State 2015 (Qld) (the Award), specifically clause 23.4.
- [2]The Together Queensland Industrial Union of Employees (the Union), who is the applicant in each of the applications, has members who are employed by the State of Queensland. Some of those members are Transport Inspectors.
- [3]The first respondent (Mr Scales) is the Director-General of the Department of Transport and Main Roads (the Department). The Second Respondent, the State of Queensland, employs the Transport Inspectors through the Department.
- [4]The Union filed seven applications against both respondents claiming pecuniary penalties upon breach of the Award.[1] Each application concerned an alleged breach of the Award in relation to an individual member of the Union. All alleged breaches arose from circumstances arising from Boxing Day 2020 as we later explain.
- [5]
- [6]As already mentioned, the dispute centres around 26 December 2020 – Boxing Day. Boxing Day fell on a Saturday that year. As such, the Union submits that the five applicants who do not ordinarily work Monday to Friday were entitled to a day’s payment according to clause 23(a)(i) of the Award. That was not paid, the Union submits, within the fortnightly pay cycle and consequently there was a breach of the Award.
- [7]The hearing before the Full Bench proceeded on the basis of an Amended Agreed Statement of Facts:
Amended Agreed Statement of Facts
The parties
- The Applicant[4] is, and at all material times, was:
a. an industrial organisation of employees; and
b. by clause 4.1(c)(v) of the Queensland Public Service Officers and Other Employees Award – State 2015 (the Award), an industrial organisation of employees to which the Award applies.
- The First Respondent[5] is, and at all material times, was:
a. the Director-General (chief executive) of the Department of Transport and Main Roads; and
b. by clause 4.1(b) of the Award, as the chief executive of a government department which employs employees covered by the Award in his capacity, as for the Second Respondent, the person responsible for the employment of public service employees in the Department of Transport and Main Roads, a person holding appointment to an office to which the Award applies.
- The Second Respondent[6] is, and at all material times, was:
a. the employer of employees engaged in the public sector of the State of Queensland whose salaries or rates of pay are fixed by the Award; and
b. covered by the Award through the First Respondent’s office as chief executive of a government department which employs employees covered by the Award in his capacity, as for the Second Respondent, the person responsible for the employment of public service employees in the Department of Transport and Main Roads.
The Transport Inspectors
- Jamie Wicks (named in B/2021/27), Raymond Philbey (named in B/2021/28), James Blackshaw (named in B/2021/29), Darren Loughlan (named in B/2021/30), Christopher Greensbury (named in B/2021/31), Brian Murphy (named in B/2020/32) and Anthony Hiltjes (named in B/2021/33)[7] (the Transport Inspectors) are, and at all material times, were:
a. employees of the Second Respondent employed, under the Public Service Act 2008, in the Department of Transport and Main Roads, as Transport Inspectors;
b. by clause 4.1(a)(i) of the Award, employees engaged in the public sector of the State of Queensland, in the ‘Administrative stream’, whose salaries or rates of pay are fixed by the Award and to which the Award applies; and
c. in the case of Raymond Philbey, James Blackshaw, Darren Loughlan, Christopher Greensbury, and Anthony Hiltjes, employees who do not ordinarily work Monday to Friday of each week (the Applicable Transport Inspectors).
- The table in clause 12.3(a) of the Award prescribes the minimum salaries payable to employees within the Administrative stream.[8]
Boxing Day
- The Holidays Act 1983 makes provision for holidays and related purposes, relevantly:
a. the Holidays Act provides that 26 December of each year is observed as the Boxing Day public holiday; and
b. if the 26 December falls on a Saturday a public holiday is also to be observed on 28 December of that year.
- In 2020, Boxing Day fell on a Saturday (26 December) and the public holiday was observed on Saturday 26 December 2020 and Monday 28 December 2020 pursuant to the Holidays Act.
- The Transport Inspectors were not rostered to work, and did not work, on 26 December 2020.
Payment for public holidays and for work on public holidays
- Public holidays are provided for in Division 10 of the Queensland Employment Standards (QES). Clauses 23.1 to 23.5 of the Award supplement the QES.
- Clauses 23.1 to 23.5 of the Award apply to the Transport Inspectors.
- The Applicable Transport Inspectors were entitled to either payment for the public holiday occurring on 26 December, or a substituted day’s leave.
Correspondence between the parties regarding the 26 December 2020 public holiday.
