Together Queensland Industrial Union of Employees v Scales (No 4)
[2022] QIRC 26
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Together Queensland Industrial Union of Employees v Scales (No 4)[2022] QIRC 26
- Add to List
Together Queensland Industrial Union of Employees v Scales (No 4)[2022] QIRC 26
Together Queensland Industrial Union of Employees v Scales (No 4)[2022] QIRC 26
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Together Queensland Industrial Union of Employees v Scales & Anor (No 4) [2022] QIRC 026 |
PARTIES: | TOGETHER QUEENSLAND INDUSTRIAL UNION OF EMPLOYEES (applicant) v NEIL SCALES (first respondent) STATE OF QUEENSLAND (DEPARTMENT OF TRANSPORT AND MAIN ROADS) (second respondent) |
FILE NO/S: | B/2021/27, B/2021/28, B/2021/29, B/2021/30, B/2021/31, B/2021/32, B/2021/33 |
PROCEEDING: | Applications |
ORDERS MADE: | 2 February 2022 |
REASONS DELIVERED: | 3 February 2022 |
HEARING DATE: | 2 February 2022 |
MEMBER: | Davis J, President, O'Connor VP, Power IC |
ORDER/S: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – INTERLOCUTORY APPLICATION – where the applicant seeks further disclosure, or in the alternative, to adjourn two of the seven matters before the Commission – where the applicant has legitimate concerns about disclosure given an admission has been withdrawn – where orders must be fashioned to do justice to the parties |
CASES: | Together Queensland Industrial Union of Employees v Scales & Anor (No 3) [2022] QIRC 024 |
APPEARANCES: | K McKay, Together Queensland, Industrial Union of Employees, for the applicant C Murdoch QC, instructed by Crown Law, for the respondents |
Reasons for Decision
- [1]This is an interlocutory application. The principal applications seek pecuniary penalty orders against the respondents. Those orders are sought based upon alleged breaches of a modern award under which the members of the applicant union work. The principal applications are to be heard by the Full Bench on 10 and 11 February 2022.
- [2]The applicant union brings the application seeking orders in the alternative.
- [3]Primarily, the applicant seeks:
- That the First respondent serve on the applicant and file in the Industrial Registry the briefing note referred to in Mr Scales's outline of evidence in paragraph 4(c) by 4.00pm on 4 February 2022.
- That the second respondent serve on the applicant and file in the Industrial Registry all documents including letters and emails sent from any officers of the Department of Transport and Main Roads and/or the Department of Transport to the Queensland Public Sector Union, from 1 August 2009 to 31 December 2011 in respect of the issue of entitlements due to Transport Inspectors as a consequence of a public holiday falling on a day off by 4.00pm on 4 February 2022.
- That the second respondent serve on the applicant and file in the Industrial Registry all memos from Dr Judith E Lloyd and any other officer to officers in the Department of Transport and Main Roads and/or the Department of Transport, from 1 August 2009 to 31 December 2011, in respect of the issue of entitlements due to Transport Inspectors as a consequence of a public holiday falling on a day off by 4.00pm on 4 February 2022.
- That the second respondent serve on the applicant and file in the Industrial Registry all documents relating to an audit in either 2011 or 2012, to rectify underpayments to Transport Inspectors employed in the Department of Transport and Main Roads and/or the Department of Transport for the incorrect payment of award entitlements for public holidays falling on Transport Inspector's days off, by 4.00pm on 4 February 2022.
- That the second respondent serve on the applicant and file in the Industrial Registry all documents including letters and emails received by any officers of the Department of Transport and Main Roads and/or the Department of Transport from the Queensland Public Sector Union from 1 August 2009 to 31 December 2011, in respect of the issue of entitlements due to Transport Inspectors as a consequence of a public holiday falling on a day off, by 4.00pm on 4 February 2022.
- That the second respondent serve on the applicant and file in the Industrial Registry all rosters of Transport Inspectors in the years 2015 and 2020 by 4.00pm on 4 February 2022.
- [4]In the alternative it seeks:
- That matters B/2021/27 and B/2021/32 be adjourned and be heard separately to B/2021/28,29,30,31 and 33.