- On 21 December 2020, the Applicant wrote to the First Respondent stating:
Dear Mr Scales,
Re: Transport Inspectors Public Holiday Issues
Together writes to you to raise concern about incorrect advice provided to employees of the Department working as Transport Inspectors. These employees have been told that they are not entitled to a day’s pay or a substituted day’s leave for the public holiday on 26th December 2020.
These employees as you would be aware work rosters over seven days of the week. Thus clause 23.4(a) of the award applies to them:
23.4 Employees who do not ordinarily work Monday to Friday of each week
- (a)An employee (other than a casual employee) who does not ordinarily work Monday to Friday of each week is entitled to either payment for each public holiday or a substituted day’s leave
The Departmental advice is that employees who in this particular week are rostered Mon-Fri are not entitled to the benefits of clause 23.4(a). They are being told for the week between Christmas and New Year they have to apply for a day’s leave, whereas the normal practice is that the substituted day’s leave is utilized.
This advice is erroneous, the exclusion from clause 23.4(a) is only for employees who work Mon-Fri of each week, in other words every week.
We have raised this with the departmental officers to no avail. We find it unfathomable that these employees who have made significant sacrifices to assist with the COVID-19 operations are treated so shabbily.
We wish to advice you that unless this matter is rectified immediately, we will consider pursuing civil penalty provisions against the State of Queensland for breaches of the industrial instrument.
- On 23 December 2020, the First Respondent wrote to the Applicant stating:
Dear Ms Flanders
Thank you for your letter of 21 December 2020 about a substitution day for the Transport Inspectors.
I am extremely proud of all of my employees' commitment and efforts in response to the COVID-19 pandemic. The Department of Transport and Main Roads (TMR) values the work of the Transport Inspectors and appreciates their continued assistance at the borders. To this end, I have personally visited them on location to express my gratitude and even filmed a video with a few of them to showcase their hard work.
In response to the concerns raised about Transport Inspectors not receiving a substituted day for the Boxing Day public holiday, I am advised that the Employee Relations Unit has provided advice on a number of occasions to both Transport Inspectors and to the Together Queensland union about this matter.
TMR implements the entitlements as per the Queensland Public Service Officers and Other Employees Award – State 2015 at Sections:
23.3 Substitution
- (a)Subject to statutory limitations (such as the time work may not be performed on Anzac Day) where there is agreement between the chief executive and an employee or employees, another ordinary working day may be substituted for a public holiday.
23.4 Employees who do not ordinarily work Monday to Friday of each week
- (a)An employee (other than a casual employee) who does not ordinarily work Monday to Friday of each week is entitled to either payment for each public holiday or a substituted day's leave
- (b)Where a public holiday would have fallen on a Saturday or a Sunday (e.g. Australia Day) but is substituted for another day, an employee (other than a casual employee) who would ordinarily have worked on such Saturday or Sunday but who is not rostered to work on such day is entitled to payment for the public holiday or a substituted day's leave.
It is acknowledged that given differing operational requirements across the state, for example the response to the pandemic (or natural disasters), there are some instances where Transport Inspectors are rostered on a Saturday or Sunday.
As per section 23.4 (b), TMR's Transport Inspectors who are ordinarily rostered on to work on Saturdays are entitled to be paid for the public holidays or receive a substituted day. TMR's Transport Inspectors who are not ordinarily rostered work on Saturdays are not entitled to the Saturday (26 December 2020) public holiday payment.
Where there are any instances identified where this is not being implemented according to the award, I have arranged for Ms Elle Ackland, Director (Employee Relations), TMR, to be available to assist you by telephone on [redacted] or email at [redacted].
I trust this information is of assistance.
- By email from the Applicant to the Second Respondent (through Ms Ackland) dated 7 January 2021, the Applicant asserted, inter alia, that the advice referred to in the First Respondent’s letter in the third paragraph was incorrect.
- By email from the Second Respondent (through Ms Ackland) to the Applicant dated 11 January 2021, the Second Respondent advised, inter alia, that the Second Respondent wished to conduct a thorough review of the payments made to Transport Inspectors to ensure the Second Respondent was meeting its obligations under the Award and that given this, and the potential time limits related to the COVID-19 lockdown, the Second Respondent expected to respond within one week.
- By email from the Second Respondent (through Ms Ackland) to the Applicant dated 18 January 2021, the Second Respondent advised, inter alia, that the audit was taking longer than anticipated, however the Second Respondent was in the process of finalising the information and a response would be provided soon.
- By email from the Second Respondent (through Ms Ackland) to the Applicant dated 22 January 2021, the Second Respondent advised, inter alia, that:
a. COVID-19 had impacted Transport Inspectors’ normal rosters significantly due to their assistance with border patrol activities during 2020;
b. a review of timesheet data had identified 13 employees who ordinarily worked Saturdays in the past 12 months and were entitled to receive payment for the public holiday or a substituted day’s leave; and
c. the Second Respondent’s payroll provider processed the adjustment on 15 January 2021 and was due to be paid in the period ending 29 January 2021.
- By email from the Applicant to the Second Respondent (through Ms Ackland) dated 25 January 2021, the Applicant asserted that, inter alia, it would be surprised if the number was only 13.
- On 9 April 2021, the Applicant filed applications B/2021/27, B/2021/28, B/202/29, B/2021/30, B/2021/31, B/2021/32 and B/2021/33 (the Applications).[9]
- By email from the Second Respondent (through Ms Tracy O'Bryan, Deputy Director-General (Corporate Division), Department of Transport and Main Roads), to the Applicant dated 9 April 2021, the Second Respondent advised, inter alia, that:
a. 13 Transport Inspectors had been identified for payment for the Boxing Day public holiday and had been paid by 29 January 2021;
b. the Applications were the first notice the Second Respondent had received that the Transport Inspectors had not been paid for the Boxing Day public holiday;
c. the Second Respondent had instructed its payroll service provider to undertake an urgent review and advise whether the Transport Inspectors and any other Transport Inspectors had been incorrectly paid for the Boxing Day public holiday; and
d. Second Respondent anticipated the review would be completed by 14 April 2021.
- By email from the Applicant (through Ken McKay) to the Second Respondent (through Ms O'Bryan) the Applicant asserted that, inter alia, given the incorrect advice was circulated statewide, implemented statewide and not rescinded as the Applicant had requested on three occasions, the Applicant is disappointed in the efforts by the Second Respondent to ensure employees are paid their legal entitlements, and believes there are systemic issues within the Second Respondent that require urgent attention and rectification.
- By letter from the Second Respondent (through Ms O'Bryan) to the Applicant dated 21 April 2021, the Second Respondent advised that, inter alia, 23 Transport Inspectors had been paid, the Second Respondent was working with its payroll service provider to identify who was yet to be paid for the Boxing Day public holiday, and work was being undertaken as a high priority to notify the impacted employees and arrange for payment.
- By email from the Second Respondent (through Steven Beck, A/General Manager (Customer Services Branch, Department of Transport and Main Roads) to all Transport Inspectors dated 27 April 2021, the Second Respondent confirmed that Transport Inspectors are entitled to payment for the Boxing Day public holiday or a substituted day’s leave and were asked to nominate their choice of payment for the public holiday at ordinary rates, or one substituted day’s leave, by 14 May 2021.
The Transport Inspectors nominated their choices and were paid
- On or before 5 May 2021, Mr Wicks (named in B/2021/27) advised the Second Respondent, by telephone, of his election to be paid for the Boxing Day public holiday, which the Second Respondent paid to Mr Wicks on 2 June 2021.
- On 28 April 2021, Mr Philbey (named in B/2021/28) advised the Second Respondent, by email, of his election to be paid for the Boxing Day public holiday, which the Second Respondent paid to Mr Philbey on 2 June 2021.
- On 29 April 2021, Mr Blackshaw (named in B/2021/29) advised the Second Respondent, by telephone, of his election to be paid for the Boxing Day public holiday, which the Second Respondent paid to Mr Blackshaw on 2 June 2021.
- On 29 April 20201, Mr Loughlin (named in B/2021/30) advised the Second Respondent, by telephone, of his election to be paid for the Boxing Day public holiday, which the Second Respondent paid to Mr Loughlin on 2 June 2021.
- On 29 April 2021, Mr Greensbury (named in B/2021/31) advised the Second Respondent, by telephone, of his election to be paid for the Boxing Day public holiday, which the Second Respondent paid to Mr Greensbury on 2 June 2021.
- On 29 April 2021, Mr Murphy (named in B/2021/32) advised the Second Respondent, by telephone, of his election to be paid for the Boxing Day public holiday, which the Second Respondent paid to Mr Murphy on 2 June 2021.
- On 29 April 2021, Mr Hiltjes (named in B/2021/33) advised the Second Respondent, by telephone, of his election to be paid for the Boxing Day public holiday, which the Second Respondent paid to Mr Hiltjes on 2 June 2021
- [8]In summary:
- A dispute arose between the Union and the Department as to the entitlement of the Transport Inspectors to a day’s pay or day off due to the Boxing Day holiday.