- That the First respondent serve on the applicant and file in the Industrial Registry the briefing note referred to in Mr Scales's outline of evidence in paragraph 4(c) by 4.00pm on 4 February 2022.
- [5]On 2 February 2021 the Full Bench made the following orders:
- That matters B/2021/27 and B/2021/32 be heard separately to matters B/2021/28, B/2021/29, B/2021/30, B/2021/31 and B/2021/33.
- That matters B/2021/27 and B/2021/32 be adjourned to a date to be fixed being a date after the Full bench has delivered judgment in matters B/2021/28, B/2021/29, B/2021/30, B/2021/31 and B/2021/33.
- [6]These are the reasons for the making of those orders.
Background
- [7]Each of the seven principal applications concern individual workers employed by the State of Queensland – Department of Transport and Main Roads, as transport inspectors. Various directions were given to facilitate the preparation of those applications for hearing on 10 and 11 February 2022. The procedural history of the matter is recorded in Together Queensland Industrial Union and Employees v Scales & Anor (No 3).[1]
- [8]In compliance with directions, the parties filed an agreed statement of facts. In that agreed statement of facts the respondents admitted that all seven of the named transport inspectors were “employees who do not ordinarily work Monday to Friday each week”. Material was discovered by the respondents which may cast doubt on whether two of the transport inspectors, Jamie Wicks and Brian Murphy, were in fact “employees who do not ordinarily work Monday to Friday each week”.
- [9]The respondents made application to amend the agreed statement of facts in a way which effectively withdrew the admission concerning Mr Wicks and Mr Murphy (the amendment application). That application was heard on 28 January 2022 and orders were made, including that the agreed statement of facts be amended.[2]
- [10]In the course of the amendment application Mr Thomas, on behalf of the applicant union, submitted:
- (a)that the respondents should clearly articulate the legal ramifications of Messrs Wicks and Murphy not being employees “who do not ordinarily work Monday to Friday of each week”; and
- (b)it may be, consequent upon that articulation of the respondents’ case, or otherwise, that the applicant may not be able to ready its case in relation to Messrs Wicks and Murphy. One reason is that the applicant may need further disclosure; so
- (c)
- (a)
- [11]The Full Bench determined that orders ought to be made requiring the respondent to articulate its legal point but that any issue of an adjournment of the applications concerning Mr Wicks and Mr Murphy ought wait until the position is clearer. Orders were made accordingly.
- [12]The respondents’ articulation of its legal submission was filed and delivered on 31 January 2022 and that prompted the current application.
The current application
- [13]The applicant’s primary position is that the respondents ought make disclosure of a number of categories of documents. That ought to be done, the application submits, by 4 February 2022 with all matters remaining listed for hearing on 10 and 11 February 2022.
- [14]The alternative orders sought by the applicant is that a briefing note identified in other material be produced but that the applications concerning Mr Wicks and Mr Murphy be adjourned to be heard separately from the other applications. The briefing note has now been disclosed.
Consideration and determination
- [15]The respondents do not concede that the applicant is entitled to all the documents it seeks. However, we conclude that the applicant has legitimate concerns about disclosure given that the admission has now been withdrawn. It is not possible to determine all disclosure issues now.
- [16]There is in our view a real danger that the hearing for 10 and 11 February 2022 could be in peril if potentially complicated and extensive disclosure is attempted now. In particular:
- (a)there will have to be argument about what disclosure ought be made;
- (b)that will require an application on proper material and a hearing by the Full Bench this week or very early next week.
- (a)
- [17]Ideally, the parties should be concentrating on preparation for the principal hearing on 10 and 11 February 2022, not interlocutory skirmishes over disclosure of documents.
- [18]On balance it is best to order that the applications concerning Mr Wicks and Mr Murphy be heard separately and be adjourned until after the other applications have been determined. That will enable the parties to concentrate on the hearing on 10 and 11 February 2022 of the other five applications. It will also allow for proper preparation and consideration of the disclosure application. It may also be that once the first five applications are determined, the disclosure issues in relation to the applications concerning Mr Wicks and Mr Murphy will narrow or change.
- [19]For those reasons, the Full Bench made the orders it did.