- The Union claimed the entitlement for their members.
- The Department asserted that there was no entitlement.
- The dispute was as to the proper construction of the Award.
- The Department then rightly conceded that the Union’s position was the correct one.
- On 2 June 2021, all seven Transport Inspectors elected to be paid a day’s pay in satisfaction of their entitlement.
- They were paid.
Statutory Provisions and critical provisions of the Award
- [9]Public holidays are provided for in Division 10 of the Queensland Employment Standards (QES). Section 116 of the IR Act provides that an employee is entitled to be absent from employment on a day that is a public holiday. Section 117 provides for payment for public holidays. Clauses 23.1 to 23.5 of the Award supplement the QES.
- [10]Clause 23.1 of the Award provides that an employee (other than a casual employee) who would normally work on a day on which a public holiday falls and who is not required to work on that day, shall be paid for the ordinary hours the employee would normally have worked if that day had not been a public holiday.
- [11]Clause 23.4 of the Award further provides relevantly
23.4 Employees who do not ordinarily work Monday to Friday of each week
- (a)An employee (other than a casual employee) who does not ordinarily work Monday to Friday of each week is entitled to either payment for each public holiday or a substituted day’s leave.
- (b)Where a public holiday would have fallen on a Saturday or a Sunday (e. Australia Day) but is substituted for another day, an employee (other than a casual employee) who would ordinarily have worked on such Saturday or Sunday but who is not rostered to work on such day is entitled to payment for the public holiday or a substituted day’s leave.
- (c)Where Christmas Day falls on a Saturday or a Sunday and the public holiday is observed on another day, an employee required to work on Christmas Day (i. 25 December) is to be paid at the rate of double time.
…
- (e)Nothing in clause 23.4 confers a right to any employee to payment for a public holiday as well as a substituted day in lieu.
Abandonment of the case against the First Respondent
- [12]The claim against Mr Scales was made on two alternative bases:
- that, as Chief Executive Officer of the Department, he was the employer and contravened the Award; alternatively
- Mr Scales was liable as a party to the contravention of the Award by the State as employer.[10]
- [13]The hearing before the Full Bench commenced on 10 February 2022. Mr Scales gave evidence and was thoroughly cross-examined by Mr McKay on behalf of the Union.
- [14]It became evident during the evidence and cross-examination of Mr Scales that the Union’s prospects of establishing either primary, or accessorial liability against him were all but nil.
- [15]The Union took the sensible view that it should abandon its claim against Mr Scales and it did so. Formal orders were made on 22 April 2022 removing Mr Scales from all seven applications.[11]
- [16]The case was the first where pecuniary penalties had been sought against a Director-General of a department alleging breach or complicity in a breach of an Award. Compliance with industrial instruments is in the public interest. The resort to the accessorial provisions of the IR Act by the Union to enforce the Award was obviously an attempt to test the effectiveness of those provisions. However, when it became clear that the claim would fail, the claim was sensibly abandoned. In those circumstances, it was appropriate for Mr Scales not to seek costs. He didn’t.
The case against the Second Respondent
- [17]As already observed, the Applications concern five separately named Transport Inspectors who, it was correctly claimed, were each entitled to a day’s leave under clause 23.4 of the Award or payment for the Boxing Day public holiday on 26 December 2020. Critically, it was alleged that the payment was required to be paid within the pay cycle corresponding to the entitlement becoming due pursuant to clause 12.3(g) of the Award.
- [18]Clause 23(g) of the Award provides as follows:
- (g)Payment of salaries
Salaries shall be paid fortnightly and may at the discretion of a chief executive be paid by electronic funds transfer.
- [19]Various documents were prepared by the parties pursuant to various directions. One of those documents was the Statement of Disputed Matters. That became Exhibit 7 at the hearing. In that document, the principal liability of the Department was expressed in the following terms:
- In the alternative to Allegation 1, the Applicant alleges in each application that the Second Respondent is liable for civil penalties under s 151 of the IR Act because it allegedly contravened clause 12.3(g) of the Modern Award, within the pay cycle corresponding to the entitlement becoming due pursuant to clause 12.3(g) of the Modern Award.
- The parties are in dispute about principal liability of the Second Respondent based on the operation of the Modern Award and whether, as a matter of construction:
- (a)clause 12.3(g) of the Modern Award applies to the payment of entitlements accrued pursuant to 23.4 of the Modern Award; and if so,
- (b)whether the Second Respondent is liable under section 151 of the IR Act for a contravention of clause 12.3 (g) of the Modern Award. (emphasis added)
- [20]“Allegation 1” (referred to in paragraph 5 of the Statement of Disputed Matters) explores the alleged basis of liability of the First Respondent. It provides:
- The Applicant alleges in each application that the First Respondent is liable for civil penalties under s 151 of the Industrial Relations Act 2016 (IR Act) because he allegedly contravened clause 12.3(g) of the Modern Award, in not paying entitlements pursuant to clause 23.4 of the Modern Award, within the pay cycle corresponding to the entitlement becoming due pursuant to clause 12.3(g) of the Modern Award. (emphasis added)
- [21]The primary case against each of the Department and Mr Scales can be seen to be based upon a contravention of clause 12.3(g). The case was that the entitlement was not paid within the fortnightly pay cycle. The alternative case against Mr Scales was that he was accessorially liable for the Department’s breach; a failure to pay within the fortnightly pay cycle.
- [22]The Amended Applications were litigated before the Full Bench on the basis that the issue of liability was limited to whether there was an obligation, by force of clause 12.3(g) of the Award to pay the entitlement within the 14 day pay cycle. If there was no such requirement, the applications failed.
- [23]As will become apparent, clause 23(g) applies to “salaries” not payment made in lieu of a public holiday.
- [24]To counter that problem with its case, the Union attempted to advance an argument in its final written submissions which did not form part of the Amended Application or the Statement of Disputed Matters. The Union submitted that the normal process was for employees to be invited to make an election as to whether to receive a day off or pay in lieu. However, on 26 December 2020, the advice circulated by the Department was that there was no entitlement for either payment for the public holiday or a substituted day's leave. Therefore, employees were denied the ability to make an election. There was an evidentiary basis to make that submission.
- [25]This contention was not advanced before the Full Bench during the hearing of the evidence. It was raised as an argument for the first time in the Union’s written submissions filed on 15 February 2022. The question is whether the Union should be permitted to rely on this new case.
- [26]The Union submits that the Commission is vested with the power to deal with the new case notwithstanding that it did not form part of the original claim. To support that submission, the Union relies on s 451 of the IR Act, and the Commission's general powers, to argue that the Commission may make a decision it considers appropriate, irrespective of the relief sought by a party. Section 451 of the IR Act relevantly provides:
451 General powers
- (1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
- (2)Without limiting subsection (1), the commission in proceedings may—
- (a)give directions about the hearing of a matter; or
- (b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
- (c)make an order it considers appropriate.
- [27]It is unnecessary to explore the limits of s 451. There is clearly power to allow the new case to be advanced. The issue is whether, in exercise of discretion, the Full Bench should entertain the new case. In Carlton v Blackwood,[12] Martin J was called upon to consider ‘the boundaries of the application'. Whilst the proceedings were brought under the Workers Compensation and Rehabilitation Act 2003, the reasoning of his Honour provides a useful guide for the proper conduct of litigation before the Commission. Martin J wrote:
An appellant’s case has to be known before the hearing starts. The Commission cannot allow a case to “evolve” and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.[13]
- [28]
[13] A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party’s case and, if an admission is made, to rely on that admission.
[14] Section 531 requires that the Commission be:
‘… guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—
- (a)the persons immediately concerned; and
- (b)the community as a whole.’
[15] It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.
- [29]Whether the Full Bench should allow the new case to be advanced calls for the consideration of fairness and justice.[15]
- [30]The new case was raised late, after all the evidence had been heard.
- [31]Further, the present Applications seek pecuniary penalties which involve a positive finding of wrongdoing to a standard justifying the implication of a penalty. The seriousness of such an allegation counts very strongly against an exercise of discretion in favour of the Union.
- [32]The Applications should be decided on the basis of the case alleged in the Applications and the Statement of Disputed Matters. We will not consider the new case.
- [33]The only case before the Full Bench is whether the entitlement to payment for the Boxing Day public holiday on 26 December 2020 or a substituted day’s leave under clause 23.4 of the Award must be paid within the pay cycle corresponding to the entitlement becoming due pursuant to clause 12.3(g) of the Award.
- [34]The entitlement to such payment or substituted day’s leave for 26 December 2020 is said to arise because the Transport Inspectors were employees who do not ordinarily work Monday to Friday of each week in accordance with clause 23.4(a) of the Award.
- [35]It is not in dispute that the inspectors did not ordinarily work Monday to Friday of each week such that they fell within clause 23.4 of the Award and were entitled to either payment for the public holiday on 26 December 2020 or a substituted day's leave.
- [36]The Department contends that any entitlement said to arise under clause 23.4 is not payable pursuant to clause 12.3(g) of the Award because it does not fall within the ambit of “salary” and thus there has not been a relevant breach of clause 12.3(g).
- [37]Clause 12 of the Award prescribes the minimum salaries payable to employees under the Award, including the named Transport Inspectors who are employed within the administrative stream 3. Clause 12.3 sets out the minimum salary levels for those employees within the administrative, professional, operational, technical nursing and Safe Food Queensland streams at various levels. Clause 12.3(g) provides that such salaries are to be paid fortnightly.
- [38]The term "salary" is not defined under the Award or the IR Act, but it is included within the definition of wages in the IR Act as follows:
wages means
- (a)an amount payable to an employee for
- (i)work performed, or to be performed, by the employee; or
- (ii)a public holiday; or
- (iii)leave the employee is entitled to; or
- (iv)termination of employment; or
- (b)a salary; or
- (c)an amount payable from wages for the employee, with the employee’s written consent.
- [39]The Award must be read as a whole, and the actual words within clause 12.3(g) must be construed in context, having regard to the clause’s intended purpose.[16]
- [40]The Award does not define what is meant by “salary”. The IR Act defines the term “wages” to include a salary, but a distinction is made within the definition of “wages” between a salary and an amount payable to an employee for a public holiday. The Department submits that “wages” and “salary” are not the same thing for the purposes of the IR Act, and the Award made thereunder.
- [41]The Second Respondent further develops their argument by reference to the fact that clause 12.3(g) is contained within a clause that deals with minimum salaries payable to certain classes of employees covered by the Award and the payment for public holidays is treated separately within a different clause of the Award.
- [42]Furthermore, it is contended that an interpretation that payment for public holidays under clause 23.4 of the Award should be treated the same way as salaries under clause 12.3(g), ignores and is inconsistent with the practical issues that arise under clause 23.4 whereby the employee has an election to either receive payment or have a substituted day’s leave. If that election is not made within the pay cycle, then is the Department in breach?
- [43]It is unnecessary to decide whether, by clause 23.4 an election vests in the employee as to whether to accept pay or time off for a public holiday. Some decision on that issue must be made and there is nothing to suggest that it must be made, and payment made within the pay cycle.
- [44]The payment pursuant to clause 23.4 is, by its nature, one that will not, like “salary” arise periodically. It will only arise once a public holiday occurs, clause 23.4 is engaged and it is determined (whether by the employee’s election or otherwise) that a day’s pay is to be paid.[17]
- [45]In our view, the obvious purpose behind clause 12.3(g) is to set a pay cycle for payments, such as salary, which is traditionally paid periodically.
- [46]Any payment due under clause 23.4 of the Award is, by definition “wages”, but it is not “salary” and is not required to be paid within the fortnightly pay cycle prescribed by clause 12.3(g).
- [47]It follows that the Union has failed to prove a breach of the Award and the applications should be dismissed.
- [48]The Department does not seek costs. Given the important and somewhat difficult issues raised by the Applications, that is a proper attitude.
Order
1. Application dismissed.
Footnotes
[1] Industrial Relations Act 2016, Chapter 11, Part 8.
[2] B/2021/27 and B/2021/32.
[3] B/2021/28, B/2021/29, B/2021/30, B/2021/31 and B/2021/33; Together Queensland Industrial Union of Employees v Scales & Anor (No 4) [2022] QIRC 026.
[4] Together Queensland, Industrial Union of Employees.
[5] Mr Scales.
[6] The State of Queensland; effectively the Department of Transport and Main Roads.
[7] These are all seven applications.
[8] There is no controversy over the quantum of salaries and no need to replicate the table.
[9] These are all seven applications.
[10] Industrial Relations Act 2016, s 571(3).
[11] TR 3-3, L 36.
[12] [2017] ICQ 1.
[13] Ibid [18].
[14] [2019] ICQ 14
[15] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
[16] These are the rules of statutory interpretation. SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] and [35]-[40], R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106 at [31]-[37] and as observed in Byrnes v Kendle (2011) 243 CLR 253 these principles apply to the contentions of all legal documents; see [95]-[116].
[17] As previously observed, this needn’t be described.